Bangalore District Court
Basanna T M C vs The Commissioner Bda on 25 September, 2025
1
O.S. No.4626/2008
KABC010129972008
C.R.P.67 Govt. of Karnataka
Form No.9
(Civil)
Title Sheet for
Judgments in
Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XL ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-41)
::Present::
Smt. Veena N., B.A.L. L.L.B.,
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this 25th day of September, 2025.
O.S. No.4626/2008
PLAINTIFFS :: 1. Sri. T.M.C. Basanna Since deceased by his
LRs.
:: 1(a) Smt. Rudrani Basanna, Aged about 78
years, R/at: No.302, Devansh Villa, Dr.
Raghunath Road, Off S.V.Road, St. Martin
Road, Bandra (West) Mumbai - 400 050.
2
O.S. No.4626/2008
1(b) M/s. Bindu Basanna, D/o. Late. T.M.C.
Basanna, Aged about 51 years, R/at: No.302,
Devansh Villa, Dr. Raghunath Road, Off
S.V.Road, St. Martin Road, Bandra (West)
Mumbai - 400 050.
:: 1(c) Smt. Indira Yogish, D/o. Late. T.M.C.
Basanna, Aged about 53 years,
R/at: No.106, Sanford Place, Apartment No.1,
Jersey City, New Jersey - 07307.
:: 1(d) M/s. Shuba Basanna, D/o. Late. T.M.C.
Basanna, Aged about 48 years, R/at: No.133,
Preston hill, Harrow, Middlesex, HA3 9XE.
(By Sri. N.Dinesh Rao, Advocate)
V/s.
DEFENDANTS :: 1. The Commissioner, Bengaluru
Development Authority, Chowdaiah Road,
Bengaluru.
:: 2. The Commissioner, Corporation of City of
Bengaluru (B.B.M.P.), Bengaluru.
:: 3. Late. S.S.Usha W/o. S.Srinath, Aged about
59 years, By her G.P.A. Holder S.S.Kishor,
S/o. S.L.Shankaran, Aged about 50 years,
Flat No.205/A, 2nd Floor, Rajaprakruthi
Apartment, 10th Main, 4th Cross, Jayanagara
1st Block, Bengaluru - 560 011.
Since deceased by her legal representatives
3
O.S. No.4626/2008
:: 3(a) Srikantaiya Srinath, S/o. Srikantaiya
Srinath, Flat No.205/A, 2nd Floor,
Rajaprakruthi Apartment, 10 Main, 4 Cross,
th th
Jayanagar, 1st Block, Bengaluru - 560 011.
:: 3(b) Nikhil Srikanth, S/o. Srikantaiya Srinath,
Flat No.205/A, 2nd Floor, Rajaprakruthi
Apartment, Jayanagar, 1st Block, Bengaluru -
560 011.
Defendants No.3(a) and 3(b) are Presently
R/at: No.11, Royal Manor Somers,
Connecticut, United States of America.
:: 4. L.Nanju, Aged about 74 years,
S/o. Late. Linganna,
:: 5. L.Siddaraju, Aged about 78 years,
S/o. Late. Linganna,
:: 6. L.Prakash, Aged about 70 years,
S/o. Late. Linganna,
:: 7. Smt. Sandhya, Aged about 56 years,
W/o. Late. Dhananjaya,
:: 8. L.Satish, Aged about 64 years,
S/o. Late. Linganna,
:: 9. S.Sadanand, Aged about 72 years,
S/o. Late. Linganna,
Defendants No.4 to 9 are all
R/at: No.24/4, 2nd Cross, Appu Rao Road, 6th
Main Road, Chamarajpet, Bengaluru - 560
018.
4
O.S. No.4626/2008
:: 10. N.Prathap Kumar, S/o. Sri. Nanjappa,
Aged about 62 years, R/at: No.32, 3 rd Cross,
16th C-Main, 4th Block, Koramangala,
Bengaluru - 560 034.
