Bangalore District Court
Shivashankar Reddy A G vs Gok Revenue Department on 23 April, 2025
KABC010117082003
IN THE COURT OF THE XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE CITY.
DATED THIS THE DAY OF 23rd DAY OF APRIL, 2025
PRESENT:
SMT. JYOTHSNA D., LL.B., LL.M., D.F.A.,
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU
ORIGINAL SUIT No.3666/2003
PLAINTIFF/S : 1. A.G. Shivashankar Reddy,
S/o. Late B. Gundappa,
Aged about 64 years,
2. S. Ramachandra Reddy,
S/o. Late Subbannappa,
Aged about 62 years,
3. Venkatareddy,
S/o. Late Narayan Reddy,
Aged 60 years,
4. L. Nanjunda Reddy
S/o. Late Lakshmaiah Reddy,
Aged 65 years,
5. L.Srinivasa Reddy,
S/o. Late Linga Reddy,
Aged 59 years,
2 O.S.No.3666/2003
6. A.C. Sudarshan Reddy,
S/o. Late Chikkaramaiah,
Aged 57 years,
7. A.M.Ramireddy,
S/o. Late Muganna Reddy,
Aged about 53 years,
8. A.M. Govinda Reddy,
S/o Muniyappa,
Aged 62 years,
9. K. Ramachandra Reddy,
S/o. Late A.T. Krishnappa,
Aged 60 years,
All are residing at Agara village,
Begur Hobli, H.S.R. Layout,
Bangalore 560 102.
(Pleader by Sri N.G.H., Advocate)
/VS/
DEFENDANT/S 1. Principal Secretary,
Revenue Department,
Multistoried Building,
Bangalore.
2. Special Deputy Commissioner
Bangalore District,
Bangalore Urban, Bangalore.
3. The Commissioner,
Bangalore Development
Authority, Bangalore.
3 O.S.No.3666/2003
4. Smt. L. Padmavathi,
W/o. M. Gopal Reddy,
Aged about 54 years,
R/at No.746, 22nd Main Road,
1st Sector, H.S.R. Layout,
Bangalore 560 102.
5. Smt. Jayalakshmamma,
W/o. M. Raja Gopala Reddy,
Aged about 55 years
R/at Agara Village,
H.S.R Layout,
Bangalore 560 102.
6. Smt. Sharadamma,
W/o. Late Narayana Reddy,
Aged about 75 years,
Agara Village, HSR Layout,
Bangalore 560 102.
7. Smt. Malika Mohammed Jamil,
W/o. Sheik Mohammed Jamil,
Aged about 44 years,
R/at No.80/81,
Silver Oak Apartment,
19th Cross, 28th Main,
6th Phase, K.R. Layout,
J.P.Nagar, Bangalore.
Reptd by her General Power
of Attorney Holder Sri
Sheikh Mohammed Jamil.
8. Smt. Uma Priya,
W/o. Karthik Nataraj,
Aged about 30 years,
4 O.S.No.3666/2003
R/at No.4, 100 Feet Road,
Ring Road, 1st Stage,
BTM Layout,
Bangalore 560 068.
9. Smt. Madhu Kedia,
W/o. Sri Narendra,
Aged about 48 years,
R/at No.14, 1st Floor,
5th Main, V.C. Layout,
Ananda Nagar,
Bangalore 560 024.
10. Smt. Shobha Basavaraj,
W/o. Sri Venugopal H.B.,
Aged about 40 years,
Residing at No.33,
Mountain Road, 1 Block,
Jayanagar, Bangalore - 11.
11. Smt. K.N. Leelavathy,
W/o. R.T. Nagaraja,
Aged about ____ Years,
Bangalore.
12. Lokesh Rao Mahindrakar Muni
Rao,
S/o. Muni Rao
Mahindrakar Kuppa Rao,
Aged about 35 years,
R/at No.6, 11th Cross,
Maramma Temple Street,
Chickpet, Bangalore - 53.
5 O.S.No.3666/2003
13. Sri Sanjeeva Kumar,
S/o. Sanganna P.,
Aged about __ Years,
Bangalore.
14. A.M. Ramesh,
S/o. A.M. Mallesh.
Aged about 38 years,
No.50, 100 Feet Road,
Koramangala 2nd Block,
Bangalore 560 034.
15. Sri Parappa Jarugappa,
S/o. Late Jarugappa,
Aged about 71 years,
Residing at Begur,
Hosadurga Taluk,
Chitradurga District.
16. Smt. Kavitha Neelegowda,
W/o. Sri J.T. Prakash,
Aged about 33 years,
Residing at No.125/F,
Rajathagiri, 3rd Main Road,
3rd Block, 3rd Stage,
Basaveshwaranagar,
Bangalore 560 079.
17. Sri Narasimha Murthy
Indrakanti,
S/o. Late I.S. Sarma,
Residing at No.511,
A-4, Mallaprabha Block,
National Games Village,
6 O.S.No.3666/2003
Koramangala,
Bangalore 560 047.
18. Master Raj Venkatesh,
S/o. R.G. Venkatesh,
Aged about 17 years,
Residing at No.28,
Ground Floor, 1st Main,
Gandhinagar,
Bangalore 560 009.
Since Minor represented by his
Natural Guardian/Mother Smt.
Radhika Venkatesh.
19. Sri R.G. Venkatesh,
S/. R. Gokul,
Aged about 43 years,
Residing at No.28,
Ground Floor, 1st Main,
Gandhinagar,
Bangalore 560 009.
20. Sri N. Jaya Kumar,
S/o. Late D. Nathaniel,
Aged about 54 years,
21. Mrs. Evangelina Grace
Jayakumar,
W/o. Sri N. Jayakumar,
Aged about 48 years,
No.20 to and 21 are residing at
No.73, 23rd Cross, 7th Sector, HSR
Layout, Bangalore 560 034.
7 O.S.No.3666/2003
22. Smt. Nandamma,
W/o. T. Jayaram Reddy,
Aged about 52 years,
No.791, 'Mathru Nilaya',
22nd Main Road, 1st Sector,
HSR Layout, Bangalore.
23. Sri K.M. Krishna Reddy,
S/o. K. Muniswamy Reddy,
Aged about 61 years,
R/at No.60, 7th Cross,
7th Block, Koramangala,
Bangalore 560 034.
24. N. Sethuraman,
Son of L. Rm. Natarajan,
Aged about 45 years,
Residing at Saroj, No.661,
17th D Main Road,
Koramangala 6th Block,
Bangalore 560 095.
Deft.No.1 by T.N.K., Advocate
Deft.No.3 by S.B., Advocate
Deft.No.4 to 6 by DVMS Advocate
Deft.No.7 to9 by MKS Advocate
Deft.No.11 by A.M.V., Advocate
Deft.No,.13, 15 to 18 by GKR
Advocate
Deft.No.24 and 25 by KBK Advocate
Deft.No.25 to 31 by SSL Advocate.
8 O.S.No.3666/2003
Date of Institution of the suit. 02.06.2003
Nature of the suit (suit on Suit for Declaration
pronote, suit for declaration and Injunction
and Possession, suit for
injunction etc.)
Date of the commencement 26.10.2004
of recording of the evidence.
Date on which the judgement 23.04.2025
was pronounced.
Duration Year/s Month/s Day/s
21 10 21
(SMT. JYOTHSNA D.,)
XVI Addl.City Civil Judge,B'lore
JUDGMENT
This is a suit filed by the plaintiffs against the defendants seeking the relief of declaration by declaring that the order passed by the 1st defendant in RD 197 LGB, 2003, dated 17-4-2003 as non- est in the eye of law, grant of perpetual injunction against the 3 rd defendant restraining it, its agent, men or anybody under or through it from dispossessing the plaintiffs from the schedule property or in any way interfering with the plaintiffs lawful 9 O.S.No.3666/2003 possession of schedule property and grant such other reliefs as deemed fit under the circumstances of the case with costs.
2. The brief averments of the plaint are as under:-
Plaintiffs submit that originally one Sri. Linga Reddy resident of Agara village, Begur Hobli, Bangalore South taluk, had four sons namely Venkata Reddy, Gururva Reddy, Thimma Reddy and Pasalappa Reddy and the plaintiffs herein are the grand sons and the great grandsons of the above said Sri. Linga Reddy. Their entire joint family owned and possessed joint ancestral properties to an extent of 15 acres 11 guntas of land in Survey No. 31 of Yellukunte village described as schedule property and 12 acres 31 guntas of land in Survey No. 69 of Haralukunte village, both situated at Agara Village, Begur Hobli, Bangalore South Taluk.
Survey No.31 consisting of 15 Acres 11 guntas of land i.e. schedule property was earlier comprised of 5 Survey Nos i.e. Survey No. No.7, 8, 9, 10 and 13 and similarly Survey No. 69 of Haralukunte village consisting of 12 Acres 31 guntas was earlier comprised in four Survey No. 68, 70. 71. 72 and in the above survey numbers, the great ancestor of the plaintiffs Sri.Pasalappa Reddy had constructed a private tank during the year 1890 to be used as a water resource for agricultural activities and during re-survey 10 O.S.No.3666/2003 operations conducted by the State Government through Land Records Department in the year 1937, Survey Nos. 7 to 10 and 13 were consolidated and total extent of 15 Acres 11 guntas was assigned new Survey No. 31 of Yellukunte village. During the year 1934-35, the then Deputy Commissioner by his order dated 25-11- 1935 in CL 1314/1934-35 ordered for merging of the above said five Survey numbers in to Survey No.31 and in this order, the existence of tank is mentioned and further the Department of Land Records after the survey of the schedule property along with land in Survey No.69, of Haralakutne village, had prepared a report wherein it has been clearly mentioned that the great ancestor of plaintiffs Sri.Pasappa Reddy had constructed private tank in the schedule property as well as land in Survey No. 69 of Haralukunte.
From the documents and recitals therein, it is clear that the great ancestor of plaintiffs namely Sri.Pasalappa Reddy owned and possessed the schedule property as well as 12 acres 31 guntas of land in Survey No.69 of Haralakunte village and had constructed his own private tank. The plaintiffs and their family members belonging to the Joint Hindu family succeeded to the schedule property as well as the land comprised in Survey No.69 of Haralakunte village and exercised their rightful ownership and possession upon the same.11 O.S.No.3666/2003
3. When this being the situation, to their shock and surprise, on 31-12-1994, the Tahsildar Bangalore South taluk suo-moto passed an order thereby directing cancellation of names of the plaintiffs family from the relevant revenue records on the ground that the schedule property and the land in Survey No. 69 of Haralukunte village are Government Tank. Aggrieved by the said order, one of the family members of the plaintiffs challenged the said order before the Asst. Commissioner in RA.No.127/1995-96 which came to be dismissed for default and further the order of Asst. Commissioner was challenged before the Hon'ble High Court of Karnataka in W.P.No.22420/97 and the High Court quashed the order passed by the Tahsildar and the Asst. Commissioner and remanded back the matter for fresh disposal before the Special Tahsildar for adjudicating the dispute between the plaintiffs and the State Government in RRT 43/1998-99 which is still pending. Owing to the orders passed by the Tahsildar cancelling the names of the plaintiffs family members from the RTC, they have filed two suits in O.S.4830/96 in respect of 12 Acres 31 guntas of land in Survey No. 69 and O.S.No.1265/96 which came to be decreed in favour of the plaintiffs and the same has been challenged by the State Government before the Hon'ble High Court of Karnataka in RFA No.1050/2000. With regard to property in O.S.4830/96, the 12 O.S.No.3666/2003 City Civil Court has directed the state Government, Special Tahsildar and the Deputy Commissioner to maintain status-quo and with regard to land in Survey No.69 of Haralukunte Village, the Hon'ble High Court of Karnataka has passed an order of status- quo. The schedule property is the absolute property of the plaintiffs and their family members and neither the State Government nor the defendants have got any manner of right, title, interest or possession over the same and further the schedule property is not the subject matter of acquisition either by the State Government or by the 3rd defendant.
4. When this being the realities and when the plaintiffs are in exclusive peaceful possession and enjoyment of the schedule property, to their shock and surprise, the officials of the 3 rd defendant appeared near the schedule property and threatened to dispossess the plaintiffs from the schedule property and also threatened to dismantle the structures existing in the schedule property. The plaintiffs sent a legal notice to the 3 rd defendant on 9-4-2003 as per section 64 of the BDA Act, and the 3rd defendant after receiving the said notice kept quiet for some time, and again they started to interfere with their peaceful possession and enjoyment over the schedule property and when the plaintiffs verified the defendants claim over the schedule property, to their 13 O.S.No.3666/2003 utter shock and dismay, they found that the 1st defendant has ordered that all the legal proceedings between the plaintiffs and the State Government have been decided against the plaintiffs and the schedule property has been ordered to be transferred to the 3rd defendant authority and the plaintiffs made a tough task to convince the officials of the 3rd defendant that the order passed by 3rd defendant is not only opposed to the real facts, but also amounting to sub-judice and gross contempt of Court. Hence, the plaintiffs having left with no other alternative are constrained to seek the indulgence of this court seeking the reliefs as sought in the plaint. Hence this suit.
5. In this case, the defendant No.1 is the State Government, while the defendants 2 and 3 are the Special Deputy Commissioner and the Commissioner of BDA. The defendants 4 to 24 are the allottees of sites formed in the schedule lands.
6. The defendants 1 and 2 have jointly filed their written statement, while the defendant No.3 has separately filed his written statement.
7. The allottees of sites ie., defendants 11, 12, 14, 23 and 24 have filed their written statement separately while defendants 15 & 16, and 18 to 21 have jointly filed their written statement. 14 O.S.No.3666/2003
8. The defendants 4 to 10, 13, 17 and 22 have not filed their written statement.
9. In their Written Statement, the defendant Nos.1 and 2 have contended that the suit filed by the plaintiffs' is misconceived and is liable to be dismissed in limine.
10. Order dated 17.04.2003 is not amenable to jurisdiction of this Court. The Order dated 17.04.2003 is a communication from the first defendant to the second defendant directing him to hand over 15 acres 11 guntas of land in Sy.No.31 of Yellukunte Village, Begur Hobli, Bangalore South Taluk to the Bangalore Development Authority. The said communication is in the nature of interdepartmental communication. Hence, the prayer for declaration cannot be granted.
11. The suit filed by the plaintiffs is not preceded by a Notice under Section 80 of the Civil Procedure Code. Hence, the suit is not maintainable and therefore, is liable to be dismissed.
The relief of permanent injunction sought for by the plaintiff cannot be granted as the plaintiffs are not in possession of the land at any point of time. They were never in possession of the land in question. There is a lengthy narration of facts tracing the title to the property in question by the plaintiffs in paragraphs 1 to 5 of the plaint. Property in Sy.No.31 of Yellukunte Village did not 15 O.S.No.3666/2003 belong to the family of the plaintiffs and the allegations made contrary to this are denied as false. The genealogy as stated in document No.1 is not admitted. It is denied that the great ancestor of the plaintiffs Pasalappa Reddy constructed a private tank comprised of Sy.No.7, 8, 9, 10 and 13. It is admitted that earlier survey numbers were changed to 31. But Pasalappa Reddy did not form a tank. Plaintiffs were never in possession of suit schedule property and also Sy.No.69 of Haralakunte Village.
12. Parts of Sy.No.7, 8, 9, 10 and 13 of Yellukunte Village were water logged. The total extent of this water logged land comprised in one boundary was 15 acres 11 guntas. They were clubbed into one survey number and it was made into a tank. It was in fact a government tank. Over the years, the tank dried up and the land lost the character of a tank though in the village map, it was being shown as a government tank. Survey No.13 was throughout a government land and in the revenue records, it was shown as a mufat kaval land.
13. Certain lands in Yellukunte Village, Begur Hobli, Bengaluru South Taluk was acquired in favour of BDA for formation of HSR Layout. One of the lands which formed part of HSR Layout was Sy.No.31 since the land had lost the character of a tank long ago, the government decided to handover this land to the BDA for 16 O.S.No.3666/2003 being allotted in turn to various eligible persons. The land was duly handed over to BDA and the BDA after forming sites has allotted sites to various persons. As of now, number of houses have been fully constructed and either allottees or transferees from allottees are residing there. About 7 to 8 houses are now under construction.
14. Plaintiffs are making claim on the land in question on the basis of certain wrong entries in the revenue records. In respect of the lands in question, certain persons had made claim as unauthorized occupants. The BDA decided to set apart a sum of Rs.9,90,310/- at the disposal of the Tahsildar, Bangalore South Taluk to facilitate him to disburse compensation as ex-gratia compensation. A number of persons filed claim for award of compensation and their claims are pending before the second defendant.
15. The land in question was never a private tank. The plaintiffs have misinterpreted some of the revenue records and on that basis, they are claiming that Pasalappa Reddy owned and possessed the suit land, which is false and incorrect. Pasalappa Reddy did not claim ownership and possession over the lands in Sy.No.7, 8, 9, 10 and 13 which were clubbed together in Form No.31. In fact, Pasalappa was not the owner of Sy.No.7, 8, 9, 10 17 O.S.No.3666/2003 and 13. Plaintiffs are not the successors in interest of Pasalappa Reddy. The plaintiffs had never been in possession of the suit land at any point of time. They are not in possession of the suit land.
