Karnataka High Court
P Saibaba vs Rangamma on 4 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.2397 OF 2008(DEC/INJ)
BETWEEN:
1. P. SAIBABA,
AGE: 64 YEARS,
PARTNER M/S. BHARGAVA
ASSOCIATES, 4TH CROSS,
ASHOKNAGAR,
TUMKURU.
2. G. RAMAKRISHNA,
AGE: 67 YEARS,
PARTNER M/S. BHARGAVA
ASSOCIATES, 4TH CROSS,
ASHOKNAGAR,
TUMKURU.
3. VENKATARAMAIAH,
S/O G. RAMAIAH,
AGE: 59 YEARS,
VENKATAMMANAHALLI,
PAVAGADA TALUK,
TUMKUR DISTRICT.
...APPELLANTS
(BY SRI. M.R. RAJAGOPAL, SR. COUNSELJ FOR
SRI. H.N. BASAVARAJU, ADVOCATE)
AND:
1. RANGAMMA,
AGED 85 YEARS,
W/O LATE DODDA BYRANNA@
PUTTAIAH, VENKATESHAPURA,
SIRA GATE, TUMKUR.
VIDE ORDER DTD:14.09.2016 R2(A) IS
TREATED AS LRS OF R1 CAUSE TITLE IS AMENDED
2
2. GANGARAJU S/O. LATE DODDA
BYRANNA @ PUTTAIAH,
AGED 55 YEARS, R/A. VENKATESHA PURA,
SIRA GATE, TUMKUR,
SINCE DEAD BY LRS
A) SMT. JAYAMMA,
W/O LATE GANGARAJU,
AGED ABOUT 60 YEARS,
B) SRI. MAHESH,
S/O LATE GANGARAJU,
AGED ABOUT 42 YEARS,
C) SRI. MUNIRAJU,
S/O LATE GANGARAJU,
AGED ABOUT 40 YEARS,
D) SMT. BHAGYALAKSHMI,
D/O LATE GANGARAJU,
AGED ABOUT 36 YEARS,
E) SMT. RADHA,
D/O LATE GANGARAJU,
AGED ABOUT 34 YEARS,
ALL ARE R/O VENKATESHAPURA,
SIRA GATE, TUMAKURU.
3. YASHODAMMA W/O LATE
NAGARAJU .M, AGED 45 YEARS,
CHIKKAVEERAIAHANA PALYA,
SIRA GATE, TUMKUR.
4. MAHADEVA DEAD BY HIS LRS
4(1) JANAKAMMA W/O LATE MAHADEVA,
AGED 60 YEARS, R/O. HOMBAIAHNA PALYA,
SIRA GATE, TUMKUR.
5. GANGADHARAIAH @ GANGANNA,
AGED 88 YEARS,
S/O LATE BYRANNA DEAD BY HIS LRS.
5(1) CHANDRAPPA S/O GANGADHARAIAH,
3
57 YEARS, R/O. LINGAPURA,
SIRA GATE, TUMKUR SINCE DEAD
BY HER LRS
A) SMT. LAKSHMAMMA,
W/O LATE CHANDRAPPA,
AGED ABOUT 54 YEARS,
B) SRI. SHANTHARAJU,
S/O LATE CHANDRAPPA,
AGED ABOUT 34 YEARS,
C) SRI. DHANANJAYA,
S/O LATE CHANDRAPPA,
AGED ABOUT 29 YEARS,
ALL ARE R/A LINGAPURA,
SIRA GATE, TUMKUR-572 106
6. THE COMMISSIONER,
CITY MUNICIPAL CORPORATION,
TUMKUR.
...RESPONDENTS
(BY SRI.R. JAGANNATH, ADVOCATE FOR
SMT. PARVATHY NAIR, ADVOCATE FOR R2(A-E)
AND R3 & R5(A TO C), SRI. SUBRAMANYA .R,
ADVOCATE FOR R6 V/O DTD: 14.09.2016,
R2(A) AS THE LR'S OF DECEASED R1 & R4(1))
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD: 30.10.2008 PASSED IN
R.A.1/2005 (OLD.NO.13/04), ON THE FILE OF THE
PRESIDING OFFICER, FTC.NO.V, TUMKUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD: 18.12.2004 PASSED IN O.S.139/2003 ON THE FILE OF
THE PRL.CIVIL JUDGE (SR. DIVN) AND C.J.M., TUMKUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.08.2023, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
4
JUDGMENT
The regular second appeal is filed under Section 100 of C.P.C. by the plaintiff challenging the judgment and decree passed in OS.No.139/2003 on the file of Principal Civil Judge (Sr.Dvn) & C.J.M., Tumkur, dated 18.12.2004 and confirmed by Fast Track Court No.V at Tumkur, in RA.No.1/2005 (old No.13/2004), vide judgment dated 30.10.2008.