(By Smt. M.Poornima Adv. for D-1)
(By Sri. P.Prakash Babu Adv. for D-2)
(By Sri. S.K.Nagaraj Adv. for D-3(a-b))
(D-4 - Dead) (By Sri. H.R.Praveen Kumar,
Adv. for D- 5 to 9)
(By Sri. T.P.Vivekananda Adv. for D-10)
Date of Institution of the :: 14-07-2008
Suit
Nature of the Suit :: DECLARATION AND
INJUNCTION
Date of commencement of :: 04-03-2010
recording of evidence
Date on which the :: 25-09-2025
Judgment was pronounced
Total Duration :: Year/s Month/s Day/s
17 02 11
(VEENA N.)
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
5
O.S. No.4626/2008
JUDGMENT
Suit is one for declaration that agreement of re- conveyance dated 12.01.1973 executed by defendant No.1 in favour of defendant No.3 and registered Sale Deed dated 16.05.2005 as null and void and non-est in the eye of law and to direct defendant No.1 to re-convey the schedule property in favour of plaintiff and to direct defendant No.2 to cancel the khata of schedule property made in favour of defendant No.3 and to declare that the sale deed dated 11.12.2014 executed by defendant No.3(a) and (b) in favour of defendant No.10 is null and void and for consequential relief of permanent injunction.
2. Case of the plaintiffs in brief is as hereunder:-
One Late. Sri. L.Linganna S/o. Late. Sri. L.Lingappa was the absolute owner of the immovable property bearing Sy. No.2, Plot No.3A having purchased the same from the member of erstwhile royal family of 6 O.S. No.4626/2008 Rajmahal Vilas. After purchase, he formed 36 sites each measuring 43 ft. X 65 ft. Later, the CITB through the Government of Mysore initiated acquisition proceedings of the land during 1959 and the acquisition proceedings was challenged before the Hon'ble Supreme Court and finally, the acquisition was upheld by the Hon'ble Apex Court. In the interregnum period, the CITB formed 16 sites each measuring 60X90 ft. and by virtue of resolution dated 20.12.1967 decided to re-convey the land to Sri. Linganna and on 31.03.1970 out of all the said 16 sites, only 15 sites were re-conveyed in favour of Sri. L.Linganna who subsequently paid necessary reconveyance charges to the CITB. The plaintiff entered into an agreement of sale on 18.12.1969 with Sri. L.Linganna to purchase suit schedule property and secured physical possession of the schedule property. But since the plaintiff was residing abroad, he could not get the necessary sale deed executed in his favour and 7 O.S. No.4626/2008 hence, Late. Sri. Linganna before his demise executed a WILL on 11.06.1984 bequeathing the schedule property to the plaintiff. In the month of August 2005, the plaintiff with a view to put up construction approached defendant No.1 and only then he learnt that the defendant No.1 has executed reconveyance deed dated 12.01.1973 in favour of the defendant No.3 and after lapse of 32 years has executed a registered Sale Deed dated 16.05.2005 in favour of defendant No.3. Being aggrieved by the fraudulent act on the part of defendant No.1, the plaintiff filed W.P. No.5748/2006 which is still pending for consideration. The defendant No.1 had admittedly reconveyed several sites including the schedule property in favour of Sri. L.Linganna way back in the year 1970 and had collected reconveyance charges from him and so the defendant No.1 had no right to reconvey the schedule property in favour of defendant No.3. Based on the fraudulent representation made by one Sri. 8 O.S. No.4626/2008 B.N.Jayadeva stating that the father of defendant No.3 had purchased the schedule property under sale deed dated 15.10.1965, the defendant No.1 had illegally reconveyed the schedule property in favour of defendant No.3. The defendant No.3 in W.P. No.5748/2006 has contended that one Sri. Sanathana Murthy purchased revenue site Nos.19, 20, 28 and 29 each measuring 43X65 ft. from Sri. L.Linganna and likewise, the father of defendant No.3 Sri. S.L.Shankaran had purchased revenue sites No.21, 22, 30 and 31 from Sri. L.Linganna on the same day dated 22.12.1958. The revenue sites purchased by Sri. Sanathana Murthy in site No.19 and 20 was numbered as site No.160 and revenue site No.22 purchased by the father of defendant No.3 