16. The defendants 1 & 2 have produced the Certified Copy of the Village Map and Pakka Book, which clearly prove that the land was throughout a government tank.
17. It is admitted that the Tahsildar, Bengaluru South Taluk in the year 1994 deleted certain wrong entries in the record of rights. Filing of appeals by the plaintiffs and writ petitions before the Hon'ble High Court is admitted. After remand, the matter is pending before the Tahsildar. Filing of suit in respect of Sy.No.69 is admitted. However, it is contended as false that the suit schedule property is the absolute property of the plaintiffs and their families. There is no question of dispossessing the plaintiffs as they were never in possession of the land. After passing of the order dated 17.04.2003, the property was handed over to the BDA and the BDA has formed layouts and also allotted sites to respective allottees.
18. The threatened dispossession of the plaintiffs and actions taken by them are false and make believe.
19. There is no cause of action for the suit and the one mentioned in paragraph 13 of the plaint is false. The plaintiffs are 18 O.S.No.3666/2003 not entitled to reliefs sought for. The plaintiffs have filed a false and vexatious suit. Hence, prayed to dismiss the suit with costs.
20. The 3rd defendant has filed its written statement by denying the averments taken up in the plaint and further contended that this Court has no jurisdiction to decide the matter in dispute, and the above suit is not maintainable either in law or on facts and same is liable to be dismissed in limine. With regard to the averments made in para-2 of the plaint, the same is put to strict proof of the same. Further, the 3rd defendant denied the averments made in para-3 of the plaint as false. In fact, the tank standing on the schedule property and Survey No.69 was never a private tank and all along the same belonged to the Government of Karnataka. Defendant admitted the contents of para-4 of the plaint, but denied the averments made in para-5 as false and plaintiffs are put to strict proof of the same. In fact, the copy of the document produced at document No.5 clearly disclose that the same was forged to include the Survey No.31 in the plaint schedule property only in order to facilitate the concerned. The 3rd defendant submit that the plaintiffs were at no point of time in possession of the schedule property and all along the suit schedule property was a Government property and the Government of Karnataka having sanctioned an improvement scheme for the formation of layout 19 O.S.No.3666/2003 called " Between Hosur Road and Sarjapura Road", by virtue of its notification No.HUD /444/MNX/86 dated 28-11-1986 and appointed the Special Addl. Land Acquisition Officer as the Deputy Commissioner under the Land Acquisition Act, and in furtherance of the same, the suit schedule property being a Government property was transferred to the 3rd defendant by its order No. RD 197-NGB/2003 dated 17-4-2003 and this defendant has taken the possession of the same. After taking possession of the suit schedule property, the 3rd defendant has also called for tenders by issuing paper publication and the work is already in progress. In these circumstances, the contention of the plaintiffs that they are in possession of the suit schedule property and the defendant interfered in their property is totally false and incorrect. Further the allegations that in spite of notice and order of this court, they interfered in the plaintiffs possession is also denied as false. It is further denied that the plaintiffs and their joint family at any point of time owned and possessed and were enjoying the suit schedule property and land in Survey No. 69 of Haralukunte village and pendency of proceedings before the special Tahsildar in RRT No.43/98-99 is in no way concerned to this suit. The filing of suits by the plaintiffs and the family members is admitted, but the fact of passing an order of status-quo is put to strict proof and further 20 O.S.No.3666/2003 the averments relating to OS No.1265/1996 is in no way concerned with the suit schedule property. While denying the averments made in paras-9 & 10 of the plaint, it is contended that the same is put to strict proof of the same. The 3rd defendant submitted that plaintiffs with an intention to grab the valuable property belonging to the state Government are laying false claim one after another without producing any documents relating to their title. The relief of declaration cannot be granted, as the plaintiffs have no right, title or interest over the schedule property. There is no cause of action for the suit and the court fee paid is insufficient. Among these grounds, the 3rd defendant prayed to dismiss the suit.
21. The defendants 11, 12, 14, 15 & 16, 18 to 21, 23 and 24 being the allottees of sites formed in the schedule property by the BDA the defendant No.3, have filed their written statement. Since the contentions taken by them are similar, except the site numbers and measurement allotted to them is different, the gist of their written statement is extracted below:
22. They have contended that the suit is not maintainable in law, either on facts and circumstances of the case. The plaintiffs are not entitled to the relief sought as they are not the owners, 21 O.S.No.3666/2003 possessory holders, cultivators and having any title documents in respect of the suit schedule property bearing Sy.No.31 measuring 15 acres 11 guntas situated at Yellukunte Village, Begur Hobli, Bengaluru South Taluk and the property bearing Sy.No.69, measuring 12 acres 31 guntas situated at Yellukunte Village, Begur Hobli, Bengaluru South Taluk. The said land is situated within the government tank. Hence, the suit is liable to be dismissed in limine.
23. It is denied that the schedule property has been acquired through their ancestors and subsequently the revenue documents have been changed in the name of the plaintiffs. The documents filed by the plaintiffs are created for the purpose of knocking off the properties, which is also known as HSR Layout.
24. The plaintiffs have not filed any title documents such as Grant Orders, Grant Certificate, Katha Extract, Survey Sketch, Village Sketch, Village Map etc. Plaintiffs though stated that the schedule properties were acquired through their ancestors, but to substantiate the same, no documents are produced.
25. It is contended that the schedule land is a government land, wherein the government formed a tank and subsequently, the suit land was acquired by the BDA for formation of Hosur Sarjapura Layout and the same was approved on 28.11.1986 in Notification 22 O.S.No.3666/2003 No.HUD.444.MNX.86 and the said land was handed over to engineering section along with permission on 17.04.2003 in RD 1977 NGB 2003 and possession was also taken on 26.05.2003. Therefore, the said land has been vested with the BDA. Therefore, the plaintiffs have no right and title over the schedule property. Even the plaintiffs have not challenged the acquisition proceedings so far. Hence, the above suit is not maintainable after acquisition proceedings, which attained finality. Even the plaintiffs have not issued notice under Section 64 of the BDA Act before filing the suit, which is mandatory.
26. After acquisition proceedings in accordance with rules, the BDA formed the layout and allotted sites to its members ie., defendants mentioned above. Thereafter, they have made all requisite payments and even paid tax of the property. The BDA also executed the registered Sale Deed in their favour and the defendants were also issued with Possession Certificate, Katha Certificate, Katha Endorsement and other registered title documents in respect of the schedule property. They also applied for approval of the plan. They are lawfully in physical possession and enjoyment of their respective sites. Even the other allottees of the sites have also obtained all the registered title documents including plans and put up their residential constructions. 23 O.S.No.3666/2003
27. It is contended that this Court has got power to call for all the original records from the concerned revenue departments to know the reality and to take action. Under these circumstances, the suit is not maintainable and is liable to be dismissed in limine.
28. As per plaint averments itself, a second suit claiming declaration of title is barred as per the provisions of Code of Civil Procedure as the prayer is hit by Res Judicata and is liable to be dismissed as such.
29. Prayer for declaration of the order passed by 1 st defendant as non-est in the eye of law, cannot be granted as an alternate and efficacious remedy to challenge the said order, is available and the plaintiffs having not availed such remedy known to law, cannot seek a declaration before this Court.
30. The defendants have put the plaintiffs to put to strict proof of the averments in para 2 of the plaint regarding their lineal descendancy of one Linga Reddy and it is contended that the genealogical tree produced is cooked up for the purpose of the suit.
31. The plaintiffs have failed to aver how the said properties came into possession of the ancestors of the plaintiffs, as averred in para 3 of the plaint. The plaintiffs have not produced any title 24 O.S.No.3666/2003 deeds evidencing their ownership claim over the properties mentioned in para 3 of the plaint.
32. The documents produced by the plaintiffs do not depict anywhere the names of any persons whatsoever and hence, as averred in para 4 of the plaint, the plaintiffs cannot claim anything through those documents.
33. As averred in plaint para 5 by the plaintiffs, these defendants put the plaintiffs to strict proof of the documents through which they claim that their ancestors name is shown in the revenue documents and it has depicted that their ancestor had constructed the tank and further put the plaintiffs to strict proof of the averment that their ancestors constructed the tank. It is well settled law that revenue documents do not prove title. The plaintiffs with the connivance of certain officials have cooked up these revenue documents and are claiming possession over the said lands.
34. The averments of the plaint paragraphs show that the plaintiffs are mischief mongers and are making all out efforts to knock off valuable property belonging to the State and acquired by the BDA. The averments depict that the plaintiffs have availed all remedy available and are pursuing parallel remedies to somehow succeed to knock off the suit schedule property. 25 O.S.No.3666/2003
35. As averred in plaint para 11, it is admitted that the first defendant has issued the order and has also directed that the land be transferred to 3rd defendant to facilitate formation of layout formed by the 3rd defendant. All the surrounding villages abutting the schedule properties have been acquired by the BDA, the third defendant and the ancestors as well as the plaintiffs have received compensation for the acquisition of the land for formation of HSR Layout. When such being the case, the claim now put forward by the plaintiffs are all false, hit by res judicata and they are also estopped from claiming ownership of the lands that are acquired by the first and third defendants.
36. As regards to para 12 of the plaint is concerned, the plaintiffs cannot question the order before this Court and a separate remedy is available for the plaintiffs to challenge the same. As the said order pertains to land acquisition by the State, the Land Acquisition Act expressly bars the jurisdiction of Civil Court. Hence, this Court has no jurisdiction to adjudicate the order passed by the first and third defendants. Hence, the suit is liable to be dismissed as having no jurisdiction with costs.
37. There is no cause of action for instituting this suit and hence, the suit is liable to be dismissed.
26 O.S.No.3666/2003
38. As per the averments made in the subsequent applications filed by the plaintiffs, it is clearly averred that the third defendant has formed layout and sites have been allotted to various persons and absolute sale deeds have been executed. All the allottees and persons who have purchased the said sites in the suit schedule property have to be made parties to the suit for proper adjudication. The suit deserves to be dismissed for non-joinder of the said persons. The plaintiffs though being aware that the sale deeds have been executed by the BDA, the third defendant has not challenged the execution of the sale deeds. In view of the same, the suit has to be dismissed for non-seeking of prayer of setting aside the sale deeds. The defendants have purchased sites formed in the suit schedule property and have obtained the khatha in their respective names and have paid tax. The court fee paid on the plaint is grossly insufficient and the suit is liable to be dismissed for non-payment of proper court fee.
39. The defendants have denied all other averments in the plaint, which are not specifically denied as false and prayed the Court to dismiss the suit with costs.
40. The suit filed by the plaintiffs is false, frivolous, vexatious and not maintainable both in law and on facts. The suit is tainted with malafides and the same is nothing but abuse of process of law 27 O.S.No.3666/2003 amounting to contempt of court within the meaning of Section 2(c) of the Contempt of Courts Act.
41. The relief of declaration sought in the plaint cannot be granted in view of the bar provided under the proviso to Section 34 of the Specific Relief Act. Hence, the suit is barred under Section 9 of CPC and the plaintiff is liable to be rejected under Order VII Rule 11(d) of CPC.
42. The suit schedule property had been acquired and taken possession by the BDA by passing the final notification No.HUD/444/MNX/86 dated 28.11.1986, which is conclusive evidence of acquisition under Section 6(3) of the Land Acquisition Act. Thus the plaintiffs have neither title nor possession over the schedule property.
43. The suit is barred under Section 3 of the Limitation Act.
44. The suit is hit by delay and latches and on the principles of res-judicata. The acquisition of the land and the taking over the possession by the BDA had not been challenged by the plaintiffs. Hence, the suit is hit by the principles of estoppel. Since the acquisition of the land by the BDA has reached its finality, the plaintiffs have no locus standi to challenge the notification No.RD 197/LGB/2003, dated 17.04.2003.
28 O.S.No.3666/2003
45. The suit is unsustainable against the 1st and 2nd defendants for want of notice under Section 52 of the Land Acquisition Act and under Section 80 of CPC. Similarly, the suit is barred against 3rd defendant under Section 64 of CPC.
46. The BDA had acquired the land by passing the final notification on 28.11.1986 and taken possession of the suit schedule property in furtherance of the developmental projects, the layout was formed and the sites were allotted to various persons including these defendants and the allottees have constructed their houses and are residing therein. The suit schedule land has been transformed into a residential layout through the operation of law and the schedule property has lost its identity as an agricultural land. Hence, the suit for declaration and permanent injunction claiming the schedule property as an agricultural land cannot be maintained for want of cause of action and the plaint is liable to be rejected under Order VII Rule 11(a) of CPC.
47. The suit is not properly valued and the court fee paid is insufficient and hence, the suit is liable to be rejected under Order VII Rule 11(b) and (c) of CPC.
48. The BDA has formed the layout and allotted sites to allottees and put them in possession by issuing Possession 29 O.S.No.3666/2003 Certificate and thereafter, executed the deeds of absolute sale and the transfer has been effected in accordance with Section 54 of the Transfer of Property Act and the sale deeds have been got registered with the payment of the required stamp duty in accordance with law. The katha has been transferred into the names of allottees and the property was was and is being collected by the BDA from the defendants. The plans are sanctioned by the BDA and the constructions were put up by the allottees and the same has not been challenged by the plaintiffs. Hence, the present suit is not maintainable and hence prayed to dismiss the suit with costs.
49. In view of the above said pleadings, the following issues and Additional Issues were framed:
Issue No 1: Whether the plaintiffs prove that they are the absolute owners in lawful possession, peaceful and exclusive enjoyment of the suit schedule property with a given boundaries and measurements as on the date of filing of the suit?
Issue No 2 : Whether the plaintiffs prove that the alleged order passed by the 1st defendant bearing No. RD 197 LGB 2003-dated 17-4-2003 is non-est in the eye of law?30 O.S.No.3666/2003
Issue No 3 : Whether the defendant No.3 proves that the suit schedule property is a Government property and the same has been acquired for the formation of layout called "Between Hosur Road and Sarjapur Road" by virtue of its Notification No.HUD/444/MNX/86 dated 28- 11-1986 and acquisition proceedings having reached its finality, the suit schedule property was transferred to 3rd defendant by its order bearing No.RD 197-NGB-2003 dated 17-4- 2003 and possession has been taken on 26-5- 2003?
Issue No 4 : Whether the plaintiffs prove that the officials of the 3rd defendant authority threatened to dispossess them and also to dismantle the existing structures in the suit schedule property?
Issue No 5 : Whether the plaintiffs are entitled to the reliefs as sought for in the plaint?
Issue No 6 : What decree or order?
ADDITIONAL ISSUES dated 24-02-2011 Addl.Issue No.1 : Whether the Defendant No.14 proves that he has constructed the house in Site No.1172, HSR Sector Ill, Bangalore, in the suit schedule premises?
Addl. Issue No.2 : Whether the Defendant No.14 proves that the B.D.A., has formed Layout in the suit schedule property and 31 O.S.No.3666/2003 formed roads, drainage system and KEB Trans- former is existing in the suit schedule premises, as contended in para 5 of the Written Statement?
Addl.Issue No.3: Whether the suit of the Plaintiff is not maintainable in law?
ADDITIONAL ISSUES dated 30-08-2018 Addl. Issue No.1 : Whether the defendant No.24 proves that after ac-
quisition of land bearing Sy.No.31 of Yellukunte vil- lage, BDA formed layout and allotted site No. 1220/A to him ?
Addl.Issue No.2 : Whether the defendant No.24 proves that the power of attorney produced by the plaintiffs belongs to Mr. Chandra Mouli Reddylis fabricated document ?
Addl.Issue No.3 : Whether the defendant No.24 proves that as on the date of the suit the plaintiff No.7 was no more, the plaintiffs filed their suit filed by power of attorney holder is bad in law ?
ADDITIONAL ISSUES dated 24-2-2016 Addl.Issue No.4 : Whether the plaintiffs prove that they have duly exe-
cuted and authenticated the power of attorney in favour of Chandramouli Reddy to verify the plaint and to file the present suit ?
Addl.Issue No.5 : Whether the plaintiffs prove that they have duly exe-
cuted and authenticated power of attorney in favour Chandramouli Reddy to give evidence on their be- half in this suit ?32 O.S.No.3666/2003
50. Actually, this suit was once disposed off by decreeing the suit on 22-11-2004. But aggrieved by the said judgment and de- cree, the defendant Nos.1 and 2 herein filed RFA No.416/2005 and the defendant No.3 herein filed RFA No.67/2005 before Hon'ble High Court of Karnataka. RFA No 67/2005 was clubbed with RFA No.416/2005 and the Hon'ble High Court of Karnataka passed an order on 29-11-2006 by remitting the matter back to this court for fresh disposal in accordance with law within nine months from the date of order by setting aside the judgment and decree. Though the Hon'ble High Court of Karnataka has directed to dispose off this case within 9 months from the date of disposal of RFAs but till 2025 it was pending for disposal for one or the other reasons of fil- ing inter-locutary applications, impleading of more defendants, amendments, framing of additional issues, further evidence etc.
