Bangalore District Court
In 1. Smt.Rajamma vs In 1. The Commissioner on 27 August, 2016
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 27th day of August 2016.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl. City Civil & Sessions Judge, Bengaluru.
OS.No.6687/1999
Clubbed with
O.S.No.3480/2003
PLAINTIFFS in 1. SMT.RAJAMMA,
OS.6687/1999 : W/o. Late M.G.Seetharam,
(Since deceased by L.Rs. 2 to 9)
2. SRI.M.S.SHIVA PRASAD,
S/o. Late Sri.M.G.Seetharam,
Aged about 39 years,
R/o. No.978, III Block,
Rajajinagar, Bengaluru-560 010.
3. SMT.M.S.SHANTHAMMA,
Since deceased by L.Rs.
a) M.N.SESHAGIRI RAO,
Aged about 80 years, (dead)
b) SRI.M.S.SRIKANTH,
Aged about 51 years,
c) SRI.M.S.MOHAN,
Aged about 47 years,
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d) M.S.BHASKAR,
Aged about 45 years,
e) SRI.M.S.SANTOSH,
Aged about 43 years,
f) SMT.M.S.SHYLAJA,
Aged about 46 years,
(a) to (f) are husband, sons and
daughter of late
Smt.M.S.Shanthamma, Residing at
No.104, 70th Cross, 5th Block,
Rajajinagar, Bengaluru-560 010.
(Amended as per Court order dated
07.03.2006).
4. SMT.VIMALA,
W/o. Suryanarayana Rao,
Aged about 60 years,
1205, 13th Main Road,
Prakashnagar, Bengaluru-560 002.
5. SMT.M.S.GOWRAMMA,
Since deceased by her LRs.-
a) Sri. D.S.SHIVAKUMAR,
Aged about 35 years,
S/o. Late Sri.D.B.Srikanta Swamy.
b) D.S.GEETHA,
Aged about 33 years,
D/o. Late Sri.D.B.Srikanta Swamy.
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c) D.S.SRIVIDYA,
Aged about 32 years,
D/o. Late Sri.D.B.Srikanta Swamy.
All are residing at No.122, 70th
Cross, 5th Block, Rajajinagar,
Bengaluru-560 010.
(Amended as per Court order dated
27.08.2008).
6. SRI.SRIKANTA,
S/o. Late Sri.M.G.Seetharam,
Aged about 55 years,
GJB, 125, HAL Quarters,
Marathhalli, Bengaluru.
7. SMT.M.S.VASANTHA,
W/o. Sri.Ananth,
Aged about 50 years,
No.57/2, 6th Main Road,
13th or 15th Cross,
Malleswaram, Bengaluru-560 003.
8. SMT.M.S.GAYATHRI,
Since deceased by LRs.-
a) B.C.SHIVA PRASAD,
S/o. Late Mr.Chandrashekar,
Aged 55 years,
b) B.S.LAKSHMI,
D/o. Mr.B.C.Shiva Prasad,
Aged about 26 years,
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c) B.S.SHARADA,
D/o. Mr.B.C.Shiva Prasad,
Aged about 23 years,
All are residing at No.200, 1st Main
Road, Chamarajapet, Bengaluru-
560 004. (Amended as per Court
order dated 14.12.2011).
9. SMT.HEMALATHA,
W/o. Sri.Nagaraj,
Aged about 40 years,
No.1/1, Saneguruvanahalli,
Basaweshwara Nagar, Bengaluru.
(By Sri.M.S.Ashwin Kumar, Adv.)
AND:
DEFENDANTS IN 1. THE COMMISSIONER,
OS.NO.6687/1999: Corporation of the City of
Bengaluru (BBMP), Corporation
Offices, Bengaluru-560 002.
2. THE HOUSING COMMISSIONER,
Karnataka Housing Board,
Cauvery Bhavan Building,
Bengaluru-560 009.
3. SMT.K.P.NAGARATHNA,
W/o. K.P.Mahadevappa,
Major, R/o. No.795, (1st Floor),
1st Main Road, Vyalikaval,
Bengaluru-560 003.
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4. SRI.MANOHAR P.ASRANI,
S/o. Late Pamandas Asrani,
Aged about 49 years,
No.25, Yamunbai Road,
Madhavanagar,
Bengaluru-560 001.
(D1 By Sri.N.R.Jagadeeswara,
Advocate.)
(D2 By Sri.M.H.Motigi.,
Advocate.)
(D3 and D4 By Sri.A.Anil Kumar
Shetty, Advocate.)
PLAINTIFF in SRI.MANOHAR P.ASRANI,
OS.3480/2003 : S/o. Late Pamandas Asrani,
Aged about 49 years,
No.25, Yamunbai Road,
Madhavanagar,
Bengaluru-560 001.
(By Sri.A.Anil Kumar Shetty,
Adv.)
AND:
DEFENDANTS IN 1. SMT.RAJAMMA,
OS.3480/2003 : W/o. Late M.G.Seetharam,
Aged about 80 years, (Dead)
2. SRI.S.SHIVA PRASAD,
S/o. Late Sri.M.G.Seetharam,
Aged about 39 years,
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Defendants No.1 and 2 are residing
at # 978, III Block, Rajajinagar,
Bengaluru-560 010.
3. SMT.M.S.SHANTHAMMA,
Since deceased by L.Rs.
3a) M.N.SESHAGIRI RAO,
S/o. Late Sri.M.Nagesh Rao,
Aged about 80 years,
(Dead)
3b) SRI.M.S.SRIKANTH,
Aged about 51 years,
3c) SRI.M.S.MOHAN,
Aged about 47 years,
3d) M.S.BHASKAR,
Aged about 45 years,
3e) SRI.M.S.SANTOSH,
Aged about 43 years,
3f) SMT.M.S.SHYLAJA,
W/o.Sri.Suresh,
Aged about 46 years,
D3(a) to (f) are children of
deceased Smt.M.S.Shanthamma,
All are residing at No.104, 70th
Cross, 5th Block, Rajajinagar,
Bengaluru.
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4. SMT.VIMALA,
W/o. Suryanarayana Rao,
Aged about 60 years,
# 1205, 13th Main Road,
Prakashnagar, Bengaluru-560 002.
5. SMT.M.S.GOWRAMMA,
Since deceased by her LRs.-
a) Sri. D.S.SHIVAKUMAR,
S/o. Late Sri.D.B.Srikanta Swamy,
Aged about 35 years,
b) D.S. GEETHA,
D/o. Late Sri.D.B.Srikanta Swamy
Aged about 33 years.
c) D.S.SRIVIDYA,
D/o. Late Sri.D.B.Srikanta Swamy,
Aged about 32 years.
All LRs. of the deceased defendant
No.5 are residing at #122, 70th
Cross, 5th Block, Rajajinagar,
Bengaluru-560 010.
6. SRI.SRIKANTA,
S/o. Late Sri.M.G.Seetharam,
Aged about 55 years,
GBJ, 125, HAL Quarters,
Marathhalli, Bengaluru.
7. SMT.M.S.VASANTHA,
W/o. Sri.Ananth,
Aged about 60 years,
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# 57/2, 6th Main Road,
18th or 15th Cross,
Malleswaram, Bengaluru-560 003.
8. SMT.M.S.GAYATHRI,
Since deceased by LRs.-
a) B.C.SHIVA PRASAD,
S/o. Late Mr.Chandrashekar,
Aged about 55 years,
b) B.S.LAKSHMI,
D/o. Mr.B.C.Shiva Prasad,
Aged about 26 years,
c) B.S.SHARADA,
D/o. Mr.B.C.Shiva Prasad,
Aged about 23 years,
All the LRs. of the deceased
defendant No.8 residing at #200,
1st Main Road, Chamarajapet,
Bengaluru-560 004. (Amended as
per Court order dated 03.01.2012).
9. SMT.HEMALATHA,
W/o. Sri.Nagaraj,
Aged about 40 years,
#1/1, Saneguruvanahalli,
Basaweswara Nagar, Bengaluru.
(D1 - Dead. )
(D2 to D9, LRs. of D5 and D8-By
Sri.M.S.Ashwin Kumar, Adv.)
*****
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Date of Institution of the
suit in OS.No.6687/1999: 30.08.1999
Date of Institution of the
suit in OS.No.3480/2003: 28.05.2003
Nature of suit in Declaration & Mandatory
OS.6687/1999: Injunction.
Nature of the suit in Declaration, Possession &
OS.3480/2003: Mesne Profits.
Date of commencement of
recording the common 09.08.2010
evidence.
Date on which the Common 27.08.2016
judgment was pronounced:
Total Duration : Year/s Month/s Day/s
OS.6687/1999 : 16 11 27
OS.3480/2003 : 13 02 29
*****
COMMON JUDGMENT
As per order dated 30.11.2009 in both suits these
suits are clubbed for common disposal. Hence, these
cases are taken for disposal by common judgment.
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.2. The plaintiffs in OS.No.6687/1999 have filed this suit
against the defendants for Declaration to declare that they
are the absolute owners in possession of the plaint
schedule property - Premises bearing No.978, situated in
46th Cross, III Block, Rajajinagar, Bengaluru, measuring
East to West 47 feet, North to South 45 feet, comprising of
an old house of about 6 squares, aged 40 years, and
bounded on East by: Premises bearing No.985, West by:
Road, North by: Premises No.979 and South by: Road, and
for Mandatory Injunction directing the 1st defendant-
Commissioner, Corporation of the City of Bengaluru to
make or transfer Khata of the plaint schedule property in
their favour in the records of Corporation by canceling the
existing Khata in the name of K.B.Mahadevappa and also
issue Khata Certificate, rectifying the change of Khata in
their names, to direct the 2nd defendant to execute
registered Sale Deed in their favour and transfer Khata in
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their names in the records of Karnataka Housing Board in
respect of the schedule property and costs, etc.
.3. The averments of the plaint in brief are that:
The 1st plaintiff is the wife and 2nd plaintiff is the son
of late Sri.M.G.Seetharam respectively. The plaintiffs are
the owners in possession of schedule property. The
plaintiffs No.3 to 9 are the daughters and sons of
M.G.Seetharam and they do not claim any right, title or
interest in the schedule property.
The schedule property was allotted in favour of one
Smt.M.G.Padma by the Karnataka Housing Board-the 2nd
defendant herein in about the year 1959. Smt.M.G.Padma
lost her husband very early and she had no children. She
was being looked after and maintained by her brother-Sri.
M.G.Seetharam, during his lifetime. It was mainly
M.G.Seetharam who was responsible to get the house
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allotted in favour of his sister-Smt.M.G.Padma. Ever since
the date of allotment, it was during the year 1959,
Smt.M.G.Padma and M.G.Seetharam along with his family
members including the plaintiffs have been residing in the
schedule property as absolute owners. Smt.Padma died
during the year 1967 and M.G.Seetharam died on
25.10.1993. Thereafter, the plaintiffs are in possession and
enjoyment of the schedule property as its absolute owners.