2. For the sake of convenience, the parties are here in are referred with the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
The plaintiffs have filed a suit for declaration and injunction against the defendants to the effect that they are the owners of the suit schedule property and defendants be restrained from interfering in their peaceful possession and enjoyment over the suit schedule property. The suit schedule property is shown to be land bearing Sy.No.102/1 of Tumkur 5 Kasaba measuring 14 & 1/2 guntas shown in the schedule with the specific boundaries. It is the contention of the plaintiffs that one Byranna, was the absolute owner in possession of land bearing Sy.No.102 totally measuring 10 acres 15 guntas of Tumkur Kasaba and during his lifetime he sold 9 acres of land to Venkoba Rao and 17 others in 1928-29. Out of the balance extent, Tumkur municipality acquired an area measuring 25 guntas, which is sub-numbered as 102/3.
It is alleged that the balance to the extent of 31 guntas was in possession of Byranna and after his death, the plaintiffs being his legal heirs, succeeded to the suit schedule property and they are in the possession of the same. It is alleged that suit schedule property is part of 31 guntas. It is further asserted by the plaintiffs that though the Byranna has alienated 9 acres to Venkoba Rao and others, however, an area measuring 9 acres 15 guntas was mutated as Sy.No.102/1 and R.T.C. came to be changed. But subsequently, in 1992, rectification order came to be passed by Tahsildar, Tumkur and the remaining 15 guntas was mutated in the name of 6 the 2nd plaintiff on behalf of other plaintiffs. It is further the assertion of the plaintiff that defendants without any right, title or interest are interfering in plaintiffs' possession and enjoyment over the suit schedule property and have created false documents by colluding with defendant No.4-CMC and hence, the suit came to be filed.
4. Defendant Nos.1 to 3 filed a written statement disputing the claims of the plaintiffs. It is asserted that the plaintiffs withheld the material documents pertaining to Sy.No.102 and thereby deprived defendant Nos.1 to 3 from setting up a effective defence. It is also denied that Byranna was the propositus and was owner of entire Sy.No.102 and he alienated 9 acres 15 guntas as alleged. They denied all the other allegations categorically. It is specific assertion of the defendants that CMC Tumkur having formed banglow sites in Gandhi Nagar extension of Tumkur, which then known as 'jail extension', granted banglow site 4 measuring 134 x120 7 ft in favour to Dr. B.Narasimhamurthy, who in turn sold the same during 1937 under a registered sale deed dated 26.06.1937 to one H.Gangadharaiah who till his death was in peaceful possession of the said site and subsequent to his death his wife and children became the owners and they have sold an area measuring 60X100 ft in favour of defendant Nos.1 and 2 and 16X20 ft in favour of defendant No.3 under two separate registered sale deeds dated 14.02.1992. It is asserted that CMC has mutated the said sale deeds in records in the name of defendant No.3 only and a single katha was made in the name of defendant No.3 and he has sought for permission for construction over the said site which was pending. It is also alleged that one Surappa alias Chandraiah filed O.S. No.451/1999 on the file of Civil Judge, Tumkuru against Timmaiah and others for relief of partition pertaining to Sy.No.102/2 measuring 16 guntas and in the said suit, defendant Nos.1 and 2 got impleaded by filing an application and they are contesting the suit. 8 They dispute the entire other claim made by the plaintiffs and sought for dismissal of the suit.
5. The CMC-defendant No.4 filed a written statement denying the plaint averments in toto including acquiring 24 guntas by CMC out of survey No.102 and further asserted that CMC is not a necessary party and they are no way concerned with the suit schedule property.
