Karnataka High Court
Smt. K. Kavitha vs State Of Karnataka on 8 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2423, 2021 (1) AKR 480
Bench: Aravind Kumar, Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE Mr. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
R.F.A. No. 944/2020
BETWEEN :
--------------
Smt. K. Kavitha
W/o. Sri. Devaraj
Aged about 50 years
R/a No.158, 3rd cross
Vijaya Bank Colony
Ramamurthynagara road
Banaswadi
Bengaluru-560 043. ... APPELLANT
(By Sri. Sadashiva Reddy, Sr. Counsel for
Sri Rahul. S. Reddy, Adv.)
AND :
-------
1. State of Karnataka
Represented by the Commissioner
Revenue Department
Vikasa Soudha
Bengaluru-560 001.
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2. The Deputy Commissioner
Bangalore Urban District
Bangalore- 560 009.
3. The Tahasildar
K.R. Puram Hobli
Bangalore East Taluk
Bangalore- 560 0036.
4. The Special Deputy Commissioner
Enforcement Cell
K.G.Road, Bengaluru-560 009.
5. The Commissioner
BDA, T. Chowdaiah Road
Bengaluru-560 0020. ... RESPONDENTS
(By Sri. H.K. Basavaraj, AGA for R1 to R4
Sri. M.V. Charati, Adv., for R5)
---
This R.F.A. is filed under Section 96 OF CPC, against
the judgment and decree dated 18.05.2020 passed in O.S. No.
4854/2013 on the file of the XXXV Addl. City Civil and
Sessions Judge, Bengaluru, dismissing the suit for
declaration and injunction.
This R.F.A. having been heard and reserved for orders
this day, SHIVASHANKAR AMARANNAVAR, J, delivered the
following;
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JUDGMENT
This appeal is filed by the plaintiff challenging the judgment and decree dated 18.05.2020 passed by the XXXV Additional City Civil and Sessions Judge, Bengaluru, in O.S. No. 4854/2013 whereunder suit filed by the plaintiff for declaration came to be dismissed with costs.
2. Appellant/plaintiff filed a suit against the respondents/defendants seeking the relief of declaration that she is the owner of the suit schedule property and for permanent injunction to restrain the defendants from interfering with her possession over suit schedule property. The case of the plaintiff is as under:
(i) She is the owner of suit schedule property having acquired the title to the same under a registered Gift deed dated 14.08.2008. There are buildings on the suit schedule property and the said land is abutting Chikka Banaswadi village and the panchayat of Banaswadi village issued 4 khatha No. 157/3 and 147/4 to the suit land and it is formed out of part of survey No. 212/4. After coming into force of Karnataka Inams Abolition Act survey No. 214/4 was granted in favour of Sri. Gurappa. The husband of the plaintiff had acquired the said land from the legal representatives of Sri. Gurappa in a civil suit which ended in a compromise decree. The suit property is located 300 meters from Banaswadi tank. Banaswadi tank was closed about several years ago and the Bangalore Development Authority (for the sake of brevity hereinafter referred to as the `BDA') formed layouts called HRBR and OMBR by acquiring the tank. The BDA had not acquired suit land at any point of time. No notice was issued to the owner of the suit land. During the year 2010 the officials of defendant No. 2/respondent No. 2, without having any right, started fencing the property illegally and therefore plaintiff gave representation and thereafter filed W.P. No. 11931-
32/2010 before this court. This Court directed the plaintiff 5 to approach the Civil Court. The plaintiff after issuing statutory legal notice filed the suit.
3. Defendant No. 3 filed written statement on behalf of defendant Nos. 1 to 4 and contended that plaintiff has concocted the khatha number in respect of survey No. 212/4. Chikka Banaswadi panchayat has no jurisdiction to assign khatha numbers. Since time immemorial there is a discharge channel of government tank in survey No. 211 of Banaswadi village. It was generally called as kerekodi. The BDA has acquired survey No. 212/4 and plaintiff is in unauthorized possession of government land and prayed for dismissal of the suit.
