Bangalore District Court
Sri. R. Ramesh Babu vs K.P. Kamalam W/O Late on 26 April, 2019
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 26th DAY OF APRIL 2019
OS.NO.1326 / 2009
PLAINTIFF/S SRI. R. RAMESH BABU
S/O LATE RAMACHANRAIAH
AGED ABOUT 48 YEARS,
RESIDING AT No. 68,
'RATHNA DEEPA', KRISHNA
THEATER ROAD, DEVASANDRA
MAIN ROAD, KRISHNARAJAPURA
POST, BANGALORE - 560 036.
(By M/s Lex Nexus, Adv.)
Versus
DEFENDANT/S 1. K.P. KAMALAM W/O LATE
SRIDHARAN, AGED ABOUT 51
YEAR, No. 508, GURUTHAMAN
PARK, R.V. ROAD,
BANGALORE - 560 004.
2. M/S GOPALAN ENTERPRISES
(INDIA) PVT. LTD. A COMPANY
INCORPORATED UNDER THE
COMPANIES ACT, 1956,
HAVING ITS REGITERED
OFFICE No. 5, RICHMOND
ROAD, BANGALORE - 560 025.
( By M/S Chalapathy & Srinivas)
Date of Institution of the 26.02.2009
2 O.S.No.1326 / 2009
suit
Nature of the suit. Suit for declaration and
injunction.
Date of commencement of 14.02.2011
recording of evidence.
Date on which judgment 26.04.2019
was pronounced.
Total Duration. Years Months Days
10 02 00
XXXVII ACCJ, BANGALORE
3 O.S.No.1326 / 2009
JUDGMENT
The plaintiff has filed suit against the defendants for judgment and decree to declare that he is the absolute owner and in possession and enjoyment of the suit schedule property and for perpetual injunction restraining the defendants, their agents, henchmen or anybody claming through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property along with costs of the suit.
2. In brief the case of the plaintiff is as under:
3. The property bearing Sy.No. 146 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk (formerly South Taluk) measures a total extent of 26 acres 13 guntas. 8 acres of land in Sy.No. 146 was granted in favour of R. Muniswamy Reddy S/o Ramaiah Reddy, vide Grant order No 39 LND & R152/60-61 on payment of an upset price of Rs100/- per acre. Amount of Rs.920/- was paid on 08.03.1961 as per SLR 270 dated 06.02.1961. Consequent upon which, the Saguvali Chit was issued in favour of Muniswamy Reddy. The said Muniswamy Reddy died on 01.08.1971. The estate 4 O.S.No.1326 / 2009 was succeeded by Smt. Nagarathna Reddy and Sri. Srinivasa Reddy. The RTC extracts pertaining to Sy.No. 146 to the extent of 8 acres has been reflected thereafter. In fact, the entries in the RTC from the year 1967-68 reflects the name of R. Muniswamy Reddy to an extent of 8 acres upto 1988-89 and thereafter the names of Smt. Nagarathna Reddy and Sri. Srinivas Reddy have been reflected. For the year 1992-93 to 1997-98 the entries in the RTC pertaining to Sy.No. 146 was made into the portions. In the RTC pertaining to Sy.No. 146 for an extent of 12 acres, the name of Surendranath for 4 acres, Dwarakanath for 4 acres and Nagaraj for 4 acres was sown and it was endorsed on the said RTC that the remaining portion of Sy.No. 146 is at page 511. For the remaining portion 8 acres was shown in the name of R. Muniswamy Reddy which was rounded off and the name of Smt. Nagarathna Reddy and Sri. Srinivas Reddy are reflected pursuant to IHC 1/96-97. From the year 1995-96, the names of Surendranath, Dwarakanath and Nagaraj are rounded off and the name of KIADB is entered as per M.R. No. 18/93-94 pursuant to the final notification regarding acquisition of the lands belonging to 5 O.S.No.1326 / 2009 Surendranath, Dwarakanath and Nagaraj. Accordingly, the RTC for Sy.No. 146 has been continued for 8 acre from the year 1992-93. Even though the entries had been made as per IHC 1/96-97, the entries were not continued for some time as a result of the same Smt. Nagarathna Reddy and Sri. Srinivas Reddy had approached the Assistant Commissioner in R.A. No. 360/04-05./ The appeal was allowed and by an order dated 11.04.2004, it was directed that the Katha had to be made out in the names of Smt. Nagarathna Reddy and Sri. Srinivasa Reddy and accordingly, their names were entered as per M.R. No. 66/04-05 dated 15.03.2005 for the said extent of 8 acres.
4. Further it is alleged that for the year 2002-03, as per M.R. No. 54/02-03, the names of Smt. Nagarathna Reddy and Sri. Srinivas Reddy had been removed which prompted them to file a writ petition in W.P. No. 42890 / 02-03 before the Hon'ble High Court. The said writ petition came to be disposed by an order dated 01.09.2004 in which the KIADB made a specific statement that the land of Smt. Nagarathna Reddy and Sri. Srinivas Reddy was not acquired and no final 6 O.S.No.1326 / 2009 notification was issued. As per the order of the Special Deputy Commissioner, this authority had to submit a report as per letter No.LND (s) CR736/05-906 dated 26.02.2006.
5. Further it is stated that as per sketch drawn by the Taluka Surveyor, Bangalore East Taluk the land of Smt. Nagarathna and Sri. Srinivasa Reddy was in no way connected, if the land was acquired by the KIADB measuring 14 acres 13 guntas.
6. Further it is alleged that as per the preliminary notification published under Section 28 (1) of the KIADB Act, 1966 dated 13.09.1984 is clearly shown in Sl.No.12 that the land which was acquired was the land of Surendranath, Ravindranath, DWarakanath and Vasundramma. Even the final notification which was passed in the year 1993 under Section 28 (4) of the KIADB Act, indicates that the property was that of Surendranath and others as shown in preliminary notification. Subsequently, another notification was passed on 24.11.1999 in CI 200 SPQ 98 proposing to acquire 8 acres 7 O.S.No.1326 / 2009 of land ofSmt. Nagarathna Reddy and Sri. Srinivas Reddy. Pursuant to the request made by the Special Land Acquisition officer, KIADB, requesting the Spl. Deputy Commissioner to submit a report regarding the genuiness of the grant and the possession of Smt. Nagarathna Reddy and Sri. Srinivasa Reddy in respect of the said 8 acres of land, based on the report of the Revenue Inspector referred to supra and the survey sketch drawn by the Taluka Surveyor, this authority has identified that 8 acres of land does not come within the purview of the land acquired by the KIADB as per the notification of the year 1993. This is again demonstrated from the subsequent notification of the KIADB under Section 28 (1) which clearly discloses that this 8 acres situated towards western side of the land which has already been acquired by the KIADB.
7. Further it is alleged that he purchased 1 acre of land (suit schedule property) within the said extent of 8 acres of land under the registered sale deed dated 05.09.2006. It appears that nothing has been communicated from the jurisdictional Sub-Registrar's office to the Revenue 8 O.S.No.1326 / 2009 Authorities in respect of the registering Katha pursuant to the sale in as much as the katha stood in the name of the vendors right from the year 1967-68 subsequently mutated as per IHC.1/94-95 and the error removed in R.A. No.360/04-05 and corrected as per M.R. No.66/04-05.
8. Further it is alleged that when such being the situation, when the change of entry was sought for by the plaintiff was objected by the Mr. Sridharan and therefore, the dispute was registered with the Tahsildar as dispute No. RRT (DIS)119/06-07. No enquiry was conducted, but the Tahsildar appears to have taken a suo-moto survey which was beyond his jurisdiction and on the basis of his own survey and contrary to the earlier documents from the very office had directed katha to be registered in the name of the said Mr.Sridharan. This order was called in question before the Assistant Commissioner, Bangalore East Taluk in R.A. No.196 / 2007-08. However, the Assistant Commissioner has dismissed the appeal by an order dated 11.07.2008. 9 O.S.No.1326 / 2009
9. Further it is alleged that the plaintiff aggrieved by the orders passed by the Tahsildar in dispute No. 121/06-07 as confirmed by the Deputy Commissioner in R.A. No. 195/07- 08 had preferred a Revision Petition in Revn. Petition No.86/08-09. The Revision Petition is pending for consideration. However, another Revision Petition filed by one Mr.Rupen Patel, another purchaser from Srinivasa Reddy and Nagarathna Reddy was allowed by setting aside the orders passed by the Asst. Commissioner and the Tahsildar on the ground that the land had already been converted by the said Sridharan and there were also disputes regarding the title as well as the possession of the properties claimed by them. However, the Deputy Commissioner had made certain observations about the identity, location of the property of Smt. Nagarathna Reddy and Sri. Srinivas Reddy which were much contrary to the records of the KIADB itself. In view of the nature of disputes and the said Sridharan, now represented by his L.R. denying the title to the property owned and possessed by the plaintiff being the schedule property, the plaintiff is 10 O.S.No.1326 / 2009 left with no other alternative but to seek for the relief sought for.
10. Further it is alleged that on the basis of the revenue proceedings and certain manipulated records obtained from the KIADB, the 2nd defendant appears to have approached the SEZ authorities and have managed to obtain a letter of approval by including the property of the plaintiff and which basis, the 2nd defendant along with his workmen and henchmen came near the schedule property on 22.02.2009 and started dumping construction materials and hastily undertook some construction works in attempting to put up a compound wall and with the timely information to him, he had gone to the spot and thwarted such attempts.
11. Further it is alleged that, he is the absolute owner in possession and enjoyment of the suit schedule property and the defendants have no manner of right, title and interest over the schedule property.
11 O.S.No.1326 / 2009
12. According to the plaintiff, the cause of action for the suit arose when the Deputy Commissioner had by an order dated 22.12.2008 allowed the Revision Petition with observations and subsequently, when the defendants had managed to get an order of approval through the SEZ authorities and on which basis, on 22.02.2009, when they attempted to interfere with his peaceful possession and enjoyment of in respect of the schedule property and on all dates as to threat of dispossession and interference with the possession continues, within the jurisdiction of this Court.
Mainly among these grounds it is prayed to decree the suit as prayed.
13. After the service of summons, both the defendants entered appearance through their counsel. The defendant No.2 has filed his written statement.
14. In the written statement the defendant No.2 has denied the averments of the plaint as false and untenable and called upon the plaintiff for strict proof of the same. 12 O.S.No.1326 / 2009
15. In the written statement the defendant No.2 has contended that out of the total extent of 26 acres 13 guntas in Sy.No. 146 of Hoodi Village, 13 acres 33 guntas of land was acquired by the KIADB belong to the Government only and it is shown as 'Sarakari Mufat Kaval and the compensation has not been paid to any person to whomsoever. If 13 acres and 33 guntas acquired by KIADB is deducted from the total extent of land, what is left is only 12 acres 20 guntas. Out of this 12 acres 20 guntas, 20 guntas constitute burial land / graveyard. Then what is left is only 12 acres of land.
16. Further it is contended that, in the year 1945, the total extent of 26 acre and 13 guntas of land bearing Sy.No. 146 was divided into five blocks. Four blocks containing 5 acres each and 5th block containing 6 acres 13 guntas. They were sold by public auction at an upset price and was purchased by one H.V. Nagappa Reddy. Certain villagers of Hoodi Village by name Krishnappa Reddy and others challenged the said sale. The said Nagappa Reddy sold the lands so purchased by him to several persons by name H.d. 13 O.S.No.1326 / 2009 Nagappa Reddy, H.V. Papaiah Reddy, Smt. Parvathamma and B. Muniswamy Reddy. Certain villagers of Hoodi Village by name Krishnappa Reddy and others challenged the auction sale in favour of H.Y. Nagappa Reddy and the said order was confirmed by the revenue commissioner. The four persons stated above who had purchased the land from H.D. Nagappa Reddy filed an appeal to the Government in R.A. No. 350/1951-52. The Government by its order dated 09.03.1953 while confirming the cancellation of sale in favour of H.D. Nagappa Reddy granted to each of the appellants namely the above said four persons 3 acres of land in the said Sy.No. for an upset price of Rs.25/- per acre. Only 12 acres of land in Sy.No. 146 was granted to H.D. Nagappa Reddy, H.V. Papaiah Reddy, Smt. Parvathamma and B. Muniswamy Reddy. When once it is accepted that 13 acres 33 guntas was acquired by KIADB, 12 acres was granted to the aforesaid persons by the Government order and 1 acre 20 guntas is the graveyard, no other land could have been granted to R. Muniswamy Reddy as contended by the plaintiff. No other land was available for being granted to R. Muniswamy Reddy. 14 O.S.No.1326 / 2009
17. Further it is contended that as per the extract of Saguvali Chit register relying upon by the plaintiff an extent of 8 acres was granted to R.Muniswamy Reddy under Government order No. RD 26 LBD 60 dated 22.12.1960. The defendants applied to the Government of Karnataka under Right to Information Act, to grant them certified copy of the said Government order. They received an endorsement from the Government to the effect that there is no such Government order. Thus the extract of Saguvali chit register produced by the plaintiff as also government order referred to therein are bogus and concocted documents and no reliance can be placed on them. Any other entries in all the revenue records said to have come into existence on the basis of the grant are also bogus and concocted documents since there is no grant at all and the entry in the saguvali chit is bogus and also the Government order is concocted.
