Bangalore District Court
O.S./2120/2013 on 1 February, 2023
/ 1 / O.S.No.2120/2013
KABC010197602013
THE COURT OF XXXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-40), BANGALORE CITY.
Dated 1st day of February, 2023
PRESENT
YASHAWANT R TAWARE,
B.Sc., LL.B.,(Spl.),
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.2120/2013
Plaintiff :
Kalavathi R. @ Lakshmi, 40 Years,
D/o.Late Ramadas D.H., W/o.Lakshmi
Narayana, Door No.1386, 6th Cross, 9th
Main Road, Shrinivasa Nagar,
Bengaluru - 560 050.
[By Sri.Harish A.S/Sri.Sampat Anand
Shetty, Advocates]
/ VERSUS /
Defendants :
1. The Bengaluru Development Authority,
represented by Assistant Commissioner,
Department of Re-Convey and Re-
/ 2 / O.S.No.2120/2013
Allotment, T.Chowdaiah Road, Kumara
Park West, Bengaluru - 560 020.
2. The Bangalore Development Authority,
represented by its Commissioner,
T.Chowdaiah Road, Kumara Park West,
Bengaluru - 560 020.
3. N.D.Mukunda, 39 Years, S/o.N.Devaraj
Guptha, R/o.No.564, 1st Main, BSK 1st
Stage, Nagendra Block, Bengaluru - 50.
4. N.D.Umashankar, 37 Years, S/o. N. Devaraj
Guptha, R/o.No.564, 1st Main, BSK 1st
Stage, Nagendra Block, Bengaluru - 50.
[Sri.K.K.Surendra, Advocate for D.No.1, & 2
Sri.V.B.Shivakumar, Advocate for D.No.3 & 4]
Date of Institution of the
: 16.03.2013
suit
Suit for declaration and
Nature of suit : permanent injunction
Date of commencement of
evidence : 26.10.2016
Date on which the
judgment is pronounced : 01.02.2023
Duration taken for Years Months Days
disposal : 09 10 13
JUDGMENT
The plaintiff has filed this suit seeking the following reliefs:
/ 3 / O.S.No.2120/2013
(a) for the grant of declaratory decree declaring that the Sale Deed dated 28.7.2000 executed by the defendant No.1 and 2 in favour of defendant No.3 and 4 is without the authority of law, power and jurisdiction and contrary to the provisions contained under Bangalore Development Authority Act, 1976 as amended, as such not binding on the plaintiff in so far as it relates to the plaint schedule property .
(b) for a decree of mandatory injunction against the the defendant No.3 and 4 directing them to restore the plaint schedule property to its original position by removing all the constructions put up by them in the plaint schedule property.
(c) for the consequential relief of perpetual injunction restraining the defendant No.3 and 4 or any person claiming through said defendant No.3 and 4 from proceeding with illegal construction activity in the schedule property or in any way alienating the plaint schedule property or creating mortgage, charge or any interest in favour of third party on the basis of the Sale Deed dated 28.7.2000.
/ 4 / O.S.No.2120/2013
2. The plaint averments in brief are that :
The instant suit is filed by the plaintiff in furtherance of the disposal of Writ Petition No. 39514/2010 (BDA) filed by her on the file of the Hon'ble High Court of Karnataka, where she has sought for a writ in the nature of declaration that the defendant No.1 herein has no power of authority to execute the Sale Deed dated 28.7.2000 styling itself as a re-conveyance/ re-allotment deed in favour of the defendant No.3 and 4 herein in respect of the Site bearing No.46/B in Muneshwara Block i.e., the schedule property herein. The plaintiff had filed a suit in O.S.No.3728/2010 seeking a relief of perpetual injunction against the defendant No.3 and 4 herein in respect of schedule property. In the said suit, plaintiff had relied upon a regd. Release Deed dated 16.10.2007 and claimed her title and possession over the schedule property. Plaintiff has mentioned about the filing of erstwhile suits viz., O.S.No.59032/1992 filed by her father and subsequent suit O.S.No. 3726/1996 on the file of this Court both in the aforesaid suit O.S.No.3728/2010 and also in Writ Petition No.39514/2010 (BDA). The defendant No.3 and 4 instead of / 5 / O.S.No.2120/2013 tracing their title with respect of the schedule property, came up with a new case in O.S.No.3728/2010 to the effect that they have acquired title over the schedule property by virtue of the sale deed executed by defendant No.1 and 2 in their favour on 28.7.2000. Under these circumstances, plaintiff was constrained to question the authority and jurisdiction of defendant No.1 and 2 to execute the sale deed in question in favour of defendant No.3 and 4 with respect to schedule property. Defendant No.1 and 2 have filed statement of objections and plaintiff has filed rejoinder to the said statement of objections in the above Writ Petition No.39514/2010. Though the nomenclature of the alleged Conveyance Deed dated 28.7.2000 executed by defendant No.1 and 2 in favour of defendant No.3 and 4 purportedly pertaining to the schedule property, the same is not in accordance with any of the statutory provisions contained under the Bangalore Development Authority Act, 1976 as amended. There is nothing on record to suggest that, any portion of the schedule property had been acquired by the defendant No.1 - authority either in the year 1982 or at any point of time. Admittedly, the defendant / 6 / O.S.No.2120/2013 No.1 has not produced any such document before the Hon'ble High Court of Karnataka to evidence the fact that it has acquired a landed property comprising in Sy.No.6/3 of Avalahalli Village or that the said authority formed a site bearing No.46/B in Muneshwara Block from out of the alleged acquired property. Therefore,, the defendant is put to strict proof of the said fact in furtherance of the observations made by the Hon'ble High Court of Karnataka vide its final order dated 4.12.2012 in Writ Petition No.39514/2010 in which admittedly the defendant No.1 and 2 herein were parties. No doubt, the Hon'ble High Court of Karnataka by its order dated 4.12.2012 in the above writ petition mentioned that the plaintiff herein is entitled to pursue the pending suit O.S.No.3728/2010 on the file of this Court. As on the date of disposal of said writ petition, the said O.S.No.3728/2010 was not pending and it was dismissed earlier for non- prosecution. The plaintiff is entitled and empowered to file and maintain the instant comprehensive suit seeking a relief of declaratory decree and consequential permanent injunction against the defendants in so far as it relates to the declaration / 7 / O.S.No.2120/2013 that the defendant No.1 and 2 have no authority in law to execute the sale deed in favour of defendant No.3 and 4 and the sale deed so executed is a nullity in the eye of law. The filing of the instant comprehensive suit will not in any way cause prejudice to the defence of any of the defendants in the instant suit in as much as the Hon'ble High Court was pleased to observe that the disputed question of facts between the parties in the said writ petition have to be adjudicated by the Civil Court, especially when the Hon'ble High Court has reserved liberty in favour of the plaintiff to seek other comprehensive relief and additional reliefs. When the cause of action of the present suit is totally different than the one instituted by the plaintiff in O.S.No.3728/2010 and that since the present suit has been filed seeking to challenge the very jurisdiction and authority of the defendant No.1 and 2 in the matter of executing Sale Deed dated 28.7.2000 in favour of defendant No.3 and 4, the plaintiff is entitled to file and maintain the instant fresh suit seeking comprehensive reliefs and that it was not obligatory on her part to amend the very same plaint on the basis of the liberty granted / 8 / O.S.No.2120/2013 by the Hon'ble High Court as stated above, especially when it so transpired that O.S.No.3728/2010 for bare injunction has not only been dismissed for non-prosecution, but also the relief of permanent injunction sought therein has become infructuous in view of the forcible construction activities being carried on by the defendant No.3 and 4 in the schedule property on the basis of assumed title conferred on them by the defendant authority. In that view of the matter, the plaintiff is entitled for a consequential relief of mandatory injunction in this suit for a direction against the defendant No.3 and 4 to restore the schedule property to its original position by demolishing the constructions put up therein. In view of the specific stand of the alleged predecessors-in-title of the defendant No.3 and 4 with respect to the schedule property, in the previous suits i.e., O.S.No.5032/1992 and O.S.No.3726/1996, the defendant No.3 and 4 are estopped from contending that the landed properties comprised in Sy.No.6/3 of Avalahalli Village which includes the schedule property in the present suit as well as previous suits were the subject matter of any acquisition proceedings by the / 9 / O.S.No.2120/2013 Bangalore Development Authority at any point of time. When the defendant No.3 and 4 claimed an absolute title over the schedule property through their alleged ancestors and in the absence of any acquisition proceedings of the said landed properties by B.D.A. under special statute, there is absolutely no scope or jurisdiction whatsoever for the defendants No.1 and 2 to execute the sale deed relating to the site alleged to have been carved out in Sy.No.6/3 of Avalahalli Village in favour of any person much less in favour of defendant No.3 and 4. The defendant No.1 and 2 in their statement of objections filed by them in the writ petition made a sweeping allegation that