4. Defendant No. 5 filed written statement whereunder he denied that plaintiff is the owner and is in possession of suit schedule property and contended that gift deed executed in favour of plaintiff is an invalid document. Defendant No. 5 has admitted that one Sri. 6 Gurappa son of Muniswami is the owner of suit property. Defendant No. 5 denied that husband of plaintiff acquired ownership of suit property through Sri. Gurappa. Defendant No. 5 also denied that BDA has formed HRBR and OMBR layouts. Defendant No. 5 has denied that no notice was given to plaintiff or her predecessors in title. Defendant No. 5 has contended that the suit schedule property is a part of survey No. 212/4 totally measuring 19 guntas and it belonged to Sri. Gurappa son of Muniswami and the suit land and other lands have been acquired by the BDA under Preliminary Notification dated 03.11.1977 and Final Notification dated 13.11.1980. The same is also published on 22.11.1980 in Karnataka Gazette. An award came to be passed in respect of survey No. 212/4 measuring 19 guntas on 30.07.1982 and possession of 19 guntas of land was taken on 20.08.1982. Compensation amount of Rs.17,681.25 was deposited before the City Civil Judge, Bengaluru, by way of cheque and one Smt. Lalithamma, one of the family members of the land owner 7 has received the compensation. Defendant No. 5 contended that plaintiff has no manner of right, title or possession over the property and prayed to dismiss the suit.
5. Based on the above said pleadings the trial Court framed the following issues and additional issues.
1. Whether the plaintiff proves that she is the absolute owner in possession of suit schedule property?
2. Whether the plaintiff proves that the defendants are trying to illegally interfere in the peaceful possession and enjoyment of the plaintiff over the suit schedule property?
3. Whether the plaintiff is entitled for the relief of declaration and permanent injection as prayed in the plaint?
4. What Order or decree?
Additional Issues
1. Whether the defendants No.3 proves that the Banaswadi Group Panchayat has no jurisdiction to 8 assign Khata number to the building constructed on the suit property?
2. Whether the defendant proves that the Government tank in Sy.No.211 of Banswadi is generally called as "Kerekodi"?
6. The husband of the plaintiff has been examined as P.W.1and got marked Ex.P.1 to Ex.P.18. Defendant No. 3 was examined as D.W.1 and defendant No. 5 was examined as D.W.2. Ex.D.1 to Ex.D.7 were marked. After hearing the arguments and appreciating the evidence on record the trial Court has held that plaintiff had failed to prove that she is the absolute owner in possession of the suit schedule property. Trial Court further held that BDA has acquired the suit schedule property under Preliminary Notification dated 03.11.1977 and Final Notification dated 13.11.1980 and had taken possession of the properties so acquired on 20.08.1982.
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7. Heard the arguments of Sri. Sadashiva Reddy learned Senior counsel appearing for appellant and Sri. H.T. Basavaraj, Additional Government Advocate appearing for respondent Nos. 1 to 4 and Sri. M.V. Charate, learned counsel for respondent No. 5.
8. Learned Senior counsel appearing for appellant would contend that name of the owner Sri. Gurappa who had purchased the property under Ex.P.1 sale deed in the year 1955 has not been reflected in the preliminary and final notifications. He would further contend that plaintiff's husband Sri. Devaraj acquired title to the suit schedule property under a compromise decree passed in O.S. No. 2785/1994 and he had gifted the said property in favour of his wife under gift deed - Ex.P.4. He would further contend that the plaintiff is in possession of the suit schedule property and she is paying the property tax. He would further contend that no notice was issued to the kathedar 10 of survey No. 212/4, namely Sri. Gurappa in respect of acquisition of said land.
9. Per contra learned Additional Government Advocate appearing for respondent Nos. 1 to 4 has contended that trial Court on proper evaluation of evidence available on record has rightly held that suit schedule property has been acquired by the BDA and plaintiff is not the owner in possession of the suit schedule property.