was numbered as 161 and upon mutual understanding site No.160 and 161 were mutually exchanged between them and consequently site 160 was reconveyed in favour of defendant No.3. It is the contention of the plaintiff that 9 O.S. No.4626/2008 there are no documents to show revenue sites purchased by Sri. Sanathana Murthy and Sri. S.L.Shankaran were assigned site No.160 and 161 and there is no proof or document about any exchange deed made in between them and so the act on the part of defendant No.1 in re-conveying the schedule property to the defendant No.3 is against law. It is stated that site No.161 which was reconveyed was sold to one Sri. B.N.Jayadeva on 14.08.1972 by Sri. Sanathana Murthy and so question of exchanging the same site by defendant No.3 with the very same Sri. Sanathana Murthy does not arise and further, Sri. S.L.Shankaran died on 03.09.1970 and so the question of exchange in 1973 does not arise and thus, the act on the part of defendant No.1 in re-conveying the schedule property to defendant No.3 fraudulently has resulted in denial of right of re-conveyance of Sri. L.Linganna over the schedule property. Further, defendant No.3(a) and (b) 10 O.S. No.4626/2008 have sold the property in favour of defendant No.10 on 11.12.2014 during pendency of the suit. The cause of action arose when the plaintiff learnt about the fraudulent act of defendant No.1 in illegally re-conveying the schedule property and on the date when sale deed was executed in favour of defendant No.10 and hence, the suit.
3. In pursuance to the summons issued the defendants No.1 to 10 caused appearance. However, the defendants No.1 and 2 have not chosen to file their written statement. The defendant No.3 in her written statement has admitted the purchase of suit schedule property by Sri. L.Linganna and as to the formation of 36 sites each measuring 43 ft. X 65 ft. in Sy. No.2 and also admits the acquisition proceedings under taken by CITB and that it was challenged before the Hon'ble Supreme Court, which upheld the acquisition and it is also 11 O.S. No.4626/2008 admitted that the CITB had formed 16 sites and by passing resolution dated 20.12.1967 decided to reconvey the land in favour of Sri. L.Linganna and on 31.03.1970 re-conveyed 15 sites out of 16 sites in favour of Sri. L.Linganna. But defendant No.3 has denied the execution of agreement of sale dated 18.12.1969 by Sri. L.Linganna with the plaintiff and as to the execution of the WILL dated 11.06.1984. It is stated that one Sri. L.Linganna under deed of sale dated 30.10.1958 purchased plot No.3 measuring 280 ft. X 390 ft. from Smt. Rani Saheb Kotada Sangani. Immediately, he formed layout comprising 36 residential sites bearing No.1 to 36 each measuring 43 X 65 ft. The defendant No.3 has narrated the details of the private layout formed by Sri. L.Linganna and as to the corresponding B.D.A. numbers allotted to the sites. The details of private layout and the corresponding CITB sites is given as hereunder : 12
O.S. No.4626/2008 1 & 2 = 158 19 X 20=160A 3 & 4 = 157 21 & 22 = 161A 15 & 16 = 156 24 & 25 =162A 8 & 9 = 155 26 & 27 = 164 10 - 11 = 159 28 & 29 = 160 12 - 13 = 157 30 & 31 = 161 15 - 16 = 156 33 & 34 = 162 17 - 18 = 155 35 & 36 = 163
4. It is stated that Sri. L.Linganna under a deed of sale dated 22.12.1958 sold site Nos.19, 20, 28 and 29 each measuring 65X43 ft. in favour of one Sri. Sanathana Murthy and placed him in possession of the same. On the same day, under deed of sale dated 22.12.1958 he sold sites No.21, 22, 30 and 31 each measuring 43X65 ft. in favour of Sri. S.L.Shankaran i.e. the father of defendant No.3. After 10 months of the purchase, the CITB published preliminary notification dated 14.10.1959 and vast extents of land of Rajamahal 13 O.S. No.4626/2008 village was proposed to be acquired including the plots belonging to Smt. Rani Saheb which had by then sold in favour of Sri. L.Linganna who had formed sites and sold to various persons including the father of defendant No.3. The acquisition proceedings were challenged before the Hon'ble Apex Court, which confirmed the acquisition proceedings under order dated 11.12.1965.