51. To prove the case of the plaintiffs, one Mr. L. Shivarama Reddy, S/o. Late Lakshmaih Reddy entered into witness box as Power of Attorney Holder of Plaintiffs and got examined by oath as PW 1 on their behalf and filed sworn affidavit of his examination in chief under which all the plaint averments are reiterated. To sub- stantiate the case of the plaintiffs, certain documents are got marked through him as Ex.P.1 to Ex.P.22 and Ex.P.15(a), Ex.P.22(a). The learned counsel for defendant Nos.1 and 2, the learned coun- 33 O.S.No.3666/2003 sel for defendant No 3, the learned counsel for defendant No.14, the learned counsel for defendant No 15 and 16 and the learned counsel for defendant No.23 cross examined him. The learned ADGP appearing for defendant Nos. 1 and 2 adopted the cross ex- amination of PW 1 made by the learned counsel for defendant No
3. Further, Ex.D 1 to Ex.D 20 and Ex.D 12(a) are got marked through confrontation to PW 1 in his cross examination by the learned counsel for defendant No 3.
52. One, Sri K. Sadanandappa, the Special Tahasildar is exam- ined by oath as PW 2 through the learned counsel for plaintiff and his oral submissions are recorded as he has not filed affidavit of examination chief and Ex.P 23 to Ex.P 65 and Ex.P 31(a), Ex.P 32(a) are got marked through him. The learned counsel for defendant No.3 cross examined him. Further, the learned counsel for plaintiff re-examined him after cross examination by the learned counsel for defendant No.3. Further, Ex.D.21 is got marked through con- frontation in his cross examination done by the learned counsel for defendant No 3.
53. On the other hand, Sri E.Chennagangappa, S/o. Eriyanna- iah the Special Land Acquisition Officer entered into witness box and got examined by oath as DW 1 on behalf of defendant No.3. He has filed sworn affidavit of his examination in chief under which 34 O.S.No.3666/2003 all the contentions of his written statement are reiterated. Ex.D 22 to Ex. D 47 and 43(a) are got marked through him.
54. The defendant No.14 by name Sri A.M. Ramesh entered into witness box by oath as DW 2 to defend his side and to dis- prove the case of plaintiff by filing sworn affidavit of examination in chief under which all the contentions in his written statement are reiterated. He has produced certain documents which are marked as Ex.D 48 to Ex.D 60.
55. The GPA holder of defendant No.10 by name Sri H.B. Venugopal S/o. Late J.T. Bettaiah got examined by oath by entering witness box as DW 3 and filed his sworn affidavit of examination in chief on behalf of defendant No.10 under which her contention in her written statement are reiterated. Ex.D 61 to Ex.D 70 are got marked through him.
56. The 12th defendant named Lokesh Rao Mahindrakar Muni Rao, S/o. Late M.K. Muni Rao entered into witness box and got ex- amined by oath as DW 4 and filed sworn affidavit of his examina- tion in chief under which the contentions of his written statement are reiterated. He has produced certain documents which are marked as Ex.D 71 to Ex.D 90.
57. All the above witness of defendants' side ie., DW 1 to DW 4 are cross examined by the learned counsel for plaintiffs. 35 O.S.No.3666/2003
58. Heard the arguments. Perused the materials placed on record and accordingly this court answers the above Issues as un- der;
Issues
Issue No 1 : In the Negative;
Issue No 2 : In the Negative;
Issue No 3 : In the Affirmative;
Issue No 4 : In the Negative;
Addl. Issues dated 24-02-2011
Addl. Issue No 1 : In the Affirmative;
Addl.Issue No 2 : In the Affirmative;
Addl. Issue No 3 : In the Affirmative;
Addl. Issues dated 30-08-2018 :
Addl. Issue No 1 : In the Affirmative;
Addl. Issue No 2 : In the Affirmative;
Addl. Issue No 3 : In the Affirmative;
Addl.Issues dated 24-02-2016 :
Addl.Issues 4 : In the Negative;
Addl.Issues 5 : In the Negative;
Issue No 5 : In the Negative;
Issue No 6 : As per the final Order;
For the following;
36 O.S.No.3666/2003
REASONS
59. Addl.Issue No.3 (24-02-2011), Addl.Issue Nos.2 and 3 (30-08- 2018) and Addl.Issue Nos.4 and 5 (24-02-2016) :- These five Issues are regarding maintainability of suit in the viewpoints of defendant No.14 and defendant No.24, in as much as, they are connected to GPA executed by plaintiffs in favour of Chandramouli Reddy and L.Shivarama Gowda and burden of proof of validity of GPA of plain- tiffs; proving that GPA is fabricated as has been contended by de- fendant No.24; non-maintainability of suit in the view point of de- fendant No.14; maintainability of suit having regard to the fact that as on the date of the filing of this suit, the Plaintiff No.7 was no more and validity of GPA executed by him, which are all inter-con- nected to each other. Hence, to avoid repeated discussions they are taken up together here under.
60. First of all, most important point to be noted here is the same plaintiffs of this case along with some other plaintiffs, filed two other cases. They are OS No.1265/1996 and OS No.814/2005 filed against the same defendants with same set of facts in respect of Sy.No.69 of Haralakunte village and all these three (3) cases are remitted back to this court by the Hon'ble High Court for fresh dis- posal as same as in this case. Surprising point is in that cases, the 37 O.S.No.3666/2003 plaintiffs made similar set of facts that the deceased Pasalappa Reddy constructed a private tank. Further, interesting point is in each cases is that they stated that said Pasalappa Reddy con- structed private tank in the property of suit schedule property of each case. Such as in OS No.1296/1996 and in OS No 814/2005, they stated that the said Pasalappa Reddy constructed private tank in Sy.No.69. In this OS No.3666/2003, they stated that the said Pasalappa Reddy constructed private tank in Sy.No 31. But, nowhere in each cases stated that he constructed "two separate tanks" in Sy.No.31 and Sy.No.69 and in the evidence of this case, as discussed below, the witnesses failed to establish either construc- tion of separate tanks and even failed to establish construction of tank by Pasalappa Reddy. Moreover, all these three cases are con- nected to each other, but not clubbed. It is evident in the order of Misc.No 468/2007 dated 21-07-2007 filed by plaintiffs herein in which it is ordered as " The Petition is allowed. OS No.1265/1996 and OS No.814/2005 pending on the file of CCH-10 and OS No.4830/1996 pending in the file of CCH-9 are withdrawn and transferred to CCH No 12 where OS No.3666/2003 is pending for trial and disposal in accor- dance with law." Hence, these three cases OS No.3666/2003, OS No.814/2005 and OS No.1265/1996 are taken up together for dis- posal to avoid ambiguities as since 1996 till date, there are bunch 38 O.S.No.3666/2003 of cases between same parties in respect of properties in Sy.No.69 of Haralakunte village and property in Sy.No 31 of Yellukunte vil- lage, wherein the plaintiffs claimed through the root of their ances- tors without any title deeds and only on the basis of the contention that Late Pasalappa Reddy constructed a private tank in the suit schedule properties. But, the contentions of the defendants are that the said properties are government land with "tank bed area". Then question is whether the tank is private or government and whether Pasalappa Reddy constructed tanks separately in both the properties or how he can construct a single tank in both Sy.No.69 and Sy.No.31 which situated in different villages such as Har- alakunte village and Yellukunte village, is the crucial point. If they are decided once in all cases, then definitely the question in contro- versy since 90's in respect of same subject matter of property and between same parties would attain finality without opening the doors to multiplicity of proceedings and accordingly this court made every endeavour to dispose off this matter which is directed by Hon'ble High Court of Karnataka to dispose within nine months as ordered in RFA No.416/2005 C/W 67/2005 dated 29-11-2006.
61. Important point is in OS No.814/2005, wherein the plaintiff filed that case against the Commissioner of BDA only and PW 1 himself stated in the affidavit of examination chief and plaintiffs in plaint as 39 O.S.No.3666/2003 that case depends on judgment in OS No.1265/1996 and hence the parties have not lead evidence in that case and every proceeding is conducted in OS No 3666/2003. The GPA Holder/PW 1 in OS No.814/2005 and OS No.1265/1996 is none other than S. Chandra Mouli Reddy and in that regard discussed in detail here below.
62. Though the above cases are not clubbed, but on the basis of oral submissions of the respective sides, they are taken to the Board together in every callings. Only, on going through the mate- rials on record together while preparing for judgment, it came to the notice of the Court that they are not clubbed. But, this Court finds there is no need to again reopen the stage for clubbing of the matter in the suits which are posted for judgment which leads to reopening IAs which will lead to further procrastination of this age old suits, hence, by invoking inherent power under Section 151 of CPC and considering the order in Misc.No.468/2007 dated 21-07- 2007 filed by plaintiffs which is discussed supra, this court pro- ceeded to pass judgment in these three cases without clubbing them, which will not in any way adversely affect either technically or legally in respect of subject matter and parties to the suit. Fur- ther, it will not cause any prejudice to the interest of justice. If it is again reopened for clubbing the matter, then definitely it will lead to multiplicity of proceedings.
40 O.S.No.3666/2003
63. Admittedly and originally, this suit is filed against defen- dant Nos.1 to 3 and later defendant Nos.4 to 24 are added. The plaint prayers in this suit for declaration and perpetual injunction are reiterated here under;
"a) by declaring that the order passed by the first defen-
dant in RD 197 LGB, 2003 dated: 17.04.2003 as non-est in the eye of law.
b) Grant relief of perpetual injunction against the third defendant restraining him, his agent, men or anybody under or through him from dispossessing the Plaintiffs from the Sched- ule Property or in any way interfering with the Plaintiffs lawful possession of Schedule property; and
c) Grant such other relief/reliefs as this Hon'ble Court deems fit in the circumstances of the case including the costs of the proceedings, in the ends of justice."
64. Before discussing facts and law in respect of circum- stances of this case, as they have direct bearing on the remaining Issues, here now, with regard to above five Issues, we have to look into validity of GPA, validity of GPA after the death of person who executed GPA and other grounds of non-maintainability of suit in- voked by the defendants.
65. Regarding, Addl.Issue No.3 dated 30-08-2018 is con- cerned, in paragraph 6 of page No.14 of the judgment of Hon'ble 41 O.S.No.3666/2003 High Court of Karnataka in RFA No 416/2005 C/W 67/2005, it is ob- served and opined that the suit to the extent of dead plaintiff that is 7th plaintiff by the Power of Attorney may be bad in law and the same paragraph is reproduced here under;
" 6. The plaintiffs 1 to 9 had prosecuted the suit through their Power of Attorney one Chandramara Reddy. As on the date of suit the 7th plaintiff was dead. The Power of Attorney instituted the suit on behalf of all the plaintiffs including the dead 7th plaintiff. The suit to the extent of dead plaintiff by the Power of Attorney may be bad in law, but the suit on behalf of the plaintiffs 1 to 6, 8 and 9 cannot be assailed as bad in law."
66. Hence, further discussion on this Issue is just wasting of time as this Issue is directly connected to the maintainability of the suit to the extent of the Power of Attorney by a dead person that is plaintiff No.7 as to 'whether the defendant No.24 proves that as on the date of the suit the plaintiff No.7 was no more, the plaintiffs filed their suit filed by power of attorney holder is bad in law ?'.
67. Now, on perusal of order sheet, this suit is filed on 02-06- 2003. In the cause title of original plaint, it is noted as "all the plain- tiffs are represented by their attorney holder S.Chandra Mouli Reddy. The verification portion of plaint shows that it is verified by GPA holder of plaintiff S.Chandra Mouli Reddy. Further, the verify- 42 O.S.No.3666/2003 ing affidavit to the plaint is deposed by the same GPA S.Chandra Mouli Reddy.
68. It is well known that as per Order VI Rule 1 of the CPC, "Pleading" shall mean plaint or written statement. Further the said pleadings shall be signed by the parties and his pleader and it is not as "signed by the party "or" pleader". That means in the plaint and written statement, signature of both the parties and the coun- sels/pleaders shall be compulsory. To make it more clear the Rule 14 of Order VI of CPC is hereby reproduced;
"14. Pleading to be signed.--Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of ab- sence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf."
69. Further, the proviso gives opportunity to sign the plead- ing in the absence of parties for cause, then by the duly authorized person. Duly authorized person under law is "power of attorney holder." as provided in Order III Rule 1 and 2 of CPC.
70. Why this Court is discussing these provision here because in this case, the original plaint is filed through GPA holder S. Chan- dra Mouli Reddy and as stated above in the original plaint filed, it 43 O.S.No.3666/2003 contains signature of said GPA. But, all the subsequent "amended plaint" contain signature of neither parties nor GPA holders. They are signed by only the "counsel/advocate for plaintiff" which is not tenable under law.
71. Further, to make it more clear, Order III Rule 4 of CPC is reproduced here under for better understanding of the pleader's authority and duty towards the suit and he has no authority to file pleadings independently without signature of either parties or their attorney.
"4. Appointment of pleader.--(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other per- son duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be 3[filed in Court and shall, for the purposes of sub-rule (1), be] deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
Explanation. --For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,--
(a) an application for the review of decree or order in the suit, 44 O.S.No.3666/2003
(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.
(3) Nothing in sub-rule (2) shall be construed--
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or doc- ument issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating--
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to ap- pear:
45 O.S.No.3666/2003
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party."
72. Then, filing of amended plaint without signature of either the plaintiffs or their attorneys is not permissible under law.
73. Further, in another way also, the amended plaints are de- fective as they are not accompanied with verifying affidavit by plaintiffs or their attorneys as it is main requirement under law. The concerned provision of CPC is reproduced here under;
"Order III Rule 15. Verification of pleadings.--
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."46 O.S.No.3666/2003
74. Here in this case, in both the amended plaints, there is no verification portion and no verification affidavit. If pleader has is acquainted with case, then why he has not verified the amended plaint has remained unanswered.
75. Further, the amended plaint is also treated as "plead- ings" under Order VI Rule 1 as it adds/inserts something new pleadings in the original plaint which shall have to be verified as true and correct. Further, Rule 3(2) in Chapter I of Karnataka Civil Rules of Practice clearly gives meaning to the word "Pleadings" as;
"2) "Pleadings" shall include plaints, written statements, memoranda of appeals, cross-objections, original petitions, applications, counter statements, replies, rejoinders and ev-
ery statement setting out the case of a party in the matter to which the pleadings relate."
76. Further, Chapter IV Rule 24 to 32 of Karnataka Civil Rules of Practice clearly say that the facts and pleadings shall be verified by the deponent and identified by a competent person.
77. Hence, the present amended plaints in this case which are the main source for adjudication of justice is not valid as per law because none of the plaintiffs, none of their attorneys and none of their appointed pleaders verified the amended plaint as true and correct. Then, it gives presumption that the whole plaint 47 O.S.No.3666/2003 is bundle of non-existing facts as no one confirmed it as true and correct. In this viewpoint the suit is definitely not maintainable.
78. Moreover, as per Ex.P.1 the Special Power of Attorney executed by the plaintiff No 1 to 9 in favour of PW 1 hererin named L. Shivarama Reddy is executed on 25-10-2004. As per the dates noted in the amended plaints and as on the date of order sheet on which they have produced are the subsequent dates from the date of execution of said SPA. One of the amended plaints is filed on 22- 01-2008 and another amended plaint is filed on 04-08-2018, but both does not contain signature of either plaintiffs or the SPA Holder anywhere in the amended plaint and they do not contain the verification portion and verification affidavit. Then, as per their own default, the plaint filed by the plaintiffs itself is not maintain- able.
79. Now, in this regard, we have to go through the deposi- tion of PW 1 who is none other than alleged SPA holder of plain- tiffs. The said SPA is marked as Ex.P 1 as stated supra. Here it is im- portant to note that, though the suit is filed through GPA holder named S. Chandra Mouli Reddy, but the GPA executed in his favour is not produced by the plaintiffs. Further, the defendant No.24 claimed that the plaintiff No.7 died prior to filing of this suit and 48 O.S.No.3666/2003 the said GPA has lost its validity on his death. But, the Hon'ble High Court of Karnataka, as stated supra, opined that to the extent of deceased defendant No.7 the said GPA is bad in law. That means with regard to remaining plaintiffs, it will continue to be in force. If it is so, then while appointing another person as GPA/SPA, they ought to cancel the previous GPA by due process of law or they ought to give GPA combined with both the attorneys under single roof of a single GPA and whatever it may be they ought to rescind/revoke/cancel the previous GPA/SPA otherwise the present SPA is "bad under law" as both the SPA/GPA are executed for the same purpose. If the earlier SPA holder/GPA holder died, then such cancellation does not arise. But in his cross examination PW 1 ad- mitted as the said S. Chandra Mouli is still alive as on cross exami- nation dated 25-07-2012 as:-
"7ನೇ ವಾದಿ ದಾವೆಯನ್ನು ಹೂಡಿದಾಗಲೇ ತೀರಿಕೊಂಡಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಇಲ್ಲಿಗೆ 2 ವರ್ಷಗಳಲ್ಲಿ 9ನೇ ವಾದಿ ತೀರಿಕೊಂಡರು. 9ನೇ ವಾದಿಗಳ ವಾರಸುದಾರರನ್ನು ಸೇರಿಸಲು ಮಾಹಿತಿಯನ್ನು ನನ್ನ ವಕೀಲರಿಗೆ ಕೊಟ್ಟಿದ್ದೇನೆ. ಅವರು ಇನ್ನು ಮುಂದೆ ಅರ್ಜಿಯನ್ನು ಹಾಕಲಿದ್ದಾ ರೆ. ಮೊದಲು ದಾವಾ ಹಾಕಿದಾಗ ಅಧಿಕಾರ ಪತ್ರ ಹೊಂದಿದ ಚಂದ್ರ ಮೌಳಿಯವರು ಇನ್ನು ಬದುಕಿದ್ದಾ ರೆ. ನಾನು ಸಹ ಅಧಿಕಾರ ಪತ್ರವನ್ನು ತೆಗೆದುಕೊಂಡು ಸಾಕ್ಷಿಯನ್ನು ಕೊಡುತ್ತಿದ್ದೇನೆ."