After the area in which the schedule property was included
in the limits of Corporation of the City of Bengaluru, the
Khata of the property was made in the name of
Smt.M.G.Padma in the records of Corporation. During the
lifetime of M.G.Seetharam, they were paying taxes. When
the position was like this, the Karnataka Housing Board,
without any basis and without the knowledge of
M.G.Padma or M.G.Seetharam and without notice to them,
appears to have sold the schedule property to the name of
one Smt.M.G.Shanthamma W/o. Dr.M.G.Seshadri under a
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registered Sale Deed dated 25.01.1977 contrary to law and
same is illegal and void. As on date of transfer, the
Karnataka Housing Board had no title or possession to allot
or transfer by way of sale of schedule property to any one
including M.G.Shanthamma. It is understood that during
the lifetime of M.G.Seetharam, he had brought this
illegality to the notice of 2nd defendant and requested to
set right the matter by transferring the Khata of the
property to his name, but the 2nd defendant did not comply
with the request.
It is an admitted fact that Sri.M.G.Seetharam and
Sri.M.G.Seshadri are brothers of Smt.M.G.Padma,
Smt.M.G.Shanthamma was the wife of Dr.M.G.Seshadri.
Long after the death of Smt.M.G.Padma, which took place
in the year 1967. Dr.M.G.Seshadri by using influence with
the KHB, Bengaluru and playing mischief on
M.G.Seetharam, got a registered Sale Deed dated
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25.01.1977 in favour of his wife-Smt.M.G.Shanthamma, by
misusing the documents of allotment, which were given to
Smt.Padma and were in possession of her brother-
Dr.M.G.Seshadri and later on, falsely set up plea of
tenancy between Smt.Shanthamma and M.G.Seetharam.
Thereafter, Smt.M.G.Shanthamma and Sri.M.G.Seshadri
issued Legal Notice dated 04.04.1977 to M.G.Seetharam
alleging that he is a tenant of the schedule premises and
not paid rents and terminating the tenancy. To the Legal
Notice, M.G.Seetharam caused a reply issued on
26.04.1977 stating that there is no relationship of landlord
and tenant, Smt.M.G.Shanthamma is not the owner, he
himself and his wife-Smt.M.G.Rajamma are in possession
of the schedule property in their own right. At any rate
after the demise of Smt.M.G.Padmamma in the year 1967,
Sri.M.G.Seetharam asserted his hostile title to the schedule
property against M.G.Shanthamma through his reply
notice dated 26.04.1977 and also against others in
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subsequent litigations referred in the plaint, which show
that Sri. M.G.Seetharam and the plaintiffs have perfected
title by adverse possession and their title is hostile against
all, ever since the year 1977 up till the date of filing the
suit and also till this day and by ouster against the entire
world in regard to the schedule property. After exchange
of the notices referred to above, Smt.Shanthamma
appears to have sold the schedule property in favour of
Sri.S.R.S.Shastry under a registered Sale Deed dated
02.09.1977. In the meanwhile, Sri.S.R.S. Shastri died and
after his death, his wife Smt.Seshamma filed an eviction
petition against Sri.M.G.Seetharam in HRC No.1767/1978
on the file of Principal Civil Judge, Bengaluru, which later
transferred to 3rd Additional Judge, Small Causes,
Bengaluru City under a new No.HRC.2142/1980.
Smt.Seshamma filed the said petition on the averments
that Sri.M.G.Seetharam is a tenant of the schedule
premises and same is required for her own use and
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occupation. The said HRC petition was seriously contested.
Sri.M.G.Seetharam filed objections disputing the ownership
of Shanthamma and also of Seshamma. He also denied the
tenancy relationship and asserted that he was the owner in
possession of the schedule property that even otherwise,
he has perfected title by adverse possession as he and his
family members are in continuous possession of the
schedule property ever since 1959 to the knowledge of the
persons in the world, including the above named persons
and by ouster. Later during the pendency of HRC
No.2142/1980, Smt.Seshamma filed a memo stating that
she had sold the property to one Sri.K.B.Mahadevappa and
she ceases to have any interest in the matter. In view of
the memo, the HRC petition was dismissed as not pressed
on 29.06.1981. The Sale Deed dated 11.09.1980 executed
by Seshamma in favour of K.B.Mahadevappa recites as
under:
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"The seller undertakes to inform
M.G.Seetharam to attorn the tenancy in favour
of the purchaser and to pay the rent and other
claims due hence forward to the purchaser
along with the notice exchanged between
Sri.M.G.Seetharam and other documents
thereof entrusted to the purchaser for the
purpose of taking further proceedings against
Sri.M.G.Seetharam to get him evicted to which
process, the seller will assist the purchaser in
all possible manner. The HRC petition filed by
setter against the purchaser in all possible
manner. The HRC petition filed by seller
against M.G.Seetharam in No.1767/1978 is
pending before the III Additional Chief Judge,
Bengaluru City. In view of the purchase of the
property, the purchaser will take appropriate
steps to get himself impleaded as the
petitioner in the HRC petition."
The above recital in the Sale Deed clearly goes to
show that Mahadevappa was aware of litigation pending
between Seshamma and M.G.Seetharam and that
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M.G.Seetharam had set up his own title and possession to
the property right from the year 1959. Thereafter, one
Smt.K.P.Nagarathna W/o. Late K.B.Mahadevappa filed an
Eviction petition in HRC No.1527/1990 on the file of Small
Causes Judge, Bengaluru against M.G.Seetharam alleging
that he is a tenant under her and the premises is required
for her bonafide use and occupation. Sri.M.G.Seetharam
filed objections in the said case disputing the ownership
and tenancy relationship set up by her and also asserting
that he is not a tenant under her, there is no relationship
of landlord and tenant and he is the owner and even
otherwise, he has become absolute owner by adverse
possession. During the pendency of the said HRC
proceedings, Sri.M.G.Seetharam died on 25.10.1993 and
as no steps were taken to bring his Legal Representatives,
the said HRC petition was dismissed on 25.03.1994 as
abated. Till this day, Smt.K.P.Nagarathna-3rd defendant
has not taken any proceedings to establish her title or right
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of ownership over the property in question as she has
realized such proceedings would be futile.
During the interval, the Khata of schedule property
was made out in the name of Smt.M.G.Shanthamma, later
in the name of S.R.S.Shastri and thereafter, in the name of
K.B.Mahadevappa-husband of 3rd defendant successively
and also none of these persons had any legally valid title
and none of them were in actual possession of the
schedule property at any point of time. At no point of time,
any notice was given by the 1st defendant to Smt.Padma
about any application being made by M.G.Shanthamma for
change of Khata or subsequently, Khata being transferred
from her name to the name of M.G.Shanthamma or any
other name. Such change of transfer of Khata without any
notice or enquiry is illegal and void and further such
transfer does not bind Smt.Padma or her successors.
During the lifetime of Smt.Padma she has paid taxes and
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later Sri.Seetharam has paid taxes in regard to the
schedule property to the Corporation of City of Bengaluru
in their own rights as owners. After the death of
Seetharam, the plaintiffs have been paying taxes in their
own rights as owners thereof. The plaintiffs, prior to
them, Sri.M.G.Seetharam and M.G.Padma have been in
continuous possession and enjoyment of the schedule
property as owners since from 1959 and thus, they have
perfected their rights by adverse possession to the
knowledge of all persons referred to above and also by
ouster. Even to this day, the name of Smt.Padma is to be
found in the records of City Survey Department,
Bengaluru. Although, the plaintiffs are in possession and
enjoyment of the schedule property as absolute owners
thereof, the Khata of the schedule property at present
stands in the name of Sri.K.G.Mahadevappa. The plaintiffs,
therefore, got issued a registered notice to the 1st
defendant on 16.01.1999 bringing to his notice the above
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said facts pertaining to the schedule property and
requested him to transfer the Khata of the schedule
property in favour of the plaintiffs in the records of the
Corporation by canceling the existing Khata in the name of
Sri.K.B.Mahadevappa and also to issue Khata Certificate
within a period of 15 days from the date of receipt of
notice. Along with the said notice, the plaintiffs also sent
an application duly filling the relevant columns and giving
particulars of the schedule property for change of Khata.
Although notice was acknowledged by the 1st defendant on
19.01.1999, no reply was sent nor Khata was changed to
the name of the plaintiffs as demanded. As the 1st
defendant did not comply with the demands made by the
plaintiffs, they got issued second notice dated
05/08.03.1999, once again calling the Commissioner to
transfer or make Khata of the property in question in their
name and to treat the same as statutory notice, although
no such notice is necessary. The notice was issued to
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avoid technical objection and by way of abundant caution.
Similarly statutory notice was also given to the 2nd
defendant on 26.05.1999 calling upon to execute a
registered Sale Deed in favour of the plaintiffs No.1 and 2
and to transfer Khata to their names in the records. The
Notice has been acknowledged by the 2nd defendant on
27.05.1999. Since no action is taken by the 2nd defendant,
the suit is filed for appropriate reliefs. The 3rd defendant
Smt.K.P.Nagarathna is impleaded as party as the Khata of
the schedule property at present stands in the name of her
husband-Sri.K.B.Mahadevappa. The notices addressed to
the Commissioner dated 16.01.1999 and 08.03.1999 were
also sent to the 3rd defendant by a registered post
acknowledgment due, but they have returned with Shara
"No such person" and "left". The plaintiffs No.3 to 9 have
no objection to transfer Khata of the suit property to the
names of plaintiffs No.1 and 2 in the records of the
Corporation of City of Bengaluru. Since the 3rd defendant
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alleged to have sold the schedule property in favour of
Sri.Manohar P. Asrani, during the pendency of the
proceedings, he has been impleaded as 4th defendant.
Hence, the plaintiffs have filed the present suit.
.3. In pursuance of suit summons, the defendants No.1
to 3 appeared through their respective counsels, but the
defendants No.1 and 2 have not filed written statement.
The defendant No.3 has filed written statement. The
defendant No.4 subsequently, impleaded and he filed
written statement.
.4. The defendant No.3 in her written statement denied
the material averments / allegations of the plaint regarding
the plaintiffs are the owners in possession of the schedule
property, there is any such person by name Smt.Padma,
making Khata of the schedule property in the name of
Smt.M.G.Padma, they paying taxes, plaintiffs perfecting
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right to the schedule property by way of adverse
possession, etc. However, this defendant admitted
Smt.Shanthamma alienating the property to one
Mr.Shastry, later his widow filing Eviction Petition against
M.G.Seetharam in HRC No.2142/1980, withdrawal of the
same as she sold the property to Sri.K.P.Mahadevappa,
making Khata of the schedule property, the name of
M.G.Shanthamma, S.R.S.Shastry and thereafter, in the
name of K.P.Mahadevappa, etc.