18. Further it is contended that the plaintiff along with R. Ramesh Babu, plaintiff in the connected suit has filed a writ petition in W.P. No.4848 / 2009 and 4998 / 2009 before the 15 O.S.No.1326 / 2009 Hon'ble High Court seeking quashing of an order passed by the Government of India in favour of the 2nd defendant issuing a notification that a lands owned by the 2nd defendant which includes the suit schedule property constitutes Special Economic Zone. In the said writ petition the plaintiff relied upon a letter dated 13.12.2001 addressed by the Special Deputy Commissioner, KIADB to Special Deputy Commissioner, Bangalore District, Bangalore. As per the said letter H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamy Reddy and Smt. Parvathamma were granted 3 acres of land each in the land bearing Sy.No. 146 as per Government order and thereafter on 22.08.1955, the Tahsildar, Bangalore South Taluk granted to each of them Saguvali chits. Even in the said letter, there is no reference to any grant made to R. Muniswamy Reddy since no land was granted to him at all. The said letter shows that R. Muniswamy Reddy purchased only 12 acres of land and even the said 12 acres were partitioned by his 1st wife Smt. Padmavathamma and her 3 sons. In the circumstances, there was no grant of any land to R.Muniswamy Reddy and even if he has purchased 12 acres as stated in the said 16 O.S.No.1326 / 2009 letter, the said 12 acres has been partitioned by his first wife and her 3 sons and therefore, it is not open to the plaintiff to claim that 8 acres of land was granted to R. Muniswamy Reddy and upon his death, it was inherited by plaintiff's vendors Nagappa Reddy and Srinivasa Reddy and by virtue of sale in his favour, he became the owner of the suit schedule property.
19. Further it is contended that the vendors of the plaintiff in connivance with the revenue officials got the revenue bogus entries made in the RTC extracts is also evident from other circumstance. Bogus and fictitious entries were made in the revenue records and the plaintiff and his vendors are only basing their claim on such bogus and fictitious and false entries made in the revenue records.
20. Further it is contended that as admitted in the plaint, KIADB notified an extent of 13 acres 33 guntas for acquisition in land bearing Sy.No. 146. In the said notification, the names of M. Surendranath, Dwarakanth, Ravindranath and Smt. Vasundaramma are shown as 17 O.S.No.1326 / 2009 owners of the land. One of the contentions raised by the plaintiff in this suit is that the land of the said four persons have been acquired and as such late Sridharan could not have purchased four acres of land from Surendranath. However, the name of the said persons were notified by KIADB because their names were shown in the RTCs.
21. Further it is contended that, subsequently, the KIADB found that the land in respect of which notification under Section 28 (4) has been issued is neither owned nor possessed by the above said four persons. It was also found out that while the land bearing Sy.No. 146 notified for acquisition is in the eastern portion, the land owned by Surendranath and others is in the western side of Sy.No.
146. Consequently, their names as owners of land were deleted and no compensation was paid to them. In the circumstances, it is not open to the plaintiff to contend that the land purchased by late Sridharan from Surendranath has been acquired by KIADB and as such he does not own any land in Sy.No. 146.
18 O.S.No.1326 / 2009
22. Further it is contended that, after KIADB issued a final notification dated 28.04.1993 under Section 28 (4) of the KIADB Act in respect of 13 acres 33 guntas of land in Sy.No. 146, Sri. Nagarathna Reddy and Srinivasa Reddy filed a suit against KIADB in O.S. No.6582/1997 on the file of the City Civil Judge, Bangalore City seeking an injunction against KIADB to restrain them from interfering with their alleged possession and enjoyment of the property on the ground that 8 acres of land was granted to their father R. Muniswamy Reddy and after his death they are in possession of the same.
23. Further it is contended that having regard to the claims made by the said Nagarathna Reddy and Srinivasa Reddy, a joint survey of land bearing Sy.No. 146 was carried out and KIADB prepared a sketch of the entire land bearing Sy.No. 146 and the said sketch showed the land that was notified by them for acquisition and the land which the said Nagarathna Reddy and Srinivasa Reddy claimed as being the owners and possessed by them. As per 19 O.S.No.1326 / 2009 the sketch prepared by the KIADB, 8 acres of land as claimed by Nagarathna Reddy and Srinivasa Reddy is marked as ABCD in the plan / sketch. The said portion which they claimed forms the eastern extremity of the land bearing Sy.No. 146. The boundaries given by them in the above said suit fully tallies with the sketch jointly prepared. Thus at the earliest point of time, Nagarathna Reddy and Srinivasa Reddy vendors of the plaintiff claimed that they own 8 acres of land in Sy.No. 146 in the eastern extremity.
24. Further it is alleged that when the matter stands thus the plaintiff now claims in the suit that Nagarathna Reddy and Srinivasa Reddy owned land situated at western extremity of the land bearing Sy.No. 146. The said Nagarathna Reddy and Srinivasa Reddy filed a memo seeking withdrawal of the said suit and accordingly the said suit was disposed off as withdrawn.
25. Further it is contended that since there was some controversy regarding location of the land owned by various persons and the land acquired by KIDB, the Spl. 20 O.S.No.1326 / 2009 Tahsildar, Bangalore East Taluk got the land bearing Sy.No. 146 surveyed and a sketch was prepared in that connection. The said sketch clearly indicates the location of the land purchased by late Sridharan, husband of the 1st defendant. The said sketch also shows that Nagarathna Reddy and Srinivasa Reddy did not own any land in land bearing Sy.No. 146. It also shows the location of graveyard of 1 acre 10 guntas.
26. Further it is contended that R. Muniswamy Reddy only purchased the lands from the original grantees and allthe said land so purchased by him was partitioned by his first wife Smt. Padmavathamma and her sons and that Nagarathna Reddy and Srinivasa Reddy claimed to be the children of R.Muniswamy Reddy through his second wife Smt. Venkatamma. After clandestinely getting the name of R. Muniswamy Reddy entered in the RTC as grantee of 8 acres of land, after his death, Nagarathna Reddy and Srinivasa Reddy were able to get their names entered in the RTC and after the death of R.Muniswamy Reddy got the mutation under IHC1/1996-97 claiming title to 8 acres. 21 O.S.No.1326 / 2009
27. Further it is contended that, KIADB wanted to acquired further land in land bearing Sy.No. 146 and because of the entries in the RTC standing in the name of Nagarathna Reddy and Srinivasa Reddy issued a preliminary notification under Section 28 (1) of the KIADB Act in the year 1998. Although there was only preliminary notification, an entry was made in the RTC in the name of KIADB in respect of the notification issued in the year 1998 which the plaintiff has produced along with the plaint. Subsequently, upon investigation by the KIADB it was found that Nagarathna Reddy and Srinivasa Reddy did not own any land in land bearing Sy.No. 146 and as such there is no question of acquiring Sy.No. 146 as per notification issued under Section 28 (1) of the said Act. Consequently, when a final notification was issued, the land bearing Sy.No. 146 was omitted.
28. Further it is contended that, thereafter Nagarathna Reddy and Srinivasa Reddy approached the Hon'ble High Court in W.P. No.42890 / 2002 seeking direction to KIADB 22 O.S.No.1326 / 2009 to pay compensation to them in respect of the land notified under preliminary notification issued under Section 28 (1) of the said Act. KIADB stated that since no final notification is issued, the question of payment of compensation does not arise. Consequently, the writ petition was disposed off.
29. Further it is contended that thereafter Nagarathna Reddy and Srinivasa Reddy approached the Asst. Commissioner, Bangalore North Sub-Division asking him to restore their names in the RTC since no final notification is issued. He appears to have ordered for restoration of their names. It is on the basis of this bogus and cooked up entries the plaintiff claims that title vested with his vendors and he purchased 1 acre of land from them.
30. Further it is contended that the RTC extracts from 1993 to 1999 were in the names of Surendranath and his brother is shown as owners of 4 acres of land. Under various sale deeds dated 07.08.1995, 09.08.1995, 11.08.1995, 12.08.1995, 14.08.1995, 16.08.1995, 17.08.1995, 02.08.1996, 04.08.1996 and 06.08.1996, late 23 O.S.No.1326 / 2009 Sreedharan, husband of the 1st defendant purchased 4 acres of land from the said Surendranath. After such purchase mutation entries were carried out and the name of late Sreedharan was entered in the RTC as owner of the said land.
31. Further it is contended that as already stated one H.V. Nagappa Reddy was granted 3 acres of by the Government. The said Nagappa Reddy sold 3 acres of land to one M.G. Vasanthaiah. The said M.G. Vasanthaiah sold 3 acres of land purchased by him to one H.S. Babu Reddy under different sale deeds dated 02.09.1995, 01.09.1995, 04.09.1995 and 05.01.1995, late Sreedharan, husband of the 1st defendant purchased 1 acre 24 guntas of land from the said Babu Reddy. 4 acres of land purchased from Surendranath and 1 acres 24 gutnas ofland was purchased from Babu Reddy were duly converted to non-agricultural industrial purpose upon the application made by late Sreedharan. Thus, absolute title to an extent of 5 acre 24 guntas in land bearing Sy.No. 146 absolutely vested with late Sreedharan. He was in possession of the said land after 24 O.S.No.1326 / 2009 getting the land duly converted for non-agricultural industrial purpose.
32. Further it is contended that under a Will dated 19.09.2007 exeucted by late Sreedharan, 5 acres 24 guntas of land purchased by him as aforesaid was bequeathed to one Sri. Pramod. Upon the death of Sreedharan the said land was vested in Sri. Pramod and he continued in possession of the same. Sri. Sreedharan died on 13.10.2007.
33. Further it is contended that under a registered lease deed dated 04.09.2008, Sri. Pramod with whom title of the land vests granted lease of the said property to the 2nd defendant for a period of 30 years. Possession of 5 acres and 24 gutnas was delivered to the 2nd defendant under the said lease deed and he is in possession of the same.
34. Further it is contended that, adjacent lands bearing Sy.No. 147, 157/2 and 158/2 of Hoodi Village were in possession of KIADB which granted lease of the said lands 25 O.S.No.1326 / 2009 to the 2nd defendant under a lease agreement dated 28.07.2008. Thus, the 2nd defendant is in lawful possession of land bearing Sy.No. 146, 147, 157/2 and 158/2 of Hoodi Village. A company by name Azelec Software limited was allotted 3 acres 16 guntas of land bearing Sy.No. 159 by KIADB. The said company granted lease of the said land to the 2nd defendant under a lease deed dated 16.07.2008. Thus the 2nd defendant is in lawful possession of 28 acres 29 guntas applied to the State Government for recommending to the Central Government for approval to local Special Economic Zone in the said extent of land. The State Government made such a recommendation. Thereafter the central Government by notification dated 16.02.2009 published in the gazette approved location of Special Economic Zone in the lands as stated above.
35. Further it is contended that the 2nd defendant to carry out construction activities engaged labours who are actually living in the 5 acres 24 guntas of land in land bearing Sy.No. 146 in temporary sheds constructed for their living. The BESCOM also given power supply to the site office located in 26 O.S.No.1326 / 2009 land bearing Sy.No. 146 and also to the pumps installed for pumping the water from the wells situated in the said land. No other construction activity is going on in land bearing Sy.No. 146 because of interlocutory orders passed in the present suit.
36. In the written statement the 2nd defendant has denied the plaint allegations that the plaintiff is the absolute owner in possession and enjoyment of the schedule property. Further it is contended that, the plaintiff is neither the owner nor in possession of the schedule property and hence, he is not entitled to any of the reliefs sought for in the suit.
Mainly among these grounds it is prayed to dismiss the suit with costs.