Pursuant to the acquisition proceedings CITB formed sites. As per the sketch prepared by the CITB site No.28 and 29 sold in favour of Sri. Sanathana Murthy is numbered as 160 and site No.19 and 20 is presently numbered as 160/A and the remaining 2 sites No.21 and 22 are numbered as site No.161 and site No.30 and 31 are numbered as site No.161/A. In the meanwhile, the Government addressed a letter dated 27.07.1961 directing CITB to reconvey the lands in the acquired area to the owners from whom it was acquired keeping such portion as is necessary to form the layout. Accordingly, 14 O.S. No.4626/2008 on 20.12.1967 CITB resolved to take up cases of all those persons who had purchased the property which was subjected to notification and reconvey their respective revenue sites to them subject to conditions regarding payment of layout charges. In terms of the said resolution CITB resolved to reconvey site No.160 and 161 in favour of Sri. Sanathana Murthy and Sri. S.L.Shankaran respectively. By that time, the father of defendant No.3 had expired and as per the understanding arrived between the heirs of Sri. S.L.Shankaran, site No.161 was agreed to be given to defendant No.3 and simultaneously Sri. Sanathana Murthy was eligible for site No.160 and defendant No.3 was eligible for site No.161 and accordingly, on their request site No.160 i.e. suit schedule property was reconveyed to defendant No.3 under reconveyance agreement dated 12.01.1973. Accordingly, she was placed in possession of suit schedule property and thus, 15 O.S. No.4626/2008 she became the absolute owner of the suit schedule property having acquired through her father under earlier sale deed dated 22.12.1958.
5. It is stated that Sri. L.Linganna having sold his rights in respect of site No.28 and 29 being the present B.D.A. site No.160 under registered Sale Deed dated 22.12.1958 prior to preliminary notification, he had no right to enter into an agreement of sale in respect of site No.160 in favour of the plaintiff. It is stated that when CITB published in the newspapers about the sale of sites bearing No.156 and 157, Sri. L.Linganna filed O.S. No.446/1973 seeking relief of specific performance to reconvey site No.156 and 157 which formed part of revenue layout and the suit came to be dismissed on 01.08.1973. Being aggrieved by the judgment and decree he filed R.A. No.100/1973 which came to be allowed on 31.01.1974 directing CITB to reconvey site 16 O.S. No.4626/2008 No.156 and 157. Thus, Sri. L.Linganna paid betterment charges in the year 1976. Having sold all the revenue sites except site No.156 and 157 Sri. L.Linganna restricted his claim only in respect of two sites. Since he had sold revenue sites No.28 and 29 in the year 1958 itself, he did not have any right in respect of site No.28 and 29 which was later renumbered as site No.160 and as such, Sri. L.Linganna could not have agreed to sell the site in favour of plaintiff. If such an agreement has been entered into between Sri. L.Linganna and plaintiff, it is executed by a person who did not have title to that property and as such, no right was created in favour of the plaintiff. It is further stated that CITB, acting on the representation made by the purchasers of the sites prior to acquisition in so far as it relates to the plot of Sri. L.Linganna is concerned, decided to reconvey 15 sites each measuring 90 ft. X 60 ft. as could be gathered from the letter dated 27.03.1970. Further the said Linganna 17 O.S. No.4626/2008 filed W.P. No.270/1971 seeking for reconveyance of site No.155, which was dismissed as withdrawn. He filed O.S. No.446/1973 and sought for reconveyance of site No.156 and 157 and restricted his claim to site No.156 and 157 only. It is stated that B.D.A. has reconveyed 12 sites and is yet to reconvey 4 more sites. It may not be correct, as the B.D.A. had agreed to reconvey 15 sites out of which 12 sites already had been reconveyed and in the said writ petition No.270/1971, the B.D.A. had agreed to reconvey site No.155. Therefore, total sites reconveyed and agreed to reconvey added to 13 sites leaving a balance of 2 sites, i.e. site No.156 and 157 and when site No.156 and 157 were kept for public auction. Sri. L.Linganna filed O.S. No.446/1974 restricting that B.D.A. had by then reconveyed 13 sites, leaving only site No.156 and 157, in respect of which a decree was passed in R.A. No.100/1973. It is clear that Sri. L.Linganna had no issue with regard to reconvey of 18 O.S. No.4626/2008 petition site No.160. Thus, the plaintiff cannot the maintain the suit as no interest is created in favour of the plaintiff under the agreement of sale dated 13.12.1969 and the present suit is filed with an intention to knock off the valuable property belonging to this defendant No.3 and thus, contending these facts sought for dismissal of suit.