Further this defendant contended that the suit is
frivolous, vexatious and not maintainable either in law or
on facts. Smt.M.G.Padma is only a fictitious character
created by the plaintiffs in order to knock off her legitimate
right as an absolute owner. The KHB has not made any
illegal allotment to Smt.M.G.Shanthamma under registered
Sale Deed dated 25.01.1977 through whom this defendant
is claiming title, Khata of the schedule property has been
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transferred from her husband to her name. The plaintiffs
have no manner of right, title or interest in the schedule
property and they are squatting without paying rents. She
is the absolute owner of the schedule property, which was
purchased by her late husband under a registered Sale
Deed dated 11.09.1980 from Smt.Shantha and others.
Since the date of purchase, the said M.G.Seetharam-the
husband of the 1st plaintiff was the tenant under her
husband and he expired during December 1989 and since
then, M.G.Seetharam and subsequently, his wife have
stopped payment of rents. The said Smt.Shanthamma and
others had inherited the property from the husband of
Smt.Shanthamma. One S.R.S.Shastri, who had purchased
the property from Smt.Shanthamma wife of Dr.Sheshadri
on 02.09.1977. The original allottee was the said
Smt.Shanthamma to whom the plaint schedule property
was allotted by the KHB-the 2nd defendant and
subsequently, a Sale Deed was effected on 25.01.1977 in
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her favour. The husband of 1st plaintiff -M.G.Seetharam
became a tenant under her and after she sold the property
to S.R.S.Shastri, the said M.G.Seetharam has taken full
advantage of the situation and has been squatting in the
premises paying low rents for few years and subsequently
has stopped payment of rents. Although the widow of
S.R.S.Shastri filed a HRC Petition in 2142/1980, the same
was resisted by the 1st plaintiff on the ground of no
relationship of landlord and tenant, thereby with an
intention to knock off the property from all subsequent
buyers of the schedule property. The said M.G.Seetharam
and subsequently, after his death, the plaintiffs are tenants
with respect to the schedule property on a monthly rent of
Rs.40/-. The said M.G.Seetharam used to pay rent to her
late husband until he expired during December 1989 and
used to get the acknowledgement in the book maintained
by him. After the death of her husband, the said
M.G.Seetharam completely stopped payment of rents. She
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demanded rents from M.G.Seetharam, but it fell on deaf
ears, , she requested and demanded him to vacate from
the suit schedule premises as the same was required for
own use and occupation. However, under one pretext or
the other, he was postponing it. Thereafter,, she filed a
petition in HRC No.1527/1990 and the same as abated.
The plaintiffs who are the tenants cannot claim adverse
possession and also question the validity of the sale of the
schedule property by the Housing Board to
Smt.M.G.Shanthamma. Since no allotment prior to the sale
of property to Smt.Shanthamma through whom the
defendant is claiming title-ship was made to any person
including Smt.Padma or husband of the 1st plaintiff. Khata
was transferred in the name of Sri.K.B.Mahadevappa and
after his death, now, Khata stands in her name. She is the
absolute owner of the schedule property. The plaintiffs are
only tenants and taking advantage of situation have been
squatting in the premises without paying rents, with an
28
OS. 6687/1999
C/w OS. 3480/2003
oblique motive to usurp the schedule property and prays
to dismiss the suit with exemplary costs.
.5. The defendant No.4 in the written statement denied
the material averments / allegations of the plaint regarding
the plaintiffs are the owners in possession of the schedule
property, the plaintiffs No.3 to 9 do not claim any right any
right in respect of the schedule property, M.G.Padma and
M.G.Seetharam along with their family members residing
in the schedule property as absolute owners, allotment of
schedule property in favour of M.G.Padma by the KHB, she
was being looked after and maintained by her brother-
M.G.Seetharam and he was responsible to get the house
allotted to his sister, along with his sister in possession in
the schedule property as absolute owner, the plaintiffs
perfected title by adverse possession, etc. This defendant
contended that the suit is not maintainable both in law and
on facts. The suit is bad for mis-joinder and non-joinder of
29
OS. 6687/1999
C/w OS. 3480/2003
necessary parties. There is no cause of action for the suit
and one given is imaginary. The plaintiffs have no locus-
standi to maintain the suit and are not entitled to any
reliefs. Khata in respect of the schedule property is
registered in his name and not in the name of M.G.Padma
and M.G.Seetharam who had no right or title in respect of
the schedule property. The Karnataka Housing Board had
conveyed the schedule property absolutely in favour of
M.G.Shanthamma by virtue of a Sale Deed dated
25.01.1977. There was no requirement to issue any notice
to M.G.Padma and M.G.Seetharam as claimed in the plaint.
Transfer in favour of M.G.Shanthamma is in accordance
with law and she acquired a valid title of the property.
M.G.Shanthamma had issued a Legal Notice on 04.04.1977
and alleged that M.G.Seetharam is a tenant.
M.G.Seetharam had caused to issue a reply taking false
and frivolous contentions. Later on the property was sold
to Mr.S.R.S.Shastri by virtue of a Sale Deed dated
30
OS. 6687/1999
C/w OS. 3480/2003
02.09.1977. Subsequent to the death of S.R.S. Shastry, his
wife Seshamma filed an Eviction Petition against
M.G.Seetharam in HRC No.2142/1980. He is not aware of
specific pleas that were taken by M.G.Seetharam in the
said proceedings. The said petition was not pressed since
the property was sold to K.B.Mahadevappa by virtue of
Sale Deed dated 11.09.1980. It is incorrect to allege that
there was any dispute of ownership or title at the time of
execution of Sale Deed in favour of K.B.Mahadevappa.
The only proceeding that was pending was a summary
proceeding for eviction under the Karnataka Rent Control
Act, 1961. Smt.K.P.Nagarathna filed an eviction petition in
HRC No.1527/1990 before the Small Causes Court at
Bengaluru against M.G.Seetharam after the death of her
husband-K.B.Mahadevappa. During the pendency of the
said proceedings, M.G.Seetharam died and the petition
was abated.
31
OS. 6687/1999
C/w OS. 3480/2003
Khata of the schedule property has been registered
as per the uninterrupted flow of the title in respect of the
schedule property. The plaintiffs being in possession of
the schedule property by itself does not confer title. The
Registration of Khata or payment of taxes by itself does
not confer the non-existing title or dilute an existing title.
He is not aware of the notice issued by the plaintiffs to
defendant No.1 or defendant No.2. He has acquired title
of the property by virtue of Sale Deed dated 29.04.2002.
The property originally belonged to Karnataka Housing
Board and same has been transferred to subsequent
purchasers by virtue of registered Sale Deed. He is the
absolute owner of the schedule property and already filed
a suit in OS.No.3480/2003 seeking possession of the
schedule property based on his title. The suit claim made
by the plaintiffs is a bundle of contradictions. The plaintiffs
have no element of right to seek declaration of title and
lack material pleadings to sustain the suit claim. He had
32
OS. 6687/1999
C/w OS. 3480/2003
purchased the property from Nagarathnamma and verified
the title to the property from the Sale Deed executed by
the KHB in favour of Shanthamma. During the pendency
of the above proceedings, the KHB has produced the file
pertaining to the subject property. It is learnt from the
records that the subject property was allotted in favour of
Padmamma by the Karnataka Housing Board in the year
1956 and she was permitted to occupy the subject
property under a lease-cum-sale basis. The allottee had no
source of income and she had failed to pay the lease
consideration and other incidentals and distress warrant
was issued in that regard. Since the allotment, her brother
M.G.Seshadri paid all the dues on her behalf, she
subsequently, deceased in the year 1967. During her
lifetime, KHB has not executed any registered Sale Deed in
her favour. During her lifetime, she had executed a Will on
02.11.1963 bequeathing her holdings and rights in favour
of Shanthamma W/o. Seshadri. After her death, the said
33
OS. 6687/1999
C/w OS. 3480/2003
Will was produced by Shanthamma before the KHB along
with survivor Certificate and also affidavits by the family
members affirming that they have no objection for the sale
of subject property in favour of Shanthamma. Thereafter,
the subject property was transferred by a registered
conveyance in favour of Shanthamma by the KHB and she
became the absolute owner of the said property. The
plaintiffs or any other family members have not claimed for
Sale Deed in their favour from the KHB as Legal
Representatives of deceased Padmamma and they have
not challenged the Sale Deed in favour of Shanthamma
executed by KHB. This defendant and his predecessors-in-
title have acquired absolute title to the schedule property.
The plaintiffs have no element of right in respect of the
schedule property and pray to dismiss the suit with
exemplary costs.
34
OS. 6687/1999
C/w OS. 3480/2003
.6. The plaintiff in OS.No.3480/2003 has filed the suit
against the defendants for declaration declaring that he is
the absolute owner of the suit schedule property -
residential premises bearing No.978, present Corporation
No.978/9, 11th Main Road, 3rd Block, Rajajinagar,
Bengaluru-560 010, measuring East to West 47 feet North
to South 45 feet, total area 2115 square feet and bounded
on East by: Site No.985, West by: Road, North by: Site
No.979 and South by: Road and for possession of the
same, enquiry into mesne profits from the date of suit till
delivery of possession and costs, etc.
.7. The averments of the plaint in OS.NO.3480/2003 in
brief are that:
Originally KHB was the owner of the schedule
property and it has allotted the schedule property in favour
of one Smt.Shanthamma w/o. Sri.M.G.Sheshdri and in
pursuance of the same, executed a registered Sale Deed
35
OS. 6687/1999
C/w OS. 3480/2003
dated 25.01.1977 and she was put in possession of the
said property. The said Shanthamma sold the schedule
property in favour of one Sri.S.R.S.Shastry through
registered Sale Deed dated 02.09.1977 and put him in
physical possession of the property. The said S.R.S.Shastri
leased the schedule property in favour of one
Sri.M.G.Seetharam on monthly rent of Rs.40/- and he filed
a HRC Proceedings against said Sri.Seetharam. But, when
the HRC proceedings was pending, the said S.R.S.Shastri
has sold the property in favour of Sri.K.B.Mahadevappa
and filed a memo before the Court that he would not press
the petition as he sold the property. Later,
Sri.K.B.Mahadevappa died leaving behind his legal heirs as
absolute owners of the property and his widow
Smt.K.P.Nagarathnamma filed another HRC proceeding
against the said Sri.Seetharam. When the HRC proceedings
was pending, said Seetharam died, but his Legal
Representatives were not brought on record in time.
36
OS. 6687/1999
C/w OS. 3480/2003
Hence, the HRC petition was dismissed on the ground of
abatement.