6. On the basis of these pleadings, the learned Senior Civil judge has framed as many as seven issues and additional issues as under:
1. Whether the plaintiffs prove that they are the Absolute owners of the suit schedule property?
2. Whether the plaintiffs further prove that they are in actual possession of the suit property as on the date of filing the suit?
3. Whether the plaintiffs further prove that defendant 1, 2, and 3 are illegally interfering in lawful possession and tried to put up construction?
4. Whether the defendants 1 and 2 prove that they have become the absolute owners of the suit property measuring 62 feet East-West and 120 feet North-
South bearing C.M.C. K.No.394/372/390 by virtue of sale deeds executed by children of Gangadharaiah 9 and Subbalakshmma on 14-2-92 as described in para 9 to 11 of the written statement.
5. Whether the defendant No.3 proves that the has become the absolute owner of the property measuring 60 feet East-West and 120 feet North- South bearing C.M.C.K.No.395/372/a/391 by virtue of sale deed executed by children of Gangadharaiah and Subbalakshmamma as stated in para no.8 and 10 of the written statement?
6. Whether plaintiffs are entitled for relief of declaration and permanent injunction as prayed?
7. What decree or order?
Additional issues
1. Whether court fee paid is proper?
7. The power of attorney holder of the plaintiff was examined as PW1 and one witness was examined as PW2 and Ex.P1 to Ex.P22 were marked. The defendant No.1 was examined as DW1 and defendant No.3 was examined as DW2 and they got examined DW3 to DW6 and placed reliance on Ex.D1- Ex.D83.
8. After hearing the arguments, the learned Senior Civil Judge has answered issues 1, 2, 3, 6 & 7 in the affirmative, while issues 4 & 5 were answered in the 10 negative and ultimately decreed the suit of the plaintiffs, granting the relief of declaration and injunction.
9. Against this judgment and decree, defendant Nos.1 to 3 have approached the Principal District Judge in R.A.No.13/2004 which was subsequently re- numbered as RA.No. 1/2005 and matter came to be transferred to Fast track Court V. The learned District judge after appreciating the oral and documentary evidence, has dismissed the Appeal by confirming the judgment and decree passed by the trial Court in decreeing the suit. The learned District judge passed an order to demolish and dismantle the structure put up on the suit land as per the undertaking given in WP No.17286/2004, though the suit is filed for declaration and injunction, but not for possession. Being aggrieved by this judgment and decree, this appeal is filed by the defendants.
10. It is also important to note here that during the pendency of the appeal, defendants No.1 to 3 who 11 were appellants before the District Judge have also filed an IA for production of additional evidence under Order XLI Rule 27 to show that the entire land was acquired by the State for the health camp as well as for extension of Tumkur city and notifications were sought to be produced. Further, the order passed by the Assistant Commissioner setting aside the order of the Tahsildar was also sought to be produced, but the learned District Judge rejected the said application without giving any reasons.
11. Heard the arguments and perused the records.
12. The learned counsel for the appellants- defendant Nos.1 to 3 would contend that the entire land bearing Sy.No.102 was acquired by the State in 1933 itself and no land was left with either Byranna or his legal heirs or his Successors and hence, question of maintaining the suit for declaration will not arise at all. It is further asserted that the burden is on the plaintiffs to prove their own case and they are not supposed to 12 take advantage of the weaknesses of the defendants, but the judgment and decree passed by both the Courts below disclose that both the Courts have proceeded as if the defendants have approached the Court by casting a negative burden on defendants indirectly. Since plaintiffs assert that they are the owners of 14 and 1/2 guntas being part of Sy.No.102 they are required to substantiate the said contention and subsequent events and documents produced by defendants under Order XLI Rule 27 clearly disclose that the entire land was acquired and once land vests in the State by way of acquisition, the question of claiming title over the said land does not arise at all. Hence, he would contend that both the courts below have failed to appreciate this aspect in proper perspective, which has resulted in miscarriage of justice and sought for allowing the appeal by dismissing the suit.
13. Per contra, the learned counsel for respondent Nos.1 to 5 would contend that the boundaries in documents relied by the defendants is 13 completely inconsistent and though there is acquisition, that will not establish taking possession and it is nobody's case that possession was taken over. It is also asserted that though there is subsequent assertion regarding the property being acquired by CMC, no town planning map is forthcoming and the title of the plaintiffs flows through their ancestors and in the absence of taking possession of the suit schedule property, the mere acquisition by publication of 4(1) and 6(1) notification will not establish the claim of the defendants. Hence, he would seek for dismissal of the appeal.