6. The defendant No.9 has filed written statement and the same is adopted by defendants No.5 to 8 by filing memo of adoption. These defendants have in their written statement admitted that one Mr. L.Linganna was the absolute owner of the suit schedule property and he had challenged the acquisition proceedings before Hon'ble High Court of Karnatakka and he had also preferred appeal before Hon'ble Supreme Court and the matter ended in compromise. As per the terms of compromise, the CITB had agreed to 19 O.S. No.4626/2008 reconvey 16 sites measuring 60 X 90 ft. to L. Linganna. The BDA has not at all reconveyed any of the sites and thus the successors of Linganna made application to get all the 16 sites reconveyed to their name. It is denied that CITB vide resolution dated 20.12.1967 decided to reconvey 16 sites, but 15 sites were reconveyed on 30.03.1970. On the contrary, the CITB did not reconvey 16 sites bearing No.155, 155/A, 156/A, 157/A, 158, 159, 160, 160/A, 161, 161/A, 162, 162/A, 163, 164, 156 and 157 to land owner and for which in LA Mis. No.75/1967 dated 01.12.1969, there was a direction to CITB to reconvey the aforesaid 16 sites. On the basis of the order passed in the said case, Linganna has paid reconvey charges. But so far, the CITB did not reconvey 16 sites even till today.
7. It is further contended that L.Linganna during his lifetime has not executed any sale agreement in the 20 O.S. No.4626/2008 name of plaintiff and the agreement relied upon by the plaintiff is a fabricated document created for the purpose of filing the present suit to knock off the property of Linganna. When the plaintiff was an alien to Linganna, the question of executing the last WILL bequeathing the schedule property does not arise. The plaintiff has fabricated the WILL to knock off the schedule property and on the contrary the schedule property is the exclusive property of these defendants as well as the other successors of L.Linganna.
8. It is further contended that the Sri. L.Linganna on the basis of the order dated 01.12.1969 has paid the reconvey charges to CITB, but so far 16 sites have not been reconveyed to Sri. L.Linganna till his death and after his death the BDA did not execute the deed of conveyance of all the 16 sites either in the name of this defendant or the other successors of Sri. 21 O.S. No.4626/2008 L.Linganna. The defendant No.1 did not have any right to reconvey the schedule property to the defendant No.3 and the said reconveyance is a nullity and not binding on the successors of Sri. L.Linganna. In this regard, the successors of Sri. L.Linganna have sent notice to defendant No.1 and so far, no reconveyance deed has been executed in favour of the successors of Sri. L.Linganna. So far as site Nos.21 and 22 purchased by the father of defendant No.3 and was assigned No.161 and the defendant No.1 had promised to convey, site Nos.160 and 161 are all denied by these defendants. It is stated that after formation of lay out on the land purchased by Sri. L.Linganna, CITB notified the land and the revenue site purchasers have not at all produced their sale deeds, nor claimed their ownership and possession to their respective shares, nor claimed from defendant No.1 or CITB at any point of time. By virtue of the acquisition, the previous revenue site purchasers 22 O.S. No.4626/2008 have lost their title and ownership, as they did not challenge the notification. As such, the previous owner Sri. L.Linganna alone has got the order from the Hon'ble Supreme Court, and as such, the question of defendant No.1 conveying any site in the name of father of defendant No.3 does not arise. However, the defendant No.3 and other third parties have played fraud and got the reconveyance for some of the sites from defendant No.1 BDA and hence, the reconveyance made by defendant No.1 is a nullity and the legal heirs of Sri. L.Linganna have already called upon the defendant No.1 BDA to reconvey all the 16 sites. Thus, the reconveyance made by defendant No.1 is not legal and the same is not binding on these defendants. Since Sri. L.Linganna during his lifetime has not entered into any agreement of sale or executed any WILL in the name of plaintiff, the plaintiff is not entitled for any relief claimed and he has not approached the Court with clean hands 23 O.S. No.4626/2008 and the plaintiff has no manner of right, title and interest whatsoever over the schedule property as well as on the other 16 sites belonging to Sri. L.Linganna.