The said Sri.Seetharam died intestate leaving behind
the defendants as his Legal Representatives. The said
Smt.K.P.Nagarathnamma and her children sold the
schedule property in his favour by a registered Sale Deed
and thus, the defendants became tenants by operation of
law under Sec.109 of the Transfer of Property Act. The
said Seetharam when he was alive took the defence that
there is no landlord and tenant relationship in both HRC
proceedings. Though no Court has held that there was a
relationship of landlord and he continued to contend the
same thing. When he has issued a notice to the
defendants, they sent reply stating that they are the
owners of the property and are not tenants. Thus, the
defendants denied the title of the property and claimed
that they are the owners of the same. Hence, he has filed
37
OS. 6687/1999
C/w OS. 3480/2003
the suit for declaration of his title and possession of the
schedule property. In the reply notice, the defendants
intimated that there is a suit filed by them in
OS.No.6687/1999. The said Seetharam has no right, title
and interest over the property. The property was allotted
to Smt.Shanthamma wife of Sri.M.G.Sheshadri by KHB and
the property was acquired subsequently from various
persons, ultimately by him. The defendants have no right,
title and interest over the property and they are not
owners of the same. The defendants have nothing to do
with the schedule property and they are trespassers in the
same. Hence, the plaintiff has filed the present suit.
.8. In pursuance of summons, the defendants No.2 to 9
appeared through counsel and defendant No.1 reported to
be dead and defendants No.2 to 9 are her Legal
Representatives.
38
OS. 6687/1999
C/w OS. 3480/2003
.9. The defendants No.2 to 9 filed written statement
denying the material averments / allegations of the plaint
regarding allotment of the schedule property in favour of
Shanthamma, KHB executing registered Sale Deed dated
25.01.1977 in her favour, putting her in possession,
Sri.S.R.S.Shastri leasing the schedule property in favour of
Sri.M.G.Seetharam on monthly rent of Rs.40/-, they
becoming tenants under the plaintiff by operation of law,
trespassers having no right in the schedule property, etc.
However, admitted regarding KHB was the original owner
of the schedule property, Sri.S.R.S.Shastri filing HRC
proceedings against M.G.Seetharam, later alienating the
same to Sri.K.B.Mahadevappa, thereafter, filing not press
memo, after the death of Mahadevappa, his wife
K.P.Nagarathnamma filing HRC case against
Sri.B.S.Seetharam, death of Seetharam during pendency of
HRC proceedings and the same dismissing as abated,
Seetharam taking defence throughout during the earlier
39
OS. 6687/1999
C/w OS. 3480/2003
proceedings that there is no relationship of landlord and
tenant, filing suit in OS.No.6687/1999 etc,.
Further these defendants contended that the alleged
sale by Shanthamma dated 02.09.1977 in favour of
S.R.S.Shastri is not valid. These defendants are not aware
that Smt.K.P.Nagarathnamma and her children sold the
schedule property in favour of the plaintiff under a
registered Sale Deed. Smt.K.P.Nagarathnamma and her
children had no right to convey the schedule property in
favour of the plaintiff or any one else as she herself had no
right over the same. Therefore, the plaintiff does not
derive any title from such a Sale Deed and he is not owner
of the schedule property. The contention of Sri.Seetharam
throughout proceedings was that he was owner in
possession of the property in question. The notice of the
plaintiff has been suitably replied. These defendants have
been in continuous and uninterrupted possession of the
40
OS. 6687/1999
C/w OS. 3480/2003
property ever since the year 1956 to the knowledge of all
persons openly and by exercising a hostile acts including
the above named persons and also by ouster.
Further contended that the 1st defendant-
Smt.Rajamma since deceased is the wife and 2nd
defendant is the son of Sri.M.G.Seetharam respectively.
These defendants are owners in possession of the
schedule property and they are daughters and sons of
Sri.M.G.Seetharam.
The schedule property was allotted in favour of one
Smt.M.G.Padma by the Karnataka Housing Board-the 2nd
defendant herein in about the year 1959. Smt.M.G.Padma
lost her husband very early and she had no children. She
was being looked after and maintained by her brother-Sri.
M.G.Seetharam, during his lifetime. It was mainly
M.G.Seetharam who was responsible to get the house
41
OS. 6687/1999
C/w OS. 3480/2003
allotted in favour of his sister-Smt.M.G.Padma. Ever since
the date of allotment, it was during the year 1959,
Smt.M.G.Padma and M.G.Seetharam along with his family
members including these defendants have been residing in
the schedule property as absolute owners. Smt.Padma
died during the year 1967 and M.G.Seetharam died on
25.10.1993. Thereafter, they are in possession and
enjoyment of the schedule property as its absolute owners.
After the area in which the schedule property was included
in the limits of Corporation of the City of Bengaluru, the
Khata of the property was made out in the name of
Smt.M.G.Padma in the records of Corporation. During the
lifetime of M.G.Seetharam, they were paying taxes. When
the position was like this, the Karnataka Housing Board,
without any basis and without the knowledge of
M.G.Padma or M.G.Seetharam and without notice to them,
appears to have sold the schedule property to the name of
one Smt.M.G.Shanthamma W/o. Dr.M.G.Seshadri under a
42
OS. 6687/1999
C/w OS. 3480/2003
registered Sale Deed dated 25.01.1977 contrary to law and
same is illegal and void. As on date of transfer, the
Karnataka Housing Board had no title or possession to allot
or transfer by way of sale of schedule property to any one
including M.G.Shanthamma. It is understood that during
the lifetime of M.G.Seetharam, he had brought the
illegality to the notice of 2nd defendant and requested to
set right the matter by transferring the Khata of the
property to his name, but the 2nd defendant did not comply
with the request.
It is an admitted fact that Sri.M.G.Seetharam and
Sri.M.G.Seshadri are brothers of Smt.M.G.Padma,
Smt.M.G.Shanthamma was the wife of Dr.M.G.Seshadri.
Long after the death of Smt.M.G.Padma, which took place
in the year 1967. Dr.M.G.Seshadri by using influence with
the KHB, Bengaluru and playing mischief on
M.G.Seetharam, got a registered Sale Deed dated
43
OS. 6687/1999
C/w OS. 3480/2003
25.01.1977 in favour of his wife-Smt.M.G.Shanthamma, by
misusing the documents of allotment, which were given to
Smt.Padma and were in possession of her brother-
Dr.M.G.Seshadri and later on, falsely set up plea of
tenancy between Smt.Shanthamma and M.G.Seetharam.
Thereafter, Smt.M.G.Shanthamma and Sri.M.G.Seshadri
issued Legal Notice dated 04.04.1977 to M.G.Seetharam
alleging that he is a tenant of the schedule premises and
not paid rents and terminating the tenancy. To the Legal
Notice, M.G.Seetharam caused a reply issued on
26.04.1977 stating that there is no relationship of landlord
and tenant, Smt.M.G.Shanthamma is not the owner, he
himself and his wife-Smt.M.G.Rajamma are in possession
of the schedule property in their own right. At any rate
after the demise of Smt.M.G.Padmamma in the year 1967,
Sri.M.G.Seetharam asserted his hostile title to the schedule
property against M.G.Shanthamma through his reply
notice dated 26.04.1977 to her notice dated 04.04.1977
44
OS. 6687/1999
C/w OS. 3480/2003
and also against others in subsequent litigations referred in
the plaint, which show that Sri. M.G.Seetharam and the
defendants have perfected their title by adverse
possession and their title is hostile against all, ever since
the year 1977 up till the date of filing the suit and also till
this day and by ouster against the entire world in regard to
the schedule property. After exchange of the notices
referred to above, Smt.Shanthamma appears to have sold
the schedule property in favour of Sri.S.R.S.Shastri under a
registered Sale Deed dated 02.09.1977. In the meanwhile,
Sri.S.R.S.Shastri died and after his death, his wife
Smt.Seshamma filed an eviction petition against
Sri.M.G.Seetharam in HRC No.1767/1978 on the file of
Principal Civil Judge, Bengaluru, which later transferred to
3rd Additional Judge, Small Causes, Bengaluru City under a
new No.HRC.2142/1980. Smt.Seshamma filed the said
petition on the averments that Sri.M.G.Seetharam is a
tenant of the schedule premises and same is required for
45
OS. 6687/1999
C/w OS. 3480/2003
her own use and occupation. The said HRC petition was
seriously contested. Sri.M.G.Seetharam filed objections
disputing the ownership of Shanthamma and also of
Seshamma. He also denied the tenancy relationship and
asserted that he was the owner in possession of the
schedule property that even otherwise, he has perfected
title by adverse possession as he and his family members
are in continuous possession of the schedule property ever
since 1959 to the knowledge of the persons in the world,
including the above named persons and by ouster. Later
during the pendency of HRC No.2142/1980,
Smt.Seshamma filed a memo stating that she had sold the
property to one Sri.K.B.Mahadevappa and she ceases to
have any interest in the matter. In view of the memo, the
HRC petition was dismissed as not pressed on 29.06.1981.
Thereafter, one Smt.K.P.Nagarathna W/o. Late
K.B.Mahadevappa filed an Eviction petition in HRC
46
OS. 6687/1999
C/w OS. 3480/2003
No.1527/1990 on the file of Small Causes Judge,
Bengaluru against M.G.Seetharam alleging that he is a
tenant under her and the premises is required for her
bonafide use and occupation. Sri.M.G.Seetharam filed
objections in the said case disputing the ownership and
tenancy relationship set up by her and also asserting that
he is not a tenant under her, there is no relationship of
landlord and tenant and he is the owner and even
otherwise, he has become absolute owner by adverse
possession. During the pendency of the said HRC
proceedings, Sri.M.G.Seetharam died on 25.10.1993 and
as no steps were taken to bring his Legal Representatives,
the said HRC petition was dismissed on 25.03.1994 as
abated. Till this day, Smt.K.P.Nagarathna-3rd defendant
has not taken any proceedings to establish her title or right
of ownership over the property in question as she has
realized such proceedings would be futile.
47
OS. 6687/1999
C/w OS. 3480/2003
During the interval, the Khata of schedule property
was made in the name of Smt.M.G.Shanthamma, later in
the name of S.R.S.Shastri and thereafter, in the name of
K.B.Mahadevappa successively and also none of these
persons had any legally valid title and none of them were
in actual possession of the schedule property at any point
of time. At no point of time, any notice was given to
Smt.Padma about any application being made by
M.G.Shanthamma for change of Khata or subsequently,
Khata being transferred from her name to the name of
M.G.Shanthamma or any other name. Such change of
transfer of Khata without any notice or enquiry is illegal
and void and further such transfer does not bind
Smt.Padma or her successors. During the lifetime of
Smt.Padma she has paid taxes and later Sri.Seetharam has
paid taxes in regard to the schedule property to the
Corporation of City of Bengaluru in their own rights as
owners. After the death of Seetharam, the they have been
48
OS. 6687/1999
C/w OS. 3480/2003
paying taxes in their own rights as owners thereof. Prior
to them, Sri.M.G.Seetharam and M.G.Padma have been in
continuous possession and enjoyment of the schedule
property as owners since from 1959 and thus, they have
perfected their rights by adverse possession to the
knowledge of all persons referred to above and also by
ouster. Even to this day, the name of Smt.Padma is to be
found in the records of City Survey Department,
Bengaluru. Although, the they are in possession and
enjoyment of the schedule property as absolute owners
thereof, the Khata of the schedule property at present
stands in the name of Sri.K.G.Mahadevappa.