80. Further as on cross examination dated 08-08-2012, he has stated that:-
49 O.S.No.3666/2003
" Chndramouli filed power of attorney to conduct the case. It is false to suggest that the said power of attorney given in favour of Chandramouli is not cancelled. It is false to suggest that without canceling the power of attorney given in favour of Chandramouli, I am giving evidence on the basis of power of attorney."
81. But, the plaintiffs neither produced the GPA executed in favour of said S. Chandra Mouli Reddy nor produced deed of can- cellation of said GPA.
82. Further, in his cross examination dated 29-08-2012 made by the learned counsel for defendant No.1 and 2, PW 1 has stated as:-
"Ex.P 1 is my power of attorney. Ex.P.1 is signed by all the plaintiffs, ie., plaintiff Nos.1 to 9".
83. On perusal of Ex.P 1, all the plaintiff Nos.1 to 9 put their signature in the year 2004. But, the same PW 1, as stated supra, in his cross examination dated 25-07-2012 stated that the plaintiff No.7 died prior to filing of this suit and the plaintiff No.9 died 2 years prior to that date of evidence. As per cause title of the plaint, the name of Plaintiff No.7 is "A M Rami Reddy." According to PW 1 himself, he died prior to filing of this suit. On perusal of Ex.P 1 the name of Plaintiff No.7 is mentioned in the array of persons who ex- ecuted said SPA. In the signatures, the signature of A. M. Rami 50 O.S.No.3666/2003 Reddy found in every pages of Ex.P 1. Then, how a dead person put his signature on this SPA. Surprising point is one Advocate who had enrollment number as KAR/1958/1995 has identified the par- ties to Ex.P 1. Further, Notary public name M.G. Uthappa (Regd
621) attested this document. In this regard, in page No.38 of his cross examination dated 16-11-2011 PW 1 has stated as:-
" I do not know how the signature of A.M. Rami Reddy came on Ex.P.1 dated 25.09.2004. I do not know when the said Rami Reddy died. I do not know the date of execution of Ex.P.1 before the Notary. I do not know before which Notary, Ex.P.1 was exe- cuted. It is false to suggest that we have fabricated the signa- ture of 7th plaintiff though he was not alive as on the date of Ex.P.1. It is false to suggest that the executants of Ex.P.1 not ap- peared before the Notary and not signed on Ex.P.1. On the last page of Ex.P.1, another date as 25.10.2004 is mentioned. It is false to suggest that Ex.P.1 is not a genuine document."
84. Another important false statement given by PW 1 in his cross examination is in page No.38, wherein he has stated as:-
" Myself also have give instruction to our Advocate for drafting the plaint. Entire family verified the Plaint averments. Sri Chandramouli, who has verified the Plaint averments, is not one of the plaintiff in OS No.3666/2003. It is false to suggest that Sri Chandramouli had no power to verify the plaint aver- ments in OS 3666/2003. I do not know regarding not produc- ing Power of Attorney of Chandramouli Reddy. It is false to 51 O.S.No.3666/2003 suggest that without power of attorney, Chandramouli Reddy has presented the suit in OS 3666/2003".
85. But, as discussed supra, none of the plaintiffs verified the plaint and even not only them, this PW 1 has also not verified amended plaint which are filed after execution of SPA in his favour.
86. Further, in page No.39, PW 1 stated as:-
" I do not know the date of death of Plaintiff No.9 - K. Ra- machandra Reddy. Plaintiff No.9 is my brother's son. Plaintiff No.9 died about 6-7 years back. It is false to suggest that plaintiffs are not in possession of the suit schedule property."
87. Then it is clear that this SPA is not maintainable in respect of plaintiff No 9 too. If the plaintiff No.9 died before 6-7 year prior to 16-11-2011, the date of that cross examination, then definitely plaintiff No.9 also died prior to execution of that SPA. If the signa- ture of two persons are forged in a document, that means the whole document is treated as fabricated, because, it shows either involvement of other plaintiffs to fabricate or fabrication by SPA holder himself by impersonation of other plaintiffs or SPA holders, who is unduly influenced or misrepresented by remaining plaintiffs or remaining plaintiffs are unduly influenced by SPA holders as vis a vis/ vise versa, finally the finding of this court is that Ex.P.1 and all the GPAs executed in favour of S. Chandra Mouliu Reddy which are 52 O.S.No.3666/2003 marked as Ex.D 13 to Ex.D 19 are fabricated documents, because without describing their right, title and interest over the suit sched- ule property and without mentioning as to through which title/ deeds they became absolute owners of that properties, the said GPAs are executed. Where there is no proper authority, right and title and power to be identified over the property, then no power or authority would be handed over to GPA Holder. To execute power through GPA, first of all the executant shall have power over that properties.
88. The fact that a dead person signed a document, means definitely it is fabricated document as the death of defendant No.7 prior to the date of G.P.A. is admitted by P.W.1.
89. On perusal of original plaint, only the GPA Holder S. Chandra Mouli Reddy put his signature as discussed supra. The suit is filed in the year 2003. Ex.P.1 is executed in the year 2004. Evidence of PW 1 has commenced on 26-10-2004. Then, not only the GPA of Plaintiff No.7 but also GPA of Plaintiff No.9 is bad in law as he was no more as on the date of 25-07-2012 that is the date of cross examination PW 1 as he admitted that Plaintiff No.9 died two years prior to that cross examination.
53 O.S.No.3666/2003
90. Importantly, in page No 26 of cross examination of PW 1, the learned counsel for defendant confronted copies of GPAs executed by the plaintiffs in favour of S.Chandra Mouli Reddy con- fronted to PW 1 and they are got marked as Ex.D 13 to Ex.D 19, he admitted that documents and the portion of deposition at that cross examination is reproduced here under as it gives effect on these Issues as the suit is not maintainable;
" It is true to say that one Chandramouli Reddy filed this suit as a General Power of Attorney holder of plaintiffs. It is true to say that there are Xerox copies of seven General Power of Attor- neys issued by seven plaintiffs in favour of the said Chan- dramouli Reddy. I admit that now I see the said xerox copies which are confronted to me and they are marked as Ex.D.13 to D.19. The said Chandramouli Reddy is my elder brother's son. I can produce the originals of Ex.D.13 to D.19 provided the said Chandramouli give them to me. It is true to say that myself and the said Chandramouli Reddy are in good terms. It is true that as the said Chandramouli Reddy was not keeping good health, I am deposing on behalf of the plaintiffs. Learned counsel for the 3rd defendant asked a question to the witness, that the plaintiffs have not empowered the said Chandramouli Reddy to file this suit. Learned counsel for the plaintiff submitted that as the said defence has not been taken by the defendants. It should not be allowed to ask the said question as it is a question of law. Heard. As the question in- volved is a question of law and the said question need not be pleaded and any defendant or adversary can raise the question 54 O.S.No.3666/2003 of law even without the writtens statement. Hence the question is allowed.
It is not true to say that the plaintiffs have not authorised the said Chandramouli Reddy to file the plaint as such the plaint it- self is not maintainable."
91. Now, on perusal of Ex.D 13 to Ex.D 19;
Ex.D 13 is the copy of GPA dated 24-04-2000 executed by A.G Shivashankar Reddy (Plaintiff No 1) and A.G. Jayarama Reddy (not party in this case) executed in favour of favour of Chan- dra Mouli Reddy S/o.A.L. Subbaiah and in that document schedule II is the plaint schedule herein;
Ex.D 14 is the copy of GPA dated 24-04-2000 executed by S. Ramachandra Reddy (Plaintiff No 2) and S. Gopala Reddy (not party in this case) , G. Srinivasa Reddy (Plaintiff No 5), Venkata Reddy ( plaintiff No 3), S. Shankar Reddy (not party to his case), executed in favour of favour of Chandra Mouli Reddy S/o. A.L. Subbaiah and in that document, schedule II is the plaint schedule herein. Surprising point in this document is after the name of second plaintiff herein, the names of his legal heirs are arrayed as 1(a) to 1(d). None of the legal heirs of other executors are mentioned. Then, the question will arise at the time of execution of that GPA whether plaintiff No.2 was also alive or not.
55 O.S.No.3666/2003 Ex.D.15 is the another GPA dated 24-04-2000 executed in re- spect of same property in Ex.D 12 and Ex.D 13 by M. Pasala Reddy S/o. Late Chikkamuniswamy, P.Munireddy S/o. Pasalareddy (not party here), Lakshmidevamma W/o. Late Ja- yaramareddy, M. Krishna Reddy, M. Srinivasa reddy, M. Muni Reddy Govinda Reddy, G. Nagaraja Reddy, Srinivasa Reddy, Kamalakshmma, (they are not parties to this case), Venkata Reddy (plaintiff No.3) , Pradeep Reddy (not party here) exe- cuted in favour of favour of Chandra Mouli Reddy S/o. A L Subbaiah. Surprising point in this document is this document is also executed on the same day that is 24-04-2004. Another surprising point is if we go through Ex.D 16 to Ex.D 19, all are the similar GPAs executed on the same date ie., on 24-04-2000 by different persons in favour of the very same S. Chandra Mouli Reddy in respect of same property which is suit schedule property herein. In all these documents, it is stated that they are owners of property in Sy.No. 69 of Har- alakunte village and Sy.No. 31 Yellukunte village, but there is no explanation about how they acquired that properties. Fur- ther, if we compare it with above reproduced portion of cross examination of PW 1, it creates cloud on the ownership of the plaintiffs over the suit schedule property. In such a junc- 56 O.S.No.3666/2003 ture, the plaintiffs ought to have brought this Chandra Mouli to witness box, but they have not taken any pain to do so which leads to presumption under Section 114 of Indian Evi- dence Act as all the GPAs are created for the purpose of this case or to grab the properties mentioned in this suit as nei- ther the parties put their signature in any of the plaints (in- cluding amended plaint).
92. Further, in page Nos.28 and 29 of his cross examination PW 1 has stated as;
" It is true that in Ex.P.2, it is mentioned that "the genealogical tree is according our statement and we have signed admitting the contents thereof". It is true that Ex.P.2 does not contain anybody's signatures. It is not true to say that, the persons shown in Ex.P.2 are not the members of the families as shown in it and that we have created Ex.P.2 for the purpose of this suit. Now I see one signature shown to me, but I cannot iden- tify the said signature. The said signature is of the vakalath of A.C.Sudarshana Reddy filed in LAC No.381/86-87 which is available in the records summoned from BDA. Now I see the claim petition filed in LAC 381/86-87 but I cannot identify the signatures forthcoming in the documents. Now I see claim pe- tition filed in LAC 378/1986-87, but I cannot say who had signed the said claim petition. Now I see claim petition shown to me of LAC No.381/86-87 but I cannot identify the signa- tures. It is true to say that in the said claim petition my name is shown as the 5th claimant but I have not signed it.57 O.S.No.3666/2003
Now I am shown the claim petition of LAC No.379/86-87, but I cannot identify any of the signatures found in it. So also the signatures that are forthcoming in the possession taking mahazar of LAC No.376/87-88. Now I see the affidavit accom- panying I.A. filed under O.7 R14(d) of CPC the signature found on the said document is of mine. Now I see Ex.P.1 the Special Power of Attorney executed by the plaintiffs but I cannot iden- tify all the signatures on the said document. I only identify the signatures of A.L. Nanjunda Reddy."
93. Then, PW 1 himself failed to prove his own document that is Ex.P 1 as he is unable to identify the signatures of parties to Ex.P
1.
94. Further, in page No 30 of his cross examination the PW 1 has stated as:-
" It is not true to say that, all the plaintiffs are hale and healthy. I do not know, is there any difficulty to some of the plaintiffs who are healthy to come over to the Court and to give evi- dence. It is not true to say that, myself colluding with the plain- tiff have filed this suit in order to knock off the valuable prop- erty of the 3rd defendant. It is not true to say that, though the 7th plaintiff is no more, we had filed this suit without having any right or title over the suit schedule property in order to grab the suit schedule property. It is not true to say that, with the apprehension that if the plaintiffs appear before the Court the truth will come out, I am deposing falsely pretending to be a General Power of Attorney holder of the plaintiffs. It is not true to say that myself and my family members are used to 58 O.S.No.3666/2003 knock off the Government properties by creating false docu- ments."
95. Moreover, in page No 13 of his cross examination con- ducted by the learned counsel for defendant No.3 on 29-10-2004, PW 1 has stated and admitted on GPA as:-
"All the plaintiffs have executed Special Power of Attor- ney in my favour to prosecute the suit at Agara Village, Banga- lore. All the plaintiffs had joined in my house to execute the said Special Power of Attorney ie., Ex.P.1. On 24th and 25th of October the plaintiffs had executed the Special Power of Attor- ney. In the evenings of 24th and 24th of October the plaintiffs had executed the Special Power of Attorney but I cannot say now the exact time and day of the each plaintiff executed the said document and now I cannot say on which exact date I had obtained the signature of the notary on Ex.P.1. On that day, we took the notary to my house to get executed Ex.P.1. Now I see Ex.P.2, it is true to say that I cannot say on which date each of the deceased persons died. It is true to say that Ex.P.2 was ob- tained during the year 1999. It is true that in Ex.P.2 which was issued on 12.04.1999, A.M. Rama Reddy S/o. Muganna Reddy is shown as dead by that time. But I do not know when exactly A.M.Rama Reddy died. It is true that in Ex.P.1, it is shown that 7th plaintiff A.M. Rama Reddy S/o. Muganna Reddy has signed Ex.P.1 on October 24th or 25th 2004. It is true to say that in the plaint, it is shown that A.M. Rama Reddy S/o. Muganna Reddy as 7th plaintiff. It is not true to say that I do not have any knowledge about the contents of the plaint and about the facts 59 O.S.No.3666/2003 of this case. It is not true to say that 7 th plaintiff is a fictitious person created for the purpose of this suit."
96. But, as discussed supra, Ex.P 1 clearly shows that it is exe- cuted in respect of OS No.3666/2003. PW 1 admitted above that as on the date of Ex.P.1, plaintiff No.7 was dead. As on the date of cross examination, plaintiff No.9 was dead. Plaintiffs have not taken any pain to bring their legal representatives on record, which shows the attitude of power of attorneys of this case.
97. But, plaintiffs/PW 1 has not produced the documents which show the health condition of the plaintiffs who are alleged to be facing health issues and they did not take any pain to come be- fore the court to tell the truth. Further, in such situations, to prove their case, they have not made any effort to appoint court commis- sioner to record evidence directly from the mouth of either of plaintiffs which shows they have utterly failed to prove that they have duly executed and authenticated the Power of Attorney in favour of Chandra Mouli Reddy to verify the plaint and to file the present suit. Further they have failed to prove that they have duly executed and authenticated the power of attorney in favour of PW1/ L. Shivarama Reddy to give evidence on their behalf in this suit. On the other hand, the defendant No.24 proved that as on the 60 O.S.No.3666/2003 date of the suit, plaintiff No.7 was no more and the plaintiffs filed their suit through power of attorney holder, is bad in law. Further, not only defendant No.24 but also all the defendants who cross ex- amined PW 1 proved that the Power of Attorney produced by the plaintiffs belongs not only to Mr. Chandra Mouli Reddy, but also SPA executed in favour of PW 1/L. Shivarama Reddy are fabricated documents as a dead person signed on that documents, then whole document will become void, since how the attesting and identifying person put their signature on such power of attorneys. As per above discussions and reasons, whole suit is not maintain- able accordingly, the defendants proved that the suit is not main- tainable.
98. Therefore, as per the facts and circumstances of the case and on the basis of above discussions, this court is of the consid- ered opinion that Ex.P 1 and Ex.D 13 to Ex.P 19 are fabricated docu- ment as PW 1 stated that the said S. Chandra Mouli Reddy still alive and if this court do not recognizes the fabrication of that docu- ments here, though no Issues are framed in that regard, then there is a chance of multiplicity of proceedings and further chance of filing false suit by using said GPAs. Here this court has every au- thority to recognize it as fabricated on the basis of above discus- sions as originally this suit was filed by the plaintiffs/GPA holder of 61 O.S.No.3666/2003 the plaintiffs (S. Chandra Mouli Reddy) on the basis of either of Ex.D 13 to Ex.D 19. Further, this court finds that this suit is not maintainable as discussed supra as the suit is filed by dead person and the due procedure of law is not followed while filing the plaint and amended plaints are not signed by either parties or GPA holder and they have not verified them and they are not attached with verifying affidavit. Only the learned counsel for plaintiffs put his signature on the amended plaints which is not tenable under law. Accordingly, this Court answers Addl.Issue No.3 dated 24-02- 2011, Addl.Issue No.2 and 3 dated 30-08-2018 in the Affirmative. Addl.Issue No 4 and 5 dated 24-02-2016 are answered in the Nega- tive.