9. It is stated that the plaintiff is not entitled for relief of declaration. However, these defendants have no objection to cancel the reconveyance agreement dated 12.01.1973, as this defendant and other successors of Sri. L.Linganna are alone entitled for the benefit of reconveyance and the said benefit be ordered to be given to this defendant and other successors. So far as, the cancellation of sale deed dated 17.05.2005 is a nullity and requires to be declared as null and void and the benefit of such cancellation shall be given to these defendants. The relief of direction to convey the schedule property in favour of plaintiff cannot be granted and relief of cancellation of khata standing in the name of defendant No.3 is concerned, it is already been 24 O.S. No.4626/2008 cancelled by the revenue authorities and endorsement has also been issued and since the successors of Sri. L.Linganna are in possession of the schedule property and they are the owners of the schedule property the relief of permanent injunction cannot be granted in the absence of possession and ownership of the plaintiff over the schedule property and thus contending these facts sought for dismissal of suit.
10. The defendant No.10 has filed written statement wherein which he has contended that the suit is barred by law of limitation. It is further contended that suit is hit by the principle of constructive resjudicata as the plaintiff had filed W.P. No.5748/2006 against BDA and others including this defendant before Hon'ble High Court and the said writ Petition came to be dismissed as withdrawn and at the time of filing the memo for withdrawal, the plaintiff had not sought leave of the 25 O.S. No.4626/2008 Hon'ble High Court to approach Civil Court and as such, the suit of the plaintiff is hit by Order II Rule 2(2) of C.P.C.
11. It is admitted that, Sri. Lingappa was the absolute owner of Sy. No.2, Plot No.3A and he had formed a private revenue residential layout forming 36 sites and it is also admitted that in the year 1959 CITB initiated acquisition proceedings and the acquisition was upheld by Hon'ble Supreme Court and in the meanwhile, the CITB had formed 16 sites measuring 60 X 90 ft. and by the resolution dated 20.12.1967 decided to reconvey the land to Sri. L.Linganna and on 31.03.1970 out of 16 sites, 15 sites were reconveyed in favour of Sri. L.Linganna. The other averments made in the plaint are categorically denied by this defendant and he has seriously denied the execution of agreement of sale dated 18.12.1969 in favour of the plaintiff and the alleged 26 O.S. No.4626/2008 WILL dated 11.06.1984 executed by Sri. L.Linganna in favour of plaintiff bequeathing the schedule property.
12. This defendant No.10 has raised similar defense as that of defendant No.3 and in addition to that has contended that defendant No.3 died on 19.04.2013 leaving behind her husband Sri. Sreekantaiah Sreenath and his son Sri. Nikil Sreenath i.e. defendants No.3(a) and 3(b) as his legal representatives to succeed the estate left behind by her including the suit schedule property and they in turn conveyed their right in respect of suit property in favour of defendant No.10 under registered sale deed dated 11.12.2014. Pursuant to the execution of sale deed, the defendant No.10 applied to B.B.M.P. for transfer of khata in his name and the proceedings are pending before B.B.M.P. and as such, this defendant is unable to obtain the khata and produce the same. Thus, the suit is filed only with an intention to 27 O.S. No.4626/2008 knock off the valuable property of the defendant No.10 and the plaintiff has no right over the schedule property and contending these facts sought for dismissal of suit.