37. On the basis of the above pleadings of the parties, the then Presiding Officer of this court has framed the following:
ISSUES
1. Does the plaintiff prove that, he is absolute owner in possession of the suit schedule property as on the date of the suit as contended in the plaint?27 O.S.No.1326 / 2009
2. Does the plaintiff prove that defendants are interfering in his possession over the same?
3. Does the defendants prove that, no land to the extent of 8 acres in Sy.No.No.146 of Hoody Village was granted in the name of R.Muniswamy Reddy as contended in para 32 of their written statement?
4. Does the 2nd defendant prove that, under the lease deed dated 04.09.2008 one Pramod, who is the owner of 5 acres 24 guntas of land in Sy.No. 146 of Hoody Village has leased that property in favour of 2nd defendant for a period of 30 years by executing a registered sale deed and by delivering the possession of the same as contended in para No. 27 and 28 of the written statement?
5. Does the 2nd defendant prove that, it has not under taken construction after the institution of this suit as contended in para 41 of written statement?
6. What order or decree?
38. At the time of evidence, the plaintiff examined himself as PW 1 and got marked 34 documents as Ex.P1 to P34 and closed his side evidence. On the other hand, the 2nd defendant examined himself as DW 1 and on their behalf 74 documents were marked as Ex.D1 to D74 and closed their side evidence. Then the case posted for arguments.
39. Heard the arguments.
28 O.S.No.1326 / 2009
40. My findings on the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : Partly in the Affirmative
Issue No.5 : The consideration of this issue does
not arise.
Issue No.6 : As per final order for the following:
REASONS
41. ISSUE No.1&3: As these two issues are inter-
connected with each other, hence I have taken up these two issues together for common discussion in order to avoid repetition of facts.
42. During the course of arguments, Sri. S.K.V.Chalapathy, the learned senior counsel for the defendant would submits that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. In this regard, the learned senior counsel for the defendants has placed reliance on the decision of Hon'ble Supreme Court 29 O.S.No.1326 / 2009 reported in (2014) 2 SCC 269 - UNION OF INDIA AND OTHERS VS. VASAVI CO-OPERATIVE HOUSING SOCIETY LIMITED AND OTHERS.
In the above decision, in para No.19 of the judgment the Hon'ble Supreme Court has stated as under:
"19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."
Bearing in mind the ratio laid down in the above decision, now it is just and reasonable to turn to the case on hand.
43. In this case the main contention of the plaintiff is that the property bearing Sy.No. 146 of Hoodi Village measures total extent of 26 acres 13 guntas. 8 acres of land in Sy.No. 146 was granted in favour of R.Muniswamy Reddy S/o Ramaiah Reddy vide grant order No.39LND&R 152/60-61 on payment of upset price of Rs.100/- per acre. A total 30 O.S.No.1326 / 2009 amount of Rs.920/- was paid on 08.03.1961 as per SLR 270 dated 06.02.1960, consequent upon which Saguvali Chit was issued in favour of Muniswamy Reddy. The plaintiff claims his title over the suit schedule property based on the ground that he purchased the suit property from its lawful vendors (children of the above said Muniswamy Reddy) under a registered sale deed and thereby he is having title and possession over the suit property. But in the written statement the defendants have denied the above contention of the plaintiff regarding grant of 8 acres of land in Sy.No. 146 of Hoodi Village.
But while framing issues the then Presiding Officer of this court framed issue No.3 regarding this facts in issue and throw the burden on the defendants to prove the above issue No.3. In my opinion throwing burden on the defendant to prove this issue is not proper as it is the plaintiff who asserts in the plaint that 8 acres of land was granted to R.Muniswamy Reddy in Sy.No. 146.
44. It is an established position of law that, the burden to prove ownership over the suit schedule property is on the 31 O.S.No.1326 / 2009 plaintiff. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, the burden of proof means that the party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 of the Evidence Act provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
Therefore, in view of the well established principle of law as stated supra, it is stated that the burden of proving issue No.4 lies upon the plaintiff, but not on the defendants.
45. During the course of arguments, the learned senior counsel for the defendants would submits that in this case the plaintiff has not produced the original grant order and that the plaintiff has produced the Xerox copy of Ex.P28 32 O.S.No.1326 / 2009 official memorandum and the Xerox copy of Ex.P32 regarding the survey sketch of 8 acres of land alleged to have granted to said R. Muniswamy Reddy and these documents which are issued by the office of the Asst. Commissioner, Bangalore South Division are not the official certified copies given by the Asst. Commissioner and as the original or certified copies of the said documents are not produced, requirement of Section 65 of the Evidence Act is not satisfied by the plaintiff for adducing secondary evidence in this case. The learned senior counsel for the defendant has placed reliance on the following decisions.
(1) 2007 (5) SCC 730 - J. YASHODA VS. K. SHOBA RANI.
(2) (2016) 16 SCC 483 - RAKESH MOHINDRA VS.
ANITHA BERI AND OTHERS.
46. On the other hand, Sri. D.R. Ravishankar, learned counsel for the plaintiff would submits that as the above said copies official memorandum and sketch are issued by the Asst. Commissioner by the process of Xerox from the copies of the documents available in their office and as the said documents are the certified copies of the public documents, Section 65 of the Evidence Act is not applicable 33 O.S.No.1326 / 2009 to the public document. Further he produced the copy of order passed by our Hon'ble High Court in W.P. No. 22275 / 2013 dated 10.07.2013 pertaining to the very same documents, in which the plaintiff has challenged the order dated 12.04.2013 passed by this Court in connected O.S. No.1440 / 2009. The copy of order in the above said writ petition shows that the plaintiff has challenged the order dated 12.04.2013 passed by this court in another connected case O.S.No.1440 / 2009. In the said case, the plaintiff has filed a memo dated 05.04.2013 with two documents viz., certified copy of official memorandum dated 29.12.1960 and certified copy of the sketch of the granted portion in respect of Sy.No. 146. But this court has passed the order holding that those documents cannot be considered for marking as they are extracts. In that writ petition in para No.5 of the order the Hon'ble High Court has stated that the documents have been signed by Asst. Commissioner. In other words, extract of the official memorandum dated 29.12.1960 and the sketch dated 04.05.1960 have been attested by the Asst. Commissioner, Bangalore Sub-Division Bangalore. Hence it cannot be said that they are not 34 O.S.No.1326 / 2009 certified copies issued under law. It is for the respondent to cross examine the witnesses when the documents are marked. Thereby, the Hon'ble High Court has allowed the writ petition and directed this court to permit the plaintiff to mark the documents in evidence if they desire to do so. It appears from the records that, thereafter, in O.S.No.1440 / 2009 the plaintiff has got marked the above said documents i.e. extract of the official memorandum and the sketch and the said documents are marked as Ex.P36 and 41. The very same documents are marked in the present case on behalf of plaintiff side as Ex.P28 and P32.
Therefore, in view of the above order passed by the Hon'ble High Court in W.P. No. 22275 / 2013 dated 10.07.2013 and in view of the provisions of Section 74 (iii), 76 and 77 of the Evidence Act, it is stated that the above arguments as advanced by the learned senior counsel for the defendant has no force at all. The above said documents of the plaintiff side can be looked into and the said documents can be appreciated by this court, while passing judgment. I have perused the ratio laid down in the above cited J. YASHODA's case and RAKESH 35 O.S.No.1326 / 2009 MOHINDRA's case. The facts of the above cited cases are quite differ from the facts and circumstances of the present case. Hence the ratio laid down in the above decisions are not aptly applicable to the present case.
47. In this case the plaintiff claims that he purchased the suit schedule property measuring 1 acre from its lawful vendors under Ex.P1 registered sale deed dated 05.09.2006 in which this suit schedule property is a portion of the property measuring 8 acres of land that was originally granted to one Sri. R. Muniswamy Reddy S/o Ramaiah Reddy who is the father of his vendors namely, Sri. Nagarathna Reddy and Sri. Srinivasa Reddy. According to the plaintiff, under Ex.P28 official memorandum dated 29.12.1960 the Special Deputy Commissioner, Bangalore District has granted the said 8 acres of land to Sri. R. Muniswamy Reddy S/o Ramaiah Reddy and further he has contended that thereafter the concerned Tahsildar has issued title deed (Form No.II) in favour of Sri. Muniswamy Reddy pertaining to 8 acres of land granted to him and Ex.P32 is the sketch prepared by the Surveyor in respect of 36 O.S.No.1326 / 2009 the said 8 acres of land that was allotted to Sri. R. Muniswamy Reddy S/o Ramaiah Reddy. But the defendant has denied the above contention of the plaintiff and according to the defendant no such grant was made in favour of Sri. R. Muniswamy Reddy S/o Ramaiah Reddy to an extent of 8 acres of land and the alleged documents are bogus documents. Therefore, in view of the above rival contention of the parties, the initial onus of proof lies upon the plaintiff to prove the fact that as contended by him the said Sri. R. Muniswamy Reddy S/o Ramaiah Reddy was granted 8 acres of land in Sy.No. 146 by the Government under Ex.P28 document in a proceeding bearing No. LND.SR.(1) 52/60-61 dated 29.12.1960.
48. If we peruse the contents of Ex.P28 copy of official memorandum dated 29.12.1960, it shows that in a proceeding bearing No. LND.SR(1).52/60-61 dated 29.12.1960 after obtaining reports from the Tahsildar, Bangalore South Taluk, Sub-Divisional Officer, Sub- Division, Bangalore and in view of GO. mentioned in the said document, the Special Deputy Commissioner, 37 O.S.No.1326 / 2009 Bangalore District said to have granted 8 acre of land in Sy.No. 146 of Hoody Village in favour of one Sri. R. Muniswamy Reddy S/o Ramaiah Reddy. The contents of this document shows that before grant of the said land, the said Sri. R. Muniswamy Reddy S/o Ramaiah Reddy was an unauthorized occupant and that he was under
unauthorized cultivation of the land.
49. If the person in unauthorized occupation of the land desires that the land unauthorisedly occupied by him be granted to him, he shall make an application to the Deputy Commissioner in form No. I as per the Karnataka Land Revenue (Regularization of Unauthorized Occupation of Lands) Rules. On receipt of the application under Rule 3, the Deputy Commissioner shall, after verifying the particulars furnished by the applicant by holding such enquiry as he deems necessary and after determining the extent of land that may be granted and the price that may be charged, publish a notice in Form No. II in the chavadi of the Village in which the land is situate and also in the office of the panchayat concerned calling for objections to the 38 O.S.No.1326 / 2009 proposed grant, to be preferred by a date to be specified in the notice, which shall not be less than 15 days from the date of the notice as per Rule 4. After the expiry of the date specified in such notice and after considering the objections received and after further any enquiry that is considered necessary, the Deputy Commissioner shall determine whether any extent of land may be granted, at what price and subject to what conditions, as required in sub-rule (2) of Rule 4. Thereafter the Deputy Commissioner shall issue a notice in Form No. III to the applicant calling upon him to intimate within a date to be specified, or deposit of the price fixed. If the applicant expresses his willingness and deposits the price within the dates specified or the time extended the Deputy Commissioner shall make the grant and pass an order therefor.
Therefore, before grant of land to any unauthorized occupant of the land, the concerned Deputy Commissioner has to follow the procedure as mentioned in Rule 3 and 4 of the Karnataka Land Revenue (Regularization of Unauthorized Occupants of Lands) Rules. But in the present case the plaintiff has produced only Ex.P28 official 39 O.S.No.1326 / 2009 memorandum and Ex.P32 copy of sketch prepared by the surveyor pertaining to the alleged 8 acres of land alleged to have been granted to the said Sri. R.Muniswamy Reddy S/o Ramaiah Reddy under Ex.P28 document.
50. If we peruse the contents of Ex.P28 official memorandum, the description of the alleged grantee is shown as Sri. R.Muniswamy Reddy S/o Ramaiah Reddy. In the same way in Ex.P31 Form No. II. Title deed to be given to the grantees of lands under the Depressed Class Rules also the description of the grantee is shown as Sri. R.Muniswamy Reddy only. Even his father's name is not at all mentioned in Ex.P31 document. While granting such huge 8 acres of land to any grantee by the Government, in such Ex.P28 official memorandum and Ex.P31 Form No. II. Title deed to be given to the grantees of land under the Depressed Class Rules, the concerned Deputy Commissioner and Tahsildar have to mention the full particulars of the applicant i.e. his name, father's name, age, name of the village including taluk, so as to identify the same clearly of the said grantee without any ambiguity. 40 O.S.No.1326 / 2009 But in Ex.P28 and P31 documents we can see the name of the alleged grantee as Sri.R. Muniswamy Reddy S/o Ramaiah Reddy only with regard to person sought for grant, but no full description of the alleged grantee is forthcoming in these two important documents.