14. This Court while admitting the appeal has framed the following substantial questions of law on 27.05.2009:
"1. Whether the rejection of the application filed under Order 41 Rule 27 CPC by the Lower Appellate Court and that in that context the non-consideration of the document produced along with such application has resulted in mis-carriage of justice and erroneous conclusion by the Lower Appellate Court?14
2. Whether the manner of consideration of the document at Ex.P.21 by the Courts below is erroneous and amounts to perversity."
15. Further, there was a direction to respondent No.6 i.e., defendant No.4 CMC to file an affidavit of the Commissioner and in pursuance of the said direction, the commissioner has filed an affidavit stating that the entire land was acquired and initially it was not within the knowledge of the Commissioner.
16. Having heard the arguments and perusing the records, it is evident that the bone of the dispute is defendant No.4 who has not maintained proper records regarding acquisition, which has permitted the plaintiffs to raise their claim over the suit schedule property, but at the same time, it is also important to note here that during the pending of these proceedings, an application was also filed under Order XLI Rule 27 dated 23.03.2011 regarding the production of relevant documents which were earlier sought to be produced before the lower appellate Court. It is undisputed fact that that initially 24 guntas of land was acquired for 15 health camp and was mutated in the name of CMC. It is the specific contention of the defendants that the CMC has acquired the entire property and converted the plots and they are purchasers of the plots. Initially, the CMC has shouldered its responsibility without responding to anything, but subsequently before the first appellate Court, the defendants have produced the notification of acquisition. CMC woke up and subsequently, in this appeal the Commissioner of CMC filed an affidavit confirming the acquisition. The records disclose that Sy.No.102 was measuring 10 acres 15 guntas and Byranna has sold more than 9 acres to Venkoba Rao and 17 others in the year 1928-29. Further, 25 guntas was acquired by the municipality, which is numbered as 102/3. Hence, it is the contention of the plaintiff that 31 guntas remained with Byranna and it has been inherited by the plaintiffs. But it is also important to note here that the defendants all along asserted that the entire property was acquired and though they asserted the acquisition of entire Sy.No.102, their claim is that they purchased the property from their vendors under a 16 registered sale deed and the vendors purchased it from CMC.
17. The main contention of the plaintiffs is that only 9 acres was sold, but mutation was effected to extent of 9 acres 15 guntas in favour of Venkoba Rao and others and that was rectified in 1992. Though sale was done in 1928-29, that rectification was done in the year 1992 without there being following proper procedure. This order was challenged before the Assistant Commissioner and admittedly, Assistant Commissioner set aside the said order of the Tahsildar. The said order of the Assistant Commissioner is not challenged.
18. The plaintiffs all along assert that they are in possession of 14 and ½ guntas of land in Sy.No.102 and they specifically assert that this 14 and ½ guntas is part of Sy.No.102/1. On perusal of the schedule, the boundaries were mentioned towards North and West a public Road and there is no reference to the remaining Sy.No.102 and which portion this 102/3 schedule 17 property is situated, which is not explained by the plaintiffs.
19. All along, it is specific assertion of the defendant that none of the properties are in the original status and property has been converted. But all along it is the contention of the plaintiffs that Sy.No.102/3 is still as it is, but to substantiate the said contention they have not produced any material to show that Sy.No.102/3 i.e., suit schedule property is still an agricultural land.
20. Interestingly, on perusal of the judgment and decree of both the Courts below it reveals that both the Courts below have proceeded as if the defendants have approached the Court and there boundaries and other things were considered. Both the Courts below have failed to consider the fact that the plaintiff has approached the Court and burden of proving that the suit property is in their possession is required to be proved by them. Interestingly, the records further disclose that in WP.No.17286/2004, wherein the 18 undertaking was given by the defendants i.e., the present appellants, that in case suit property proved to be that of the plaintiffs they are going to dismantle the construction put up by them. This clearly discloses that the defendants Nos.1 to 3 are in possession of the suit schedule property and they have already raised a construction over the suit schedule property. Even the findings of learned District Judge disclose this aspect, wherein he has issued directions to the defendant Nos.1 to 3 to remove the construction put up on the suit schedule property by handing over possession of the schedule property. Interestingly, the plaintiffs have not filed any suit for possession and they filed simple suit for declaration and injunction. The court fee paid is also to the tune of Rs.25/- and they have not paid Court fee on market value. When they are not in possession and when they have not sought possession of the suit schedule property, on what basis the learned District Judge has awarded the possession of the suit schedule property in favour of the plaintiffs is not at all forth 19 coming without there being any relief being sought in this regard.