13. Heard learned counsel for plaintiff and learned counsel for defendant No.10 and perused the records.
14. The aforesaid pleadings have occasioned following ;
ISSUES
1. Whether the plaintiff proves that by virtue of a valid agreement of sale dated 18.12.1969 in respect suit schedule property, he is in possession and enjoyment of suit schedule property as alleged in the plaint ?
2. If so, Whether the plaintiff proves that the re-conveyance deed dated 28 O.S. No.4626/2008 12.01.1973 alleged to have been executed by the 1st defendant in favour of 3rd defendant is null and void and non-est in the eyes of law as alleged in the plaint ?
3. If so, Whether the plaintiff further proves that the sale deed dated 16.05.2005 in respect of suit schedule property registered on 17.05.2005 is null and void and non-est in the eyes of law as alleged ?
4. If so, Whether the plaintiff is entitled to get re-conveyance of the suit property and defendant No.1 is bound to re-convey the suit property to him as claimed ?
5. Whether the plaintiff is entitled to get his name entered in the khata of the suit property as claimed ?
29
O.S. No.4626/2008
6. Whether the plaintiff proves the alleged interference into his peaceful possession and enjoyment of suit property by the defendants as alleged ?
7. Whether defendants prove that the claim of the plaintiff is barred by doctrine of constructive res-judicata as contended in the written statement ?
8. Whether defendants prove that, the suit of the plaintiff is hit by provisions of Order 2 Rule 2 of C.P.C. ?
9. Whether the plaintiff is entitled for declaratory reliefs as claimed ?
10. Whether the plaintiff is entitled for the other relief's so claimed in the plaint ?
11. To what order or decree ?
30
O.S. No.4626/2008 ADDITIONAL ISSUES
1. Whether the 3rd defendant proves the purchase of site No.21, 22, 30 and 31 in the layout formed by the CITB which are identical to site No.161 and also purchase of site Nos.19, 20, 28 and 29 which identical to site No.160 as contended in her written statement ?
2. If so, whether defendant No.3 further proves that the CITB granted site No.162 to her in exchange of site No.161 and the same is legal and valid as contended ?
ADDITIONAL ISSUE FRAMED ON 10.07.2012 "Whether defendant No.3 proves that claim of the plaintiff is barred by law of limitation."
31
O.S. No.4626/2008 ADDITIONAL ISSUE FRAMED ON 06.09.2016 Whether the defendant No.10 proves that he is a bonafide purchaser of the suit schedule property for valuable consideration as alleged in para-45 of his written statement ?
ADDITIONAL ISSUE FRAMED ON 13.06.2025
5. Whether the plaintiff proves that the sale deed dated 11.12.2014 executed by defendants No.3(a) and 3(b) in favour of defendant No.10 is null and void ?
6. Whether the defendant No.10 proves that the relief claimed regarding declaration of sale deed dated 11.12.2014 is barred by law of limitation ?
15. In order to establish his case, the plaintiff got examined himself as P.W.1 and relied upon 41 documents marked at Ex.P.1 to Ex.P.41 and closed the evidence.
32
O.S. No.4626/2008
16. On the contrary, the defendant No.10 got examined himself as D.W.1 and relied upon 29 documents marked at Ex.P.1 to Ex.P.29 and closed the evidence.