51. More over, in Ex.P28 document at page No.2 the signature of special Deputy Commissioner with seal of the office is not present. In this document after passing of the alleged order, at page No.2 it has been mentioned as under.
"1. Copy of the above together with connected recordeds is forwarded to the Sub-Division officer, Bangalore, Sub-Division, Bangalore for taking necessary action.
2. Copy of the Tahsildar, Bangalore South Taluk for information and necessary action asper rules.
Sd/-
(signature is appearing) for Special Deputy Commissioner Bangalore District."
In this document at page No.2 after passing of the alleged order, why the signature and seal of the Special Deputy Commissioner, Bangalore District is not forthcoming has not been explained by the plaintiff in this case. As per the contents of this document the Special Deputy 41 O.S.No.1326 / 2009 Commissioner has passed the said order in a proceeding bearing No. LND.SR.(1)/52/60-61 dated 29.12.1960. If that is so, usually all the papers connected to the entire file are kept in the said original proceeding file and the same is in the custody of the Special Deputy Commissioner, Bangalore District. In this document it is not clearly mentioned that by making order the Special Deputy Commissioner has ordered to sent the entire original file in LND.SR.(1)52/1060-61 dated 29.12.1960 to the office of the Sub-Divisional Officer, Bangalore as stated supra. In such circumstances, it can be stated that the original entire file relating to the proceeding bearing No. LND.SR(1)52/60-61 dated 29.12.1960 is in the custody of Special Deputy Commissioner, Bangalore District but not in the custody of Sub-Divisional officer, Bangalore as mentioned in the said document.
52. In this case there is no impediment for the plaintiff to obtain the certified copies of Form No.I i.e. application submitted by the alleged Sri.R.Muniswamy Reddy S/o Ramaiah Reddy for seeking grant of 8 acres of land, Form 42 O.S.No.1326 / 2009 No.II, certificate of the village accountant and revenue inspector to show that notice in form No. II was published by affixing it in the Village etc. and form No. III as required under the Karnataka Land Revenue (Regularization of Unauthorized Occupation of Lands) Rules.
53. It is seen that the plaintiff has not applied for obtaining the copies of the above documents by submitting copy application in the office of the Special Deputy Commissioner who is the actual custody of entire original file in LND.SR.(1)52/60-61 dated 29.12.1960. If the plaintiff applied for obtaining those copies by submitting copy application in the office of the Special Deputy Commissioner, definitely they would have issued such all the copies to the plaintiff provided if such proceedings in LND.SR(1) 52/60-61 was made by the Special Deputy Commissioner and ordered for grant of 8 acres of land to the said Sri.R. Muniswamy Reddy S/o Ramaiah Reddy. The plaintiff has not stated any reasons as to why he failed to approach the office of the Special Deputy Commissioner for obtaining the certified copies of those documents. 43 O.S.No.1326 / 2009 Therefore, in view of the above facts and circumstances of the case and the reasons as stated supra, it is stated that adverse inference has to be drawn against the plaintiff for non-production of certified copies of the relevant document from the office of the Special Deputy Commissioner, Bangalore District.
54. It is seen that even the plaintiff has not produced any receipt to show that the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy has deposited upset price of Rs.920/- in the concerned Treasury by submitting challan. Regarding this aspect of the matter, there is no explanation or evidence is forthcoming from the plaintiff.
55. According to the plaintiff, Ex.P31 is the copy of grant certificate issued by the Tahsildar, Bangalore South Taluk, in favour of Sri.R. Muniswamy Reddy S/o Ramaiah Reddy for having grant of 8 acres of land in Sy.No. 146 of Hoody Village, as per the order of the Special Deputy Commissioner, in LND.SR.(1)52/60-61. In Ex.P31 at page No.2 under the heading 'description of land' at boundaries 44 O.S.No.1326 / 2009 column it has been mentioned as 'as per revenue inspector's sketch'. But as per the contents of Ex.P32 sketch the same was prepared by Surveyor, Bangalore South Taluk, but the same not prepared by the Revenue Inspector. Even the signature of Revenue Inspector is not forthcoming in Ex.P32 document. More over, on whose direction and based on which letter of the concerned revenue officer, the surveyor has prepared Ex.P32 sketch of the alleged 8 acres of land is not mentioned in this document. Therefore, no value can be attached to the contents of Ex.P32. As per the contents of Ex.P32 sketch, this document is the extract of the copy which is available in the office of the Asst. Commissioner, Bangalore Sub-Division, Bangalore. But the plaintiff has not obtained the certified copy of this alleged sketch from the original file bearing No. LND.SR.(1)52/60-61 which is in the custody of special Deputy Commissioner, Bangalore District.
56. According to the plaintiff Ex.P30 the original grant certificate marked as Ex.P39 in connected O.S No.1440/09 was issued to the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy.
45 O.S.No.1326 / 2009
It is seen from the records that this copy of original alleged grant certificate i.e. Ex.P39 was got marked through PW 1 in that case at the time of evidence on 17.07.2014 i.e. after a lapse of about 5 years from the date of filing of the suit.
Sub-Rule (1) to (3) of Order VII Rule 14 of CPC reads as under.
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.
(3) A document which out to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produce or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
Rule 14 of Order VII of CPC was substituted by Act No.46 of 1999, w.e.f. 01.07.2002. The plaintiff has filed this suit during the year 2009. Therefore, Sub-Rule (1) of Order 46 O.S.No.1326 / 2009 VII Rule 14 of CPC mandates that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. As per Sub-Rule (2) of Order VII Rule 14 of CPC, where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.
But in this case the plaintiff has not at all stated in the plaint or at subsequent stage of the proceedings, i.e. before filing of the written statement or settlement of issues to the effect that in whose possession this alleged Ex.P39 original grant certificate is present. But after a lapse of about 5 years from the date of filing of the suit, this important alleged grant certificate is produced before the court and got marked through PW 1 in O.S No1440/09.
57. The plaintiff has not examined his vendors namely, Nagarathna Reddy and Srinivasa Reddy who are said to be 47 O.S.No.1326 / 2009 the children of the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy in order to prove the factum of grant made in favour of their father by the Special Deputy Commissioner in LND.SR.(1) 52 / 60-61. Therefore, adverse inference has to be drawn against the plaintiff for non- examination of his vendors.
58. As already stated, the contents of Ex.P28 official memorandum shows that before seeking grant of 8 acres of land in Sy.No. 146, the applicant Sri.R.Muniswamy Reddy S/o Ramaiah Reddy was an unauthorized occupant and he is under unauthorized cultivation. But if we peruse the contents of Ex.P28 copy of the alleged grant certificate which was issued in prescribed Form No. II. Title deed to be given to the grantees of lands under the Depressed Class Rules, it shows that such title deed to be given to the grantees of unoccupied Government land for cultivation and the grant of occupancy rights to Depressed Classes, but not to the applicants or grantees who are under unauthorized cultivation of the land. The above facts and circumstances of the case is one of the strong 48 O.S.No.1326 / 2009 circumstances to disbelieve the case of the plaintiff regarding the alleged grant of 8 acres of land in Sy.No. 146 of Hoody village in favour of the alleged grantee Sri.R.Muniswamy Reddy S/o Ramaiah Reddy.
59. According to the plaintiff, in order to show that 8 acres of land was granted to Sri. R. Muniswamy Reddy, he obtained Ex.P8 Saguvali Chit extract from the office of Tahsildar, Bangalore South Taluk. The contents of this document shows that this document was obtained from the office of the Tahsildar, Bangalore South Taluk on 16.12.1987. This copy of Saguvali Chit extract was prepared in ink pen and it was handwritten in a white paper. In this document, Grant Order number is shown as 39 LND & R.I.526/60-61. But in the plaint the plaintiff has mentioned the grant order number as Grant Order No.39/LND&R/60-61. This shows that the alleged grant order mentioned in the plaint is not tallies with the above alleged grant order mentioned in Ex.P8 document. In this document event though it is mentioned that R. Muniswamy Reddy was granted an extent of 8 acres of land in Sy.No. 49 O.S.No.1326 / 2009 146 of Hoody Village for an upset price of Rs.100/- per acre and it is also mentioned the figure 920 (towards total upset price) but in this document it is not at all mentioned regarding the receipt number and date on which the grantee deposited the upset price of Rs.920/- to the Treasury. In this document the proceedings No. LND.SR (1) 52/60-61 dated 29.12.1960 of Special Deputy Commissioner, Bangalore District is not mentioned regarding the alleged sanction of 8 acres of land to the said R.Muniswamay Reddy. Therefore, this document is not helpful to the case of the plaintiff to prove that the Government has granted 8 acres of land to R. Muniswamay Reddy in Sy.No. 146.
60. Ex.D74 marked in O.S.No.1440/2009 in an endorsement dated 13.03.2013 issued on behalf of the Deputy Commissioner, Bangalore District in favour of one Sri. Munisiddappa who sought for copies of document pertaining to grant made relating to Sy.No. 146 of Hoody Village in the proceeding No. LND52/60-61 of Deputy Commissioner. In the same way, Ex.D77 marked in O.S.No.1440/2009 is another endorsement dated 50 O.S.No.1326 / 2009 20.02.2013 issued on behalf of Deputy Commissioner Bangalore District by its Office in favour of Munisiddappa who sought for copies of documents pertaining to grant made relating to Sy.No. 146 of Hoody Village in the proceedings No.LND/SR52/60-61 of Deputy Commissioner.
61. In the above said two endorsements it has been mentioned that after verification of records in the concerned branch it is found that the records is not available / present. This clearly shows that no such records relating to land grant proceedings bearing No.LND(1)SR52/60-61 is available in the office of Deputy Commissioner, Bangalore District. But as per the contents of Ex.P36 official memorandum dated 29.12.1960, the Special Deputy Commissioner, Bangalore District has granted 8 acres of land in Sy.No. 146 to R.Muniswamy Reddy S/o Ramaiah Reddy in a proceedings bearing No. LND(1)SR52/60-62.
62. If really such grant was made in the above said proceeding number file, definitely, the Deputy Commissioner Bangalore District would have issued copies of proceedings 51 O.S.No.1326 / 2009 No. LNDSR(1)(52/60-61 instead of issuing such endorsements. Therefore, from the above circumstances, it can be stated that no such proceedings No. LND SR (1) 52/60-61 is available/ present in the office of Deputy Commissioner, Bangalore District.
63. Apart from this, as per the contents of Ex.D29 endorsement dated 18.03.2009 issued by the under Secretary to Revenue Department (Land Grant), Government of Karnataka, Bangalore, the defendant has sought for copy of order pertaining to grant of 8 acres of land in Sy.No. 146 of Hoody Village in the name of R.Muniswamay Reddy by mentioning G.O. No.RD 26 LRD 60 dated 22.12.1960. But in the endorsement it is stated that on verification of records in land grant section and Government Gazette Section it is found that as per G.O.No. RD 26 LRD 60 dated 22.12.1960 no land was granted to Sri. R.Muniswamay Reddy and in this regard no information is available in their office. The content of Ex.D29 document shows that no such grant was made in the name of Sri. R.Muniwamay Reddy as per G.O.No. RD 26 LRD 60 dated 22.12.1960.
52 O.S.No.1326 / 2009
64. Ex.D1 copy of plaint in O.S. No. 6582 / 1997 shows that the vendors of the plaintiff viz., Nagarathna Reddy and Sri.Sreenivasa Reddy filed the suit against the Managing Director, KIADB, Bangalore for the relief of permanent injunction pertaining to the land in Sy.No. 146 which is alleged to have granted to their father Sri. R. Muniswamy Reddy during his life time.
65. The contents of Ex.D39 memo dated 30-10-1998 field by the defendant of that suit shows that the land in question came to be acquired by the State for KIADB. The Notification are already field before the court. In view of the same it is prayed to dismiss the suit as not maintainable. The contents of Ex.D43 copy of letter of F.D.S. KIADB Bangalore and the sketch (Ex.D44) attached to it shows that joint survey was conducted in order to identify the land acquired under Section 28 (4) of KIADB Act i.e. 13.33 guntas in Sy.No. 146 of HoodyVillage. The copy of sketch attached to Ex.D43 shows that the land which is mentioned in the letter ABCD i.e. 8 acres of land which is shown in the 53 O.S.No.1326 / 2009 boundary of the suit schedule property by Sri. Nagarathna Reddy and Sreenivasa Reddy in O.S. No. 6582 / 1997 pertaining to the same boundary and this land as per the joint survey comes within the land acquired under the Notification.