There is no cause of action and the alleged does not
give any cause of action. The suit is not maintainable and
barred by limitation. The plaintiff is not entitled to any
reliefs and prays to dismiss the suit with exemplary costs.
49
OS. 6687/1999
C/w OS. 3480/2003
.10. On the basis of above pleadings, the following issues
and additional issues have been framed:
ISSUES IN OS.No.6687/1999
1. Whether the plaintiffs prove that they are the
absolute owners in possession of suit schedule
property as alleged?
2. Whether the plaintiffs further prove that
defendantNo.1 has illegally transferred the
Khata of the suit schedule property in the name
of K.P.Mahadevappa as alleged?
3. Whether the plaintiffs further prove that on the
death of allottee of suit schedule property
Smt.M.G.Padma, the plaintiffs 1 & 2 have
succeeded and they are entitled to get the
registered Sale Deed in their favour from
defendant No.2 as alleged?
4. Whether the defendant No.3 proves that her
husband Mahadevappa K.P. purchased the suit
schedule property under the registered Sale
Deed dated 11.09.1980 from Smt.Shanthamma
and others and on the death of the purchaser,
she became the absolute owner as alleged in
Para-19 of her written statement?
5. Whether defendant No.4 proves that he is the
absolute owner of suit schedule property by
virtue of registered Sale Deed dated 29.01.2002
as alleged in Para-10 of the written statement?
50
OS. 6687/1999
C/w OS. 3480/2003
6. Whether the plaintiffs further prove that
defendant No.2 KHB had no ownership or
possession over the suit schedule property as
on 25.01.1997 to transfer the same by way of
registered Sale Deed in favour of
Smt.M.G.Shanthamma after the same was
allotted to Smt.M.G.Padma in 1959 and as such
the Sale Deed in favour of M.G.Shanthamma is
void and illegal as alleged?
7. Whether the plaintiffs further prove in the
alternative that they are the absolute owners of
suit property and have perfected their title by
way of adverse possession subsequent to the
death of Smt.M.G.Padma and continued to be
in possession even to this day adversely as
alleged?
8. Whether the plaintiffs further prove that
defendant No.1 committed error in transferring
the Khata of suit property from the name of
Smt.M.G.Padma to the names of
Smt.M.G.Shanthamma, Sri.S.R.S.Shastri and
later in the name of K.P.Mahadevappa in their
records without holding any enquiry as required
under law?
9. Whether defendants 3 & 4 prove that the Sale
Deeds in their favour are legally executed and
are binding on the plaintiffs as alleged?
10. Whether the plaintiffs are entitled to the
relief of declaration as prayed?
51
OS. 6687/1999
C/w OS. 3480/2003
11. Whether the plaintiffs are entitled for
Mandatory Injunction for cancellation of Khata
in the name of K.P.Mahadevappa and for
Registration of the Sale Deed in favour of
plaintiffs 1 & 2 against D1 & 2 as prayed?
12. To what reliefs, if any, the parties are
entitled?
ADDITIONAL ISSUE IN OS.6687/1999
1. Whether the suit is bad for mis-joinder and
non-joinder of necessary parties?
ISSUES IN OS.NO.3480/2003:
1. Whether the plaintiff proves that he is the
absolute owner of the suit schedule property
by virtue of the Sale Deed executed by
Smt.K.P.Nagarathnamma and her children on
29.04.2002 as alleged?
2. Whether the plaintiff further proves that the
defendants are his tenants in the suit
schedule property as alleged?
3. Whether the defendants 2 to 9 prove that the
suit schedule property was allotted to
Smt.M.G.Padma and on the death of allottee
they became the owners and in possession of
the property as alleged?
4. Whether the defendants prove that they are
the absolute owners of the suit property by
way of adverse possession and perfected
52
OS. 6687/1999
C/w OS. 3480/2003
their title after the death of Smt.M.G.Padma,
which took place in the year 1967 as pleaded
by them?
5. Whether the plaintiff is entitled to the relief of
declaration as prayed?
6. Whether the plaintiff is entitled for possession
of suit schedule property as prayed?
7. Whether the plaintiff is entitled for mesne
profits? If so, to what amount, and from
whom?
8. To what reliefs, if any, the parties are
entitled?
.11. In support of the case, the 2nd plaintiff in
OS.6687/1999 himself examined as PW.1, got marked
documents at Ex.P.1 to Ex.P.60 and closed the side.
The defendant No.4 in OS.No.6687/1999 and plaintiff
in OS.No.3480/2003 himself examined as DW.1, got
marked documents at Ex.D.1 to D6 and closed the
side. The defendants No.1 to 3 in OS.No.6687/1999
have not adduced evidence.
53
OS. 6687/1999
C/w OS. 3480/2003
.12. Heard arguments.
.13. My answers to the above Issues & Additional Issue in
OS.No.6687/1999 as under:
Issue No.1 - in the negative.
Issue No.2 - in the negative.
Issue No.3 - in the negative
Issue No.4 - in the affirmative.
Issue No.5 - in the affirmative.
Issue No.6 - in the negative.
Issue No.7 - in the negative.
Issue No.8 - in the negative.
Issue No.9 - partly affirmative.
Issue No.10- in the negative.
Issue No.11- in the negative.
Addl.Issue No.1- in the negative.
Issue No.12- As per final order for
the following reasons:
54
OS. 6687/1999
C/w OS. 3480/2003
.14. My answers to the above Issues in OS.No.3480/2003
as under:
Issue No.1 - in the affirmative.
Issue No.2 - in the affirmative.
Issue No.3 - partly affirmative & partly negative.
Issue No.4 - in the negative.
Issue No.5 - in the affirmative.
Issue No.6 - in the affirmative.
Issue No.7 - in the negative.
Issue No.8 -As per final order for
the following:
REASONS
.15. ISSUES NO.1, 3, 4 & 5 IN OS.NO.6687/1999
AND ISSUES NO.1 & 3 IN OS.NO.3480/2003: As
these Issues are connected to each other, I have taken all
together for discussion for the sake of convenience and to
avoid repetition.
55
OS. 6687/1999
C/w OS. 3480/2003
.16. The plaintiffs in OS.No.6687/1999 contended that
they are the absolute owners in possession of the suit
schedule property, after the death of allottee- Smt.Padma,
they are entitled to get the registered Sale Deed in their
favour from the defendant No.2, etc. Per contra, the
defendant No.3 in the said suit contended that her
husband-Mahadevappa has purchased the schedule
property under a registered Sale Deed dated 11.09.1980
from Smt.Shanthamma and others and after his death, she
became the absolute owner of the same, etc. Further the
defendant No.4 in the said suit and in plaintiff in
OS.No.3480/2003 contended that he is the absolute owner
of the suit schedule property by virtue of a registered Sale
Deed dated 29.04.2002 executed by Smt.K.P.Nagarathna
and her children, the plaintiffs are nothing to do with the
schedule property and are trespassers, etc.
56
OS. 6687/1999
C/w OS. 3480/2003
To substantiate respective contentions of the parties,
the plaintiff No.2 in OS.No.6687/1999 who examined as
PW.1 in his affidavit evidence stated regarding allotment of
schedule property in favour of Smt.M.G.Padma by the
KHB, they becoming the owners in possession of the same,
efforts made by his father-Seetharam to allot the schedule
property in favour of Smt.M.G.Padma, mischief played by
Dr.M.G.Sheshadri in getting the registered Sale Deed dated
25.01.1977, Khata in the name of Smt.M.G.Padma, paying
taxes, notices issued to Smt.M.G.Padma demanding
property tax, 2nd defendant issuing Sale Deed in the name
of Smt.M.G.Shanthamma without any basis and
knowledge, his father bringing illegality to the notice of the
2nd defendant, issuance of Legal Notice by
Smt.M.G.Shanthamma and her husband, his father issuing
reply asserting no relationship of landlord and tenant,
possession of schedule property in their own right,
alienation of schedule property in favour of S.R.S.Shastri
57
OS. 6687/1999
C/w OS. 3480/2003
and after his death, his wife-Smt.Sheshamma filing
Eviction Petition in HRC No.2142/1980, dismissal of the
same as not pressed, alienation of the schedule property in
favour of K.B.Mahadevappa, his wife -Smt.K.P.Nagarathna
filing Eviction Petition in HRC No.1527/1990 against
M.G.Seetharam, filing objections disputing the ownership
and tenancy relationship, death of Seetharam during the
pendency of the petition and dismissal of the same as
abated, purchase of schedule property by the 4th
defendant from the 3rd defendant during the pendency of
the suit who had no title to the property and 4th defendant
will not get any title, etc., by reiterating the averments of
the plaint and got marked documents at Ex.P1 to Ex.P60.
.17. Per contra, the defendant No.4 in OS.No.6687/1999
and plaintiff in OS.No.3480/2003 who examined as DW.1
in his affidavit evidence stated regarding KHB conveying
the schedule property in favour of Smt.M.G.Shanthamma
58
OS. 6687/1999
C/w OS. 3480/2003
through Sale Deed dated 25.01.1977, she acquiring valid
title to the property, later, she alienating the same to
Mr.S.R.S.Shastri through Sale Deed dated 02.09.1977,
subsequent to his death, his wife Seshamma filed Eviction
Petition against M.G.Seetharam in HRC No.1767/1978,
later re-numbered as HRC No.2142/1980, she filing not
pressed petition as the property sold to K.B.Mahadevappa
through Sale Deed dated 11.09.1980, proceedings pending
was a summary proceeding for eviction,
Smt.K.P.Nagarathna filing Eviction Petition against
M.G.Seetharam in HRC No.1527/1990 after the death of
her husband K.B.Mahadevappa, death of Seetharam during
pendency of the proceedings and the abatement of
petition, Khata of the schedule property registering as per
the uninterrupted flow of title in respect of the schedule
property, he acquiring the schedule property by virtue of
the Sale Deed dated 29.04.2002, uninterrupted flow of title
in his favour and he is the absolute owner of the schedule
59
OS. 6687/1999
C/w OS. 3480/2003
property, filing a suit in OS.No.3480/2003 seeking
possession based on title, plaintiffs have no right to seek
declaration of title, purchase of the schedule property by
verifying the title from the Sale Deed executed by KHB in
favour of Shanthamma, production of file by the KHB
pertaining to the subject property and learnt that the
property allotting in favour of Padmamma by the KHB in
the year 1956, permitting to occupy under lease-cum-sale
basis, her no source of income, failure to pay lease
consideration and other incidentals, issuance of distress
warrant, since allotment M.G.Seshdri paying all dues on
her behalf, her death in the year 1967, non-execution of
registered Sale Deed in her favour by KHB, she executing
Will on 02.11.1963 bequeathing her holdings and rights in
favour of Shanthamma, after her death, production of the
said Will before KHB along with Survivor Certificate and
affidavits by family members affirming no objection for
sale subject property in favour of Shanthamma, transfer of
60
OS. 6687/1999
C/w OS. 3480/2003
property by registered conveyance in favour of
Shanthamma by KHB, she becoming absolute owner of the
said property, plaintiffs not challenging the said Sale Deed,
he himself and his predecessors-in-title acquiring absolute
title to the schedule property, plaintiffs no element of right
in respect of the schedule property and they illegally
squatting on the same and liable to pay mesne profits for
wrongful use of the property, etc., by reiterating the
averments of the written statement and plaint respectively
and got marked documents at Ex.D.1 to Ex.D.6.