10. Learned counsel appearing for respondent No. 5 - BDA has contended that suit schedule property has been acquired under preliminary notification dated 03.11.1977 and final notification dated 13.11.1980 and same was published on 22.11.1980 in the Karnataka Gazette, pursuant to which notice was issued to the owner of survey No. 212/4 and an award came to be passed on 30.07.1982 and possession was taken on 20.08.1982. He would further contend that the trial Court has properly appreciated the 11 evidence on record and has rightly arrived at a conclusion that plaintiff has failed to prove her title to the suit schedule property.
11. Having regard to rival contentions we are of the considered view that following points would arise for our consideration in this appeal:
i. Whether the trial Court was right in holding that plaintiff had failed to prove her title and possession over the suit schedule property?
OR The suit schedule property has been acquired by respondent No. 5?
ii. Whether the impugned judgment and decree of the trial Court is sustainable in law? iii. Whether the appellant plaintiff has made out a case for production of additional evidence by 12 way of documents as prayed for in I.A. No. 1/2020?
RE : POINT NOS. I AND II
12. Since, discussion on these two points are likely to overlap, we have taken it up for consideration together. Appellant/plaintiff claims that she is the owner and in possession of suit schedule property bearing khatha No. 157/3 and 157/4 comprised in survey No. 212/4 situated at Chikkabanasawdi Village, Subbayyana playa, K.R. Puram hobli, Bengaluru measuring 9780 sq.ft. Plaintiff claims that she acquired title to the said property under a gift deed - Ex.P.4 dated 14.08.2008, executed by her husband Sri. P. Devaraju. A perusal of Ex.P.4 would disclose that a recital has been made to the effect that plaintiff's husband Sri. P. Devaraju acquired the suit schedule property by way of registered document No. 283/1991-92 dated 03.03.1992 registered in the office of Sub-Registrar, K.R. Puram, Bengaluru. However plaintiff 13 has not produced the said registered document dated 03.03.1992 referred to in Ex.P.4 - gift deed.
13. As per the averments made in the plaint the suit schedule property is part of survey No. 212/4 of Chikka Banaswadi Village. Ex.P.1 is the original sale deed dated 13.07.1955 whereunder one Gurappa son of Solur Muniswamappa purchased survey No. 212/4 measuring 19 guntas situated in Chikka Banaswadi village. Plaintiff's husband Sri. P. Devaraju claims to have acquired title to the suit schedule property by virtue of compromise decree passed in O.S. No. 2785/1994. Certified copy of the compromise decree is at Ex.P.3 and compromise petition is part of the said decree. Ex.P.2 is certified copy of the order sheet of O.S. No. 2785/1994 and said compromise came to be recorded on 22.12.2006. As per the compromise petition filed in O.S. No. 2785/1994 plaintiff's husband Sri. P. Devaraju had filed the said suit for the relief of specific performance of agreement to sell dated 16.10.1991 against 14 the defendants of that case who are the legal heirs of Gurappa son of Muniswamappa who is said to be erstwhile owner. Paragraph Nos. 1, 4 and 5 of the said compromise petition are relevant and are extracted as under:
1. The plaintiff has filed the above suit for specific performance of an agreement to sell dated 16.10.1991 against the defendants in respect of 'B' 'C' of the suit Schedule properties. The defendants had agreed to sell the 'A', 'B' and 'C' of the plaint schedule properties for a sum of Rs. 1,25,000/-.
The defendants have already received the entire sale consideration of Rs.1,25,000/-. There is no due from the plaintiff. The plaintiff has already sold 'A': of the suit schedule property in favour of Jawarilal Narang Velony and Smt. Shanta Ben D.Likmbani on the basis of agreement to sell dated 16.10.1991 and power of Attorney executed by the defendants. So far as A Schedule property i.e., Old House List No. 157/4 present No.1255/1298/1 formed in Sy.No. 212/4 measuring 9,240 square feet is concerned, the defendants have no claim and confirmed the sale deed executed by the plaintiff.