B.D.A. has re-conveyed the property in question in favour of defendant No.3 and 4 in accordance with the statutory rules, but have not produced an iota of document in support of such contention. Thus, it is for the defendant No.1 and 2 to prove before this Court that the sale deed executed by them in favour of defendant No.3 and 4 with respect to the schedule property is in compliance with the statutory provisions contained under the Bangalore Development Authority Act, 1976 and they re-conveyed the site / 10 / O.S.No.2120/2013 in accordance with Section 38 C of the said Act. The defendant No.3 and 4 without there being any iota of statutory compliance had sought for delivery of possession certificate and absolute sale deed pertaining to the schedule property from the defendant authority. It further appears from the said application of the defendant No.3 and 4 that the officer attached to the said authority called upon the defendant No.3 and 4 to bring the records in their possession and identify the site in question for the purpose of survey and measurement. In utter violation of the statutory provisions contained under Section 38 C of the Act, the defendant authority appeared to have issued a re- conveyance/re-allotment letter dated 5.7.2000 in favour of defendant No.3 and 4. As per the document, the said re- conveyance / re-allotment letter was purportedly based upon the resolution of the Board bearing No.651-657 dated 6.1.1979. however, the subject resolutions 651 to 657 do not in any way speak about re-allotment / re-conveyance of property in favour of defendant No.3 and 4. Therefore, to that extent the very document 'Re-allotment/re-conveyance' executed by the / 11 / O.S.No.2120/2013 defendant No.1 and 2 in favour of defendant No.3 and 4 is baseless besides being in utter violation of the applicable statutory provisions. The defendant No.3 and 4 without there being any legal or statutory right by their letter dated 21.3.1997 have called upon the defendant authority to deliver the possession certificate and khata certificate in their favour pertaining to Site No.6 and 6/3 of Avalahalli Village, purportedly as of right. Though the defendants 3 and 4 claimed to have acquired title over the schedule property by virtue of the alleged re-allotment/re-conveyance from the defendant authority, the request letter furnished by the defendant No.3 and 4 to the defendant authority along with supporting documents such as affidavits would confirm the fact that it is a mere request for allotment of site from the B.D.A. without complying with any of the statutory provisions regarding allotment of site or re- conveyance of property in accordance with the statutory rules framed under the Bangalore Development Authority Act, 1976, as amended. This fact is crystal clear from the affidavits sworn by the defendant No.3 and 4 before the B.D.A. The contents of / 12 / O.S.No.2120/2013 the said affidavits would speak for itself that the defendant No.3 and 4 have not complied under the Bangalore Development Authority Act, 1976 as amended, so as to entitled themselves to have the site in question allotted in their favour. It is contended that the defendant No.3 and 4 who approached the defendant authority and pointed out the site in question to the official of the B.D.A. and on the basis of that the site in question was allegedly identified in the presence of the alleged witnesses which fact is more fully evidenced in the mahazar report alleged to have been prepared by the Assistant Commissioner, B.D.A. on 23.5.2000. All the above mentioned documents have been produced by the plaintiff in the above Writ Petition No.39514/2010 for seeking the relief in her favour to the effect that the Sale Deed dated 28.7.2000 executed by the defendants authority in favour of defendant No.3 and 4 relating to the schedule property herein is without authority of law and consequentially, the plaintiff had sought for quashing of the said sale deed. In that view of the matter all the documents relied upon by the plaintiff in the instant suit are relevant for the / 13 / O.S.No.2120/2013 purpose of adjudication of the dispute involved in the suit vis-a- vis the declaratory decree sought for by the plaintiff in the instant suit, in furtherance of the disposal of the writ petition by the Hon'ble High Court of Karnataka vide order dated 4.12.2012. The documents relied upon by the plaintiff unequivocally demonstrate that defendant authority had absolutely no power or authority to execute the alleged Sale Deed (re-allotment / re- conveyance) dated 28.7.2000 in favour of defendant No.3 and 4, hence, it is liable to be declared as null and void. Consequentially the plaintiff is entitled to contend that the documents purportedly the statutory title deeds are not binding on the plaintiff and as such the plaintiff is entitled to continue to be in lawful possession of the schedule property on the basis of the title deeds i.e., the Rlease Deed relied upon by her in the earlier suit. Though the aforesaid sale deed came to be executed in favour of defendant No. 3 and 4 way back in the year 2000, the same will not by itself dis-entitle the plaintiff from seeking reliefs from the hands of this Court at this juncture, especially when the plaintiff was made aware of the said fact by the / 14 / O.S.No.2120/2013 defendant No.3 and 4 only in the year 2010 when they filed their written statement in O.S.No.3728/2010. Therefore, the plaintiff cannot be said to be guilty of delay of latches and acquiescence in the matter of challenging the said Sale Deed dated 28.7.2000 espectially when the plaintiff has been given liberty by the Hon'ble High Court to file the instant suit. Even otherwise when the plaintiff is not at all a party to the proceedings before the B.D.A. the plaintiff cannot be said to be aware of the fact of execution of the sale deed in question and as such the plaintiff cannot be guilty of any delay in approaching this Court. Further, when the very execution of sale deed in question is in utter contravention of the statutory provision of B.D.A., the same is not binding on the plaintiff as well who is otherwise interested in the property in question on the basis of title deeds in her possession with respect to the schedule property. Hence, the plaintiff is entitled for the declaratory decree as sought for in this suit, in furtherance of the liberty granted by the Hon'ble High Court in her faovur to assail the sale deed executed by the defendant authority in favour of defendant No. 3 and 4 in the / 15 / O.S.No.2120/2013 light of the prayer made by her in the writ petition. The plaintiff is entitled for a mandatory injunction against the defendant No.3 and 4 who have put up illegal and unauthorised constructions in the schedule property since July 2010 and they are liable to restore the schedule property to its original position in favour of plaintiff without claiming any compensation and entitled for the relief of permanent injunction as well. On these grounds, plaintiff prayed for decreeing the suit.
3. In response to the service of summons, the defendant No.1 and 2 have entered their appearance through Sri.K.K.Surendra, the learned counsel and filed their written statement in defence to this suit of the plaintiff. The defendant No.3 and 4 have entered their appearance through Sri.V.B.Shivakumar, the learned counsel and filed their written statement in defence to this suit of the plaintiff.
The defendant No.1 and 2 have denied in toto the entire material plaint averments in their written statement. The said defendants have taken up contentions that, the property bearing / 16 / O.S.No.2120/2013 No.6/3 measuring 0.37 guntas of Avalahalli Village, Bengaluru South taluk has been acquired by the defendants for the formation of Banashankari III Stage and in this regard, the Government of Karnataka has passed a preliminary notification No.Adm/A-10(S)3/63 dated 9.5.1968 published in the Mysore Gazette dated 13.6.1968 and final notification No.HM 106 MNJ 71 dated 28.10.1971 published in the Mysore Gazatte dated 25.11.1971 and deposited the compensation amount in LAC No.183 and 186 of 1972-73 with respect to Sy.No.6/3 measuring 0.37 guntas of Avalahalli Village, Bengaluru South taluk. In view of the acquisition of schedule property, the plaintiff has no manner of right, title or interest over the same and the suit filed by the plaintiff is liable to be dismissed. The plaintiff has produced false, frivolous and concocted photographs before the Court only to gain interim orders from this Court. In view of the aforesaid facts and circumstances of the suit, the land in question comes under B.D.A. notified and acquired lands. The name of the owners in the RTC at the time of acquisition of the properties have been mentioned in the Award order. The said / 17 / O.S.No.2120/2013 owners or legal heirs if any are at liberty to file appropriate application before the LAC cases with supportive documents to establish their right and get the compensation amount released. There is no cause of action to file the present suit. The plaintiff has no right to file civil suit against this defendant authority as per decision reported in AIR 1995 SC 1955 in the case of State of Bihar Vs. Dhirendra Kumar. On these and certain other grounds, the defendant No.1 and 2 have prayed for dismissing the suit of the plaintiff with exemplary costs.