66. If we compare the plaint schedule of 8 acres of land mentioned in O.S. No.6582 / 1997 with the copy of Ex.D.44 sketch it shows that both the boundaries are tallies with each other. This shows that at an un disputed point of time the vendors of the plaintiff have stated in the plaint schedule in O.S. No. 6582 / 1997 that their alleged 8 acres of land is situated towards eastern extremity of Sy.No. 146 i.e. adjacent to Sy.No. 145 towards eastern side.
67. It is seen from the records that through out it is the contention of the plaintiff that the land measuring 8 acres granted to Sri. R.Muniswamay Reddy is situated towards western side of Sy.No. 146 but not towards eastern extremity of Sy.No. 146. At that time of arguments, the learned counsel for the plaintiff drew the attention of this 54 O.S.No.1326 / 2009 court with regard to the contents of Ex.P22 rectified notification issued by the KIADB and it is submitted that as per the boundaries mentioned in this document relating to the land measuring 8 acres of Nagarathna Reddy and Sreenivasa Reddy the eastern boundary is shown as acquired land in Sy.No. 146 and therefore, the land measuring 8 acres belong to the vendors of the plaintiff is situated towards western side of Sy.No. 146 but not towards eastern extremity of Sy.No. 146.
68. It is seen that though it is mentioned in Ex.P22 document that the eastern boundary is the acquired land in Sy.No. 146, but the contents of this document regarding eastern boundary cannot be accepted because the vendors of the plaintiff themselves stated in the plaint schedule of their alleged 8 acres of land towards eastern boundary as Sy.No.145 in O.S. No. 6582/1997. Even the sketch prepared after joint survey also shows the same.
69. This apart, Ex.D42 letter dated 27.12.1197 given by the vendors of plaintiff to the Special LAO, KIADB shows 55 O.S.No.1326 / 2009 that they themselves admitted regarding survey conducted by the surveyor on 12.11.1997 and they shown their land to him in the spot and they requested to issue copies of survey sketch and statement given by them. Therefore, the contents of Ex.D42 itself shows that vendors of plaintiff themselves shown their land to the Surveyor at the time of conducting survey in Sy.No. 146. As already state, as per the sketch prepared by the surveyor the alleged land of 8 acres of the vendors of plaintiff is situated towards eastern portion of Sy.No. 146 which is tallies with the plaint schedule in O.S. No. 6582 / 1997. Ex.D40 copy of memo dated 13.01.1999 shows that the plaintiff in O.S. No. 6582 / 1997 filed the said memo praying to dismiss the suit as they intend to settle their claims with the defendant. Ex.38 copy of order sheet in O.S. No. 6582/1997 shows that in view of the memo filed by the plaintiff the suit is disposed of as withdrawn. Ex.D49 copy of order passed by the Hon'ble High Court in W.P. No.42890/2002 dated 01.09.2004 shows that the vendors of the plaintiff field the said Writ petition against the Secretary, Revenue Department and KIADB seeking direction to the respondents to pay compensation 56 O.S.No.1326 / 2009 for the land alleged to have been acquired. Learned counsel for the 2nd respondent KIADB submits that final notification is not issued. In view of this submission, the Hon'ble High Court has ordered that question of paying compensation to the petitioners does not arise and the writ petition is wholly unnecessary and hence the writ petition is disposed of accordingly.
70. All the above facts and circumstances of the case shows that even though the plaintiff and his vendors have contended that the said 8 acres of land granted to R.Muniswamay Reddy in Sy.No. 146 is situated towards western side, but in O.S. No. 6582/1997 the vendors of the plaintiff themselves have shown the eastern boundary of their land as Sy.No. 145 and as per the plaint schedule and the survey sketch prepared at the time of joint Secretary shows that the alleged 8 acres of land is situated on the eastern extremity of Sy.No. 146 but not towards western portion of Sy.No. 146. This itself shows that the identity and location of the alleged 8 acres of land as they claimed is 57 O.S.No.1326 / 2009 not at all proved by the plaintiff or his vendors by placing material evidence.
71. During the course of arguments, the learned senior counsel for defendant submits that as per Ex.D74 copy of registered partition deed dated 25.04.2003 the wife and children of R.Muniswamay Reddy viz., Smt. Venkatamma, Sri. Nagarathna Reddy and Sri. Sreenivasa Reddy partitioned their joint family properties and in the said partition deed this alleged 8 acres of land in Sy.No. 146 alleged to have granted to R.Muniswamay Reddy is not mentioned and that as this 8 acres of land was not granted to R. Muniswamay Reddy in Sy.No. 146 for that reason the said property is not include in the said partition deed and hence the claim of the plaintiff that 8 acres of land in Sy.No. 146 was granted to R.Muniswamay Reddy cannot be accepted.
72. As rightly submitted by the learned senior counsel for the defendant, it is seen that though the wife and children of R. Muniswamay Reddy i.e. Smt. Venkatamma and vendors 58 O.S.No.1326 / 2009 of the plaintiff have partitioned their joint family properties, but conspicuously this alleged 8 acres of land alleged to have granted to the father of vendors of the plaintiff is not present or mentioned as their joint family properties and this property is not partitioned in the said document. If at all this 8 acres of land was really granted to the father of the vendors of plaintiff the question of omitting the said land in this partition deed does not arise. This partition was effected between them at an undisputed point of time i.e. before purchase of suit property by the plaintiff from his vendors under Ex.P1 registered sale deed dated 05.09.2006. This is one of the strong circumstances to disbelieve the contention of the plaintiff that 8 acres of land was granted to Sri. R. Muniswamay Reddy in Sy.No. 146 by the Government under Ex.P28 alleged order passed by the Special Deputy Commissioner, Bangalore District.
73. Therefore, on considering the above facts and circumstances of the case and for the reasons as stated by me supra, it is my considered opinion that the plaintiff has failed to prove the fact that the 8 acres of land was granted 59 O.S.No.1326 / 2009 to Sri. R.Muniswamay Reddy (father of his vendor) in Sy.No. 146 of Hoody Village by the Government in proceedings bearing No. LND SR(1) 52/60-61 dated 29.12.1960 under Ex.P28 document. During the course of arguments the learned counsel for the plaintiff would submits that after grant of 8 acres of land in Sy.No. 146 of Hoody Village in favour of father of the vendors of the plaintiff i.e., R. Muniswamay Reddy as per Ex.P28 order of Special Deputy Commissioner, the name of Sri. R. Muniswamay Reddy was entered in Column No.9 and 12 (2) of RTC extract (Ex.P15) from the year 1967-68 onwards to an extent of 8 acres and after the death of R. Muniswamy Reddy on the basis of Ex.P9 mutation extract the names of vendors of plaintiff viz., Nagarathna Reddy and Sreenivasa Reddy entered in the RTC as per IHC 1/96-97 from the year 1997-98 and onwards as shown in RTC extract, both in Column No.9 and 12(2) pertaining to 8 acres of land granted to R. Muniswamay Reddy. Thereafter entries in the RTC not continued in their name for some time. The said Nagarathna Reddy and Sreenivasa Reddy approached the Asst. Commissioner by filing appeal in R.A. No. 360/04-05 and 60 O.S.No.1326 / 2009 the said appeal was allowed on 11.01.2004 and that the Asst. Commissioner directed that katha to be made in the name of Nagarathna Reddy and Sreenivasa Reddy and accordingly, their names entreed in the RTC as per M.R. No. 66/04-05 dated 15.01.2005 for 8 acres of land from 2007- 08 and onwards and the said entries in revenue records are not challenged by the defendant and hence, presumption has to be drawn with regard to the entries in the revenue records with respect to the names of vendors of plaintiff as per Section 133 of the Karnataka Land Revenue Act. In this regard the learned counsel for the plaintiff has placed reliance on the following decisions.
(1) (2018) 6 SCC 580 - VISHWASRAO SATWARAO NAIK AND OTHERS VS. STATE OF MAHARASHTRA.
(2) ILR 2014 KARNATAKA 4716 - VASUDEV AND OTHERS VS. TUKARAM BHIMAPPA NAIK AND OTHERS.
(3) ILR 2014 KARNATAKA 1881 - G.M. NAGESHA GOWDA AND OTHERS VS. SMT.
ANNAPOORNAMMA AND OTHERS.
(4) ILR 2006 KARNATAKA 2994 - SMT.
GOWRAMMA (SINCE DEAD BY LRS VS. THE LAND TRIBUNAL, THE TAHSILDAR) 61 O.S.No.1326 / 2009 (5) (2002) 10 SCC 315 - KAREWWA AND OTHERS VS. HUSSENSAB KHANSAHEB WAJANTRI AND OTHERS.
74. On the other hand, the learned counsel for the defendant would submits that RTC for the earliest period is Ex.P15. As per this document the total extent of land in Sy.No. 146 is shown as 26 acres 13 guntas. In Column No. 9 the names of several persons as holding land and extent they hold is shown. The name of the said R.Muniswamy Reddy has been added as a last entry in a different ink in Column No.9 to an extent of 8 acres is a fraudulent entry. If that is so, the presumption under Section 133 of the Karnataka Land Revenue Act, do not come to the aid of the plaintiff. In this regard the learned counsel for the defendant has placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 1977 SC 1712.
75. The sum of substance of the ratio laid down in the above 5 cited decisions as referred by the learned counsel for the plaintiff is that 'presumption of the truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleged that the 62 O.S.No.1326 / 2009 entries in the revenue record are wrong to lead evidence to rebut this presumption.'
76. The sum and substance of the ratio laid down in the above cited decision as referred by the learned counsel for the defendant is that 'There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct.' Bearing in mind the ratio land down in the above cited decisions now it is just and reasonable to peruse the contents of RTC extracts.
77. As rightly submitted by the learned counsel for the defendant it is seen that in Ex.P15 RTC extract the total extent of land in Sy.No. 146 is shown as 26 acres 13 guntas. This RTC extract is issued for the year 1967-68 to 1970-71. In Col. No.9 it has been mentioned as under.
6-0 Nagappa Reddy
3-0 M.G.Vasanthaiah
5-13 A.V. Ppaiah Reddy
6-0 Thippamma
5-0 R. Munishami Reddy
8-00 R. Munishami Reddy (in different ink). Opposite to his name in Col.No.11 it has been mentioned as LND SR 52/60-61 (in different ink).
63 O.S.No.1326 / 2009
78. If we calculate the above all the extent of lands, the total extent of land would be 33-13 guntas. But the total extent of land in Sy.No. 146 is only 26-13 guntas. Thus prima facie the contents of RTC extract itself shows that the last entry in the name of R.Muniswamy Reddy to an extent of 8 acres is a fraudulent entry. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue is also appears that the record of rights (Ex.P15) has no reference to the mutation entry that was made by the concerned Revenue authorities in the name of the alleged grantee R.Muniswamay Reddy by following the procedure as contemplated under the K.L.R. Act. Therefore, the defendant is right in contending that no presumption can validly arise from the record of rights.
79. As already stated, this court has held that the plaintiff has failed to prove the fact that the alleged R.Muniswamay Reddy was granted an extent of 8 acres of land by the Government in Sy.No. 146 of Hoody Village under Ex.P28 document. As stated above, this court has also held that no 64 O.S.No.1326 / 2009 presumption can validly arise from the record of rights. Hence this court has held that prima facie the contents of RTC extract itself (Ex.P15) intrinsically shows that the last entry in the name of R.Muniswamy Reddy to an extent of 8 acres is a fraudulent or illegal entry. In such circumstances, whatever the subsequent entries continued or made in the RTC extract pertaining to 8 acres of land in Sy.No. 146 in the name of R. Muniswamy Reddy and thereafter in the names of vendors of plaintiff have no presumptive value under Section 133 of K.L.R. Act. In such circumstances, no valued can be attached to the entries in the revenue records which are stood in the name of R.Muniswamay Reddy and thereafter the names of vendors of the plaintiff. Therefore the above arguments as advanced by the learned counsel for plaintiff has no force at all.