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2. The defendants have retained a portion of the land bearing Sy.No.212/4 i.e., 'B' Schedule property of the plaint, to an extent of 2000 (Two Thousand) square feet, which is more fully described in the first schedule here to. Today, the plaintiff has delivered physical possession of the first schedule property of this petition to the defendants. The plaintiff shall not lay any claim over the portion so retained by the defendants in future.
3. The defendants have agreed to execute a sale deed in respect of the land bearing Sy.No.212/4, measuring 9,451 Square Feet excluding the retained portion by the defendants (plaint 'B' Schedule property) which is more fully described in the second schedule hereto. The defendants shall execute a sale deed in respect of the second schedule property of this petition within one month from the date of decree. If the defendants failed to execute a registered sale deed as agreed above, the plaintiff shall be entitled to get sale deed through this Hon'ble Court. The plaintiff will be entitled the property specified in the second schedule hereto without any claim or interference form the defendants.
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14. As per the averments made in paragraph No. 1 of the compromise petition Sri. P. Devaraju husband of appellant herein who was plaintiff in O.S. No. 2785/1994 has executed a sale deed in favour of Jawarilal Narang Velony and Smt. Shanta Ben D. Likmbani on the basis of the agreement of sale dated 16.10.1991 and General Power of Attorney executed by the defendants of that case who are the legal representatives of Sri. Gurappa in respect of that house list No. 157/3 present No. 1255/1298/1 found in survey No. 212/4 measuring 9140 sq.ft. As per the averment made in paragraph No. 4 of the compromise petition the defendants of that case who are the legal representatives of said Sri. Gurappa have retained a portion of the land bearing survey No. 212/4 to an extent of 2000 sq.ft. which is described in first schedule of that compromise petition. As per the averments made in paragraph No. 5 of the compromise petition the defendants of that case who are the legal representatives of Sri. 17 Gurappa have agreed to execute a sale deed in respect of land bearing No. 212/4 measuring 9451 sq.ft. excluding the retained portion of the defendants and the same has been described in second schedule of the compromise petition. The said second schedule described in the compromise petition reads thus :
All that piece and parcel of the property bearing House List No.157/4 formed in Sy.No.212/4 of Banasawadi village, K.R.Puram Hobli, previously Bangalore. South Taluk, Katha No.195, Measuring 9,451 Square Feet, bounded on East by : Defendants Property acquired under this compromise petition (measuring 2000 sq.ft. i.e., first schedule) West by : Road.
North by : Road.
South by : Drainage
There is no averment in the plaint regarding the execution of sale deed by the defendants of O.S. No. 2785/1994 in favour of Sri. P. Devaraju plaintiff of that suit 18 subsequent to recording of the compromise petition on 22.12.2006. Even there is no reference regarding execution of any sale deed in respect of the above said suit property in favour of the said Sri. P. Devaraju in Ex.P.4 - Gift deed dated 14.08.2008.