4. The defendant No.3 and 4 have also denied the entire material plaint averments in their written statement. They contended that, the father of plaintiff by name Late D.H.Ramadas had filed two suits in O.S.No.5032/1992 for declaration and perpetual injunction against one Smt.Indiramma before the City Civil Judge, Bengaluru in which there is an injunction order. Another suit O.S.No.3726/1996 has also been filed against Indiramma for permanent injunction. After getting the order, the plaintiff filed MFA No.115/1997 in / 18 / O.S.No.2120/2013 which the Hon'ble High Court of Karnataka directed both the parties to maintain status-quo by its order dated 15.4.1997. Smt.Indiramma has filed written statement in O.S.No.3726/1996 stating that she has sold the property on 18.11.1995 in favour of the defendants herein and since then they are in possession of the same. Thus, the defendants' possession is open and exclusive in the manner hostile to all the parties from 18.11.1995 as the defendants have perfected their right, title, interest, ownership and possession also by adverse possession. O.S.No.5032/1992 came to be dismissed for non-prosecution as P.W.1 and his advocate in that case did not turn up for cross-examination. The connected viz., O.S.No.3726/1996 also came to be dismissed for non-prosecution on 30.9.2008. After purchase of the property on 18.11.1995, the defendants entered into an agreement of sale with Smt.M.L.Jayalakshmi and Sri.L.Nagaraj for sale of the schedule property. There was disturbance to the possession and enjoyment from D.H.Ramadas and S.K.Nagaraj to Smt.M.L.Jayalakshmi and L.Nagaraj, they filed a suit for permanent injunction in O.S.No.5895/1998 and obtained an / 19 / O.S.No.2120/2013 order of status-quo on 30.7.1998. However, M.L.Jayalakshmi and Nagaraj have contended in their affidavit that they came to know that the schedule property is a litigated property and since they have received the money they paid to these defendants, they have delivered the possession of the schedule property and the suit came to be dismissed. Smt. Indiramma contended that the property purchased by her and the property allegedly claimed by D.H.Ramadas, the father of plaintiff herein in O.S.No.5032/1992 are totally different and purchased from different vendors. In view of the said contention, the Court framed issue as to 'Whether the plaintiff has deliberately given false and incorrect schedule to the property and is attempting to deprive the defendants' in that suit. It is further contended that, D.H.Ramadas purchased the property along with Narasimhaiah and Boraiah through a regd. Sale Deed dated 26.10.1972 and thereafter he sold it to one Sri.V.Lingadas on 23.11.1987 and said V.Lingadas in turn sold it to D.H.Ramadas and Boraiah on 10.2.1989 and the schedule property reads as Sy.No.6/6-3, khatha No.6, bounded on the East by private house property, West by / 20 / O.S.No.2120/2013 Road, North by Nagamma's property and South by road, measuring East - West 38 feet, southern side 24 feet and North - South 56 feet as well as one square house. Smt. Indiramma purchased the property from Smt.Huchamma, wife of Late Andanappa and Sri.Gangadhara S/o. Late Andanappa under Sale Deed dated 19.11.1990 in which the schedule reads thus, "Sy.No.6 and 6/3, bounded on : East by Lakkanna's property, at present house of Thimmegowda, West by 25 feet road, North by Ramakka's property and South by road, measuring East - West 31 feet and North - South on the eastern side 56 feet and western side 52 feet along with one square tiled house". It is further contended that, pursuant to the re-delivery of possession from Smt.M.L.Jayalakshmi and L.Nagaraj, defendants herein made an application to the B.D.A. to reconvey the property purchased by Smt.Indiramma and in pursuance of this application, a sale deed (reconveying/reallotting) was executed on 28.7.2000. The documents - sale deed, possession certificate, khatha certificate, remittance challans issued by the BBMP evidence these facts. After dismissal of O.S.No.5032/1992 and O.S.No.3726/1996, on / 21 / O.S.No.2120/2013 14.4.2009 when the defendants were laying foundation, Smt.Dhanalakshmi D/o. D.H.Ramadas and her husband Ganganna trespassed into the property along with rowdy elements and tried to dispossess the defendants herein. They lodged a complaint to the jurisdictional police, who advised the defendants to approach the civil Court as the dispute is of civil in nature. The B.D.A. after issuing sale deed and khatha certificate, issued a new number viz., 46/B to the schedule property. The defendants herein filed O.S.No. 2854/2009. But, both the persons remained ex-parte. Hence, an ex-parte Judgment and Decree was passed in favour of the defendants therein. They started construction of building in the schedule property. They were surprised to receive notice in O.S.No.3728/2010 filed for permanent injunction restraining them from entering into the schedule property. They filed written statement along with documents. In O.S.No.3726/1996, Dhanalakshmi D/o.D.H. Ramadas adduced evidence and produced a release deed executed by Smt. Susheelamma, R.Dhanalakshmi (P.W.1) and Jaiprakash Narayan.R. in favour of Smt. Kalavathi @ Lakshmi / 22 / O.S.No.2120/2013 stated to have been executed on 16.10.2007. These defendants came to know of the fact after the receipt of the notice in O.S.No.3728/2010 in which the said documents were produced after dismissal of the cases in O.S.No.5032/1992 and O.S.No.3726/1996. After dismissal of the said two suits filed earlier, the plaintiff has filed writ petition No.39514/2010. The defendants prayed for dismissal of the suit for the following reasons :
(a) The suit is barred by the principles of res-judicata;
(b) Suit is barred under Order II Rule 2 of C.P.C.;
(c) Suit is barred by law of imitation;
(d) The suit is under valued.
(e) The property is purchased by these defendants and identified by the statutory authority;
(f) The plaintiff has no right to persuade any remedy sought for injunction ;
(g) The suit is liable to be dismissed as plaintiff has approached this Court after enormous delay.
The defendants No.3 and 4 have filed additional written statement contending that, the plaintiff has misled the Court in order to amend the description of the schedule property by / 23 / O.S.No.2120/2013 favouring himself to substitute the Site No.46/B in lieu of 64/B which has been wrongly shown and the same is sought for correction of the schedule. They pertinently mentioned that the property was a subject matter of writ petition No.39514/2010 (BDA) before Hon'ble High Court of Karnataka. The claim that was put forward was seeking a relief in respect of the property which is 64/B in Muneshwara Block, situated in 6/3 of Avalahalli, Banashankari 3rd Stage, Bengaluru, the entire case before the Hon'ble High Court of Karnataka pending from 2010 was in reference to the said property. By way of present amendment, the plaintiff has sought to alter the number of the property, alternation of the number of the property having not being done during the earlier proceedings that came to be filed by the plaintiff before the Hon'ble High Court and the representations subjected to the B.D.A. and new number is sought to be inserted as 46B instead of 64/B. Therefore, the alterations effects the earlier proceedings and since its effect the earlier proceedings the plaintiff is dis-entitle for any relief much less a relief of in the nature of a declaratory and other consequential relief. On these / 24 / O.S.No.2120/2013 grounds, the defendant No.3 and 4 have prayed for dismissing this suit with exemplary costs.
5. On the strength of respective pleadings and documents of the parties, my learned predecessor has framed the following issues :
(1) Whether the plaintiff proves that the Sale Deed dated 28.07.2000 executed by Defendants 1 and 2 in favour of the Defendants 3 and 4 is not binding on the plaintiff?
(2) Whether suit of the plaintiff is barred by limitation?