99. Issue No 1 to 4, Addl.Issue No 1 and 2 dated 24-02- 2011, Addl.Issue No 1 dated 30-08-2018 :
Though as per above discussions, it is clear that the this suit is not maintainable and this case is a false case, the main docu-
ments through which the suits are filed are fabricated and the orig-
inal plaintiffs anyway never-ever come before the court and further the GPA holder through whom this suit is filed that is S. Chandra Mouli Reddy also did not appear before the court and evidence lead by another GPA that is Shivarama Reddy, than the GPA holder who filed this suit etc., are enough to dismiss this suit, but for full-62 O.S.No.3666/2003
fledged judgment and to avoid third round litigation as this is sec-
ond round litigation as it is remitted case by Hon'ble High Court of Karnataka as stated above and hence to avoid all the above, this Court gone through remaining Issues which are regarding facts and law connected to subject matter of this suit.
100. These, Seven Issues are inter-connected to each other, hence to avoid repeated discussions they are taken up together here under;
On perusal of plaint, the plaintiffs have filed this case without prayer for declaration of their ownership and title and they prayed for declaration of the order passed by the 1 st defendant in RD 197 LGB, 2003 dated 17-04-2003 as non est in the eye of law. Surprising point is nowhere in the plaint they narrated about their title and ownership of the property and they filed this suit by stating that as a joint family they enjoyed and in possession of suit schedule prop- erty and their ancestor Pasalappa Reddy constructed a private tank in the suit schedule properties in 1890's and on that basis now, they are claiming to declare the above stated order as non-est. In the plaint, they narrated about the previous litigation and con- nected litigation in respect of property in Sy.No.69 of Haralakunte village which shows that these plaintiffs made separate similar liti- gation pertaining to this suit schedule property which is coming 63 O.S.No.3666/2003 under properties in Sy.No.31 of Yellukunte village and in respect of property in Sy.No.69 of Haralakunte village. Surprising point is in alleged GPAs which are marked as Ex.D 13 to Ex.D 19, they inserted both the properties in GPAs, but here in this Ex.P 1, just mentioned as to prosecute in OS No 3666/2003. Nowhere in the plaint, there is pleading about their clear title and the contentions raised by the defendants in the written statements create cloud about the title and possession of the plaintiffs, despite that, the plaintiffs have not prayed for declaration of their title which shows they are trying to get the fruit in the case by avoiding payment of court fee, by just paying Rs.75/- to the extent of 15 acre 11 guntas of land without mentioning whether it is agricultural or converted land in both body of the plaint and also the plaint schedule and thus on the plain reading of the plaint itself, it shows clever drafting.
101. Next to that, the said alleged order dated 17-04-2003 is passed by defendant No.1 who is the Principal Secretary of Revenue Department which is marked as Ex.P 31. In this document it is ordered as:-
"ಸದರಿ ಸಮಯದಲ್ಲಿ ಕೈಗೊಂಡ ನಿರ್ಣಯದಂತೆ ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ತಾಲೂಕು ಬೇಗೂರು ಹೋಬಳಿ ಮುಳ್ಳು ಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.31ರ 15 ಎಕರೆ 11 ಗುಂಟೆ ಜವಿೂನಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ, ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಯಾವ ಪ್ರಕರಣವು ಬಾಕಿ ಇಲ್ಲದೇ 64 O.S.No.3666/2003 ಇರುವುದಾಗಿ ತಿಳಿಸಿರುವ ಕಾರಣ ಹಾಗೂ ಅರಳುಕುಂಟಿ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.68, 70, 71, 72 ಮತ್ತು ಹಳೇ ನಂ.5 ರಲ್ಲಿನ ಒಟ್ಟು 11 ಎಕರೆ 31 ಗುಂಟೆ ಜವಿೂನಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಪ್ರಕರಣ ಬಾಕಿ ಇರುವುದಾಗಿ ತಿಳಿಸಿರುವ ಕಾರಣ ಈ ಎರಡು ಜವಿೂನುಗಳ ಬಗ್ಗೆ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಯಾವುದೇ ಪ್ರಕರಣಗಳು ಬಾಕಿ ಇಲ್ಲದೇ ಇರುವುದನ್ನು ಖಚಿತಪಡಿಸಿ, ಅದು ಅಲ್ಲದೇ ನಿಮ್ಮ ಪತ್ರದ ಸಂಖ್ಯೆ LND(S)CR:412:2000-11 ದಿನಾಂಕ 09-10- 2002 ರಲ್ಲಿ ಸೂಚಿಸಿರುವಂತೆ 12 ಜನ ಅನಧಿಕೃತ ಸಾಗುವಳಿದಾರರು ಎಂದು ಹೇಳಿಕೊಳ್ಳು ತ್ತಿರುವವರು ದಾಖಲೆಗಳನ್ನು ಹಾಜರುಪಡಿಸಿದಲ್ಲಿ ಅವರ ಕ್ಲೇಮಿನ ಬಗ್ಗೆ ಪರಿಶೀಲಿಸಬೇಕು. ಒಂದು ವೇಳೆ ಕ್ಲೇಮಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ದಾಖಲೆಗಳನ್ನು ಹಾಜರುಪಡಿಸದೇ ಇದ್ದಲ್ಲಿ ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾ ಧಿಕಾರದವರು ಸಂದಾಯ ಮಾಡಿರುವ 9,90,311 ರೂಗಳ ಮೊತ್ತವನ್ನು ಅವರಿಗೆ ವಾಪಸ್ಸು ಮಾಡುವಂತೆ ತಿಳಿಸಲು ಹಾಗೂ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಪ್ರಕರಣ ಬಾಕಿ ಇದ್ದಲ್ಲಿ ಅಂತಿಮ ತೀರ್ಪಿಗೆ ಬದ್ದರಾಗುವ ಷರತ್ತಿಗೆ ಒಳಪಡಿಸಿ, ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾ ಧಿಕಾರಕ್ಕೆ ಭೂ ಸ್ವಾ ಧೀನವಾಗಿರುವುದನ್ನು ಖಚಿತಪಡಿಸಿಕೊಂಡು ಈ ಜಮಿಾನುಗಳಿಗೆ ಮ್ಯು ಟೇಶನ್ - ಇಂಡೀಕರಣ ಮಾಡಿ ಕಂದಾಯ ದಾಖಲೆಗಳಲ್ಲಿ ನಮೂದಿಸಿ ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾ ಧಿಕಾರಕ್ಕೆ ಹಸ್ತಾಂತರಿಸಿ ಸರ್ಕಾರಕ್ಕೆ ವರದಿ ನೀಡುವಂತೆ ತಿಳಿಸಲು ಆದೇಶಿತನಾದ್ದೇನೆ."
102. The subject of this order is noted as:-
"ವಿಷಯ - ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ತಾಲೂಕು ಬೇಗುಾರು ಹೋಬಳಿ ಯಳ್ಳು ಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.31 ರ 15 ಎಕರೆ 11 ಗುಂಟೆ ಮತ್ತು ಅರಳುಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.69ರಲ್ಲಿನ 12 ಎಕರೆ 31 ಗುಂಟೆ ಸರ್ಕಾರಿ ಕೆರೆ ಅಂಗಳ ಜಾಗವನ್ನು ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾ ಧಿಕಾರಕ್ಕೆ ವರ್ಗಾಯಿಸುವ ಬಗ್ಗೆ."65 O.S.No.3666/2003
103. Ex.P 31 (a) is the proceedings reduced in to writing con- ducted by defendant No 1 in respect of Ex.P 30, in which it is noted as:-
"ಮೇಲ್ಕಂಡ ಸಭೆಗೆ ಪ್ರಧಾನ ಕಾರ್ಯದರ್ಶಿಯವರು ಎಲ್ಲರನ್ನೂ ಸ್ವಾ ಗತಿಸುತ್ತಾ , ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ತಾಲೂಕು ಬೇಗೂರು ಹೋಬಳಿ ಯಳ್ಳು ಕುಂಟೆ ಗ್ರಾ ಮದ ಹಳೇ ಸರ್ವೆ ನಂ. 13 ಮತ್ತು ಈಗಿನ ಸರ್ವೆ ನಂ.31 ಕ್ಕೆ ಸೇರಲ್ಪಟ್ಟ ಒಟ್ಟು ವಿಸ್ತೀರ್ಣ 24 ಎಕರೆ 20 ಗುಂಟೆ ಜಮಿಾನಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ಬೆಂಗಳೂರು ನಗರಾಭಿವೃದ್ದಿ ಪ್ರಾ ಧಿಕಾರದವರು ಸುಮಾರು 5 ವರ್ಷಗಳಿಂದ ಜವಿೂನಿನ ಸ್ವಾ ಧೀನತೆಯನ್ನು ನೀಡುವಂತೆ ಕೊರುತ್ತಿರುವರು. ಈ ಜಮಿಾನು ಹೆಚ್ ಎಸ್ ಆರ್ ಬಡಾವಣೆ ಮಧ್ಯದಲ್ಲಿ ಬಂದಿರುವುದಾಗಿಯೂ, ನಿವೇಶನ ವಿಂಗಡಣೆಗಾಗಿ ಅಗತ್ಯವಾಗಿರುವುದಾಗಿಯೂ ಪ್ರಸ್ತಾ ವಿತ ಜಮಿಾನು ಈ ಹಿಂದೆ ಕೆರೆ ಅಂಗಳವಾಗಿದ್ದು ಕೆರೆ ಅಂಗಳದ ಸ್ವರೂಪವನ್ನು ಕಳೆದುಕೊಂಡು ಕೆರೆ ಅಂಗಳ ಉಪಯೋಗದಲ್ಲಿ ಇರುವುದಿಲ್ಲ.
ಕೆಲವೊಂದು ಪ್ರಭಾವಿ ಭೂಕಬಳಿಕೆದಾರರು ಈ ಜಮಿಾನನ್ನು ನಾನಾ ಮೂಲಗಳಿಂದ ಕಬಳಿಸಲು ಪ್ರಯತ್ನಿಸುತ್ತಿರುವುದಾಗಿ, ಆದ್ದರಿಂದ ಈ ಜಮಿಾನಿನ ಸ್ವಾ ಧೀನತೆಯನ್ನು ಕೂಡಲೇ ಬೆಂಗಳೂರು ಅಭಿವೃದ್ಧಿ ಪ್ರಾ ಧಿಕಾರಕ್ಕೆ ನೀಡುವಂತೆ ಮುಖ್ಯಮಂತ್ರಿಯವರು ಸೂಚಿಸಿರುವುದಾಗಿ ತಿಳಿಸಿರುವುದಾಗಿ ಸಭೆಗೆ ತಿಳಿಸಲಾಯಿತು."
104. Further, it is stated that:-
"ವಿಶೇಷ ಜಿಲ್ಲಾ ಧಿಕಾರಿ ಬೆಂಗಳೂರು ಇವರು ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ತಾಲೂಕು ಬೇಗೂರು ಹೋಬಳಿ ಯಳ್ಳು ಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.7, 8, 9, 10, 13 ರ ಜಮಿಾನುಗಳನ್ನು ಕೆರೆಗೆ ಶಾಮಿಾಲು ಮಾಡಿಕೊಂಡು ಹೊಸ ನಂ.31 ಎಂದು ನೀಡಿ ಒಟ್ಟು 15 ಎಕರೆ 11 ಗುಂಟೆ ಜಮಿಾನನ್ನು ಸರ್ಕಾರಿ ಕೆರೆ ಎಂದು ವರ್ಗೀಕರಿಸಿರುತ್ತಾ ರೆ. ಇದಕ್ಕೆ ಲಗತ್ತು ಅರಳುಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.68, 70, 71, 72 ಮತ್ತು ಹಳೇ ಸರ್ವೆ ನಂ.5 ರಲ್ಲಿನ 66 O.S.No.3666/2003 ಒಟ್ಟು 12 ಎಕರೆ 11 ಗುಂಟೆ ಜಮಿಾನು ಖರಾಬು ಕೆರೆ ಎಂದು ವರ್ಗೀಕರಿಸಿ ಸರ್ವೆ ಇಲಾಖೆ ಯವರು ದರಸ್ತಿಪಡಿಸಿರುತ್ತಾ ರೆ. ಈ ಜಮಿಾನುಗಳ ವಿಸ್ತೀರ್ಣಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ತಹಶೀಲ್ದಾ ರರ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಉಪವಿಭಾಗಾಧಿಕಾರಿಗಳ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಹಾಗೂ ವಿಶೇಷ ಜಿಲ್ಲಾ ಧಿಕಾರಿಗಳವರ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಪ್ರಕರಣಗಳು ನಡೆದಿದ್ದು , ಇವರುಗಳ ಹಕ್ಕಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ಕ್ಲೇಮ್ ತಿರಸ್ಕೃತವಾಗಿದೆ. ಪ್ರಸ್ತು ತ ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಯಾವುದೇ ಪ್ರಕರಣ ಬಾಕಿ ಇದೆಯೇ ಎಂದು ನೋಡಿ ತಿಳಿಸಲಾಗುವುದು ಎಂದು ವಿಶೇಷ ಜಿಲ್ಲಾ ಧಿಕಾರಿಗಳು ಸಭೆಗೆ ಸೂಚಿಸಿರುವರು."
105. Then, in that proceedings the concerned authority by due process considered that the suit schedule properties are gov- ernment tank bed area and there is no pending litigation on the same. While filing of this case, the plaintiffs have clear knowledge about this order as main prayer is to declare the said order as non- est, then definitely plaintiffs shall pray for declaration of their title as the said order tells that suit schedule property is government land. As per plaint pleadings itself, the plaintiffs relied upon ge- nealogical tree only with regard to their ownership over the prop- erty. They have not pleaded as to how their ancestors acquired the said property. There is no single piece of document of title of an- cestors of plaintiffs such as "document of Government grant such as inams or in any other way of government grant or purchase deeds/sale deeds". Further, there is no narration about any ad- verse possession of plaintiffs which is hostile to the title of the de- 67 O.S.No.3666/2003 fendants which shows that plaintiffs themselves tied their hands to get relief in future by way of "adverse possession" as by filing of this suit "they surrendered their right of adverse possession if any"
over the suit schedule property for present and future in respect of this suit schedule property.
106. Further Ex.P 31 and 31(a) clearly say the matter is con- nected to "land acquisition" for BDA, then, plaintiffs without taking action before competent authority filed this suit by invoking civil nature, which clearly shows the attitude of the plaintiffs, in which they are trying to get "multiple benefits by throwing a stone" as without payment of court fee, knowing that their title is in cloud without making prayer for declaration of their title and and trying to get relief by filing in wrong Court though Section 5 of CPC gives clear provision of bar to file such suits where the special law re- garding revenue matter existed and bars the jurisdiction of civil court and Section 5 of CPC reproduced here under as the plaintiffs have clear knowledge that for their claim, the doors of Land Acqui- sition Act and connected revenue Acts are closed;
"5. Application of the Code to Revenue Courts.--(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any spe- cial enactment applicable to them is silent, the State Govern- ment 2*** may, by notification in the Official Gazette, declare 68 O.S.No.3666/2003 that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 3*** may prescribe.
(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature."
A "Revenue Court" as a Court with original jurisdiction under this Code to try suits or proceedings relating to the rent, revenue, or income of land used for agricultural purposes, it does not provide a Civil Court with original jurisdiction under this Code to try such suits or proceedings as civil suits or pro- ceedings.
107. Then, it is clear that plaintiffs, if they want to get relief through civil court with regard to cause of action of this suit, then they have two options;
they ought to produce clear title deed;
they ought to make prayer of declaration of their title and ownership as without clear title they do not get relief of dec- laration of the order of revenue officer as non-est as prayed in prayer (a).
69 O.S.No.3666/2003
108. Further, PW 1 has produced Ex.P 36 and Ex.P 37 which are the orders passed in LAC No.143/1988 and LAC No.144/1988 in re- spect of Sy.No.7 and Sy.No.8 of Yellakunte village and in Ex.P 31 and Ex.P 31(a), it is stated that suit schedule properties are govern- ment tank bed land, makes it clear that since 1988 itself, suit schedule property belongs to government as if these plaintiffs claim their title then at that time itself they ought to file LAC case.
109. Further, after receiving of entire records in OS No 4830/96, PW 1 has stated in page No 33 as:-
" Now I see the entire records of OS 4830/96 called from CCH No.9. I admit that the plaintiffs herein had filed the said suit along with some other plaintiffs I admit it. Hence the en- tire records of OS 4830/96 is marked as Ex.D.20 I cannot iden- tify the signatures that are forthcoming on the plaint of OS 4830/96. So also about the signatures that are present in the vakalath. Now I see the withdrawal memo filed in OS 4830/96 as I was not present when the said parties signed the said memo, I cannot identify who have signed the said memo. It is true to say that we do not have any other documents with re- gard to the suit schedule property other than the documents produced by us before the Court. N A RFA is pending before the Hon'ble High Court of Karnataka with regard to the suit schedule property and re-survey No.69 of Haralukunte village. But I do not know the exact RFA number."70 O.S.No.3666/2003
110. On perusal of Ex.D 20, it shows that the said suit was filed for declaration and injunction by plaintiff No.8 and others herein against the defendant which shows that plaintiffs are trying to avoid bar by res-judicata by filing suits on same cause of action and subject matter by arraying different plaintiffs by mingling up and jumbling up in different cases and different LAC proceedings.