80. The documents produced by the defendant shows that as per Ex.D33 copy of the order passed by the Tahsildar when the present plaintiff Rupen Patel & Sathyapal (other plaintiffs in connected O.S. No. 1440 / 2009 and 1379 / 2009), who are the purchaser of the land measuring 8 acres in Sy.No. 146 from the said Sri. Nagarathna Reddy and Sri. 65 O.S.No.1326 / 2009 Srinivasa Reddy seek transfer of Katha in their names in the revenue records, the same was objected by the deceased Sri.Sreedharan. Thereafter proceedings bearing No.RRT (Dis) 119, 120, 121/2006-07 arise before the Tahsildar, Bangalore East Taluk. The petitioners in that case are Satyapal, present plaintiff and one Ramesh Babu and the respondents are Sri. Nagarathna Reddy, Sri. Srinivasa Reddy, Sreedharan and others. In the above said proceedings, the Tahsildar, Bangalore East Taluk ordered to cancel the name of petitioners entered in the Katha in earlier M.R. No.66/04-05. Against the order dated 18.04.2007 passed by the Tahsildar, the present plaintiff and others preferred R.A. 68/1961/195/2007-08 before the Asst. Commissioner, Bangalore North Sub-Division. After perusing the records the Assistant Commissioner has dismissed the appeal on 11.07.2008. Thereafter, aggrieved by the said order, the appellant / plaintiff in O.S.No.1440 / 2009 preferred Revision Petition No. 42/2008-09 (Ex.D35) before the Special Deputy Commissioner, Bangalore District. Having heard the argument of the learned counsel for the parties the Special Deputy Commissioner has allowed the 66 O.S.No.1326 / 2009 Revision Petition on 22.12.2008 on other reasons, but the said order is not helpful to the appellant. In the said order, the special Deputy Commissioner has stated that there is serious dispute with regard to the right, title and as well as possession of the lands in question. Thereafter, being aggrieved by the said order, the said Ramesh Babu, Rupen Patel and the present plaintiff have preferred writ petition No.32881 - 32883 / 2012 before the Hon'ble High Court. Having heard the arguments of the learned counsel for the parties, on 28.11.2012 the Hon'ble High Court has remanded the matter to hold enquiry by the Special Deputy Commissioner as observed in para No.18 of the order and ordered to dispose of the matter within an outer limit of four months from 10.12.2012. During the course of the arguments the learned counsel for the parties submits that after remand of the matter till now the matter is not disposed of. Be that as it may.
81. Therefore, on considering the oral and documentary evidence of both the parties and in view of the reasons as stated by me supra, it is held that the plaintiff has failed to 67 O.S.No.1326 / 2009 prove the fact that the said R.Muniswamy Reddy (father of vendors of the plaintiff) was granted 8 acres of land in Sy.No. 146 of Hoody Village by the Government under Ex.P28 document. Consequently, no title will conferred to the plaintiff in respect of suit schedule property on the strength of Ex.P1 registered sale deed dated 05.09.2006 executed by the said Sri. Nagarathna Reddy and Sri. Sreenivasa Reddy who are the children of deceased R.Muniswamay Reddy.
82. During the course of arguments the learned senior counsel for defendant would submits that one Yellappa Reddy claiming to be the owner of the land bearing Sy.No. 146 had sold different extent of land to one H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamay Reddy and Smt. Parvathamma. The lands were subsequently purchased by H.D. Nagappa Reddy in a public auction. The said public auction was challenged by the public and auction was set aside and an appeal was filed by H.V. Nagappa Reddy and others who had purchased the land from Yellappa Reddy. However, subsequently, the 68 O.S.No.1326 / 2009 Government taking into consideration their actual cultivation, after having purchased by Yellappa Reddy, granted 3 acres of land each to the above said H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamay Reddy and Smt. Parvathamma. Even earlier to grant in their favour, Parvathamma sold an extent of 10 acres of land to Dr.R. Muniswammy Reddy on 01.10.1951. Similarly, B. Muniswamy Reddy also sold an extent of 5 acres of land under a registered sale deed dated 01.10.1951 to Dr.Muniswamy Reddy. Sri. H.V. Papaiah Reddy also sold 3 acres of land Dr.R. Muniswamy Reddy under a registered sale deed dated 20.10.1953. H.V. Nagappa Reddy also sold 6 acres of land to Dr. R.Muniswamy Reddy under a registered sale deed dated 01.10.1951. However, the above said persons got only 3 acres of land each granted to them. Thereby Dr.R.Muniswamy Reddy became owner of land granted to aforesaid four persons since the sale deeds were executed earlier to the grant. Further, it is argued that by virtue of Section 43 of Transfer of Property Act, although on the date of sale, the vendors had no title to the property since each of them obtained title to 3 acres of land by grant, 69 O.S.No.1326 / 2009 subsequently, the title of Dr. R.Muniswamy Reddy to a total 12 acres of land was also perfected by the doctrine of feeding the grant of estoppel. The learned counsel for the defendant has placed reliance on the following decisions.
(1) (2003) 10 SCC 200 - RENU DEVI VS.
MAHENDRA SINGH AND OTHERS.
(2) ILR 2015 KARNTAKA 3353 - SMT.
SHARADAMMA AND ANOTHER VS. SRI. R.
VISHWANATH AND OTHERS.
83. During the course of arguments, the learned counsel for the plaintiff would submits that at the time of selling the lands by the above said H.V. Nagappa Reddy, H.V. Papaiah Reddy, B.Muniswamay Reddy and Smt. Parvathamma through sale deeds to the said Dr. R.Muniswamy Reddy, no lands were granted to them by the Government and prior to the grant made in their favour the said four persons have executed the sale deeds in favour of Dr. R. Muniswamy Reddy for more extent than the extent of land granted to them and that at the time of executing the said sale deeds the grantees have no title to execute such sale deeds and therefore, the lands purchased by late Sreedharan from the 70 O.S.No.1326 / 2009 legal heirs of Dr. R. Muniswamy Reddy will not confer any title to him to an extent of 5 acres 24 guntas of the land which he purchased in Sy.No. 146 and Section 43 of the Transfer of Property Act is not applicable to the present case. The learned counsel for the plaintiff has placed reliance on the following decisions.
(1) (1994) 4 SCC 730 - KARTAR SINGH (DEAD) BY LRs AND OTHERS VS. HARBANS KAUR (SMT.) (2) 1962 SUPP (1) SCR 554 - JUMMA MASJID MERCaRA VS. KODI MANIANDRA DEVIAH AND OTHERS.
84. It seen from the records that in Ex.D33 order dated 18.04.2007 in RRT Dispute No. 119 to 121 / 2006-07, in the body of the order, the concerned Tahsildar has stated that under G.O. No.R16451-52 LR 475/51-9 dated 09.03.1953 Government has granted 3 acres of land each to (1) H.V. Narayana Reddy (it appears that by oversight the name of H.V. Narayana Reddy has been mentioned instead of H.V. Nagappa Reddy), (2) H.V. Papaiah Reddy, (3) Parvathamma, (4) B. Muniswamy Reddy. Saguvali chit was issued to them on 22.08.1955. Ex.D4 copy of Saguvali Chit 71 O.S.No.1326 / 2009 register extract also shows that the Government has granted 3 acres each to the above said four persons in Sy.No. 146 of Hoody Village.
85. As per Ex.D70 copy of registered sale deed dated 01.10.1951 the above said grantee B. Muniswamy Reddy had sold 5 acres of land in Sy.No. 146 to Dr. R.Muniswamy Reddy. As per Ex.D71 copy of registered sale deed dated 01.10.1951 one H.V. Narayana Reddy and his wife Smt. Parvathamma stated above have sold 10 acres of land in Sy.No. 146 to Dr.R. Muniswamy Reddy. As per Ex.D72 copy of registered sale deed dated 14.09.1953 the said H.V. Nagappa Reddy had sold 6 acres of land in Sy.No. 146 to Dr. R. Muniswamy Reddy. As per Ex.D73 registered sale deed dated 23.10.1953 the above said Papaiah Reddy has sold 3 acre of land in Sy.No. 146 to Dr. R. Muniswamy Reddy.
86. Ex.D33 document shows that the Government has granted 3 acres of land each to the above said four persons on 09.03.1953 as per the Government order. The above said Ex.D73 sale deed dated 23.10.1953 was executed after 72 O.S.No.1326 / 2009 the grant dated 09.03.1953 by the said Papaiah Reddy in favour of Dr. R. Muniswamy Reddy. Therefore, the consideration of applicability of Section 43 of Transfer of Property Act so far as with respect to this sale transaction does not arise.
So far as with respect to the sale transaction took place under Ex.D70 to D72 documents is concerned, as per the contents of Ex.D72 document it has been mentioned that sale agreement bearing No. 4422 was also handed over to Dr.R.Muniswamy Reddy. On considering the above contents of Ex.D72 document and as Ex.D70 and D71 sale transactions are took place prior to the grant made in favour of the above said B.Muniswamy Reddy and Parvathamma, now it is just and reasonable to consider whether Section 43 of the Transfer of Property Act is applicable to the present case.
87. In the above cited KARTAR SINGH (DEAD) BY LRs AND OTHERS VS. HARBANS KAUR (SMT.)'s case in para No.4 and 7 of the judgment the Hon'ble Supreme Court has stated as under.
73 O.S.No.1326 / 2009
1. A reading clearly shows that for application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.
7. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possesses the title which he represents that he has. When note in the sale deed puts the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done in first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor, entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is no nest to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the 2nd limb of Section 43 of is not satisfied. The ratio of this Court in Jumma Masjid's case 1962 AIR SC 847 is thus:
74 O.S.No.1326 / 2009
"Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(a)."
This Court in the later part has made it clear that whether the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(1) of the Transfer of Property Act. In view of the finding that no diligent and reasonable enquiries were made regarding the entitlement of the mother to alienate the half share of the minor's estate, it cannot be said that the appellant had acted reasonably in getting the transfer in his favour. In the above cited RENU DEVI VS. MAHENDRA SINGH AND OTHERS's case in para No.14 of the judgment, the Hon'ble Supreme Court has stated as under.
"14. Though there is some doubt expressed by Indian scholars and authorities if the common law doctrine of 'the estate instantly passes' is applicable in India but there is no doubt that the doctrine of feeding the 75 O.S.No.1326 / 2009 estoppel applies in India. The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes."...............
88. Bearing in mind the ratio laid down in the above decisions, if we peruse the material on record, it is seen that before grant of land to the said B. Muniswamy Reddy erroneously he sold 5 acre of land to Dr.R.Muniswamy Reddy and the said Parvathamma and her husband also erroneously sold 10 acres of land to Dr.R.Muniswamy Reddy before grant of land to the said Parvathamma. In Ex.D70 sale deed the vendor has mentioned that R.A. No. 283 / 49- 50 is pending before Revenue Commissioner and he conducting the case and also it is mentioned that the purchaser has to come on record in that case and shall conduct the case. In Ex.D71 sale deed also the same has been mentioned with regard to case No. R.A. No. 283/49-
50. In Ex.D72 sale deed though it was executed after grant dated 09.03.1953, but in this document there is a reference with respect to earlier sale agreement bearing No.4422 and it is mentioned that the same was also handed over to the 76 O.S.No.1326 / 2009 purchaser Dr.R.Muniswamy Reddy. It is seen from the records that the Government has granted only 3 acres of land each to the above said Nagappa Reddy, Parvathama, Papaiah Reddy and B.Muniswamy Reddy. But prior to the grant itself the said B.Muniswamy Reddy, Parvathamma and Nagappa Reddy have sold more than the extent of grant as stated above to the purchaser Dr.R.Muniswamy Reddy.
Even though the above said 3 persons have sold more than the extent of 3 acres of land which was granted to them, but the said sale transactions has to be restricted to 3 acres of land each granted to them by the Government.
In the above RENU DEVI's case with regard to applicability of Section 43 of Transfer of Property Act , the Hon'ble Supreme Court has stated that "The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes".
In the present case, the execution and registration the above said sale deeds by the grantees is not much in dispute. There is no illegality or invalidity attaching with 77 O.S.No.1326 / 2009 the said deeds. The rule of estoppel by deed would clearly apply. Therefore, on considering the ratio laid down in the above RENU DEVI's case it is stated that by virtue of Section 43 of the Transfer of Property Act , although on the date of sale deeds, the vendors have no title to the property, since each of them were granted 3 acres of land later, the title passes to Dr.R.Muniswamy Reddy to an extent of 3 acres of land each i.e. total 12 acre of land in Sy.No. 146 as he perfected by the doctrine of feeding the grant by estoppel. I have perused the ratio laid down in the above cited KARTAR SINGH's case and ZUMMA MASJID MERCARA case and SMT SHARADAMMA's case. The facts of the above cited cases are differ from the facts and circumstances of the present case. Hence, the ratio laid down in the above decisions are not aptly applicable to the present case.
In the circumstances, it is stated that under Ex.D70 to D73 sale deeds R. Muniswamy Reddy had acquired title over total extent of 12 acres of land in Sy.No. 146. After his death his legal representatives were having title and possession over the said property.