.18. It is not in dispute that the KHB was the owner of
the schedule property and the same was allotted to
Smt.M.G.Padma, who was sister of M.G.Seetharam and
M.G.Shesadri. The plaintiffs allege that M.G.Seetharam
being the brother of Smt.M.G.Padma, got allotted the
schedule property in her favour and they were in
possession of the same and after her death, they are in
61
OS. 6687/1999
C/w OS. 3480/2003
possession and enjoyment of the schedule property as
absolute owners, KHB without any basis and knowledge,
sold the schedule property in favour of
Smt.M.G.Shanthamma w/o. Dr.M.G.Seshadri under a
registered Sale Deed dated 25.01.1977 contrary to law and
Sri.Seetharam had brought the said illegal to the notice of
2nd defendant requesting to set right the matter by re-
transferring Khata in his name, etc. Per contra, the
defendant No.3 contended that the KHB has not made any
illegal allotment to Smt.M.G.Shanthamma,
Smt.M.G.Shanthamma sold the property to
Mr.S.R.S.Shastri, later, his wife sold the property to her
husband K.B.Mahadevappa, Khata of the schedule property
has been transferred in his name, he died during
December 1989 and she became absolute owner of the
schedule property, etc. The defendant No.4 also
contended that he has acquired title to the property by
virtue of a Sale Deed dated 29.04.2002, Khata in respect
62
OS. 6687/1999
C/w OS. 3480/2003
of the schedule property registered in his name, there is
an uninterrupted flow of title in his favour, he is the
absolute owner of the schedule property and plaintiffs
have no element of right to seek declaration of title, etc.
.19. The plaintiffs have produced Ex.P.1-copy of
application dated 04.01.2010 given by Smt.Geetha to the
Accounts Officer and at Ex.P.1(a) on the back of the same
there is an Endorsement regarding payment of Rs.8,000/-
by the applicant-Smt.M.G.Padmamma. The plaintiffs have
produced Khata Extract at Ex.P.2, wherein name of
M.G.Padma is appearing in owners' column in respect of
the schedule property and her name is rounded off and
names of Smt.H.G.Shanthamma and Smt.Sheshamma are
also mentioned in owners' column. The plaintiffs have
produced Form No.9 (Survey sketch) at Ex.P.3, wherein
the name of Smt.M.G.Padma mentioned as an allottee.
The plaintiffs produced a Receipt at Ex.P.4, which shows
63
OS. 6687/1999
C/w OS. 3480/2003
payment of Rs.301/- by Smt.M.G.Padma. The plaintiffs
have produced Distress Warrant at Ex.P.5, show cause
notices at Ex.P.6 and Ex.P.8 and these documents show
that issuance of show cause notice and distress warrant to
Smt.M.G.Padma demanding arrears of tax in respect of the
schedule property. The plaintiffs have produced Tax Paid
Receipts at Ex.P.8 to Ex.P.24, which shows payment of tax
in respect of the schedule property. Though the plaintiffs
have relied upon these documents, it is admitted that the
property was allotted to Smt.M.G.Padma by the KHB. The
plaintiffs have produced certified copy of Voters' List at
Ex.P.25, Broadcast License at Ex.P.26, Duplicate pension
paper order at Ex.P.27 and these documents support their
contention regarding they are residing in the schedule
property, but it is not in dispute that the plaintiffs are in
possession of the schedule property, wherein they
contended that they are in possession of the schedule
property as owners, but contesting defendants contended
64
OS. 6687/1999
C/w OS. 3480/2003
that they are the tenants in possession of the schedule
property and the 4th defendant contended that they are
squatting illegally on the schedule property.
.21. Per contra, the defendant No.4 has produced Original
Sale Deed dated 02.09.1977 at Ex.D.1, Original Sale Deed
dated 11.09.1980 at Ex.D.2,Original Sale Deed dated
29.04.2002 at Ex.D.3 and Certified copy of Sale Deed
dated 25.01.1977 at Ex.D.5 and these documents support
his contention regarding alienation of the suit schedule
property in favour of Smt.Shanthamma by KHB.
Thereafter, Shanthamma alienating the same in favour of
Sri.S.R.S.Shastri, thereafter, his wife-Seshmma alienating
the same in favour of K.B.Mahadevappa and after his
death, his wife Smt.K.P.Nagarathna alienating the same in
his favour.
65
OS. 6687/1999
C/w OS. 3480/2003
.22. The 4th defendant also produced Encumbrance
Certificate at Ex.D.6, which discloses the above said
transaction in respect of the schedule property. The
learned counsel for the defendant No.4 during the course
of arguments submitted that the plaintiffs are not the
owners of the schedule property, they are in possession of
the same as tenants under the defendants' predecessors-
in-title and subsequently, under this defendant, the
plaintiff do not drive any title to the same, since the
allottee Smt.M.G.Padma was the only allottee and she is to
be a lessee U/S.5 of the Karnataka Housing Board
(Allotment) Regulations, 1983, Smt.M.G.Padma or the
plaintiffs claiming through her cannot deny the title of the
KHB, under S.116 of Indian Evidence Act, the Board has
power to evict the persons from the possession U/S.45 of
Karnataka Housing Board Act on the grounds mentioned
therein and also relied the said provisions.
66
OS. 6687/1999
C/w OS. 3480/2003
Per contra, the learned counsel for the plaintiffs
during the course of arguments submitted that the
schedule property was allotted by the 2nd defendant in
favour of Smt.M.G.Padma in the year 1959 who lost her
husband at the early age, having no children being looking
after and maintained by her elder brother
Sri.M.G.Seetharam during her lifetime and due to his
efforts, the schedule property was allotted in favour of
M.G.Padma, who was put possession of the schedule
property after allotment, both and his family members
since the date of allotment were in possession and
enjoyment of the suit schedule property, after the death of
M.G.Padma in the year 1967, Seetharam and his family
members are in possession of the same as owners, their
possession is reflected in the Sale Deeds executed by
Shanthamma, Seshamma and in the earlier HRC
proceedings and reply notices, said M.G.Seetharam denied
the relationship of landlord and tenant and asserting he is
67
OS. 6687/1999
C/w OS. 3480/2003
the owner of the schedule property on own right, the same
was within the knowledge of the 4th defendant, 4th
defendant and his vendor are not bonafide purchasers and
the suit filed by the 4th defendant in OS.3480/2003 is
beyond 12 years and the same is barred by limitation,
etc., and also relied upon the decision reported in 2006
AIR (SC) 1786, wherein their Lordships held that:
"Limitation Act, 1963, Article 65 - Limitation -
Possession - Immovable property - Father
executing Gift Deed in favour of daughter 'A' -
Suit filed by mother against daughter 'A' which
finally resulting in compromise - Mother will
enjoy the property as long as she was alive
and after her demise, 'A' will inherit the
property - Mother executing an adoption deed
in favour of her second daughter's son 'B' and
also executing a gift deed in his favour, which
was declared illegal by trial Court - Non filing
of suit for possession by 'A' or 'A's' legal heir
with in 12 years of death of mother and suit
filed after 12 years - Barred by limitation."
68
OS. 6687/1999
C/w OS. 3480/2003
The facts and circumstances of the present case are not
applicable to the above cited decision. In the instant
cases, the defendant No.4 in OS.No.6687/1999 who is the
plaintiff in OS.No.3480/2003 claiming title and possession
of the schedule property on the basis of the registered
Sale Deed dated 29.04.2002 and also contended that
M.G.Seetharam and the plaintiffs are in possession of the
schedule property as tenants by operation of law. The
plaintiffs are claiming title over the schedule property on
the basis of allotment of the same in favour of M.G.Padma.
The said M.G.Padma being an allottee from the 2nd
defendant, she is an only lessee, the plaintiffs under her
cannot question the title of the KHB or subsequent
purchasers. Admittedly no Sale Deed was executed by the
2nd defendant in favour of allottee Smt.M.G.Padma during
her lifetime and when there being no Sale Deed in her
favour, she cannot become the owner of the schedule
69
OS. 6687/1999
C/w OS. 3480/2003
property. The allottee-M.G.Padma herself not being the
owner of the schedule property, the plaintiffs' contention
that after the death of M.G.Padma, they are the owners in
possession of the schedule property is untenable. Though
the plaintiffs have produced Certificate issued by the KEB
for having transferred the electricity installation from the
name of Padma to the name of plaintiff No.2 that itself is
not a document of title. The plaintiffs have not produced
the valid documentary evidence having derived the title to
the schedule property. On the other hand, the documents
produced by 4th defendant, the Sale Deeds at Ex.P.1 to
Ex.P.5 show transfer of title through registered Sale
Deeds. Hence, the plaintiffs in OS.No.6687/1999 and the
defendants in OS.No.3480/2003 have failed to prove that
they are the absolute owners in possession of suit
schedule property and on the death of allottee of suit
schedule property Smt.M.G.Padma, they have succeeded
and they are entitled to get the registered Sale Deed in
70
OS. 6687/1999
C/w OS. 3480/2003
their favour from defendant No.2, however proved
allotment of schedule property to Smt.Padma. On the
other hand, the defendants No.3 in OS.No.6687/1999
prove that her husband purchased the suit schedule
property under registered Sale Deed dated 11.09.1990
from Smt.Shanthamma and after his death, she became
the absolute owner of the schedule property and
defendant No.4 in OS.6687/1999 and plaintiff in
OS.No.3480/2003 prove that he is the absolute owner of
the suit schedule property by virtue of the registered Sale
Deed dated 29.04.2002, accordingly, I answered Issues
No.1 & 3 in the negative, and Issues No.4 & 5 in the
affirmative in OS.No.6687/1999 and Issue No.1 in
the affirmative & Issue No.3 partly in the
affirmative & partly in the negative in
OS.3480/2003.