111. At this juncture, it is apt to refer to the guidelines laiddown by the Hon'ble Apex Court in Anathula Sudhakar v/s Buchch Reddy case as herein this case, there is no supporting document for their title, which creates cloud as there is no document of their posses- sion too over the suit schedule property which is mandatory under the guidelines given by Hon'ble Apex Court in Anathula sudhakara vs Buchi Reddy and the relevant portion of the judgment is repro- duced here under;
"Anathula Sudhakar vs P Buchi Reddy (2008) 4 SCC 594) in which guidelines given by Hon'ble Apex Court as; "17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a 71 O.S.No.3666/2003 consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the 72 O.S.No.3666/2003 normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
112. Then, this suit is definitely not maintainable as there is no prayer for declaration of title.
113. Further, in the cross examination of PW 1, he admitted about LAC proceedings which establishes bar of this suit for want of jurisdiction as PW 1 admitted that the suit claim is rooted with LAC proceedings. In page No 16 of cross examination of PW 1, he has stated that :-
"It is not true to say that in the LAC proceedings we have stated that the said Sudarshan Reddy belongs to the branch of A.P. Ramaiah S/o. Pasalareddy."
114. Here important to note that PW 1 has not denied the LAC proceedings initiated by plaintiffs. In page Nos. 17 to 20 of his cross examination, he admitted and identified the documents 73 O.S.No.3666/2003 pertaining to different survey numbers mentioned in Ex.P 31 and Ex.P 31(a) and also admitted LAC proceedings on Sy.No 13 and also admitted that the said survey number renumbered as Sy.No 31 which is suit schedule property and also admitted that in the said document, it is noted as government land and in this regard Ex.D 3 to Ex.D 10 are got marked through confrontation and avoid ambiguity the same portion of deposition are reproduced here under though it is lengthy;
"I am not aware of the fact that LAC proceedings with regard to Survey No.7 of Yellukunte Village were held in LAC No.378/86-87 before the Land Acquisition Office, LAC No.379/86-87 with regard to Survey No.8, LAC No.380/86-87 with regard to Survey No.9, LAC No.381/86-87 with regard to Survey No.10, LAC No.386/86-87 with regard to Survey No.30. Now, I see one document which is now marked as Ex.D.3. It is true to say that Ex.D.3 I with regard to LAC proceedings with regard to Survey No.7, so also Ex.D4 with regard to Survey No.8. Now, I see a document which is shown to me with regard to Survey No.9, but I am not aware of the said fact. I am not aware of the fact that the plaintiffs herein might have participated in the LAC proceedings with regard to Survey No.9. Now, I see a document which is shown to me with regard to Survey no.10 which is now marked as Ex.D.5. It is true to say that Ex.D5 is with regard to the LAC proceedings of Survey No.10/1 & 10/2. Now, I see one document shown to me which is now marked as Ex.D.6. It is true to say that Ex.D6 is 74 O.S.No.3666/2003 with regard to the pahchayat Parikath entered within the family including the plaintiffs and myself. The said panchayat Parikath is with regard to the family partition within our family of the property acquired by BDA and some of the properties of our family which were acquired by BDA are not mentioned in the said Parikath. Now I see another document which is now marked as Ex.D.7. I admit that we had filed the said document before the LAC Officer, but he had not accepted the same. It is not true to say that Ex.D.7 contains all the properties of our joint family. Now I see one RTC ad one katha certificate, but it is not true to say that the said documents are produced by us in the LAC proceedings to show the division of the entire property of our joint family. Without verifying the records, I cannot say the description of our joint family, which are not mentioned in Ex.D.7. It is not true to say that our joint family does not possess any property other than mentioned in Ex.D.7 as such we have not mentioned about those properties in Ex.D.7. I do not now one Pasala Reddy of our family had filed an application before the Special Tahsildar, Bangalore South Taluk on 26.12.1974 requesting for the grant of occupancy right with respect to Survey No.7 of Yellukunte Village to an extent of one acre 24 guntas. As there are three to four Pasala Reddys in our family now I cannot say which of the Pasala Reddy has filed the said Form No.7 with regard to Survey no.7. It is not true to say that in the said Form No.7 the said Pasala Reddy has shown that the khathedar and owner of Survey no.7 is Basavanna Devaru. It is not true to say that, in the said Form No.7, in the khathedar and land lord column, the name of Basavanna Devaru is shown.75 O.S.No.3666/2003
Now I see one document shown to me which is now marked as Ex.D8. It is true to say that BDA has acquired an extent of 24 acres 7 guntas in Survey No.13 of Yellukunte Village according to the document. It is true to say that none of our family members including the plaintiffs and myself had filed any objections with regard to the acquisition of of any extent of land as shown in Ex.D.8. It is not true to say that, as we were not the owners of any part of land in Survey No.13, we had not filed any objections for the acquisition of the said survey numbers (the witness volunteers) as we are the owners of the lands of Survey No.13 which is now a part of re-survey number 31. Now I see one document shown to me and I admit it and marked as Ex.D.9. It is true to say that it is the Tippani Uthar of re-survey number 31. It is true to say that according to Ex.D.9, an extent of 25 guntas of land has been taken into Survey No.13 to form resurvey number 31. Now I see another document shown to me I admit it and it is marked as Ex.D.10. It is true that Ex.D.10 is an Index of land of Survey No.13. It is true that in Ex.D.10, it is shown that 25 guntas of land has been taken from survey No.13 for the purpose of tank, which is n ow a part of re-sruvey No.31. It is true to say that in Ex.D.10, it is shown that Sarkari Musathu Kaval."
115. Further, in his cross examination, he has stated that he and plaintiffs are relatives and they are owners of 25 guntas of land in Sy.No.13, but no single document of ownership is produced. Therefore, suit is not maintainable without prayer for declaration of title.
76 O.S.No.3666/2003
116. Evidently, the suit is not maintainable and further, the genealogy which is marked as Ex.P 2 is also not genuine as it is not corresponding with paragraph 2 of the plaint and same is admitted in the cross examination of PW 1. Mainly, the plaintiffs based their case on family tree stating in paragraph 3 of the plaint as their entire joint family as evidenced by the genealogical tree owned and possessed joint ancestral properties and they included property in Sy.No 69 of Haralakunte village which is not the subject matter of this suit. The instant case may be first of its kind, wherein the plaintiffs for filing a suit for declaration and perpetual injunction regarding ancestral property, relying only upon family tree without producing a single document of title deed of their ancestors.
117. As per paragraph 2 of the plaint, one can identify the relationship of Linga Reddy and his sons only, but we cannot identify the plaintiffs are children of whom as the main base of this case is genealogy. On perusal of Ex.P 2, they have produced genealagy of Thimma Reddy (deceased) S/o. Linga Reddy. But, in the plaint, it is stated that their genealogy is routed with original person Linga Reddy. As per this Ex.P 2 the said Thimma Reddy had two sons they are Linga Reddy and Chikk Nanda Reddy. The said Linga Reddy had 4 children namely, father of Smt, Nanjamma, 77 O.S.No.3666/2003 Linga Reddy, Ravindra and Ramesh (the name of first son of Linga Reddy is not visible in the document), Dr.L Narayana Reddy, Dr. L. Srinivasa Reddy and L. Rama Reddy. But none of them are plaintiffs here in. Chikka Nanda Reddy had a son by name Chikka Ramaiah (deceased). The children of this deceased Chikka Ramaiah is shown as Papamma, A. C. Sudarshana Reddy (defendant No. 6), A. C. Prakash and A. C. Srinivasa Reddy. No plaintiffs other than plaintiff No.6 are found in this genealogy. Surprising point is in paragraph 2 of the plaint, wherein it is specifically stated that plaintiffs have produced this Ex.P 2 in proof of their case. But, in first sight itself, without going through cross examination of PW 1, as discussed supra, the plaintiffs failed to prove their own genealogy. In Ex.P 2 the Ex.D 1 marked through confrontation and the portion of cross examination of PW 1 in page No 15 in respect of genealogy/Ex.P 2 is reproduced here under to show that PW 1 utterly failed to prove genealogy as,;
" It is true to say that there are no other male co coparcener present in the family of late Linga Reddy other than the persons who were born later than 1999. The name of the 3 rd plaintiff Venkatareddy son of Narayana Reddy is shown in Ex.P.2. the relevant portion is marked as Ex.D.1. It is true to say that as per Ex.D.1, it is shown that Venkatareddy son of Narayanareddy aged about 37 years. It is also true to say that in the plaint, the age of the 3rd plaintiff is shown as 58 years. It 78 O.S.No.3666/2003 is not true to say that there is no relation between the 3 rd plaintiff and the remaining plaintiffs and that 3rd plaintiff does not belong to the family of late Linga Reddy. The name of 6 th plaintiff Sudarshan Reddy is also shown I Ex.P.2. The relevant portion is now marked as Ex.D.2. It is true to say that it is forthcoming in Ex.D.2 that the said Sudarshan Reddy is the son of Chikkaramaiah who belongs to the family of Thimmaredy."
118. Then, plaintiffs failed to establish their relationship and genealogy and hence, even on this count also, this suit is not maintainable as the main base for this suit invoked by the plaintiffs is their joint family relationship. When, the joint family relationship is not proved then, there is no locus standi to the plaintiffs to claim suit schedule property as their family properties.
119. As per Ex.P.31, the plaintiffs had knowledge that suit schedule property is tank bed area and in the plaint, they have stated that the said tank is constructed in 1980s by Pasalappa Reddy.
120. On perusal of Ex.P 3 to Ex.P 65, all are related to LAC proceedings, RTCs and endorsements. There are no documents produced to show that plaintiffs are in possession of suit schedule property. All these exhibits are enlisted at the end of this judgment. Without documents of possession, plaintiffs made 79 O.S.No.3666/2003 prayer (b) ie., not to dispossess them from plaint schedule property. When, plaintiffs failed to prove their joint family relationship as supra, then how they claim to be in joint possession over that larger extent of suit schedule property? They did not pray for declaration of their title and did not pray for handing over of possession from defendants and in his own cross examination, PW 1 without giving chance to defendants to prove their possession, admitted the possession of defendants in the suit schedule property as the same is reproduced here under;
In page No 30 of his cross examination PW 1 admitted as:-
" It is true that one person has constructed house in the suit schedule property (the witness volunteers) there is Police protection in the suit schedule property and if we try to enter the suit schedule premises the Police will chase us out. It is not true to say that neither myself nor the said Chendramoulireddy had no proper authority to represent the plaintiffs and to file this suit and to give evidence in this suit."
121. Prior to that PW 1 in page No 22 admitted the property in Sy.No 31 as government land as:-
"I am not aware of the fact that in the said writ petition, the 3rd defendant BDA was also made as a party. Now I see Ex.P.6 it is issued by survey department. Now I see one document filed by me earlier said to be the typed copy of Ex.P.6, which is now marked as Ex.D.11. But I am not aware of the fact that the 80 O.S.No.3666/2003 said typed version was also filed by the 1 st plaintiff in the said writ petition. It is true that in Ex.D.11, it is mentioned that resurvey number 31 is mentioned as "Sarkari Karabinanteh"
(ಸರ್ಕಾರಿ ಖರಾಬಿನಂತೆ) I am aware of the fact that the plaintiffs herein and some others earlier, had filed OS No.4830/96 with regard to the suit schedule property. Now I see Xerox copy of the plaint filed in OS No.4830/96. I admit it and it is now marked as Ex.D.12. Now I see Ex.D.12 and now I see para 27 of the plaint which is now marked as Ex.D.12(a). It is true to say that in the said plaint, it is stated that the RTCs of the suit schedule property from the years 1968-69 to 1993-94 were standing in the name of the plaintiffs. It is true that according to us, the said entries in the RTCs were made basing on the orders passed by the then learned District Deputy Commissioner in CL 1314/34-35 dated 25.11.1935. It is true that in the said order, the learned District Deputy Commissioner has only formed a new survey number from taking lands from survey No.7 to 10 and 13. Now I see Ex.P.4. It is true that in Ex.P.4, it is mentioned as "Sarkari karabu kere."
122. And further in page No.29, he admitted that BDA developed suit schedule property as:-
"It is true that plaintiffs had filed an application for the grant of Temporary Injunction against the 3rd defendant. It is true that in the said affidavit, it has been stated that the BDA is trying to develop the entire suit schedule property. It is true that BDA has developed the suit schedule property, but it is not true to say that the entire suit schedule property has been 81 O.S.No.3666/2003 allotted by the BDA in favour of the allottees. I am not aware of the fact that BDA has allotted the entire suit schedule property to the allottees".
123. From the above admission of PW1, he is not aware about allotment, but does not deny the allotment.
124. Further, in page No 37 of his cross examination PW 1 admitted as:-
"In Sy.No.31 of Yellagunte Village, 3rd defendant has formed roads, drainage. I do not know regarding defendant No.14 constructed the house and residing there in."
125. Further, in page No 41 and 42 of his cross examination conducted by learned counsel for defendant No 15 and 16, PW 1 has stated as:-
"Plaintiffs have filed suit for title and possession. Suit property is part and parcel of Sy.No.31 of Yellukunte Village measuring 15 acres 11 guntas, Sy.Nos.7, 8, 9, 10 and 13 comprised in Sy.No.31. I am unable to say to what extent the plaintiffs are the owners of the land in Sy.No.7, 8, 9, 10 and
13. Pasara Reddy was the original owner of the suit property. He acquired the suit property under Sale Deed. I do not know who executed the sale deed in favour of of whom, because that sale transaction was taken place about 150 years ago. I have seen the documents produced by the plaintiffs in this case. I do not know the date, month and year of to the sale 82 O.S.No.3666/2003 deed of Pasara Reddy. I do not know who is the vendor of Pasara Reddy."
126. Even though we invoke Section 90 of Indian Evidence Act about documents which are more than 30 years old but plaintiff failed to prove it by producing revenue documents, and without producing title deeds or documents pertaining to grant of land.
127. Moreover, in page No 42 of his cross examination PW 1 admitted as:-
"After the death of Pasara Reddy, rounded off the name of Pasara Reddy and entered the name of the Government. But, I do not know in which year, the name of the Government recorded in the revenue records."
128. Then, plaintiff admitted the suit schedule property as government land.
129. Including the above in last paragraph of page No 42 the PW 1 admitted as:-
"After death of Pasara Reddy, the property of Pasara Reddy was not transferred to the names of L.Rs., of Pasara Reddy through documents."
130. Then, it is clear that plaintiffs and legal representatives of Pasala Reddy (who allegedly the predecessor of plaintiffs who 83 O.S.No.3666/2003 alleged to have built a tank in suit schedule property ) are not the owners in possession of suit schedule property.
131. In page No. 43 of his cross examination PW 1 stated that:-
"On approximate basis, the boundaries of the suit schedule property are mentioned in the plaint. No documents in order to show the boundaries of the suit property."
132. Then PW 1/Plaintiffs themselves failed to identify the suit schedule property which is main ingredient to prove their case.
133. Next to that, the PW 1 himself admitted in page 43 of his cross-examination that tank is not built in plaint schedule property as:-
"Pasara Reddy constructed the tank in the original Sy.No.69. It is false to suggest that I have not produced any documents to show that Pasara Reddy constructed the tank."
134. In pages 43 and 44 of his cross-examination, PW 1 further stated that:-
"It is false to suggest that Exs.P.27 to P.30 are the Xerox copies and Exs.P.27 to P.30 are created by me. I do not kn ow the sale deeds are executed in favour of defendants 15 and 16 in respect of the suit sites. It is false to suggest that though the defendants 15 and 16 are the owners and in possession of the suit sites, I am deposing false evidence. It is false to suggest 84 O.S.No.3666/2003 that the plaintiffs have no documents to show that their possession over the suit property as on the date of the suit. It is false to suggest that we have filed this false suit in order to knock off the off government property" which is reflected in evidence of D.W.3.
135. Finally, in the cross examination of PW 1 dated 08-08- 2012 by the learned counsel for defendant No.23, in page 46, PW 1 clearly admitted that BDA acquired and formed layout by stating as:-
"The BDA, with the help of Police, had acquired the land in Sy.no.31 in the year 1986 and formed the sites. I do not know how many sites were formed by the B.D.A. I know that H.S.R.Layout name is given to the land of Sy.No.31 and surrounding layouts. It is false to suggest that the BDA has formed the sites in the land of Sy.No.31 in the year 1986. About 07 years ago, the BDA has formed the sites in the land of Sy.No.31 with the aid of Police. I have not challenged the acquisition proceedings before the Hon'ble High Court of Karnataka, except filing of this suit."
136. Again in page No.60, PW 1 has admitted as:-
"The drainage are formed and provided civic amenities in the suit lands illegally with the help of Police. Few people have constructed houses in the suit lands."85 O.S.No.3666/2003
137. Then it is clear that plaintiffs are not in possession of suit schedule property.
138. The evidence of PW 1 gone contra to plaint pleadings as in plaint pleadings, they are stating that Pasala Reddy built tank in Sy.No 31 which is suit schedule property, but in his cross examination, twice in page No 43 and cross examination dated 29- 08-2012 by the learned counsel for defendant No 1 and 2, stated that tank constructed by his grand father in Sy.No.69 and also stated in same page as "there is no tank in suit land."