15. It is the claim of the appellant/plaintiff that the suit schedule property is having khatha No. 157/3 and 157/4 measuring 9780 sq.ft. situated at Chikkabanasawdi Village, Subbayyana playa, K.R. Puram hobli, Bengaluru east taluk. But, the appellant/plaintiff has not produced khatha of the said property. Ex.P.6 is the RTC of survey No. 212/4 measuring 19 guntas situated at Banaswadi village, K.R. Puram, Bengaluru south taluk and it is standing in the name of Sri. M. Gurappa son of Muniswami and it is for the years 1966-67 to 1970-71. As per Ex.P.6 the said property is an agricultural land. The appellant/plaintiff has not produced any document to show regarding conversion of the said agricultural land to non-agricultural purposes. 19
16. The claim of the plaintiff over the suit schedule property is on the basis of agreement of sale dated 16.10.1991 said to have been executed by the defendants of O.S. No. 2785/1994 in favour of Sri. P. Devaraju. Admittedly the property bearing No. 212/4 measuring 19 guntas situated at Banaswadi Village was in the ownership of Sri. Gurappa son of Muniswamy. As per the contention of the defendants, more specifically, defendant No. 5 - the BDA, the property bearing survey No. 212/4 measuring 19 guntas in Banaswadi village has been acquired and therefore Sri. Gurappa or his legal heirs were not having any title to the said property as on 16.10.1991, the alleged sale agreement is executed by the legal representatives of Sri. Gurappa in favour of Sri. P. Devaraju husband of appellant/plaintiff. The said Sri. P. Devaraju who is the GPA holder and husband of appellant/plaintiff who has been examined as P.W.1 has pleaded his ignorance regarding acquisition of survey No. 212/4 of Banaswadi village by B.D.A. The appellant/plaintiff has obtained 20 information regarding acquisition of lands in Banaswadi village under the Right to Information Act which is at Ex.P.17 dated 15.07.2008. In Ex.P.17 there is mention regarding acquisition of survey No. 212/4 of Banaswadi village. However, Ex.D.2 the preliminary notification dated 03.11.1977 published in Karnataka Gazette dated 24.11.1977 would disclose property bearing survey No. 212/4 of Banaswadi village which is at Sl.No. 114 measuring 19 guntas came to be notified for acquisition. Ex.D.3 is the final notification dated 13.11.1980 published in the Karnataka Gazette dated 22.11.1980 which discloses survey No. 212/4 measuring 19 guntas of Banaswadi village in page No. 5 having been acquired. Ex.D.4 is the certified copy of award dated 30.07.1982 passed by the Special Additional Land Acquisition Officer, BDA, Bengaluru with regard to survey No. 212/4 of Banaswadi village. Ex.D.5 is the certified copy of the mahazar dated 20.08.1982 whereunder possession of survey No. 212/4 measuring 19 guntas has been taken. In Ex.D.5 there is an 21 endorsement by Special Additional Land Acquisition Officer, BDA, Bengaluru to the effect that he has inspected the land on 10.06.1982 and it is vacant and there are no structures or malkis. Therefore, as on 10.06.1982 when possession of survey No. 212/4 of Banaswadi village was taken by the BDA it was a vacant land. Ex.P.6 is a certificate containing details of property possession of which has been taken in respect of survey No. 212/4 measuring 19 guntas of Banaswadi village and it is dated 20.08.1982. Ex.D.7 is reference made by Special Land Acquisition Officer, BDA, Bengaluru to Principal City Civil Judge, Bengaluru city, under Section 30 and 31(2) of the Land Acquisition Act and it is dated 04.07.1983 as there are two names (1) Sri. M. Gundappa son of Muniswami and (2) Sri. M. Gurappa son of Muniswami. In Ex.D.4 award there is a mention to the effect that land owner Sri. M. Gurappa who is the notified khathedar has not raised any objection to the acquisition of the land survey No. 212/4. In award Ex.D.4 under heading apportionment of 22 compensation amount, there is a mention that as per final notification Sri. M. Gundappa is the khathedar of the land and in RTC there is a slight change in the name of khathedar and holder of the land and it is mentioned as Sri. Gurappa son of Muniswamy. There is also a mention that land owner evaded to appear before the Special Land Acquisition Officer and adduce evidence regarding correct name of the owner, his title and interest over the land and therefore under such circumstances, he has referred the matter to the Court of Principal City Civil Judge, Bengaluru under Section 30 and 31 of the Land Acquisition Act.
17. On the basis of said Ex.D.2 to Ex.D.6 trial Court has rightly arrived at a conclusion that appellant/plaintiff is not having title over the suit schedule property and same having been acquired by BDA.