(3) Whether suit of the plaintiff is principles of resjudicata as contended by the Defendants 3 and 4 ?
(4) Whether the plaintiff is entitled for the relief as prayed for?
(5) What Order or Decree?
/ 25 / O.S.No.2120/2013
6. In order to prove the case, the plaintiff got examined herself as P.W.1 and relied upon in all seventeen documents marked at Exs.P.1 to P.17 and closed her side.
By way of rebuttal, the defendants No.3 and 4 have got examined defendant No.3 as D.W.1 and relied upon no documentary evidence. The defendants No.1 and 2 have not adduced any evidence either oral or documentary.
7. I have heard Sri.HarishA.S., the learned counsel for the plaintiff and Sri.K.K.Surendra, the learned counsel for the defendant No.1 and 2 and Sri.V.B.Shivakumar, the learned counsel for defendant No.3 and 4.
8. My findings to the above issues are as under:
ISSUE NO.1 & 4 : In the negative.
ISSUE NO.2 & 3 : In the affirmative.
ISSUE NO.5 : As per final order passed
below for the following:
/ 26 / O.S.No.2120/2013
REASONS
9. ISSUE NO.1 TO 4
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
The subject matter of this suit is a vacant site No.46/B in Muneshwara Block carved out in Sy.No.6/3 of Avalahalli, Banashankari III Stage Extension, Bengaluru measuring East - West 9.1 + 9.2/2 meters and North - South 15.6 + 16.8/2 meters, totally 148.23 Sq.Meters which is described as plaint schedule property herein. The plaintiff's father by name Late D.H.Ramdas is stated to be the owner and possessor of plaint schedule property having purchased the same under regd. Sale Deed dated 10.2.1989. After his demise, the said property devolved upon his widow, two daughters and a son. It is stated that the said widow by name Smt.Susheelamma, eldest daughter R.Dhanalaxmi and son Jayaprakash Narayan have relinquished their right, title and interest in or over the plaint schedule / 27 / O.S.No.2120/2013 property in favour of this plaintiff by executing a regd. Release Deed dated 16.10.2007, the original copy of which is produced on record as per Ex.P.5. On the basis of this regd. Release Deed dated 16.10.2007, the khata also changed in the name of plaintiff and she is stated to be paying its property tax regularly. One such tax receipt has been produced as per Ex.P.10. It is stated that, this plaintiff was in lawful possession of the plaint schedule property since then, but however, the defendant No.3 and 4 herein high handedly constructed their residential house in the plaint schedule property in the year 2010. The defendant No.3 and 4 claims to be the owners of revenue Site No.6 in Sy.No.6/3 of Avalahalli, Banashankar 3rd Stage, Bengaluru having purchased the same with one square Mangalore tiled roof measuring 31 x 56 + 52/2 feet under regd. Sale Deed dated 24.7.1996 from one Smt.Indiramma W/o.Adinarayana Shetty. The said defendant No.3 and 4 have applied to the B.D.A. (defendant No.1 and 2) for re-allotment of their said site stating that they are in occupation of the same by constructing a residential house. It is stated that the B.D.A. viz., defendant No.1 and 2 herein after completing all / 28 / O.S.No.2120/2013 the formalities re-allotted the Site No.46/B, Muneshwara Block, Banashankari 3rd Stage, Bengaluru which is the plaint schedule property herein. The said re-allotment letter was issued on 5.7.2000 and the registered Sale Deed styling as re-conveyance / re-allotment deed came to be executed on 28.7.2000 and Possession Certificate was issued on 24.8.2000. The certified copy of the said Possession Certificate has been produced on record as per Ex.P.8 and the certified copy of the regd. Sale Deed (Re-convey / re-allotment) has been produced as per Ex.P.12. The plaintiff claims that, she was not aware of this execution of the re-conveyance / re-allotment regd. Sale Deed dated 28.7.2000 in favour of defendant No.3 and 4 by defendant No.1 and 2 in respect of the plaint schedule property and she came to know about the said fact for the first time when the defendant No.1 and 2 have disclosed the said fact in their written statement in her suit filed in O.S.No.3721/2010. The plaintiff claims that, on coming to know about the execution of re-conveyance / re- allotment Sale Deed dated 28.7.2000, she approached the Hon'ble High Court of Karnataka, Bengaluru in Writ Petition / 29 / O.S.No.2120/2013 No.39514/2010 (BDA) seeking declaration that the B.D.A. has no power or authority to execute the said regd. Sale Deed dated 28.7.2000 styling itself as re-conveyance / re-allotment deed in favour of defendant No.3 and 4 herein in respect of the plaint schedule property and consequentially to issue a writ in the nature of certiorari to quash the said regd. Sale Deed dated 28.7.2000. The certified copy of the memorandum of the said writ petition has been produced on record as per Ex.P.2. The Hon'ble High Court of Karnataka has disposed of the said Writ Petition without prejudice to the right of the petitioner to approach the Civil Court to pursue any remedy available, by order dated 4.12.2012 with the following relevant observations :
"....... Whereas, it would be more appropriate for the petitioner to agitate the same in a civil suit and in view of the pending civil suit which may be adequately supplemented with the pleadings in so far as further contentions that are sought to be raised in this petition, apart from the pleadings in the civil suit, the present petition stands disposed of without prejudice to the case of / 30 / O.S.No.2120/2013 the petitioner and it may be open for the petitioner to supplement her pleadings in the pending civil suit and also seek other comprehensive reliefs. However, whether the petitioner could at this point of time, depending upon the stage at which the suit is pending, is entitled to amend her pleadings and seek additional reliefs would be a matter that the Civil Court would decide.
Accordingly, the present petition stands disposed of without prejudice to the rights of the petitioner who approach the Civil Court to pursue any remedy available."
The above observations have been made by the Hon'ble High Court of Karnataka as it was submitted that the plaintiff's suit in O.S.No.3728/2010 against the defendant No.3 and 4 herein in respect of the very same schedule property seeking the relief of permanent injunction is pending in the Civil Court. However, the plaintiff claims that, she filed the said earlier suit in O.S.No.3728/2010 against the the defendant No.3 and 4 only for the relief of permanent injunction and since the said defendant No.3 and 4 admittedly commenced the construction activities in / 31 / O.S.No.2120/2013 the year 2010 in the plaint schedule property in total ignorance of the said suit in O.S.No.3728/2010 and she having failed to secure any order of temporary injunction, did not pursue the said suit on merits and as such her said suit came to be dismissed for non-prosecution at the time of disposal of the aforesaid writ petition. The plaintiff further claims that since she was required to challenge the regd. Sale Deed dated 28.7.2000 in furtherance of the disposal of the Writ Petition before the Hon'ble High Court, she deemed it just and necessary to file a fresh suit against the B.D.A. as well as the defendant No.3 and 4 and accordingly, the present suit came to be filed on the file of this Court.
10. With this backdrop of factual matrix, the plaintiff has filed this present suit seeking the following reliefs :
(d) for the grant of declaratory decree declaring that the Sale Deed dated 28.7.2000 executed by the defendant No.1 and 2 in favour of defendant No.3 and 4 is without the authority of law, power and jurisdiction and contrary to the provisions contained under Bangalore Development / 32 / O.S.No.2120/2013 Authority Act, 1976 as amended as such not binding on the plaintiff in so far as it relates to the plaint schedule property .
(e) for a decree of mandatory injunction against the the defendant No.3 and 4 directing them to restore the plaint schedule property to its original position by removing all the constructions put up by them in the plaint schedule property.
(f) for the consequential relief of perpetual injunction restraining the defendant No.3 and 4 or any person claiming through said defendant No.3 and 4 from proceeding with illegal construction activity in the schedule property or in any way alienating the plaint schedule property or creating mortgage, charge or any interest in favour of third party on the basis of the Sale Deed dated 28.7.2000.