71
OS. 6687/1999
C/w OS. 3480/2003
.23. ISSUES NO.2, 6 & 8 IN OS.6687/1999: The
plaintiffs contended that the defendant No.1 has illegally
transferred the Khata of the schedule property in the name
of K.B.Mahadevappa, defendant No.2-KHB without having
ownership or possession over the schedule property on
25.01.1977 through registered Sale Deed transferred the
same in favour of M.G.Shanthamma after the allotment of
the same to Smt.M.G.Padma in 1959, the said Sale Deed is
void, illegal and committed error in transferring the Khata
of the schedule property from the name of Smt.M.G.Padma
to the names of Smt.M.G.Shanthamma and S.R.S.Shastri
and later in the name of K.B.Mahadevappa in the records,
etc.
.24. Per contra, the defendants No.3 and 4 in their written
statement denied the said contention of the plaintiffs and
contended that KHB has not made any illegal allotment in
favour of Smt.M.G.Shanthamma. PW.1 in his affidavit
72
OS. 6687/1999
C/w OS. 3480/2003
evidence also stated the above said contention by
reiterating the averments of the plaint. But, PW.1 in his
cross-examination admitted that on the basis of the
documents produced by Sri.K.B.Mahadevappa, Corporation
authority has made Khata of the property in his name and
he has not filed any objections resisting the issuance of
Khata, since the allottee-Padma did not deposit the
installment amount, KHB had issued Distress Warrant
against her, till her death, KHB did not execute the Sale
Deed on the basis of the documents submitted by
Smt.Shanthamma, KHB executed Sale Deed in her favour
on 25.01.1977, during the lifetime of his father, he did not
challenge the said Sale Deed, etc. From these admissions,
their above said contention regarding transfer of Khata,
executing the Sale Deed is untenable. On the other hand,
they have not adduced satisfactory evidence how they
have right to question the transfer of Khata and execution
of the Sale Deed. Though DW.1 in his cross-examination
73
OS. 6687/1999
C/w OS. 3480/2003
stated that he has purchased the schedule property from
Smt.Nagarathna on 29.04.2002 and saw the schedule
property about 1½ months prior to registration of Sale
Deed and that that time, one Shiva Prasad was in
possession of the same and his vendor-Nagarathna was
not in possession, the plaintiffs were in actual possession
of the schedule property, etc., but, mere possession
without having any valid title, their claim that they are the
owners in possession of the schedule property, is
untenable. It is not in dispute that the KHB was the owner
of the schedule property and it has executed the Sale
Deed in favour of Smt.Shanthamma. If at all, the allottee is
aggrieved by the said Sale Deed, she could have
questioned the same, but not the plaintiffs. The learned
counsel for the plaintiffs during the course of arguments
submitted that the allottee-Smt.M.G.Padma and her
brother M.G.Seetharam were in possession of the schedule
property since from the date of allotment i.e., 1959, after
74
OS. 6687/1999
C/w OS. 3480/2003
her death, M.G.Seetharam continued to be in possession of
the same, thereafter, his Legal Representatives-present
plaintiffs are in possession of the schedule property, the
defendant No.2-KHB unilaterally cannot cancel the
allotment and in fact, there is no cancellation of allotment,
but illegally transferred the property through registered
Sale Deed in favour of Smt.M.G.Shanthamma, such
transfer is not valid and also relied upon a decision
reported in 2007 AIR Supreme Court 1529, wherein
their Lordships held that:
"Maharashtra Regional Town Planning Act,
1966, Section 159 - New Bombay Disposal of
Land Regulations, 1975, Regulation 4 -Lease
Allotment of commercial plot - Cancellation of
- Ground that allotment was in contravention
of its rules and regulation and section 23 of
the Contract Act, opposed to public policy by
not calling tenders - Held that CIDCO not
entitled to take a unilateral decision to cancel
the allotment after the Appellants had acted
75
OS. 6687/1999
C/w OS. 3480/2003
on the basis thereof and has expended large
sums of money toward construction -
Regulation allowed CIDCO to entertain
individual application as allowed in this case -
Merely by indicating that law declared by
Supreme Court universally binding under
Article 141 of the Constitution, it could not
contend that such allotment was contrary to
the public policy on a fresh consideration made
by Board of Directors upon considering the
recommendations made by Addl. Secretary
(Planning) of the State- Order set aside."
The facts and circumstances of the present case are
not applicable to the above cited decision. In the instant
case, the allottee-Smt.M.G.Padma neither questioned nor
objected for transfer of the schedule property by the 2nd
defendant in favour of Smt.Shanthamma. The defendant
No.2 being the owner of the schedule property and the
schedule property was allotted to Smt.M.G.Padma on
certain conditions and she being in possession as an
76
OS. 6687/1999
C/w OS. 3480/2003
allottee and no Sale Deed has been executed in her favour
and after her death transfer of the property in favour of
Smt.M.G.Shanthamma cannot be termed as illegal. Hence,
the plaintiffs have failed to prove that the defendant No.1
has illegally transferred the Khata and committed error in
transferring the Khata of the schedule property as alleged
by them and the defendant No.2 without having ownership
or possession has transferred the same in favour of
Smt.M.G.Shanthamma through registered Sale Deed on
25.01.1977. Hence, I answered Issues No.2, 6 & 8 in
OS.6687/1999 are in the negative.
.25. ISSUE NO.7 IN OS.6687/1999 & ISSUE NO.4
IN OS.3480/2003:
The plaintiffs in OS.No.6687/1999 and defendants in
OS.3480/2003 have contended that alternatively they are
the absolute owners of the suit schedule property by way
of adverse possession subsequent to the death of
77
OS. 6687/1999
C/w OS. 3480/2003
Smt.M.G.Padma and continued to be in possession even till
this day adversely and perfected title over the schedule
property, etc. PW.1 in his affidavit evidence also stated
regarding perfecting title by way of adverse possession
after the death of Smt.M.G.Padma, by reiterating the
averments of the plaint.
.26. The learned counsel for the defendant No.4 in
OS.No.6687/1999, the plaintiff in OS.No.3480/2003, during
the course of arguments submitted that the plaintiffs are in
illegal possession of the schedule property, the pleadings
regarding adverse possession are vague, as to when
possession become adverse, mere pleading regarding
wrongful possession is not an adverse possession, the
plaintiff's suit in OS.No.3480/2003 is based on title for
possession, the plaintiffs are unauthorisedly squatting on
the schedule property cannot take plea of adverse
possession alleging inaction within a limitation is irrational
78
OS. 6687/1999
C/w OS. 3480/2003
and are in wrongful possession of the property of the true
owner, etc., and also relied upon the following decisions
in:
MANU/SC/1147/2011, wherein their Lordships held
that:
"32. Before parting with this case, we deem it
appropriate to observe that the law of adverse
possession which ousts an owner on the basis
of inaction within limitation is irrational,
illogical and wholly disproportionate. The law
as it exists is extremely harsh for the true
owner and a windfall for a dishonest person
who had illegally taken possession of the
property of the true owner. The law ought not
to benefit a person who in a clandestine
manner takes possession of the property of
the owner in contravention of law. This in
substance would mean that the law gives seal
of approval to the illegal action or activities of
a rank trespasser or who had wrongfully taken
possession of the property of the true owner."
79
OS. 6687/1999
C/w OS. 3480/2003
MANU/SC/0236/1964, wherein their Lordships held
that:
"Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
limitation against the party affected can be
found. There is no evidence here when
possession became adverse. If at all did, and a
mere suggestion in the relief clause that there
was an uninterrupted possession for "several
12 years" or that the plaintiff had acquired an
absolute title" was not enough to raise such a
plea. Long possession is not necessarily
adverse possession and the prayer clause is
not a substitute for a plea."
MANU/SC/0884/1998, wherein their Lordships held
that:
"It is therefore, obvious that when suit is
based on title for possession, once title is
established on basis of relevant documents
80
OS. 6687/1999
C/w OS. 3480/2003
and other evidence unless defendant proves
adverse possession for prescriptive period,
plaintiff cannot be non-suited."
.27. Per contra, the learned counsel for the plaintiffs in OS
No.6687/1999 and defendants in OS No.3480/2003 during
the course of arguments submitted that the allotte-
Smt.M.G.Padma and her brother-Sri.M.G.Seetharam were
in possession of the schedule property since the date of
allotment in 1959 and after the death of allottee, his
brother M.G.Seetharam continuously, uninterruptedly in
possession of the same as owner, thereafter his demise
the present plaintiffs continued to be owners in possession
of the schedule property, M.G.Seetharam had denied the
title of Smt.M.G.Shanthamma, Smt.Seshamma through
replies at Ex.P.32 dated 26.04.1977 and at Ex.P.34 dated
05.05.1978 respectively and also denied the landlord and
tenant relationship through the reply to the notice of
defendant No.4 at Ex.P.59, the plaintiffs have perfected
81
OS. 6687/1999
C/w OS. 3480/2003
their title by adverse possession and as such, they became
owners of the schedule property, etc., and also relied upon
the following decisions:
1993- 4 Supreme Court Cases 375,
wherein their Lordships held that:
"Limitation Act, 1963 Art.65 -Immovable
property - Appellants in possession and
enjoyment of property for over 30 years
without any let or hindrance - Appellants
shown as owners in the entries in revenue
records - Possession of appellants adverse to
the right of the respondent - Whether the
appellants perfected their title by prescription?
- Held yes."
AIR 1965 Supreme Court 295, wherein
their Lordships held that:
"Transfer by ostensible owner- One co-sharer
put in management of property - No estopped
can be raised against other co-sharers
precluding them from asserting their rights."
82
OS. 6687/1999
C/w OS. 3480/2003
The facts and circumstances of the present case are not
applicable to the above cited decisions, since the parties
who pleaded adverse possession have not admitted the
ownership of the opposite party to claim title by adverse
possession. In replies at Ex.P.32 dated 26.04.1977 and at
Ex.P.34 dated 05.05.1978, Sri.M.G.Seetharam has denied
the title of Smt.M.G.Shanthamma, Smt.Seshamma and in
the plaint also denied the title of the defendant No.2,
admittedly who was the owner of the schedule property.
In reply to the notice of defendant No.4, the relationship of
land lord and tenancy is also denied. They having not
admitted the title of the property do not claim title by
adverse possession. Hence, the plaintiffs in
OS.No.6687/1999 have failed to prove that they are the
absolute owners of suit property and have perfected their
title by way of adverse possession subsequent to the death
of Smt.M.G.Padma and continued to be in possession even
to this day adversely as alleged and also the defendants in
83
OS. 6687/1999
C/w OS. 3480/2003
OS.No.3480/2003 have failed to prove that they are the
absolute owners of the suit property by way of adverse
possession and perfected their title after the death of
Smt.M.G.Padma, which took place in the year 1967 as
pleaded by them, accordingly, Issue No.7 in
OS.No.6687/1999 and Issue No.4 in OS.3480/2003
are answered in the negative.