78 O.S.No.1326 / 2009
89. As per Ex.D5 Revenue document, the legal heirs of deceased Dr. R. Muniswamy Reddy namely, his wife M. Padmavathamma, his children namely M. Vasundra Devi, M. Surendranath, M. Ravindranath and M. Dwarakanath got partitioned their family properties and in the said partition out of the 8 acres of land purchased by the said Dr.R.Muniswamay Reddy in Sy.No. 146, an extent of 2 acres of land was allotted to his daughter Smt. Vasundara Devi, an extent of 4 acre of land was allotted to one of his sons M.Surendranath, an extent of 2 acre of land was allotted to one of his sons by name Ravindranath and an extent of 4 acre of land was allotted to one of his sons Dwarakanath.
90. Under Ex.D6 to D15 different registered sale deeds the deceased Sreedharan had purchased 4 acre of land from the above said Surendranath which was allotted to his share in the partition. Further the said Sreedharan had purchased totally 1 acre 24 guntas in the Sy.No. 146 from one H.S.Babu Reddy under Ex.D18 to D21 different sale deeds. Further, the said Pramod had purchased the 79 O.S.No.1326 / 2009 remaining 1 are 16 guntas of land from the said Babu Reddy under Ex.D24 sale deed.
91. It is not much in dispute that, as stated above, the deceased Dr. M.Muniswamy Reddy had purchased 12 acres of land in Sy.No. 146 from the original grantees Nagappa Reddy, Parvathamma Papaiah Reddy and B.Muniswamy Reddy. In Ex.D33 document in the body of the order the concerned Tahsildar has stated that the Government has granted 3 acres of land each to the above said Nagappa Reddy, Parvathamma, Papaiah Reddy and Muniswamy Reddy and Saguvali chit was issued to them on 22.08.1955. Except this 12 acres of land the Government has not granted any land in the remaining 14 acre 13 guntas. Out of this 13 acres 33 guntas was acquired by the KIADB. The remaining land is only 20 guntas.
Bearing in mind the above factual situation in the matter, if we peruse the material on record it is seen that the Government has granted only 3 acres of land to the said grantee H.V. Nagappa Reddy on 09.03.1953. Under Ex.D72 sale deed dated 14.09.1953 he sold 6 acres of land to Dr. 80 O.S.No.1326 / 2009 Muniswamy Reddy, but the said Dr.Muniswamy Reddy is entitled for only 3 acres of land under this document as per Section 43 of the Transfer of Property Act. When the said Nagappa Reddy had already sold his 3 acres of land to Dr.Muniswamy Reddy under Ex.D72 sale deed on 14.09.1953, but the very same Nagappa Reddy had sold 3 acres of land in Sy.No. 146 to one Vasanthaiah under registered sale deed dated 30.05.1956. The said Vasanthaiah later sold the said 3 acres of land to H.S. Babu Reddy under a registered sale deed dated 12.07.1988. Thereafter the said Babu Reddy sold 1 acres 24 guntas out of the said 3 acres to late Sreedharan under Ex.D18 to D21 different sale deeds. Thereafter the said Babu Reddy has also sold the remaining 1 acre 16 guntas of land in Sy.No. 146 to C. Pramod under Ex.D24 registered sale deed dated 02.03.2010.
92. When the grantee Nagappa Reddy had already sold his land which was granted to him to Dr.Muniswamy Reddy during the year 1953 itself, the question of selling the very same property i.e., 3 acres to one Vasanthaiah during the 81 O.S.No.1326 / 2009 year 1956 does not arise because when once the vendor had already sold his 3 acres of land to the purchaser, again he cannot sell the very same property to another purchaser as he has no salable interest or title over the property which was already sold by him under the registered sale deed. The sale deed which was executed by Nagapa Reddy in favour of Dr. Muniswamy Reddy during the year 1953 is the earlier sale deed than the sale deed executed by Nagappa Reddy in favour of Vasanthaiah during the year 1956. Therefore, among these registered sale deeds, priority has to be given to the earlier sale deed dated 14.09.1953 executed in favour of Dr. M. Muniswamy Reddy. In such circumstances, it is stated that as the said Nagappa Reddy had no salable interest in respect of 3 acres of land which was granted to him as he already sold the said property to Dr. Muniswamy Reddy in the year 1953. The subsequent sale deed dated 30.05.1956 exeucted by the said Nagappa Reddy in favour of Vasanthaiah with respect to the very same property has no sanctity in the eye of law and in such circumstances, the said Vasanthaiah do not confer any title and possession of the said 3 acres of land purchased by him during the year 82 O.S.No.1326 / 2009 1956. When the said Vasanthaiah had no right over the said 3 acres of land and his sale deed has no sanctity in the eye of law, the subsequent sale deed executed by the said Vasanthaiah in favour of Babu Reddy pertaining to the said 3 acres of land also do not confer any right, title and possession over the property in favour of the said Babu Reddy. So also, as late Sreedharan had purchased 1 acre 24 guntas under Ex.D18 to D21 different sale deeds from the said Babu Reddy and the said C. Pramod had purchased the remaining 1 acre 16 guntas from the said Babu Reddy under Ex.D24 sale deed, the very same principles also applies to them and therefore, the said Sreedharan and also the said C.Pramod do not derive any right, title and possession over the said 3 acres of land which they have purchased under different sale deeds as stated above from the said Babu Reddy. Therefore, in view of the above facts and circumstances of the case and for the reasons as stated supra it is held that 4 acres of land that was purchased by late Sreedharan from Surendranath and others under the above said different sale deeds do confer valid title and possession over the said 4 acres of land only, but not to any 83 O.S.No.1326 / 2009 other extent of land in Sy.No. 146. So also the said C. Pramod had no right, title and possession over any portion of land in Sy.No.146 as his vendor has no salable interest to sell 1 acre 16 guntas to him under Ex.D24 document. The identity and location of the above said 4 acres of land purchased by late Sreedharan from Surendranath and others has been mentioned in the sketch which is attached to the order passed by the Special Tahsildar, Bangalore North Taluk (Ex.D33) and that is the property in which the said late Sreedharan was having right, title and possession over the same, but not in any other portion of the land in the Sy.No. 146.
93. During the course of arguments, the learned counsel for the plaintiff would submits that preliminary and final notification was issued by the KIADB to acquire the land in Sy.No. 146 and the names of Vasundramm, Surendrnath, Ravindranath and Dwarakanath as the owners and kathedars of the land was shown and their land measuring 12 acres was vested with the Government after passing final notification under the KIADB Act and therefore, the said 84 O.S.No.1326 / 2009 Surendranath cannot sell the said 4 acres of land to the late Sreedharan and therefore, late Sreedharan had no right over the said 4 acres of land as the same was acquired by the KIADB.
94. As against this, the learned senior counsel for the defendant would submits that as the names of Vasundaranamma, Ravindranath, Surendrenath and Dwarakaranth was shown as owners and kathedars in Sy.No. 146, because of that reason their names are mentioned in the Notification issued by the KIADB and that the KIADB came to know that their lands are situated on the western side of the Sy.No. 146 and what is proposed to be acquired under notification is on the eastern side and as such a rectified notification was issued. Further it is argued that once the final notification is issued there is an end of the matter and there cannot be any rectification as contended by the learned counsel for the plaintiff has on force because this argument overlooks the provisions of Section 21 of the General Clauses Act which specifically proves that any notification issued can be 85 O.S.No.1326 / 2009 rescinded/amended by the Government. The learned counsel for the defendant placed reliance on the decision of our Hon'ble High Court reported in ILR 2005 KAR 4199 - THOMAS PATRAO SINCE DECEASED BY HIS LRS AND ANOTHER VS. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY AND OTHERS.
95. It is seen from the records that the contents of Ex.D28 letter sent by the Chief Executive Officer and Executive member of KIADB to the Special Deputy Commissioner (Revenue), Bangalore District shows that the KIADB had issued notification under Section 28 (1) and 28 (4) of KIADB Act to acquire the land in Sy.No. 146 of Hoody Village. The Government had granted 3 acres of land each to Nagappa Reddy, Papaiah Reddy, B.Muniswamay Reddy and Smt. Parvathamma in Sy.No. 146 and till now no phode was made and that the names of grantees and their legal heirs has been entered in the RTC since the beginning and therefore, by oversight notification was issued under Section 28 (1) and 28(4) of the Act. Further it is mentioned in the letter that the said persons are in enjoyment of another 86 O.S.No.1326 / 2009 portion of the land in Sy.No. 146, they cannot come forward to get the compensation amount and therefore, it is recommended to grant 13 acres 33 guntas of land to the KIADB in Sy.No. 146. Ex.D26 copy of letter dated 09.02.2004 sent by Special LAO, KIADB to the Special Deputy Commissioner, Bangalore shows that the names of Surendranath, Dwarakanath, Ravindranath and Vasundaranath has been entered as Kathedars and Anubhavadars in Notification issued under Section 28 (4) of the Act. In this letter, for the reasons mentioned in the letter the Special LAO has intimated to cancel the names of Kathedars and Anubhavadars in the published 28 (1) and 28(4) of the Notification and informed to make rectified / amended notification. The rectified / amended notification which is present along with this document shows that earlier the names of Surendranath, Dwarakanath, Vasundaramma and Ravindranath were present in Notification issued under Section 28 (1) and 28(4) of the KIADB Act. Thereafter under this rectified notification it has been mentioned that in the notification issued under 28 (1) and 28(4) of the Act it has to be read as 'Sarkari 87 O.S.No.1326 / 2009 Mufatkaval'. This rectified notification was signed by the Special LAO, KIADB, Bangalore.
96. In the above cited THOMAS PATROS's case while dealing with the Notification issued under Section 28 of the KIADB Act, in para No.26 and 27 of the judgment, our Hon'ble High Court has held that "I have already held that acquisition is not complete till possession is not taken by the State Government. Section 21 of the Karnataka General Clause Act, 1899, lays down that whereby any enactment, a power to issue notifications, orders, rules or byelaws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules or byelaws so issued".............. "Thus, the Statement Government is competent to cancel the notification issued under Section 28 (2) and 28(4) of the KIADB Act by virtue of its power under Section 21 of the Karnataka General Clauses Act and this power can be exercised before taking possession of the lands". 88 O.S.No.1326 / 2009
97. If we apply the ratio laid down in the above decision to the facts and circumstances of the present case, it is seen that, in the present case also a rectified / amended notification was issued by the KIADB and in the said rectified notification the earlier names of the said four persons were deleted and in its place it is mentioned that it has to be read as 'Sarakari Mufatkaval'. More over, the plaintiff has not placed any material before the court to show that the said Surendranath and others have already taken compensation from the Government after acquiring their lands. Therefore, in view of the above reasons, it is stated that the above contention of the plaintiff has no force at all.
98. This court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to the said R. Muniswamy Reddy (father of vendors of plaintiff) in Sy.No. 146 of Hoody village. If that is so, the suit schedule property purchased by the plaintiff from the children of R.Muniswamy Reddy viz., Nagarathna Reddy and Sreenivasa Reddy under Ex.P1 sale deed dated 05.09.2006 89 O.S.No.1326 / 2009 do not confer any right, title and possession over the suit property in favour of plaintiff. Because when there is no material on record to show that the Government has granted 8 acres of land to R.Muniswamy Reddy in Sy.No. 146, the vendors of the plaintiff have no right to sell the suit schedule property in favour of plaintiff as they have no any semblance of right over the suit property. Hence, in view of all these reasons, it is stated that the plaintiff has failed to prove the fact that he is the absolute owner of the suit schedule property.
99. In the plaint the plaintiff has alleged that after purchase of the suit property he is in possession and enjoyment of the same. In the oral evidence also the PW 1 has reiterated the same.
Even though the plaintiff has stated in the plaint and also in the oral evidence that he has been possession and enjoyment of the suit schedule property after purchase of the same from its vendors, but the plaintiff has not produced even tax paid receipts pertaining to the property in order to show that his vendors have paid taxes to the 90 O.S.No.1326 / 2009 Government pertaining to the suit property before he purchased from them. Except the oral testimony of PW 1 there is no other evidence is available on record in order to show that as on the date of suit the plaintiff has been in possession and enjoyment of the suit property. This apart, this court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to the said R.Muniswamy Reddy in the suit Sy.No. 146. Further this court has also held that the vendors of the plaintiff has no right, title and possession over the suit property as the Government has not granted 8 acres of the land to the said R.Muniswamy Reddy. In such circumstances, it cannot be said that the plaintiff has been possession and enjoyment of the suit schedule property as on the date of filing of the suit.
100. At the time of arguments, the learned counsel for plaintiff has cited the decision of our Hon'ble High Court reported in ILR 2000 KAR 4134 - JOHN B. JAMES AND OTHERS VS. BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER.
91 O.S.No.1326 / 2009
At the time of arguments, the learned counsel for the defendants has cited the following decisions.