11. The first question that falls for my consideration is as to whether this suit of the plaintiff without seeking the relief of declaration of her title and possession of the plaint schedule property from defendant No.3 and 4 herein is maintainable, since it was argued on behalf of the defendants that the plaintiff has no locus standi to question the re-conveyance / re-allotment / 33 / O.S.No.2120/2013 Sale Deed dated 28.7.2000 executed in favour of defendant No.3 and 4 by the B.D.A. and when the plaintiff seeks the relief of declaration in relation to the said Sale Deed dated 28.7.2000 and for mandatory injunction to restore the plaint schedule property to its original position by removing all the constructions put up by defendant No.3 and 4 therein, incidentally she is required to prove her title to the plaint schedule property. On the other hand, the learned counsel for the plaintiff has vehemently argued that the plaintiff's title over the plaint schedule property on the basis of the registered Release Deed dated 16.10.2007 as per Ex.P.5 has not been disputed either in the written statement by any of the defendants or during the course of evidence and the defendant No.3 and 4 have categorically stated that they never intended much less bothered to challenge the said release deed at any point of time for the reason of the fact that they acquired a valid title over the plaint schedule property on the basis of re-conveyance / re-allotment Sale Deed dated 28.7.2000 as per Ex.P.12.
/ 34 / O.S.No.2120/2013
12. I have given my anxious consideration to the points urged by both the learned counsels during the course of advancing their arguments. It is a matter of record that, the plaintiff's father by name D.H.Ramadas had filed a suit in O.S.No.5032/1992 against one Smt.Indiramma W/o. Adinarayana Shetty who happened to be the vendor of defendant No.3 and 4 herein seeking declaration of his title and for consequential relief of permanent injunction in respect of the premises bearing Khaneshmari No.16, Khata No.6-6/3 of Avalahalli Village, Uttarahalli Hobli, Bengaluru South taluk measuring 38 feet in the North, 24 feet in the South and 56 feet North - South consisting a house of one square with cement sheet, which is now claimed to be the plaint schedule property. During the pendency of this suit, the said D.H.Ramadas had filed another suit in O.S.No.3726/1996 against the very same Smt.Indiramma for the grant of permanent injunction in relation to the very same property. These suits in O.S.No.5032/1992 and O.S.No.3726/1996 were clubbed together for recording common evidence and disposal. It is worth to note that both these suits have been / 35 / O.S.No.2120/2013 dismissed for non-prosecution by order dated 30.9.2008. The said D.H.Ramadas had not taken any steps for the restoration of the said two suits nor did he file fresh suit within the period of limitation seeking declaration of his title. It is a matter of record that Smt.Indiramma W/o. Adinarayana Shetty, the vendor of defendant No.3 and 4 herein had filed a suit in O.S.No.1356/1992 against the said D.H.Ramadas and others for the grant of permanent injunction. The said suit came to be decreed on 21.8.1995 granting permanent injunction restraining the said D.H.Ramadas and others from interfering with her peaceful possession and enjoyment of the schedule property therein which is plaint schedule property herein. This decree passed in O.S.No.1356/1992 dated 21.8.1995 has attained finality having not questioned by plaintiff's father Late D.H.Ramadas. It is a matter of record that, Smt.Indiramma had sold the schedule property (plaint schedule property) in favour of defendant No.3 and 4 herein by execution of the regd. Sale Deed dated 18.11.1995. Later on, the defendant No.3 and 4 herein have entered into an agreement to sell the schedule property in / 36 / O.S.No.2120/2013 favour of one Smt.M.L.Jayalaxmi and L.Nagaraj by execution of an Aagreement of Sale dated 5.4.1996 and have delivered possession of the said schedule property to them. As there was unlawful interferences in the peaceful possession and enjoyment of the schedule property from plaintiff's father D.H.Ramadas and others, the said Smt.M.L.Jayalaxmi and L.Nagaraj had filed a suit in O.S.No.5895/1998 against them for the grant of permanent injunction. During the pendency of the said suit, the plaintiffs therein came to know that the property agreed to be purchased by them is a litigated property and as such they received back the amount paid under the agreement dated 5.4.1996 from defendant No.3 and 4 herein and re-delivered the possession of the schedule property to the said defendant No.3 and 4 and as a result, the said suit came to be dismissed under Order XII Rule 6 C.P.C. on 8.8.2003. It is also a matter of record that, there was interference from the eldest daughter of D.H.Ramadas by name Smt. D.R.Dhanalaxmi and her husband Ganganna and as a result, the defendant No.3 and 4 herein had filed a suit against them in O.S. No.2854/2009 seeking the relief of permanent / 37 / O.S.No.2120/2013 injunction in relation to the plaint schedule property herein. In the said suit, the defendant No.3 and 4 herein who were plaintiffs therein had specifically pleaded that they applied for re-convey / re-allotment of the schedule property to the B.D.A. who after completing all the formalities and collecting the value of the site had executed a regd. Sale Deed dated 28.7.2000 in favour of them and also issued possession certificate and on the basis of the same, they got changed the khata in their names. The said suit in O.S.No.2854/2009 came to be decreed on 20.10.2009 restraining the defendants therein who were elder sister and sister's husband of plaintiff herein from interfering with peaceful possession of defendant No.3 and 4 in the plaint schedule property. It is very significant to note that, the plaintiff has suppressed all these material facts from the Court in the present case. All these materials disclosing the above facts were made available to this Court by the learned counsel for the defendants No.3 and 4 along with his written synopsis. The facts being stood thus, it cannot lie in the mouth of the plaintiff that her title to the plaint schedule property is unquestionable. It is / 38 / O.S.No.2120/2013 to note that a bare reading of the plaint averments itself indicate that, the statutory authority B.D.A. is claiming to have acquired the land out of which the plaint schedule property has been carved out and it has re-allotted or re-conveyed the plaint schedule property in favour of defendant No.3 and 4 by executing Sale Deed dated 28.7.2000. Thus, the plaint averments itself disclose that, the plaintiff's title over the plaint schedule property is doubtful and a cloud is casted on her such title. All along it is the contention of the plaintiff that, the B.D.A. has executed the registered Sale Deed dated 28.7.2000 styling itself as a re-conveyance / re-allotment deed in favour of defendant No.3 and 4 in respect of the plaint schedule property. If so, does it not mean that a cloud is casted upon the title of the plaintiff over the plaint schedule property ? Beside this, as rightly argued by the learned counsel for the defendants, the plaintiff's alleged title is a derivative title and the original title was stated to be with her late father D.H.Ramadas who was unsuccessful to get declared his such title to the schedule property and obtain the relief of permanent injunction in his suit filed in O.S.No.5032/1992 which / 39 / O.S.No.2120/2013 has been dismissed for non-prosecution. It is also noticed that the plaintiff's father D.H.Ramadas had suffered a decree for permanent injunction in relation to the very same property in O.S.No.1356/1992 passed on 21.8.1995 filed by the vendor of defendant No.3 and 4 herein by name Smt.Indiramma W/o.Adinarayana Shetty. It is also noticed that, the said Ramadas's suit filed in O.S.No.3726/1996 seeking the relief of permanent injunction in respect of the very same property also came to be dismissed for non-prosecution on 30.9.2008. Thus the facts elicited on record indicate that the plaintiff's father D.H.Ramadas was totally unsuccessful to establish his title over the plaint schedule property in the past litigation referred to supra during his lifetime. When the plaintiff's father himself was unsuccessful who claims to have possessed original title over the plaint schedule property, how is it possible for the plaintiff herein to acquire a valid title under the regd. Release Deed dated 16.10.2007 as per Ex.P.5, stands to no any reason. It may be true that, the defendants have not specifically denied the execution, consideration, legality and validity of the regd.