21. Admittedly, Byranna was the owner to the extent of 10 acres 15 guntas and 24 guntas was already acquired initially and the balance land was acquired in 1933 to the extent of 9 acres 15 guntas which is evident from the notification issued by the State. These documents were initially produced along with I.A.7. The order of Tahsildar is also produced and this order of Assistant Commissioner in RRT(A)26./05-06 dated 20.08.2008 disclose that the order of the Tahsildar was set aside as the entire land bearing Sy.No.102 measuring 10 acres 15 guntas was acquired and this order clearly discloses that 30 guntas was acquired for health camp and then 9 acres 25 guntas was acquired for extension of Tumkur City. This is again corroborated by 4(1) and 6(1) notifications issued in this regard. The notification issued dated 17.08.1933 discloses that 13 guntas was acquired for health camp and 9 acres 25 guntas was acquired for laying plots. When 9 acres 25 20 guntas was acquired as per the notification dated 03.12.1932 there remains no property for Byranna as his entire property measuring 10 acres 15 guntas was acquired by the State. As such, on which property the plaintiffs are claiming their title is not at all forthcoming, as entire property stands acquired by the CMC.
22. It is the specific contention of the defendants that the municipality has brought the banglow plots and they were purchased. The contention of the defendants is that they were nowhere concerned to the suit schedule property, but the initial burden is on the plaintiffs to prove that they are in possession of 14 and 1/2 guntas of land in Sy.No.102, but the records produced itself disclose that the entire property is vested with the Government in view of the acquisition. What is the basis for the plaintiffs to claim possession is not at all forthcoming.
23. Apart from that, PW1 is the grandson of plaintiff No.1 and he is only power of attorney holder and he had no personal knowledge and his evidence 21 cannot be accepted. The learned counsel for respondent No.6 - defendant No.4 has conceded that the dispute could have been resolved had the municipality has properly verified the documents and produced documents before the trial Court and that is the exact defence of the defendants.
24. The records disclose that the final notification for acquiring 9 acres 25 guntas of Sy.No.102 was issued on 01.08.1933 itself. No doubt a sale certificate was issued in the name of Narasimhamurthy and both the Courts below have raised the issue regarding the non- registration of the documents and it is hit by Section 17. But both the courts below failed to consider whether registration or sale certificate has any relevance in the case of the plaintiffs, as plaintiffs are required to prove their title over the suit schedule property.
25. The records disclose that plaintiff No.2 has made a representation on 16.07.1992 for changing the mutation entry so far as 15 guntas out of 9 acres 15 guntas of land. Interestingly, when the entire 9 acres 25 22 guntas was acquired, the question of plaintiff No.2 making such a representation does not arise at all and without issuing appropriate notice and verification, Tahsildar has passed an order which was subsequently set aside by the Assistant Commissioner.
26. The learned counsel for the respondent- plaintiffs contends that though the entire land was acquired, there is no evidence regarding possession and in this regard he placed reliance on decision reported in ILR 2005 KAR 5692 [V. GUNDA REDDY vs. THE SECRETARY DEPARTMENT OF REVENUE AND OTHERS] and (2012) 1 SCC 792 [RAGHBIR SINGH SEHRAWAT vs. STATE OF HARYANA AND OTHERS]. There is no dispute regarding the principles enunciated in the above cited decision, but the plaintiffs have conceded the fact of acquisition of the land and have not approached the Court with clean hands. Further, they assert that they continue to be in possession of suit Scheduled property, but the evidence discloses that the defendants have already constructed a structure over the suit schedule 23 property, which is evident from the order of the writ petition and the directions issued by the District Judge in the regular appeal demolish the structure put on the suit schedule property. It is not the case of the plaintiffs that, during the pendency of the suit, they have been dispossessed. They did not seek any possession. Hence, the principles enunciated in the about cited decisions regarding possession will not assist the plaintiffs in any way.