139. There is further admission by PW 1 in cross examination dated 06-09-2012 by learned counsel for defendant No 3 as:-
" It is false to suggest that Preliminary and Final Notifications were issued in respect of suit schedule property. It is true to suggest that in the total extent of land, H.S.R Layout is formed. Few of us received the compensation amount in respect of .few lands."
140. If in total extent HSR layout is formed, there denial of notifications, assumes insignifance. Therefore, as per facts and circumstances of the case and above discussions, without other choice to defendants, he himself failed to prove not only maintainability of this suit, but also he failed to prove route/root cause of this suit as failed to prove genealogy on the basis of which 86 O.S.No.3666/2003 he alleged that suit schedule property is their ancestral property, and further failed to prove the suit schedule property as his ancestral property as he admitted that it is property of government and his great great father did not construct tank in suit schedule property and admitted that the suit schedule property is acquired by BDA and BDA formed HSR layout in suit schedule property and failed to prove the possession of plaintiffs over the suit schedule property as they received compensation for BDA acquisition and BDA formed drainage system and provided civic amenities and admitted that some other persons constructed houses in suit schedule property.
141. It is important to note that by summoning Special Thahsilar as witness PW 2, the plaintiffs further taken their case to the stage of bad to worse situation for them in their way of proving their case as in page No 7 of his evidence there is a note that:-
"Question : According to you what is the nature of the lands in Survey No.31 of Yellukunte Village? Answer:- It is a Government Tank.
(At this stage learned counsel for the plaintiff submitted that as this witness deposing against the interest of the plaintiffs, he may be permitted to cross-examine this witness by treating him as hostile and prayed time to file appropriate application. Hence, further examination of the witness is deferred at request."87 O.S.No.3666/2003
142. These two sentences are enough to dismiss the suit as suit schedule property is totally a government land not the land of family of plaintiffs as the witness who is concerned authority of government to identify the property, has clearly admitted that the suit schedule property is government land.
143. In page No 9 of cross examination of PW 2, he has stated as:-
" As I have not received any communication from the Hon'ble High Court of Karnataka, I cannot say though the Xerox copy of the orders passed by the Hon'ble High Court of Karnataka in WP No.3912/2003 is shown to me and that I cannot say whether the Hon'ble High Court of Karnataka has stated the operation of the orders passed by the Tahsildar dated 26.05.2003 with regard to the suit schedule property in RRT 43/98-99. Now, I see 21 certified copies of the RTCs of Survey Nos.7, 8 and 10 of Yellukunte Village. I admit those RTCs. Hence, they are marked as Ex.P.38 to P.58 (the witness volunteers) as the above matter has been referred to COD investigation the entire records pertaining to the suit schedule property are with the COD Department since 7.11.1994. I cannot say that Ex.P.38 to P.58 and other RTCs marked in this suit are issued by our office according to procedure. It is true that other than the orders passed on 31.12.1994 cancelling the entries which the name of A.P. Rama Reddy and Pasalareddy with regard to the suit schedule property, no proceedings or orders has been passed by us with regard to 88 O.S.No.3666/2003 the said subject. I cannot say about the in action of the Government with regard to the suit schedule property since 1968 upto 1994. It is true that I our office and ADLR office, we have the documents relating to the ownership of the plaintiffs over the suit schedule property. I am not aware of the fact that in RRT 43/98-99 records showing that A.P.Ramaiah and Pasalareddy have contributed private tank in the suit schedule property were called from the ADLRs office."
144. There is clear admission in page Nos.15 and 16 of cross examination of PW 2 as suit schedule property is government property which belongs to 3rd defendant, such as:-
" It may be true to say that as many of the records pertaining to the suit schedule property are with the Karnataka Lokayuktha, we do not have any records to show that during the year 1978 itself, it is learnt that the suit schedule property is a Government Tank as such the entries of column No.12/2 and column No.9 were discontinued. It is true to say that I say that it is learnt during the year 1978 itself, that the suit schedule property is a government tank basing on the office correspondence and office notes available in our office. It is true to say that basing upon our office correspondence, I say that since form the year 1978-79, the entries in the RTCs of the suit schedule property in column No.12/2 and 9 were discontinued and the said entries once again continued due to the passing of the orders as per Ex.D.21. Departmental proceedings were initiated against the said Tahsildar and he was punished with reducing of official 89 O.S.No.3666/2003 rank. It is true to say that as the Government knew that suit schedule property belongs to the Government it has been transferred in favour of the 3rd defendant BDA. It is true to say that after verifying the documents pertaining to the suit schedule property and knowing about the fact that the Government is the absolute owner of the suit schedule property and that no 3rd person has any right over the suit schedule property, the same has been transferred in favour of the 3rd defendant BDA."
145. Further he has stated in page No.17 as:-
" It is true to say that unless it is specifically shown as private tank, all tanks are deemed to be Government tanks."
146. Now, on perusal of Ex.D 22 to Ex.D 26, in the Tippani Sketch it is shown as "kere". Ex.D 28, Ex.D 30, Ex.D 32, Ex.D 35 the official memorandum of BDA dated 19-08-1987 shows about approval of award and compensation towards Sy.No 7, 8, 9, 10/1, 10/2 of Yellukunte village. In cross examination of PW 1 in page No 41 stated that " suit property is part and parcel of Sy.No 31 of Yellikunte village measuring 15 acre 11 guntas. Sy.No 7, 8, 9, 10 and 13 comprised in Sy.No 31. I an unable to say to what extent plaintiffs are the owners of the land in Sy.No 7, 8, 9, 10 and 13." And in the cross examination dated 29-08-2012 by the learned counsel for defendant No 1 and 2, PW 1 has stated as, " It is true to suggest that, 90 O.S.No.3666/2003 earlier suit land was given as Sy.No 7, 8, 9, 10 and 13. Now the Survey number is assigned as Sy.No 31." And as discussed supra PW 1 admitted the formation of HSR layout in suit schedule property and about receiving of compensation.
147. Then, as above, one thing is clear that plaintiffs have no right, title and interest to get reliefs as prayed in this case. Further, there is no counter prayer from the defendants other than prayer for dismissal of the suit with exemplary costs. But Issues are framed on the basis of pleadings regarding construction of house by defendant No 14, formation of layout by BDA and allotment of site to defendant No 24. In this regard in the evidence of PW 1 and PW 2, as discussed supra, it is established that earlier suit schedule property is government land and it is acquired by BDA by due process of law by preliminary and final notifications and BDA formed HSR layout in the suit schedule property and formed drainage and provided civic amenities and some persons have built house in the sites of that layout.
148. In the evidence of DW1, the plaintiffs failed to elicit anything in their favour with corroboration. In the cross examination of DW 1, no where it is elicited that the government tank is in Sy.No 9 and nowhere established tank as private tank. 91 O.S.No.3666/2003 Further, in page No 11 though stated as property taken by Pasala Reddy for formation of tank, but stated as not owner of four guntas of land as, "not belongs to Pasala Reddy." On the other hand, the defendant No 14 as DW 2 produced the certified copy of gift deed dated 11-08-2004 to establish his title and photographs, negatives of photos, water bill, electricity demand bill and electricity receipts to establish his possession. In Ex.D 48, there is recital about sale deed by GPA in favour of Donor and Ex.D 49 to 56 shows the photos of building. Ex.D 58 to Ex.D 60 shows that the said bills are in respect to water supply and electricity supply to site No 1172, 3rd sector, HSR layout, Bangalore. In this regard in page No 6 of his cross examination DW 2 stated as:-
"ಸೈಟ್ ನಂ.1172 ನ್ನು ಬಿಡಿಎ ನಮ್ಮ ತಾಯಿಯ ಪರವಾಗಿ ಮಂಜೂರು ಮಾಡಿದೆ ಎಂದು ನನ್ನ ಮುಖ್ಯ ಸಾಕ್ಷಿಯಲ್ಲಿ ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ನಿಜ. ವಾದ ಪತ್ರದಲ್ಲಿ ವಾದಿಗಳು ಹೇಳಿರುವಂತೆ ದಾವಾ ಆಸ್ತಿಯ ಅವರ ಮಾಲೀಕತ್ವವನ್ನು ನಾನು ನನ್ನ ಪ್ರತಿವಾದಿ ಪತ್ರದಲ್ಲಿ ಅಲ್ಲಗಳೆದಿರುತ್ತೇನೆ ಎಂದರೆ ನಿಜ. ದಾವಾ ಆಸ್ತಿಯ ಮಾಲೀಕರು ಯಾರಾಗಿರಬಹುದು ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಆ ರೀತಿ ದಾವಾ ಆಸ್ತಿಗೆ ಮಾಲೀಕರು ಯಾರು ಎಂದು ನಿಮಗೆ ಗೊತ್ತಿಲ್ಲದಿರುವಾಗ ವಾದಿಗಳು ದಾವಾ ಆಸ್ತಿಯ ಮಾಲೀಕರಲ್ಲ ಎಂದು ಅಲ್ಲಗಳೆದಿದ್ದೀರಿ ಎಂದರೆ ಅವರಿಗೆ ಟೈಟಲ್ ಡೀಡ್ ಇಲ್ಲ ಬಿಡಿಎ ನಮ್ಮ ತಾಯಿಗೆ ಸೈಟನ್ನು ಮಂಜೂರು ಮಾಡಿದೆ ಎಂದು ಸಾಕ್ಷಿದಾರರು ಹೇಳುತ್ತಾ ರೆ."92 O.S.No.3666/2003
149. When the learned counsel for plaintiffs put a question like "Site No 1172" and failed to ask regarding total extent of land as pleaded in plaint which shows the awareness of the plaintiffs about formation of sites by BDA in suit schedule property. Whether BDA can form layout in the place of tank is answerable by the authorities of BDA that is DW 1 and putting question on that regard as in page No 7 and 8 of cross examination of DW 2 will not help the plaintiffs.
150. Though in page No 8 of cross examination of DW 2 it is stated as:-
"ದಿನಾಂಕ 20-05-2003 ಕ್ಕೆ ವಾದಿಗಳು ಈ ದಾವೆಯನ್ನು ಮಾಡಿ ಬಿಡಿಎ ವಿರುದ್ಧ ಟಿಐ ಆರ್ಡರ್ ಪಡೆದಿದ್ದರು ಎಂದರೆ ನಿಜ. ಆದ್ದರಿಂದ ಬಿಡಿಎ ದವರು ಲೇ ಔಟ್ ಮಾಡಲು ಸಾಧ್ಯವಾಗಿಲ್ಲ ಎಂದರೆ ನಿಜ. ಆ ರೀತಿ ಟಿಐ ಆರ್ಡರ್ ಇದ್ದ ಕಾರಣ ಬಿಡಿಎ ದವರು ನಮಗೆ ಮಾಡಿಕೊಟ್ಟಿರುವ ಸೇಲ್ ಡೀಡ್, ಅಲಾಟ್ಮೆಂಟ್ ಲೆಟರ್ ಇತರೆ ದಾಖಲೆಗಳು ಸೃಷ್ಟಿಸಿದವುಗಳು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಆ ರೀತಿ ನಮಗೆ ಬಿಡಿಎ ದವರು ಕೊಟ್ಟ ದಾಖಲೆಗಳು ನ್ಯಾ ಯಾಲಯದ ಆದೇಶದ ವಿರುದ್ದ ಮಾಡಿಕೊಟ್ಟಿರುವ ದಾಖಲಾತಿಗಳು ಎಂದರೆ ಸರಿಯಲ್ಲ."
151. On perusal of order sheet, this suit is filed on 02-06-2003 and order sheet shows only emergent notice sent on IA No. III as order of staus quo is there in OS No 4830/1996. But, as in this case as above, the plaintiffs failed to prove their case and hence status 93 O.S.No.3666/2003 quo shall survive. Next to that in page No 9 of cross examination of DW 2 stated as:-
"ನಮ್ಮ ಮನೆ ಕಟ್ಟಿದ ಬಗ್ಗೆ ಫೋಟೋಗಳನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ."
152. Then, defendant No.14 established better title than the plaintiff and his possession over site No.1172 formed out of HSR layout which is formed in the suit schedule property.
153. Next to him, the SPA holder of defendant No.10 who is examined as DW 3 produced the SPA executed by defendant No. 10 who is none other than his wife. Ex.D 62 is the certified copy of sale deed executed by BDA on 12-11-2003 in respect of Site No. 1168 in Sector III of HSR layout. He has produced photographs with CD, tax paid receipts and electricity and water bill which are marked as Ex.D 62 to Ex.D 70 and in his cross examination he has stated that:-
" ಆ ಪ್ರಕಾರ ಎಳ್ಳು ಕುಂಟೆ ಗ್ರಾ ಮದ ಸರ್ವೆ ನಂ.31 ಕೆರೆ ಎಂದರೆ ಸರ್ಕಾರಿ ಕೆರೆ ಎಂದು ಸಾಕ್ಷಿದಾರರು ಹೇಳುತ್ತಾ ರೆ. ಕೆರೆ ಪ್ರದೇಶದಲ್ಲಿ ಲೇ ಔಟ್ಮಾಡಬಾರದು ಎಂಬುದು ಕಾನೂನು ಎಂದರೆ ಇರಬಹುದು. ಸದರಿ ಸರ್ವೆ ನಂ.31 ರ ಕೆರೆಯನ್ನು ಬಿಡಿಎದವರು ಭೂ ಸ್ವಾ ಧೀನ ಮಾಡಿದ ಬಗ್ಗೆ ನಾನು ದಾಖಲೆಗಳನ್ನು ಹಾಜರುಪಡಿಸಿಲ್ಲ. ಸದರಿ ಆಸ್ತಿಯನ್ನು 1993 ರಲ್ಲಿ ನಾವು ಬಿಡಿಎದವರ ಸ್ವಾ ಧೀನಕ್ಕೆ ಕೊಟ್ಟಿದ್ದೇವೆ ಎಂದು ಸರ್ಕಾರದವರು ಹೇಳಿದ್ದಾ ರೆ ಎಂದರೆ ನಿಜ. ಸದರಿ ಸರ್ವೆ ನಂ.31 ರ ಜಮಿಾನಿನ ಮೇಲೆ ಬಿಡಿಎದವರಿಗೆ ಹಕ್ಕು ಮತ್ತು ಅಧಿಕಾರ 94 O.S.No.3666/2003 ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ತಮಗೆ ಅಧಿಕಾರ ಇಲ್ಲದಿದ್ದರೂ ಸಹಾ ಬಿಡಿಎ ನನ್ನ ಹೆಂಡತಿಯ ಹೆಸರಿಗೆ ಸೈಟನ್ನು ಮಂಜೂರು ಮಾಡಿ ಕ್ರಯಪತ್ರ ಬರೆದುಕೊಟ್ಟಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ."
154. There is no question about her possession and no contra elicited about her title and possession and plaintiff ought to elicit about right and title of BDA with DW 1 only not with this defendant.
155.Further the defendant No.12 is examined as DW 4 and Ex.D 71 to 90 are got marked through him which are the certified copy of sale deed dated 04-03-2004 which shows his vendor purchased property site No.1161 in HSR layout from BDA and other documents are tax paid receipt paid by him, ECs, photographs, water bill, electricity bill and receipts pertaining to said site and same cross examination it is elicited as same as cross examination of DW 3 where in plaintiffs failed to extract contra to title and possession of this defendant over the concerned site which is formed out of HSR layout.
156. Remaining documents are the documents marked through DW 1 which are revenue records listed at the end of this judgment which shows Sy.No 31 as Sarkari karabhu land and as "Kerege ada jameenu". Ex.D 43 is the notification of acquisition of 95 O.S.No.3666/2003 lands for BDA which includes suit schedule property also shows podding of Sy.No 31 as 31/1 to 31/7. Further Ex.D 1 to Ex.D 19 are marked through confrontation PW 1 to establish the suit filed by the plaintiffs is not maintainable.
157. Now, the learned counsel for defendant No.3 relied upon following citations;
1. AIR 2008 SC 2033 (Anathula Sudhakar vs Buchi Reddy) which is discussed supra;
2. AIR 2003 SC 234 ( Northern Indian Glass Industries vs Jaswant Singh and others) in which it is held as:-
" (B) Land Acquisition Act, S.16 - Taking of possession - After passing of award - Effect - Land vests with Government free from all encumbrances - Landowner thereafter cannot ask for restitution of possession even if land is not used for the purpose of which it was acquired".
This citation directly gives effect adverse to plaintiff in this case.
3. AIR 1996 SC 3377 ( T N Housing Board vs A Viswam (dead) by Lrs) in which it is held as;
" (A) Civil P.C. (5 of 1908), O.39, R.2 - Injunction against Housing Board - Housing Board acquiring land for public purpose - Suit for injunction filed by landowner of small part of acquired land - Land Acquisition Officer (LAO) taking possession of whole land and delivering it to Housing Board -96 O.S.No.3666/2003
Non impleadment of LAS as party defendant to suit - Presumption under S.114 (e) of Evidence Act,. Attracted - Land- owner cannot be said to be in possession of land - Injunction cannot be issued against Housing Board in whom Land stood vested.