.28. ISSUE NO.9 IN OS.NO.6687/1999: The
defendants No.3 and 4 contended that the Sale Deeds in
their favour are binding on the plaintiffs. The defendants
No.3 and 4 have produced their Sale Deeds at Ex.D.2 and
Ex.D.3 respectively, wherein, LRs. of Seetharam who are
the present plaintiffs are not parties to the said Sale
Deeds. Hence, the contention of these defendants that the
said Sale Deeds are binding on the plaintiffs is untenable.
However, both the Sale Deeds being registered
documents, they cannot be termed as illegal documents.
84
OS. 6687/1999
C/w OS. 3480/2003
Hence, the defendants No.3 and 4 prove that the Sale
Deeds executed in their favour are legally executed, but
failed to prove that they are binding on the plaintiffs as
alleged. Hence, I answered Issue No.9 partly
affirmative.
.29. ISSUE NO.2 IN OS.NO.3480/2003: The plaintiff
contended that the defendants are tenants under him by
operation of law, etc. It is not in dispute regarding HRC
proceedings in HRC.No.2142/1980 and disposal of the said
proceedings. From Ex.P.31-Legal Notice dated 04.04.1997
goes to show that Smt.M.G.Shanthamma and
Sri.M.G.Seshadri have issued notice to Sri.M.G.Seetharam
stating about the tenancy in respect of the schedule
property, non-payment of rent and calling upon to deliver
vacant possession of the premises. From Ex.P.33 Legal
Notice dated 02.04.1978 goes to show that
Smt.Seshamma has issued Legal Notice to
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Sri.M.G.Seetharam stating about the tenancy in respect of
the schedule property, non-payment of rent and calling
upon to vacate the premises, etc. From Ex.D.4 - Office
copy of Lawyer notice dated 20.02.2003 goes to show that
the defendant No.4 in OS.No.6687/1999 has issued a Legal
Notice to the plaintiffs stating about the sale transactions
between his predecessors-in-title, M.G.Seetharam
becoming tenant under them, HRC proceedings, alienation
of the schedule property in his favour by the wife and
children of K.B.Mahadevappa through registered Sale Deed
dated 29.04.2002 by operation of Sec.109 of the T.P. Act
becoming tenant under him, non-payment of rent,
terminating the tenancy and calling upon them to pay
arrears of rent, quit, vacate and deliver vacant possession
of the premises, etc. In the Sale Deeds at Ex.D.1 and
Ex.D.2 respective vendors also stated regarding to inform
Sri.M.G.Seshadri to attorn the tenancy in favour of the
purchaser. In Ex.D.3-Sale Deed also stated that the
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schedule property is in possession of the tenant.
Considering the above said recitals in the Sale Deed, the
defendant No.4 having purchased the schedule property,
the plaintiffs become tenants under him by operation of
law. On the other hand, the plaintiffs who are in
possession of the schedule property have not adduced
satisfactory evidence, in what capacity, they are in
possession of the same, since they have only contended
that they continued to be in possession of the schedule
property as owners on own right without producing
satisfactory documentary evidence in support of the said
contention. Hence, the plaintiff has proved that the
defendants are his tenants in the suit schedule property as
alleged, accordingly, I answered Issue No.2 in
OS.3480/2003 in the affirmative.
.30. ISSUE NO.7 IN OS.3480/2003: The plaintiff has
prayed mesne profits. But, the plaintiff has not pleaded in
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detail regarding mesne profits. Without pleading and
satisfactory evidence, the plaintiff is not entitled for the
mesne profits. Hence, the plaintiff is not entitled for mesne
profits. Hence, I answered Issue No.7 in
OS.3480/2003 in the negative.
.31. ADDITIONAL ISSUE NO.1 IN OS.6687/1999:
The defendant No.4 in the written statement
contended regarding suit is bad for mis-joinder and non-
joinder of necessary parties. Though he contended the
same, not pleaded regarding who are the mis-joinder and
non-joinder of the parties. Mere pleading is not sufficient
without proving the same. Hence, the suit is not bad for
mis-joinder or non-joinder of necessary parties,
accordingly, I answered Additional Issue No.1 in the
negative.
.32. ISSUES NO.10 & 11 IN OS.6687/1999:
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The plaintiffs in OS.No.6687/1999 have filed this suit
against the defendants for Declaration to declare that they
are the absolute owners in possession of the plaint
schedule property and for Mandatory Injunction directing
the 1st defendant- Commissioner, Corporation of the City of
Bengaluru to make or transfer Khata of the plaint schedule
property in their favour in the records of Corporation by
canceling the existing Khata in the name of
K.B.Mahadevappa and also issue Khata Certificate,
rectifying the change of Khata in their names, to direct the
2nd defendant to execute registered Sale Deed in their
favour and transfer Khata in their names in the records of
Karnataka Housing Board in respect of the schedule
property and costs, etc. The plaintiffs having failed to
prove that they are the owners of the schedule property,
Khata transferred illegally as alleged by them, they are not
entitled for the relief of declaration and Mandatory
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Injunction as prayed, accordingly, I answered Issues
No.10 & 11 in the negative.
.33. ISSUES NO.5 & 6 IN OS.3480/2003:
The plaintiff has filed the suit against the defendants
for declaration declaring that he is the absolute owner of
the suit schedule property and for possession of the same,
enquiry into mesne profits from the date of suit till delivery
of possession and costs, etc. The plaintiff having proved
that he is the owner of the schedule property, the
defendants in this suit and the plaintiffs in OS.6687/1999
are in possession of the schedule property as tenants and
unauthorizedly squatting on the same, is entitled for the
relief of declaration and possession of the suit schedule
property, accordingly, I answered Issues No.5 & 6 in
OS.3480/2003 in the affirmative.
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.34. ISSUE NO.12 IN OS.NO.6687/1999 & ISSUE
NO.8 IN OS.NO.3480/2003: In view of the reasons
and discussions on the above Issues No.1 to 11 &
additional Issue No.1 in OS.No.6687/1999 and Issue No.1
to 7 in OS.No.3480/2003, I proceed to pass the following:
ORDER
Suit filed by the plaintiffs in OS.6687/1999 is hereby dismissed.
Suit filed by the plaintiff in OS.3480/2003 is hereby decreed as under:
It is hereby declared that the plaintiff is the absolute owner of the suit schedule property and is entitled for the possession of the same.
The defendants are directed to deliver vacant possession of the suit schedule property in favour of the plaintiff within three months from today, failing 91 OS. 6687/1999 C/w OS. 3480/2003 which, the plaintiff is at liberty to take vacant possession of the same from the defendants in accordance with law.
Both parties shall bear their own costs. Draw decree accordingly.
(Keep the original judgment in OS.No.6687/1999 and copy of the same in OS.No.3480/2003).
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 27th day of August 2016.) (JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS IN BOTH THE SUITS:
PW.1 -M.S.Shiva Prasad S/o. Late Sri.M.G.Seetharam.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFFS IN BOTH THE SUITS:92
OS. 6687/1999 C/w OS. 3480/2003 Ex.P.1 Copy of application dated 04.01.2010 given by Smt.Geetha to the Accounts Officer.
Ex.P.1(a) Endorsement of KHB. Ex.P.2 Khata Extract from 1972-73 to 1976-77. Ex.P.3 Form No.9 issued by ADLR. Ex.P.4 Receipt for having paid Rs.200.50 of survey of the land.
Ex.P.5 Distress Warrant dated 05.03.1969 issued to Smt.M.G.Padma demanding the property tax.
Ex.P.6 Show Cause Notice dated 12.10.1975 issued to Padma.
Ex.P.7 Another show cause notice dated 29.12.1973.
Ex.P.8 to Tax Paid Receipts issued in the name of Ex.P.24 M.G.Padma.
Ex.P.25 Certified copy of Voters' List of the year 1988.
Ex.P.26 Broadcast licence issued to father of PW.1. Ex.P.27 Duplicate Pension papers orders issued on 19.10.1992 by Accounts Officers of KEB, Bengaluru addressed to Seetharam. Ex.P.28 Death Certificate of Smt.M.G.Padma. Ex.P.29 Death Certificate of Seetharam. Ex.P.30 Certificate issued by AEE, KEB for having transferred the electrical installation from the name of Padma to M.S.Shiva Prasad (PW.1).
Ex.P.31 Legal Notice dated 04.04.1997 issued by M.G.Shanthamma.
Ex.P.32 Copy of reply notice. Ex.P.33 Notice dated 02.04.1978 issued to Seetharam on behalf of Sheshamma.
93OS. 6687/1999 C/w OS. 3480/2003 Ex.P.34 Reply sent by Seetharam. Ex.P.35 & Postal Acknowledgments. Ex.P.36 Ex.P.37 & Postal Receipts. Ex.P.38 Ex.P.39 Notice issued to the Chairman, KHB and to the Commissioner.
Ex.P.40 One more notice (copy) to the Commissioner, KHB Ex.P.41 to Postal Acknowledgments. Ex.P.43 Ex.P.44 Copy of Legal Notice dated 16.01.1999 issued to the Commissioner, BMP. Ex.P.45 Copy of application for change of Khata. Ex.P.46 Copy of Notice dated 05.04.1983 issued to the Commissioner, BMP.
Ex.P.47 Acknowledgment issued by the Corporation.
Ex.P.48 Notice sent to Nagarathnamma by registered post and the postal receipt. Ex.P.49 Copy of Legal Notice dated 25.06.1999. Ex.P.50 Postal Acknowledgment. Ex.P.51 Certified copy of Petition filed in HRC No.1767/1978.
Ex.P.52 Certified copy of objection statement filed by Seetharam.
Ex.P.53 Certified copy of Order sheet of Eviction PetitionNo.2142/1980.
Ex.P.54 Certified copy of Memo filed in the petition by the advocate for petitioner. Ex.P.55 Certified copy of petition filed in HRC No.1597/1990 filed by Nagarathna against Seetharam.
Ex.P.56 Certified copy of objections. Ex.P.57 Certified copy of Order sheet of HRC 94 OS. 6687/1999 C/w OS. 3480/2003 1597/1990.
Ex.P.58 Entire file pertaining to the proceedings produced by the defendant No.2. Ex.P.59 Copy of Legal Notice. Ex.P.60 Acknowledgment.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS IN BOTH THE SUITS:
DW.1 -Manohar P. Asrani S/o. Late Pamandas Asrani. DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS IN BOTH THE SUITS:
Ex.D.1 Original Sale Deed dated 02.09.1977. Ex.D.2 Original Sale Deed dated 11.09.1980. Ex.D.3 Original Sale Deed dated 29.04.2002. Ex.D.4 Office copy of Lawyer notice dated
20.02.2003.
Ex.D.5 Certified copy of Sale Deed dated 25.01.1977.
Ex.D.6 Encumbrance Certificate.
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
95 OS. 6687/1999 C/w OS. 3480/2003