(1) ILR 1979 KAR 103 - POOJARI PUTTAIAH (BY LRS) AND OTHERS VS. KEMPAIAH.
(2) ILR 2007 KAR 339 - SRI. ARALAPPA VS.
SRI.JAGANNATH AND OTHERS.
(3) MANU/KA/3433/2015 - LAKSHMAMMA AND OTHERS VS. ROOPESH B. & OTHERS.
(4) MANU/WB/0074/1961 - A.E.G. CARAPIET VS. A.Y. DERDERIAN.
(5) MANU/SC/0868/2002 - SARWAN SINGH VS.
STATE OF PUNJAB.
(6) MANU/SC/0168/1969 - GOPAL KRISHNAJI KETKER VS. MOHOMED HAJI LATIF AND OTHERS.
(7) (2019) 3 SCC 191 - BHIMABAI MAHADEO KAMBEKAR VS. ARTHUR IMPORT AND EXPORT COMPANY AND OTHERS.
(8) (2016) 12 SCC 288 - MUDDASANI VENKATA
NARSAIAH (DEAD) THROUGH LEGAL
REPRESNTATIVES VS. MUDDASANI
SAROJANA.
I have perused the ratio laid down in the above decisions. The facts of the above cited decisions are quite differ from the facts and circumstances of the present case. Hence the ratio laid down in the above decisions are not aptly applicable to the present case.
92 O.S.No.1326 / 2009
Hence, in view of all these reasons, I answer the above issues accordingly.
101. ISSUE No.4: In the written statement the 2nd defendant has contended that under a Will dated 19.09.2007 executed by late Sreedharan 5 acres 24 guntas of land purchased by him was bequeathed to one Sri.C. Pramod. Upon the death of Sreedharan, the said land vested in C.Pramod and he continued in possession of the same. Sri. Seedharan died on 13.10.2007. Further it is contended that, under a registered lease deed dated 04.09.2008, Sri. C. Pramod in whom the title of the land vests granted lease of the said property to the 2nd defendant for a period of 30 years. Possession of 5 acres 24 gutnas was delivered to the 2nd defendant under the said lease deed and it is in possession of the said land. In the oral evidence also DW 1 has reiterated the same.
102. It seen from the records that even though in the written statement and also in the oral evidence the 2nd defendant has contended that under a Will dated 93 O.S.No.1326 / 2009 19.09.2007 executed by late Sreedharan 5 acres 24 guntas of land that was purchased by him was bequeathed to one Sri. C.Pramod, but the defendants have not at all produced the alleged Will dated 19.09.2007 and not marked the said document in support of their case. It appears from the records that the defendant No.1 is none other than the wife of late Sreedharan.
In this case, the 2nd defendant has got marked the certified copy of registered lease deed dated 04.09.2008 as Ex.D25. As per the contents of this document, there is a reference with respect to the death of Sreedharan on 19.10.2007 leaving a Will dated 19.09.2007 and as per the said Will he has bequeathed the schedule properties to the lessor / C.Pramod. It is also mentioned in the said document that the said Will has been registered as document No.BNG(U)JNR124/2008-09 in the office of Sub- Registrar, Jayanagar, Bangalore on 02.08.2008. As per the contents of this document, the lessor / C.Pramod leased the property measuring 6 acres 8 guntas out of Sy.No. 146 and Sy.No. 158 of Hoodi village as mentioned in the schedule of this document in favour of M/s Gopal 94 O.S.No.1326 / 2009 Enterprises (I) Pvt. Ltd. / 2nd defendant for a period of 30 years from the date of execution of this document. It appears from the records that the said Pramod is none other than the son of DW 1 Gopalan.
103. In issue No.1 & 3 this court has already held that in Sy.No. 146 of Hoody Village late Sreedharan had got right, title and possession over 4 acre of land only but not more than that extent of land. As in the present case nobody come and oppose the alleged Will dated 19.09.2007 alleged to have executed by Sri.Sreedharan in favour of C.Pramod and as there is no dispute with respect to the execution of Ex.D25 registered lease deed dated 04.09.2008 by C. Pramod in favour of 2nd defendant pertaining to the land belong to Sreedharan in Sy.No. 146 and 158. At this stage it is clarified that, as already stated, even though in this document the extent of the land is shown as 6 acre 8 gutnas out of Sy.No. 146 and 158 of Hoodi village, the right, title and possession which was conferred to late Sreedharan is only to an extent of 4 acres only in Sy.No. 146 but not more than that extent of property. This court has already stated 95 O.S.No.1326 / 2009 that the location and identity of the said 4 acre of land of Sri. Sreedharan in Sy.No. 146 is clearly identifiable in the sketch prepared by the Taluka Surveyor which is present along with Ex.D33 document.
Therefore, in view of the above facts and circumstances of the case, it is stated that under Ex.D25 lease deed dated 04.09.2008 only 4 acre of land in Sy.No. 146 of Hoodi Village was leased to the 2nd defendant for a period of 30 years by executing such lease deed and by delivering the possession of the same to the 2nd defendant by the said C.Pramod, but not more than that extent of land in Sy.No. 146.
Hence, in view of all these reasons, I answer the above issue accordingly.
104. ISSUE No.5: In the written statement the 2nd defendant has denied the plaint averments that on 22.02.2009 the 2nd defendant along with his workmen came to the schedule property and started dumping construction material and hastily undertook some construction work in an attempt to put up a compound wall. Construction works 96 O.S.No.1326 / 2009 had been carried out long prior to the filing of the suit. In the oral evidence also DW 1 has reiterated the same.
Looking to the nature of the suit and the reliefs sought for in the plaint and the contentions of the defendants in the written statement, I feel that the framing of this issue No.5 and to give any finding on such issue in this case does not arise. All the main facts in issue between the parties are covered in issue No.1 to 4. Therefore, as this issue is unnecessary in this case, there is no need to give any finding on this issue.
Hence, I answer the above issue accordingly.
105. ISSUE No.2: In the plaint the plaintiff has alleged that the cause of action for the suit arose when the Deputy Commissioner had by an order dated 22.12.2008 allowed the Revision Petition with observations and subsequently, when the defendants had managed to get an order of approval through the SEZ authorities and on which basis, on 22.02.2009, when they attempted to interfere with his peaceful possession and enjoyment of in respect of the schedule property and on all dates as to threat of 97 O.S.No.1326 / 2009 dispossession and interference with the possession continues, within the jurisdiction of this Court. In the oral evidence also PW 1 has reiterated the same.
In issue No.1 this court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to R. Muniswamy Reddy in Sy.No. 146 of Hoody Village. Further, this court has already held that the plaintiff is not having right, title and possession over the suit schedule property as his vendors also do not have any right, title and possession over the suit property. Issue No.1 is held in the Negative. In the circumstances, it is stated that the alleged interference of the defendant over the suit schedule property as stated by the plaintiff in the plaint and also in the oral evidence is only an imaginary plea just to file the suit before the Court. The plaintiff has failed to prove this issue by placing material evidence.
Hence, in view of all these reasons, I answer the above issue accordingly.
98 O.S.No.1326 / 2009
106. ISSUE No.6: In view of the my reasons as stated in issue No.1 to 5 and the conclusion arrived at, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by him, corrected and then pronounced by me in open court, this the 26th DAY OF APRIL 2019) (H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 99 O.S.No.1326 / 2009 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. R. Ramesh Babu Documents marked on behalf of the plaintiff/s:
Ex.P1 Regd.Sale Deed dt.5-9-06
Ex.P2&3 RTC Extracts
Ex.P4to6 Copies of Mutation Register Extracts
Ex.P7 Copy of Endorsement dt.8-3-2002
Ex.P8 Copy of saguvali chit extract
Ex.P9 Copy of Mutation Register Extract
Ex.P10 Letter Dated Nil
Ex.P11 Copy of Letter dt.2-4-01
Ex.P12 Copy of Letter dt.21-6-2001
Ex.P13 Copy of deposition of DW-1 in O.S No.1379/09
Ex.P14 Copy of MR No.18/93-94
Ex.P15to18 RTC Extracts
Ex.P19 Copy of Letter dt.22-1-1999
Ex.P20 Copy of Letter dt.9-2-04
Ex.P21 Copy of Letter dt.22-1-1998
Ex.P22 Copy of Rectified Notification
Ex.P23 Copy of Gazette Notification
Ex.P24 Copy of draft notificaiton
Ex.P25 Copy of E.C
Ex.P26 Copy of Mutation Register Extract
Ex.P27 Copy of order in W.P No.42890/02
Ex.P28 Copy of Official Memorandum dt.29-12-1960
Ex.P29 Copy of Official Memorandum dt.29-12-1960
Ex.P30 Copy of Form No.II
Ex.P31 Copy of Form No.II
Ex.P32 Copy of Survey Sketch
Ex.P33 Copy of Survey Sketch
Ex.P34 Copy of Order in R.P No.42/08-09
100 O.S.No.1326 / 2009
List of witnesses examined on bealf of the Defendant/s:
DW1 Sri. C. Gopalan Documents marked on behalf of the Defendant/s:
Ex.D1 Copy of Plaint in O.S No.6582/97 Ex.D2 Copy of Power of Attorney Ex.D3 Copy of General Power of Attorney Ex.D4 Copy of Saguvali Chit register extract Ex.D5 Copy of Mutation register extract Ex.D6 to C.C. of Registered Sale Deeds 15 Ex.D16 Copy of Mutation Ex.D17 Copy of Official Memorandum dt.30-9-99 Ex.D18 to C.C.of Registered Sale Deeds 21 Ex.D22 Copy of Mutation Extract Ex.D23 Copy of Official Memorandum dated.16-7-97 Ex.D24 Copy of Regd. Sale Deed dated.2-3-2010 Ex.D25 Copy of Regd. Lease Deed dated.4-9-08 Ex.D26 Copy of Letter dt.9-2-04 Ex.D27 Copy of Rectified Notification Ex.D28 Copy of Letter dt.15-1-02 Ex.D29 Copy of endorsement dt.18-3-09 Ex.D30 Copy of RTC Extract Ex.D31 Endorsement dt.25-11-08 Ex.D32 Copy of Letter dt.13-12-01 Ex.D33 Copy of order passed by the Spl. Tahsildar
Bengaluru East Taluk in RRT 119 to 121/06-07 Ex.D34 Copy of Order passed by the Asst. Commissioner in R.A No.68/196/195/07-08 Ex.D35 Copy of Order passed by the Spl.Deputy Commissioner in R.P No.42/08-09 Ex.D36 Copy of Gazette Notification Ex.D37 Copy of Gazette Notification Ex.D38 Copy of Order Sheet in O.S No.6582/97 Ex.D39 Copy of memo dt.30-10-98 filed in O.S No.6582/97 by the defendant - KIADB Ex.D40 Copy of Memo dt.13-1-99 filed by the Plaintiff in O.S No.6582/97 Ex.D41 Copy of Sketch prepared by FDS,KIADB Ex.D42 Copy of application dt.27-12-97 given by 101 O.S.No.1326 / 2009 Nagarathna Reddy & Srinivasa Reddy Ex.D43 Copy of Requisition submitted by FDS,KIADB Ex.D44 Copy of survey sketch prepared by FDS,KIADB Ex.D45 Copy of Gazette Notification Ex.D46 Copy of letter dt.22-1-99 Ex.D47 Copy of Rectified Gazette Notification Ex.D48 Copy of Letter dt.22-1-98 Ex.D49 Copy of Order passed in W.P No.42890/02 Ex.D50 BESCOM Receipts Ex.D51 to Copies of Demand Register Extracts 55 Ex.D56 Tax Paid Receipts Ex.D57 Supplementary Agreement Ex.D58 Copy of Lease Deed dt.16-7-08 Ex.D59 Central Govt.Gazette Notification Ex.D60 to Photos 67 Ex.D60(a) Negatives to 67(a) Ex.D68 Copy of General Power of Attorney Ex.D69 Copy of Regd.Adoption deed dt.10-4-1924 Ex.D70 Copy of Regd.sale deed dt.1-10-1951 Ex.D71 Copy of Regd.sale deed dt.1-10-1951 Ex.D72 Copy of Regd.sale deed dt.14-9-1953 Ex.D73 Copy of Regd.sale deed dt.23-10-1953 Ex.D74 Copy of Regd. Partition Deed dt.25-4-03 XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.102 O.S.No.1326 / 2009
Judgment pronounced in the open court (vide separate judgment). The operative portion of the order reads thus -
ORDER XXXVII ACCJ, (CCH-38) 103 O.S.No.1326 / 2009