/ 40 / O.S.No.2120/2013 Release Deed dated 16.10.2007 as per Ex.P.5 any where in their written statement or in the course of trial. However, the plaintiff cannot take dis-advantage of such weakness of the defendants. The law is well settled that, the plaintiff must stand or fall on his own feet and he is not entitled to take undue advantage of weakness of the defendants. In the present case, the entire burden is on the plaintiff to prove her case set up in the plaint. Although it is contended that, the property claimed by the plaintiff and defendant No.3 and 4 are different properties, but however, D.W.1 who is defendant No.4 herein in the course of his cross-examination has categorically admitted that both properties are one and the same. If so, then it means that the plaintiff at one side and defendant No.3 and 4 at another side have put forth their claim over the one and the same property which is plaint schedule property herein under different title deeds. If so, the plaintiff cannot straight-way seek the relief of declaration in relation to the regd. Sale Deed dated 28.7.2000 executed by B.D.A. in favour of defendant No.3 and 4 and for mandatory injunction to restore the plaint schedule / 41 / O.S.No.2120/2013 property to its original position, without first establishing her title to the plaint schedule property. It is true that, no any issue is framed by this Court over this aspect of the matter. However, when the parties with their eye wide opened have understood the pleadings of each other and adduced the evidence, the non- framing of issue does not cause prejudice in any way to either of the parties. The plaintiff has sought for the relief of mandatory injunction to restore the plaint schedule property to its original condition by removing the constructions put up therein by defendant No.3 and 4 herein, as if her title to the plaint schedule property is not disputed or unquestionable. If the plaintiff's title is unquestionable, she can maintain a suit for mandatory injunction for restoration of the plaint schedule property to its original condition by removing all the constructions put up therein. However, a bare reading of the plaint averments itself indicate that the plaintiff's title to the plaint schedule property is not clear and there is a cloud casted upon her such title. The plaintiff claims to have derived the title of her father to the plaint schedule property under regd. Release Deed dated / 42 / O.S.No.2120/2013 16.10.2007 as per Ex.P.5. When the plaintiff's father Ramdas himself could not able to establish his title in the past litigation and suffered decree in various suits referred to supra, the plaintiff ought to have sought the relief of declaration of her title and consequential relief of possession of the schedule property from defendant No.3 and 4. Therefore, I am of the considered opinion that the relief of declaration and mandatory injunction sought for in the plaint by the plaintiff are in the nature of ancillary to the main relief of declaration of her title and recovery of possession which have not been sought for and as such this suit is not maintainable and liable to be dismissed.
13. The next question that falls for my consideration is as to whether the relief of declaration sought for by the plaintiff in this suit is barred by law of limitation. The plaintiff claims that she has filed this present suit in furtherance of liberty granted by the Hon'ble High Court of Karnataka in Writ Petition No.39514/2010 (BDA) by order dated 4.12.2012 by which the plaintiff has been given a right to approach the Civil Court to / 43 / O.S.No.2120/2013 pursue any remedy available without reserving the liberty in favour of the defendants on the question of limitation much less keeping open the said plea to be decided in the suit to be filed by the plaintiff. In my humble opinion, all such contention being submitted on behalf of the plaintiff are misleading and cannot be accepted. As can be seen from the relevant observations made by the Hon'ble High Court of Karnataka in the aforesaid writ petition which has been extracted supra, the liberty to the plaintiff herein was given to agitate her right in a pending civil suit with supplement of pleadings in so far as further contentions that are sought to be raised apart from the existing pleadings in the said suit and also to seek comprehensive reliefs. However, it is clearly observed therein that whether the plaintiff is entitled to amend her pleadings and seek additional reliefs in the pending civil suit would be a matter that the Civil Court would decide. This observations of the Hon'ble High Court gives a full-stop to the contention of the plaintiff that such liberty was given to the plaintiff without reserving liberty in favour of the defendants on the question of limitation much less keeping open / 44 / O.S.No.2120/2013 the said plea to be decided in the present suit. First of all, I am to say that the Hon'ble High Court had given liberty to the plaintiff to supplement her pleadings and seek comprehensive reliefs in the pending civil suit in O.S.No.3728/2010 pending on the file of this Court. However, it was submitted on behalf of the plaintiff that the said suit in O.S.No.3728/2010 was filed seeking the relief of permanent injunction only against the defendant No.3 and 4 and since the defendant No.3 and 4 commenced the construction activities in the year 2010 unmindful of pending civil suit and the plaintiff having failed to obtain any order of temporary injunction, did not pursue the said suit on merits and as a result, it was dismissed for non-prosecution. It is to note that the Hon'ble High Court has never granted liberty to the plaintiff to file afresh comprehensive suit seeking any remedy available. The liberty that was given was to supplement the pleadings, seek additional reliefs and agitate her rights in the pending civil suit keeping open all contentions to be decided by the Civil Court. If the said suit in O.S.No.3728/2010 was dismissed for non- prosecution, the plaintiff should have taken steps for its / 45 / O.S.No.2120/2013 restoration. After restoration of the said suit, the plaintiff should have supplemented the pleadings incorporating the additional contentions and reliefs in terms of the liberty given by the Hon'ble High Court of Karnataka. Therefore, the filing of the present suit cannot said to be in furtherance of liberty granted by the Hon'ble High Court of Karnataka in the above said writ petition. Therefore, the present suit is totally unwarranted and is an abuse of process of the Court. Since all the contentions are kept open for the consideration of this Court in the aforesaid writ petition, this Court is within its competency to decide as to whether the relief of declaration in terms as sought for in the present suit by the plaintiff, is barred by law of limitation. Undisputedly the B.D.A. viz., defendant No.1 and 2 has executed the said sale deed in favour of defendant No.3 and 4 in relation to the plaint schedule property on 28.7.2000. This suit challenging the said sale deed seeking declaration relief has been filed by the plaintiff on 16.3.2013. It therefore appears that the plaintiff has sought the relief of declaration in relation to the sale deed after lapse of twelve years and more from the date of / 46 / O.S.No.2120/2013 its execution. However, the plaintiff has pleaded and sought to establish that, she came to know about the execution of the said Sale Deed dated 28.7.2000 by the B.D.A. styling itself as a re- conveyance / re-allotment deed for the first time when the defendant No.3 and 4 had disclosed about the said fact in their written statement filed in O.S.No.3728/2010 which was filed on 30.6.2010. According to plaintiff, if the said date is to be reckoned, for the purpose of accrual to sue to obtain the relief of declaration, the present suit filed on 16.3.2013 is very much within the period of limitation of three years prescribed under Article 58 of the Limitation Act. It may be recalled here that, the defendant No.3 and 4 herein had filed a suit in O.S.No.2854/2009 before this very Court against one Smt.D.R.Dhanalaxmi and Sri.Ganganna seeking the relief of permanent injunction in relation to this very same plaint schedule property. In the said suit, the defendant No.3 and 4 herein who were plaintiffs therein had specifically pleaded that they applied for re-convey / re- allotment of the schedule property to the B.D.A. who after completing all the formalities and collecting the value of the site / 47 / O.S.No.2120/2013 had executed a regd. Sale Deed dated 28.7.2000 in favour of them and also issued possession certificate and on the basis of the same, they got changed the khata in their names. The said suit in O.S.No.2854/2009 came to be decreed on 20.10.2009 restraining the defendants therein who were elder sister and sister's husband of plaintiff herein from interfering with peaceful possession of defendant No.3 and 4 in the plaint schedule property. It is to note that, Smt. D.R.Dhanalaxmi is plaintiff's elder sister and Sri.Ganganna is plaintiff's said sister's husband. It is needless to say that, the said elder sister and sister's husband of plaintiff must have caused interference in the peaceful possession and enjoyment of the defendant No.3 and 4 in the plaint schedule property for and on behalf of plaintiff herein since as on the date of filing of the said suit, the regd. Release Deed dated 16.10.2007 as per Ex.P.5 has been already executed. In other words I am to say that at the time of filing of the said suit in O.S.No.2854/2009, the plaintiff was armed with the regd. Release Deed dated 16.10.2007 to claim the and as such her elder sister and sister's husband claiming through plaintiff / 48 / O.S.No.2120/2013 were causing interference in the possession of the defendant No.3 and 4 in the plaint schedule property. Undisputedly, the defendant No.3 and 4 had disclosed about the re-conveyance / re- allotment of the plaint schedule property by way of Sale Deed dated 28.7.2000 by B.D.A., in the said suit. If so, then it follows that, the plaintiff must be having knowledge of the same through her elder sister Dhanalaxmi and sister's husband Ganganna who were the defendants in the said suit in O.S.No.2854/2009. P.W.1 who is plaintiff herein in the course of her cross-examination in page No.17 has dishonestly pleaded ignorance of the fact that defendant No.3 and 4 had filed the aforesaid suit against the her elder sister and sister's husband Ganganna for permanent injunction. However, she has categorically stated that she is having good relation with her elder sister Dhanalaxmi and sister's husband Ganganna. If so, the plaintiff must be having knowledge of the execution of the Sale Deed dated 28.7.2000 by B.D.A. in favour of defendant No.3 and 4 during the pendency of the suit in O.S.No.2854/2009 itself. The said suit came to be decreed by its Judgment and Decree dated 20.10.2009. If the said / 49 / O.S.No.2120/2013 date is reckoned for the purpose of accrual of right to sue to obtain the relief of declaration sought for by the plaintiff in the present suit which was filed on 16.3.2013, it leaves no manner of doubt that this suit is beyond the period of limitation of three years prescribed under Article 58 of the Limitation Act which has expired on 21.10.2012. If so, then it automatically follows that this suit seeking the relief of declaration that the Sale Deed dated 28.7.2000 executed by the defendant No.1 and 2 in favour of defendant No.3 and 4 in relation to the plaint schedule property is barred under Article 58 of the Limitation Act, 1963.