(B) Land Acquisition Act (1 of 1894), S.16 - Acquisition of Land - Mode of taking possession - Recording of a memorandum or panchanama by LAO in presence of witnesses signed by them - Would constitute taking possession of land." Presently, in this case before this court also, the plaintiffs are claiming as owners of suit schedule property without any title deed where the acquisition for public purpose is established as discussed supra.
Surprising point in this case is plaintiffs have not sought for declaration of their title and not sought for handing over possession though they are not in possession.
2005 SCC OnLine Kar 705 (ITI Employees' Housing Co- Operative Society Ltd, Bangalore vs Venkatappa) in which clearly discussed about land acquisition proceedings which is applicable to the documents confronted to PW 1 in his cross examination.
ILR 2007 KAR 5121 ( M.B.Bettaswamy vs The Commissioner, BDA and Another) in which it is observed as;
97 O.S.No.3666/2003
"CODE OF CIVIL PROCEDURE, 1908 - Section 96 read with Order 41 Rule 1 - Regular First Appeal - Suit for possession and injunction - Challenge to dismissal of suit - Plaintiffs assertion that he is in settled position of the suit schedule property - Threat of dispossession by the respondent BDA - Suit land was the subject matter of acquisition - Formation of layout - Held, when the land is acquired and the possession is taken, the land vests in the State. Even if the plaintiff puts up unauthorised construction, he does not have any legal right to remain in possession based on the illegal structure and it cannot be termed as a settled possession - A person who is unauthorisedly squatting on the public property, has not right to remain in possession - However, the Trial Court extending the sympathy, directed the BDA to issue notice and evict the plaintiff in accordance with law. Such sympathy will harm the public interest, as there are several persons legally waiting for lawful allotment - Further held, Admittedly the plaintiff has not proved his title nor proved his right to remain in possession
- Dismissal of suit is justified."
In this present case before this court, the facts and circumstances are very same, more over, the plaintiffs have failed to prove their possession too.
(2014) 2 SCC 269 (Union of India and Others vs Vasavi Cooperative Housing Society Ltd and others) in which it is held as;
98 O.S.No.3666/2003
"A. Specific Relief Act 1963 - Ss. 34 and 5 - Suit for declaration of title and possession - Burden of proof in case of - Reiterated, burden is on plaintiff to establish its case, irrespective of whether defendants prove their case or not - In absence of establishment of its own title, the plaintiff must be non-suited even if title set up by defendants is found against them - Weakness of case set up by defendants cannot be a ground to grant relief to plaintiff - Evidence Act, 1872, Ss.101 to 103.
B. Property Law - Ownership and title - Entries in revenue records - Value of - Reiterated, do not confer any title - Evidence Act, 1872, S.35".
Herein this case plaintiffs themselves failed to prove their case and not only so defendants have established that suit is not maintainable.
AIR 1995 SC 1955 (State of Bihar vs Dhirendra Kumar and others) it is held that, " Civil.P.C.(5 of 1908), S.9, Civil Court - Jurisdiction - Extent - Validity of notification under S.4 and declaration under S.6 of Land Acquisition Act - Civil Court has no jurisdiction to go into that - Only High Court can do that in proceeding under Art.226 of Constitution." In the case on hand, the Defendant No.3 by confronting the documents of LAC proceedings in connected properties and as per 99 O.S.No.3666/2003 admission by PW 1, as discussed supra, it finds that this suit is directly connected to LAC proceedings where plaintiffs surrendered their right to file appeal before proper authority within time against the order mentioned in prayer (a). Further, it also to be presumed that the plaintiffs have clear knowledge that they will not succeed in such appeal.
2017 (2) AKR 695 ( BDA, Bangalore vs Bhagavandas Patel) in which it is held that civil court has no jurisdiction to grant order of injunction wherein layout formed out of acquisition proceedings which directly applies to this case and relevant paragraphs reproduced here under;
" (A) Specific Relief Act (47 of 1963), S.34 - Suit for declaration and permanent injunction - Claim based on registered sale deed of suit property - Incumbent upon plaintiff to demonstrate specific case regarding identity of property -
Neither plaint nor other documents demonstrating suit property being beyond boundaries of lands acquired by authority or that same was comprised in survey number not subject matter of acquisition - Failure by plaintiff to prove his claim - Suit liable to be dismissed (B) Civil P.C. (5 of 1908), S.9, O.39, R.1 - Land Acquisition Act (1 of 1894), S.4, S.6 - Civil Court - Exclusion of jurisdiction - Suit for injunction - Suit property forming part of layout formed out of lands acquired under acquisition notification - Acquisition 100 O.S.No.3666/2003 proceedings beyond jurisdiction of Civil Court - Grant of injunction ag2020 (3) KCCR 1718ainst dispossession is also beyond Civil Court jurisdiction."
158. The learned counsel for defendant No 15 and 16 relied upon;
(1998) 4 SC 539 ( Punjab Urban Planning and Development Authority vs Shiv Saraswati and Steel Re-Roling Mills) in which it is held as, " Specific Relief Act 1963 - S.7 - Suit for specific performance of contract - Plaintiff, instead of proving his own case fully cannot take advantage of weakness in defendant's case." 2020 (3) KCCR 1718 ( Smt.Rathnamma vs Mrs. Zeenathunisa Since dead by Lrs) in which it is held as, " Specific Relief Act, 1963
- Section 34 - Permanent injunction on the ground the plaintiff is in possession - Possession not provied - Injunction cannot be granted
- Suit dismissed - Held, the order of Trial Court Proper." 2007 (1) KCCR 235 (Sri Aralappa vs Sri Jaganath and others) in which it is held as, " HINDU LAW - PARTITION - SPECIFIC RELIEF ACT, 1963 - Section 34 - Transfer of Property Act, 1882 - Section 5 - Partition does not give title to create a title. It only enables the sharer to obtain what is his own in a definite and specific form for purpose of disposition of the wishes of his former co-sharers. If the 101 O.S.No.3666/2003 sons have no pre-existing right, in a partition deed they cannot get right in the property for the first time". Here in this case before this court plaintiff claiming this case through the root of ancestral rights without establishing their ancestors right over the suit schedule property and also failed to prove family relationship as per Ex.P 2.
2021 (3) KCCR 2639 ( Sundrabai and Others vs R Ananthram Singh (Lrs), it is held as, " Specific Relief Act, 1963 - Sections 34 and 38 - Suit for reliefs of declaration and perpetual injunction - Neither documents produced by plaintiff no report of Commissioner showing possession of or title to suit property - No other evidence showing claim of plaintiff - Plaintiff orally stating suit property lay adjacent to her house property and therefore she was in possession and enjoyment of suit property - Cannot be accepted - More so in face of fact that defendants had obtained perpetual injunction against sons of plaintiff - Dismissal of suit not interfered with." This suit is definitely replica of that suit as herein, the relief of declaration and perpetual injunction is prayed. As discussed supra, the plaintiffs cleverly drafted the plaint without prayer for declaration of their title stickled their nose with the order of 102 O.S.No.3666/2003 defendant No.1 as prayer (a) where they tried to create the jurisdiction of this court though matter is under LAC. AIR 2023 SC 379 (Smriti Debbarma (dead by Lrs) vs Prabha Ranjan Debbarma and others) in which it is enlightened us as, " Specific Relief Act (47 of 1963), S.34 - Suit for declaration - Decree of possession - Cannot be passed in favour of the plaintiff on the ground that defendants unable to fully establish their right, title and intereast in the property. Evidence Act (1 of 1872), S.101, S.102 The plaintiff to succeed has to establish that she has a legal title to the schedule A property and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over property. A person in possession of land in the assumed character as the owner and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendants have not been able to fully establish their fight, title and interest in the property. 103 O.S.No.3666/2003 The defendants, being in possession would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession. The burden of proof to establish a title lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. The onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. (Paras 30-31)"
Here in this present case, there is no counter claim from the defendants to declare their title and possession. But, they pleaded the same and accordingly Addl.Issues are framed and answered as above. A discussed supra plaintiffs themselves failed to establish 104 O.S.No.3666/2003 their case by every corner of the case. Therefore this citation is applied here.
159. Therefore, as per the facts and circumstances of the case and above discussions, this court is of the considered opinion to dispose this case as under;
The plaintiffs have failed to prove that they are the absolute owners in lawful possession, peaceful possession and exclusive enjoyment of the suit schedule property with a given boundaries and measurements as on the date of filing of the suit as discussed supra in gist as not only suit is not maintainable but also failed to prove genealogy, admitted possession of defendants, failed to identify the suit schedule property, hence, Issue No 1 answered in the Negative;
Further, plaintiffs failed to prove that the alleged order passed by the 1st defendant bearing No.RD 197 LGB 2003 dated 17-04-2003 is non-est in the eye of law as in the gist, plaintiffs have not produced any single document on it and defendant No.3 established the said order as genuine by confronting the connected documents and LAC proceedings with calling of Ex.D.20 and further defendants elicited contradiction to plaintiffs' case by the mouth of PW 1 himself 105 O.S.No.3666/2003 as discussed supra, hence, Issue No 2 answered in the Negative;
On the other hand, defendant No 3, not only confronted and marked documents to establish that suit schedule property as government land but also succeeded in the cross examination of PW 1 by eliciting admission as suit schedule property is government land and the tank bed area belongs to government and also produced the documents in respect of suit schedule property and plaintiffs failed to elicit contra to contentions of defendants in the cross examination of DW 1 to DW 4 and PW 1 himself admitted the formation of HSR layout in the suit schedule property and distribution of compensation amount. Accordingly, defendant No.3 proved that the suit schedule property is a Government property and the same has been acquired for the formation of layout called " Between Hosur Road and Sarjapura Road" (which stands for (HSR) by virtue of its Notification No.HUD/444/MNX/86 dated 28-11-1986 and acquisition proceedings having reached its finality, the suit schedule property was transferred to 3rd defendant by its order bearing No.RD 197-NGB-2003 dated 17-4-2003 and 106 O.S.No.3666/2003 possession has been taken on 26-5-2003 and hence this court answers Issue No 3 in the Affirmative;
The plaintiff has failed to prove his possession and construction and existence of tank formed by Palasappa Reddy and there are no documents produced about threatening by officials of defendant No.3 and where there is no possession, then such threatening for dispossession does not arise. Therefore, the plaintiffs failed to prove that the officials of the 3rd defendant authority threatened to dispossess them and also to dismantle the existing structures in the suit schedule property and accordingly, Issue No 4 answered in the Negative;
The defendant No.14 established in the cross examination of PW 1 and by his own evidence as discussed supra as he has constructed the house in Site No.1172, HSR Sector III, Bangalore and accordingly Addl.Isue No 1 dated 24-02-2011 answered in Affirmative;
The Defendant No.14 further proved by eliciting admission by PW 1 as the B.D.A., has formed Layout in the suit schedule property and formed roads, drainage system and civic amenities is existing in the suit schedule premises, as contended in para 5 of the Written Statement, hence 107 O.S.No.3666/2003 Addl.Issue No 2 dated 24-02-2011 is answered in the Affirmative.
Further, it is proved as above that after acquisition of land bearing Sy.No.31 of Yelukunte village, BDA formed layout and allotted sites and accordingly Additional Issue No 1 dated 30-08-2018 is answered in the Affirmative.
160. Issue No.5 : As per the facts and circumstances of the case and above discussion, the plaintiffs failed to prove their case and plaintiffs are not entitled to get relief. Hence, this Court answers Issue No 5 in the Negative.
161. Issue No.6 : For the foregoing reasons and as per an-
swers to above Issues, this court is of the considered opinion that this suit is liable to be dismissed and accordingly, pro-
ceeds to pass the following;
ORDER The suit filed by the plaintiffs is hereby dis-
missed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Senior Sheristedar on computer, typed by him after correction, signed and pronounced by me in Open Court on 23.04.2025) (SMT. JYOTHSNA D., ) XVI ADDL.C.C & S JUDGE, BANGLORE CITY ) CCH12) 108 O.S.No.3666/2003 SCHEDULE 15 Acres 11 guntas of land in Sy.No.31 of Yellukunte Village, Begur Hobli, Bangalore South Taluk, bounded on the:-
East by : Land in Sy.No.69 of Haralukunte Village West by : Private Property North by : Private property and South by : Private Property ANNEXURE List of witnesses examined on behalf of the plaintiff 's side:-
PW-1 - R.Shivarama Reddy PW-2 - K.Sadanandappa.
List of witnesses examined on behalf of the defendant 's side:-
DW-1 E.Chennaganappa DW 2 - A.M. Ramesh DW 3 - Venugopal DW 4 - Lokesh Rao List of documents marked on behalf of the plaintiff 's side:-
Ex.P1 - special General Power of Attorney Ex.P2 - Genealogy tree Ex.P3 - Tippani extract Ex.P4 - Podi book extract Ex.P5 - Sketch of resurvey 109 O.S.No.3666/2003 Ex.P6 - Podi extract Ex.P7 to P11 - Resurvey sketches Ex.P12 - Aarbandh Ex.P13 & 14 - Endorsements Ex.P15 to 17 - Extracts of resurvey Ex.P18 - Original endorsement Ex.P19 & 20 two endorsements Ex.P21- Revision settlement akarbandh Ex.P22 - Office copy of legal notice Ex,.P22(a) - Postal receipt Ex.P23 - Xerox copy of order Ex.P24 - Xerox copy of order in RA 127/905-96 Ex.P25 - Xerox copy of order in W.P.22420/97 Ex.P26 - Xerox copy order in RRT 43/98-99 Ex.P27 to P30 - Xerox copies of RTC Ex.P31 - Xerox copy order in RD 197 LGB 2003 Ex.P.31(a) - Minutes of the Meeting Ex.P32and 32(a) - Xerox Copy of judgment & Decree in OS.1260 Ex.P33 - Document evidencing giving possession of schedule property to 3rd defendant Ex.P34 - Endorsement Ex.P35 - Xerox copy of application Ex.P36 - Certified copy of order in LAC 143/88] Ex.P37 - Certified copy of order in LAC 144/88 Ex.P38 to P58 - Certified copies of RTCs Ex.P59 - Entire file RRT(Dis)43/98-99 Ex.P60 to P64 - RTCs Ex.P65 - Mutation extract Ex.P66 - Relevant entry in Ex.D43.110 O.S.No.3666/2003
List of documents marked on behalf of the of defendant's side:-
Ex.D1 - Relevant entry in Ex.P.2.
ExD2 - Relevant entry in Ex.P.2.
Ex.D3 - Certified copy of LAC proceedings. Ex.D4 - LAC proceedings.
Ex.D5 - Award copy.
Ex.D6 - Claim statement.
Ex.D7 - Schedule property extract. Ex.D8 - Award copy.
Ex.D9 - Eesurvey tippani uttar.
Ex.D10 - Index of land.
Ex.D11 - Typed copy of ExP6.
Ex.D12 - Xerox copy of plaint in OS.4830/96 Ex.D13 to D19 - Xerox copies of G.P.As. Ex.D20 - Entire records in OS.4830/96. Ex.D21- Order of Tahsildar dated 7.7.1993. Ex.D22 - Re-survey report.
Ex.D23 - Copy of tippani extract of Survey No.8 Ex.D24 -Certified copy tippani extract of Survey No.9 Ex.D25 - Copy of tippani extract of Survey No.10- Ex.D26 - Tippani extract of Survey No.30 Ex.D27 - Certified copy of possession mahazar Ex.D28 - Certified copy of Official Memorandum Ex.D29 - Certified copy of possession taking mahazar Ex.D30 - Certified copy of official memorandum, Ex/D31- Certified copy of possession taking mahazar Ex.D32- Certified copy of official memorandum Ex.D33 - Certified copy of ward Ex.D34 - Certified copy of possession taking mahzar Ex.D35 - Certified copy of official memorandum Ex.D36 - Certified copy of order 111 O.S.No.3666/2003 Ex.D37- Certified copy of Tippani uttar of resuvey No.31 Ex.D38 - Certified copy of revenue survey Ex.D39 - Certified copy of revenue survey extract Ex.D40 - Certified copy of revenue survey extract of Survey No. 1 to 12 Ex.D41 - Certified copy of survey extract of Survey No.7 Ex.D42 - Certified copy of index of land records of resurvey number of 1957-58 Ex.D43 - Karnataka Gazette Ex.D43(a) - Relevant entry Ex.D44 - Certified copy of unofficial notes Ex.D45 - Original claim petition b filed by L. Krishna Reddy and six others.
Ex.D46 - Original claim petition filed by A.P.Muniyappa in LAC 379/86-87 Ex.D47 - Original claim petition filed by A.M.Ramareddy and others in LAC 3781/86-87.
(SMT. JYOTHSNA D., ) XVI ADDL.C.C. & S. JUDGE, BANGLORE CITY (CCH12).112 O.S.No.3666/2003
(Judgment pronounced in Open Court vide separate Judgment and the operative portion reads as under) ORDER The suit filed by the plaintiffs is hereby dis-
missed.
No order as to costs.
Draw decree accordingly.
XVI ADDL.C.C & S JUDGE, BANGLORE CITY (CCH12) 113 O.S.No.3666/2003