27. On the contrary, the learned counsel for the respondent No.6 has placed reliance on a decision reported in 2018 6 SCC 574 [Y.P.SUDHANVA REDDY AND OTHERS vs. CHAIRMAN AND MANAGING DIRECTOR, KARNATAKA MILK FEDERATION AND OTHERS]. In the said case the Hon'ble Apex Court has clearly held that the claim of ownership of the property subsequent to its acquisition, where the acquisition proceedings attained finality are not at all maintainable and suit in such nature cannot be filed and relief cannot be granted. In 24 para number 21 to 24 of the said decision, the Hon'ble Apex Court has observed as under:
"21. In our considered opinion, neither the predecessor-in-title of the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of the appellants' predecessor-in-title in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, the appellants' only right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for its re-dertermination.
22) We find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of the appellants.25
23) In the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to be dismissed.
24. Indeed, no declaration of title over the suit land could be claimed or/and granted by the civil court and nor any suit of such nature could be filed in the civil court in the light of the background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither the appellants' predecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the two suits."
28. In the instant case also the subsequent document filed under Order XLI Rule 27 clearly establishes that the entire land was acquired and when the entire land was acquired and when the acquisition of proceedings have attained finality, the question of plaintiffs claiming title over some portion of the said acquired property does not arise at all and in view of the observation of the Apex Court, the suit in such a nature is not at all maintainable. Though these 26 documents were brought before the District Judge in the appeal, they were blindly ignored by the learned District Judge and he proceeded as if the defendants have approached the Court when the acquisition is there prior to the filing of the suit itself long back in 1932-33, itself question of plaintiffs claiming possession over the suit schedule property does not arise at all. The records also disclose that the sub- registrar was also summoned and certain material papers of the original registered document were missing and this clearly establishes the foul play played by interested parties. On the basis of this, both the Courts below drawn adverse inference against the defendants and how the defendants are answerable for this is not all forthcoming and it is for the plaintiffs to substantiate their claim.
29. The entire approach of both the Courts below is erroneous and arbitrary as well as perverse which has resulted in miscarriage of Justice. Both the Courts below on presumption that the property is in existence, proceeded to decree the suit without considering the 27 fact that the plaintiffs are required to prove the very existing of the property and they are in possession of the suit schedule property, but that itself is missing and PW1 did not have any personal knowledge of the acts and plaintiff No.1 would have been the best witness in given circumstances, but she did not enter into the Witness box.
30. Admittedly, the acquisition proceedings are not challenged and they have attained finality. The lower appellate Court ought to have allowed the IA filed by the appellant for production of additional evidence, but indiscriminately without discussing and without assigning reasons, dismissed IA 10 filed under order XLI Rule 27 of CPC before this Court. The appellants have produced documents with IA which clearly establishes the acquisition of the entire property. In view of the decision of the Apex Court, once there is acquisition question of seeking declaration by plaintiff does not arise at all and the citations relied by the learned counsel for the respondents would not come to the aid 28 of the respondent Nos.1 to 5/plaintiffs in any way and it is evident that because of attitude of the CMC, this dispute continued till today and it could have been settled before the trial Court itself had the CMC has produced relevant documents. Looking to these facts and circumstances, the substantial questions of law is answered in favour of the appellants-defendant Nos.1 to 3 and as such, the appeal needs to be allowed and accordingly, I proceed to pass the following:
ORDER
1. The Appeal is allowed
2. The impugned judgment and decree passed by the learned Judge of the Fast Track Court No.V at Tumkur in R.A.No.1/2005 dated 30.10.2008 by confirming the judgment and decree passed by the learned Principal Civil Judge (Sr.Dvn) and C.J.M. Tumkur dated 18.12.2007 in O.S.No.139/2003, are set aside.
3. Suit in OS No.139/2003 filed by the plaintiffs' stands dismissed.
4. The application filed under Order XLI Rule 27 for 29 production of additional evidence by the appellants-defendant Nos.1 to 3 stands allowed.
Sd/-
JUDGE DS