18. Learned Senior counsel appearing for the appellant/plaintiff has contended that no notice was issued 23 to the owner of the land Sri. Gurappa son of Muniswami and therefore acquisition is bad in law. Learned counsel appearing for respondent No. 5 - BDA has submitted that the civil Court has no jurisdiction to give finding about the acquisition proceedings. The trial Court placing reliance on the decision of the Apex Court in the case of Commissioner Bangalore Development Authority Vs. Brijesh Reddy and another reported in (2013) 3 SCC 66 has rightly held that it is impermissible for the civil Court to record a finding about acquisition proceedings. The trial Court on appreciation of entire evidence on record has rightly held that the appellant/plaintiff had failed to establish her right, title, interest and possession over the suit schedule property and we do not find any error having been committed by Court below calling for interference. We also notice that trial Court has taken into consideration the entire evidence for recording a finding that plaintiff had failed to establish title and possession to suit schedule property. Accordingly, point Nos. 1 and 2 are answered in affirmative. 24 RE : POINT NO. III
19. Appellant/plaintiff has filed I.A. No. 1/2020 under Order XLI Rule 27(aa) of Code of Civil Procedure seeking permission to produce the following documents as additional evidence.
i. RTC Extract for the year 2009-10
ii. Photographs - 4 in number
iii. Electricity bills - 4 in number
20. In paragraph No. 8 of the affidavit filed in support of the application the appellant/plaintiff has stated that all the documents now sought to be produced were handed over to her counsel in the trial Court and her counsel in trial Court, by mistake or otherwise, has not produced them before the Court and the same came to her knowledge only when the present counsel insisted upon her to give the said documents and informed her that those documents were not produced before the trial Court. The 25 appellant/plaintiff has not produced any document or affidavit of her counsel who conducted her case in the trial Court regarding her handing over the documents now sought to be produced. The appellant/plaintiff has to make out a case for seeking production of additional documents by way of evidence notwithstanding the exercise of due diligence were not within her knowledge or could not, after exercise of due diligence, be produced by her at the time when the decree appealed against was passed. The negligence or slackness of a party or his pleader is not a substantial cause. The additional evidence will not be admitted when a party had ample opportunity to produce the same in the trial Court. The appellant/plaintiff has sought to produce 4 electricity bills and they are issued during the pendency of the suit, that is, for the year 2015. Therefore, the said documents would not be relevant to establish appellant/plaintiff's possession over the suit schedule property as on the date of filing the suit. The appellant/plaintiff has sought for production four positive 26 photographs. The appellant/plaintiff has not stated how those photographs are relevant. The appellant/plaintiff has not produced the negatives of the said photographs or the CD containing the digital image of the said photographs. The said photographs will not come to the rescue of appellant/plaintiff to establish her possession over the suit schedule property as on the date of the suit. Another document which is sought to be produced is RTC extract of survey No. 212/4 of Banaswadi Village, K.R. Puram Hobli, Benagluru, measuring 19 guntas pertaining to the year 2009-10. In the said RTC the name of appellant/plaintiff's husband Sri. P. Devaraju is mentioned in column No. 9 as per mutation MR1/1990-91. The extract of the said MR1/1990-91 is sought to be produced. As per the discussion already made an agreement to sell has been executed by legal heirs of Gurappa son of Muniswami in favour of said Sri. P. Devaraju and it is dated 16.10.1991 and he had not acquired any title to property bearing survey No. 212/4 in the year 1990-91. Therefore the said 27 RTC sought to be produced in this appeal is not relevant and same will not come to the aid of the appellant/plaintiff to establish title and possession over the suit schedule property. The appellant/plaintiff has not made out any grounds for production of additional evidence as sought in the application and even otherwise they having come into existence after filing of the suit would not be relevant to determine the real controversy between parties. Hence, I.A. No. 1/2020 is rejected. Accordingly point No. 3 is answered in the negative.
22. For the aforesaid reasons, we proceed to pass the following;
ORDER i. Appeal filed by the appellant/plaintiff is dismissed and judgment and decree passed in O.S. No. 4854/2013 dated 18.05.2020 by XXXV Additional City Civil and Sessions Judge, Bengaluru is affirmed.
28ii. I.A. No. 1/2020 filed by the appellant/plaintiff under Order XLI Rule 27(aa) of Code of Civil Procedure is rejected.
iii. No order as to costs.
iv. Registry to draw the decree accordingly.
Sd/-
JUDGE.
Sd/-
JUDGE.
LRS.
CT. NI.