14. Even for the moment it is presumed for the sake of arguments that the relief of declaration sought for by the plaintiff is within a period of limitation, whether the plaintiff is entitled to declare that the Sale Deed dated 28.7.2000 executed by the defendant No.1 and 2 in favour of defendant No.3 and 4 in relation to the plaint schedule property is without the authority of law and contrary to the provisions contained under the B.D.A. Act, 1976 as amended and is not binding on the plaintiff, is a / 50 / O.S.No.2120/2013 point to be taken into consideration. It is to note that, in the present suit, the B.D.A. viz., defendant No.1 and 2 have specifically pleaded in their written statement that the property bearing Sy.No.6/3 measuring 0.37 guntas of Avalahalli Village, Bengaluru South taluk has been acquired by them for the formation of Banashankari third stage and in this regard, the Government of Karnataka has passed a Preliminary Notification No.ADM/A-10(S)3/63 dated 9.5.1968 published in Mysore Gazette dated 13.6.1968 and Final Notification No.HM106MNJ71 dated 28.10.1971 published in the Mysore Gazette dated 25.11.1971 and that the defendant No.1 and 2 have deposited the compensation amount in LAC No.183 and 186/1972-73 in respect of Sy.No.6/3 measuring 37 guntas of Avalahalli Village, Bengaluru South taluk and therefore, the plaintiff has no manner of right, title and interest in or over the plaint schedule property in view of the acquisition of the same and as such this suit of the plaintiff is liable to be dismissed with exemplary costs. As against these contentions raised by the defendant No.1 and 2, the plaintiff has contended that absolutely no any iota of evidence has been / 51 / O.S.No.2120/2013 produced to substantiate such contentions by the defendant No.1 and 2 in this suit. At the cost of repetition, I am to say that the plaintiff should stand or fall on her own feet and she is not permitted to take undue advantage of weakness of defendants. As can be seen from the averments of the written statement of defendant No.1 and 2, the B.D.A. has given full particulars of acquisition of the land in Sy.No.6/3 measuring 37 guntas of Avalahalli Village for the formation of Banashankari III Stage. It has given the particular number of preliminary notification and final notification with particular date and also the date of publication of said notifications in the Mysore Gazette. Even it has given the LAC case number where the compensation has been deposited in respect of the acquisition of the land in Sy.No.6/3 measuring 37 guntas of Avalahalli Village. It has gone to the extent of stating that, the name of the owners in the RTC at the time of said acquisition proceedings were mentioned in the award and the said owners or legal heirs are at liberty to receive the compensation amount deposited in the LAC case. Having stated so giving full particulars of the acquisition of the land in / 52 / O.S.No.2120/2013 Sy.No.6/3 out of which the plaint schedule property has been carved out, is it not the bounden duty of the plaintiff to seek information from the BDA under the relevant Act regarding correctness of the acquisition of Sy.No.6/3 of Avalahalli Village and place it before the Court to contend that the land in Sy.No.6/3 out of which the plaint schedule property has been carved out, has been never acquired for the benefit of BDA at any point of time ? It is not out of place to mention here that, the plaintiff has obtained the documents marked at Exs.P.6 to P.8 from BDA under the Right to Information Act, 2005. If so, what prevented the plaintiff to seek information regarding preliminary and final notifications of acquisitions and award and also the details of the LAC case, the full particulars of which are given in the written statement of defendant No.1 and 2 to place all the cards on the table so as to arrive at a just decision in this case, stands to no any reason. It is no doubt true that the BDA viz. defendant No.1 and 2 has not adduced any evidence either oral or documentary in the present case. As a result, the counsel for defendant No.3 and 4 filed an application under Order XVI Rule 4 of C.P.C.
/ 53 / O.S.No.2120/2013 praying the Court to issue witness summons to the Assistant Commissioner, BDA, who is defendant No.2 herein to produce the relevant documents. The said application was seriously opposed by the learned counsel for the plaintiff by filing statement of objections and after hearing, the said application came to be rejected by order dated 22.12.2021. This conduct on the part of the plaintiff to oppose the application seeking witness summons to produce the relevant documents of acquisition proceedings by defendant No.2 itself speaks in volume that the plaintiff does not want to place all the cards on the table to arrive at a just decision in this case. It is to note that Order XVI Rule 14 of C.P.C., 1908 empowers this Court to examine any person including a party to the suit, not called as a witness by a party to the suit at any time to give evidence or to produce any document in his possession. If really the plaintiff was so honest in her contention that there was absolutely no acquisition proceedings taken place to acquire the land out of which the plaint schedule property is carved out, she should have forced the Court to exercise its power vested under this Rule 14 of / 54 / O.S.No.2120/2013 Order XVI C.P.C., 1908 to examine the BDA officers by means of appropriate application. it therefore clear that the plaintiff wanted to suppress the material facts as is done by her in suppressing the facts of past litigation in the present case. It is needless to say that the entire burden so as to entitled to the relief of declaration as sought for in the plaint is on the plaintiff. Therefore, merely because the statutory authority viz., B.D.A. has shown negligence in not adducing evidence in the present suit, the plaintiff cannot be permitted to take undue advantage of the said fact. Looked from this view of the matter, I am to hold that the plaintiff has failed to establish that the plaint schedule property was not the subject of acquisition and as such the B.D.A. has no authority or power and jurisdiction to execute the Sale Deed dated 28.7.2000 in favour of defendant No.1 and 2 in relation to plaint schedule property and the said sale deed is contrary to the provisions of B.D.A. Act, 1976 as amended and as such not binding on the plaintiff.
15. The next question that falls for my consideration is, whether this suit is hit by the principle of res-judicata as / 55 / O.S.No.2120/2013 enunciated under the provisions of Section 11 and also under the provisions of Order II Rule 2 of C.P.C., 1908. At the cost of repetition, I am to say that the suit in O.S.No.5032/1992 filed by the plaintiff's father D.H.Ramadas against Smt. Indiramma who is vendor of defendant No.3 and 4 seeking declaration of his title and for the consequential relief of injunction in relation to the schedule property described therein which is now claimed as plaint schedule property and also his another suit filed against the same defendant in O.S.No.3726/1996 seeking the relief of permanent injunction, have been dismissed for non-prosecution by Order dated 30.9.2008. Thereafter, the said D.H.Ramadas had neither taken steps for restoration of the said two suits nor he filed fresh suit for declaration of his title and injunction within limitation period in relation to his property acquired under regd. Sale Deed dated 10.2.1989 during his lifetime. We have also seen that, even the said D.H.Ramadas had suffered an injunction decree passed in O.S.No.1356/1992 dated 21.8.1995 filed against the him by Smt.Indiramma in relation to the plaint schedule property. The plaintiff has derived her title to the plaint / 56 / O.S.No.2120/2013 schedule property under regd. Release Deed dated 16.10.2007 from her father who himself could not able to prove his title during his lifetime. This plaintiff has stepped into the shoes of her father D.H.Ramadas. This plaintiff is not claiming the plaint schedule property in her own independent right, but she is claiming her right through her father under the regd. Release Deed dated 16.10.2007 to the plaint schedule property. Such being the case, when the plaintiff's father himself was unsuccessful to prove his title in the past litigation held in respect of the plaint schedule property, how can this plaintiff who claims to have derived her title through her father maintain this present suit ? stands to no any reason. Beside this, we have seen that the defendant No.3 and 4 herein had filed a suit in O.S. No.2854/2009 against plaintiff's elder sister Smt.D.R.Dhanalaxmi and sister's husband Sri.Ganganna seeking permanent injunction and the said suit came to be decreed on 20.10.2009. At the cost of repetition, I am to say that in the said suit in O.S.No.2854/2009, the plaintiffs therein who are defendant No.3 and 4 herein have specifically pleaded that the B.D.A. has / 57 / O.S.No.2120/2013 executed the Sale Deed dated 28.7.2000 in their favour in respect of the plaint schedule property. This plaintiff was holding Regd. Release Deed dated 16.10.2007 as per Ex.P.5 during the pendency of the said suit. Her sister and sister's husband were causing interference as an agent of the plaintiff to the defendant No.3 and 4 and that was the reason for filing of the said suit in O.S.No.2854/2009. It is very significant to note that, after decreeing the said suit in O.S.No.2854/2009 on 20.10.2009, this plaintiff again instituted another suit in O.S.No.3728/2010 against the defendant No.3 and 4 seeking the very same relief of permanent injunction in respect of the plaint schedule property. As the defendant No.3 and 4 had disclosed the execution of the Sale Deed dated 28.7.2000 in their favour by B.D.A. in their suit in O.S.No.2854/2009 filed against the plaintiff's sister and sister's husband, the plaintiff must have knowledge of the execution of the said Sale Deed dated 28.7.2000 during the year 2009 itself. Despite having knowledge, the said plaintiff had instituted the suit in O.S.No.3728/2010 against the defendant No.3 and 4 only for permanent injunction. She did not seek any relief with / 58 / O.S.No.2120/2013 regard to execution of the Sale Deed dated 28.7.2000 by the B.D.A. in favour of defendant No.3 and 4 in her said suit at O.S.No.3728/2010. The provisions of Rule 2 of Order II of C.P.C. mandates that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The plaintiff who is entitled to seek the relief with regard to the execution of the Sale Deed dated 28.7.2000 in her suit at O.S.No.3728/2010 omits to sue in respect of said relief and therefore she is not entitle to sue for the said relief in the present suit in view of the bar created under Rule 2 of Order II of C.P.C. Further, the provisions of Section 11 of C.P.C. debars the Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation - IV / 59 / O.S.No.2120/2013 to Section 11 C.P.C. provides that, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. As already noticed plaintiff's elder sister Smt.D.R.Dhanalaxmi and sister's husband Ganganna have suffered decree in O.S.No.2854/2009 for permanent injunction in the hands of defendant No.3 and 4 in relation to the plaint schedule property. The said plaintiff's sister and sister's husband were claiming their alleged rights of interference through this plaintiff and litigating under the same title in the said suit in O.S.No.2854/2009. However, the plaintiff's sister and sister's husband have not made the grounds of attack as are made in the present suit in the said former suit in O.S.No.2854/2009. Therefore, the various grounds of defence which might or ought to have been made ground of defence or attack in the former suit in O.S.No.2854/2009 having not made as grounds of defence, the plaintiff herein is debarred from raising the said grounds of defence in the present suit under the principle of constructive res-judicata under Section 11 of the / 60 / O.S.No.2120/2013 C.P.C., 1908. Therefore, this suit of the plaintiff is not maintainable and liable to be dismissed as barred under Rule 2 of Order II of C.P.C. and also by the principles of constructive res- judicata under Section 11 of the C.P.C., 1908. With these observations I shall conclude my discussions with following conclusions :
(a) The plaintiff has failed to prove that the Sale Deed dated 28.7.2000 executed by B.D.A. viz., defendant No.1 and 2 in favour of defendant No.3 and 4 in respect of the plaint schedule property is without authority of law, power and jurisdiction and contrary to the provisions contained under B.D.A. Act, 1976 and as such not binding on the plaintiff.
Accordingly, the Issue No.1 framed herein above is answered in the negative against the plaintiff.
(b) The relief of declaration sought for by the plaintiff is barred under Article 58 of the Limitation Act, 1963 and as such the suit is not maintainable and liable to be dismissed. Accordingly, the Issue No.2 framed herein above is answered in the affirmative in favour of the defendants.
/ 61 / O.S.No.2120/2013
(c) The present suit of the plaintiff is barred by the principle of constructive res-judicata under Section 11 of C.P.C. and also barred under the provisions of Rule 2 of Order II of C.P.C., 1908. Accordingly, the Issue No.3 framed herein above is answered in the affirmative in favour of defendants.
(d) In view of my findings given on material Issue Nos.1 to 3, answering Issue No.1 in the negative against the plaintiff and that of Issue Nos.2 and 3 in the affirmative in favour of defendants, it follows that the plaintiff is entitled to none of the reliefs sought for in this suit. Accordingly, the Issue No.4 framed herein above is answered in the negative against the plaintiff.
16. ISSUE NO.5 In view of my findings given on Issue No.1 to 4 and for the reasons discussed herein above paragraphs, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
/ 62 / O.S.No.2120/2013 Draw up decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 1st day of February, 2023.) (YASHAWANT R TAWARE) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff :
P.W.1 : Smt.Kalavathi R @ Lakshmi
2. The list of documents exhibited on behalf of plaintiff :
Ex.P1 C/c of Order passed in Writ Petition
No.39514/2010 (BDA) dated 4/12/2012 on the
file of Hon'ble High Court of Karnataka
Ex.P2 C/c of Memorandum of Writ Petition
No.39514/2010 (BDA) on the file of Hon'ble
High Court of Karnataka
Ex.P3 C/c of statement of objection filed on behalf of
respondent No.2 in Writ Petition
No.39514/2010 (BDA) on the file of Hon'ble
High Court of Karnataka
Ex.P4 C/c of rejoinder statement filed in Writ Petition
No.39514/2010(BDA) on the file of Hon'ble High Court of Karnataka Ex.P5 Original Release Deed dated 16/10/2007 Ex.P6 C/c of proceedings of inspection meeting of the BDA dated 6/1/1979 Ex.P7 C/c Mahazar dated 23/5/2000 / 63 / O.S.No.2120/2013 Ex.P.7(a) Signature of D.W.1 Ex.P8 C/c of re-allotment letter dated 24/8/2000 Ex.P9 Copy of the application filed U/s 6(1) of RTI Act dated 28/2/2019 Ex.P10 Tax paid receipt dated 8/7/2010 Ex.P11 Letter dated 19/3/2019 issued by the BDA Under RTI Act (along with documents) Ex.P.12 Sale Deed (reconvey/re-allotment) Deed dated 28.7.2000 obtained under RTI Act.
Ex.P.13 Thiluvalike patra Dated 10.6.1998
Ex.P.14 Re-conveyance/re-allotment letter dated
5.7.2000 issued in favour of defendants No.3 and 4 by B.D.A. Ex.P.15 Application dated 21.3.1997 given by the defendants No.3 and 4 to the Assistant Commissioner, B.D.A. Ex.P.16 Zerox copy of ULC Affidavit by defendants No.3 and 4 dated 21.7.1999 Ex.P.16(a) Signatures of D.W.1 & (b) Ex.P.17 Zerox copy of self-affidavit dated 19.7.1999 Ex.P.17(a) Signatures of D.W.1 & (b)
3. The list of witnesses examined on behalf of defendants :
D.W.1 : N.D.Mukunda
4. The list of documents exhibited on behalf of the defendants :
- NIL -
(YASHAWANT R TAWARE), XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
/ 64 / O.S.No.2120/2013
Judgment pronounced in the open Court (Vide
separate Judgment) :
ORDER
The suit of the plaintiff is hereby
dismissed with costs.
Draw up decree accordingly.
(YASHAWANT R TAWARE),
39th ACC&S Judge, Bangalore.