17. My answers to the above points are as follows:
ISSUE No.1 :: In the Negative
ISSUE No.2 :: In the Negative
ISSUE No.3 :: In the Negative
ISSUE No.4 :: In the Negative
ISSUE No.5 :: In the Negative
ISSUE No.6 :: In the Negative
ISSUE No.7 :: In the Negative
ISSUE No.8 :: In the Negative
ISSUE No.9 :: In the Negative
ISSUE No.10 :: In the Negative
ADDL. ISSUE No.1 :: In the Affirmative
ADDL. ISSUE No.2 :: In the Affirmative
ADDL. ISSUE No.3 :: In the Affirmative
ADDL. ISSUE No.4 :: In the Affirmative
33
O.S. No.4626/2008
ADDL. ISSUE No.5 :: In the Negative
ADDL. ISSUE No.6 :: In the Affirmative
ISSUE No.11 :: As per final order for the
following;
REASONS
18. ISSUES NO.1 TO 6 AND ADDITIONAL
ISSUES NO.1 AND 2 DATED 04.08.2010 AND ISSUE FRAMED ON 06.09.2016 AND ADDITIONAL ISSUE NO.5 :: All these issues are taken up collectively for common discussion to avoid repetition of facts and also for convenience of the Court.
The present suit is one for declaration that agreement of re-conveyance dated 12.01.1973 executed by defendant No.1 in favour of defendant No.3 and registered Sale Deed dated 16.05.2005 as null and void and non-est in the eye of law and to direct defendant No.1 to re-convey the schedule property in favour of plaintiff and to direct defendant No.2 to cancel the khata 34 O.S. No.4626/2008 of schedule property made in favour of defendant No.3 and to declare that the sale deed dated 11.12.2014 executed by defendant No.3(a) and (b) in favour of defendant No.10 is null and void and for consequential relief of permanent injunction.
The schedule property involved in the present suit is described as hereunder:
SCHEDULE The vacant site No.160 formed out of Sy. No.2 in plot No.3, situated at Rajamahal Vilas Extension, Bengaluru measuring East to West
- 60 ft. and North to South - 90 ft. and bounded on the : East by - 3 rd Cross Road, West by - Site No.160-A, North by - 10 th Main Road and South by - Site No.161.
19. Before adverting to the controversy involved in the suit it is found necessary to cull out the undisputed facts of the case which is evident from the records placed before the Court. It is an undisputed fact that one 35 O.S. No.4626/2008 Sri. L.Linganna purchased plot No.3 measuring 280 ft. X 390 ft. under deed of sale dated 30.10.1958 from Smt. Rani Saheb and he formed private revenue residential layout comprising 36 residential sites bearing No.1 to 36 each measuring 43X65 ft. It is also undisputed that the erstwhile CITB published a preliminary notification dated 14.10.1959 which was published in official Gazette on 15.10.1959 were under vast extent of lands at Rajmahal Village was proposed to be acquired including the lands belonging to Smt. Rani Saheb. The said acquisition proceedings were challenged upto Hon'ble Supreme Court of India, which confirmed the acquisition proceedings vide order dated 11.12.1965.
20. Now the controversy involved in the present suit is that before the acquisition proceedings were upheld, CITB had formed sites and by virtue of resolution dated 20.12.1967 decided to reconvey the acquired land 36 O.S. No.4626/2008 to Sri. L.Linganna and accordingly, out of 16 sites 15 sites were reconveyed in favour of Sri. L.Linganna on 31.03.1970 and the said Sri. L.Linganna had entered into an agreement of sale on 18.12.1969 with the plaintiff which was the subject matter of reconveyance and since the plaintiff was residing abroad and the plaintiff could not get the necessary sale deed, Sri. L.Linganna before his demise bequeathed the property by executing a WILL on 11.06.1984 and thus, he is in possession and enjoyment of the schedule property by virtue of agreement of sale and WILL and it is his contention that the defendant No.1 has illegally reconveyed the property in favour of defendant No.3 under reconveyance deed dated 12.01.1973 and executed sale deed on 16.05.2005 and the defendant No.1 had no right to reconvey the schedule property in favour of defendant No.3 and hence, the suit.37
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21. As stated earlier, the defendants No.1 and 2 have left the suit uncontested and the defendants No.4 to 9 who are the legal heirs of Late. Sri. L.Linganna though caused appearance and filed written statement stating that B.D.A. has not at all reconveyed any of the sites and as per the order passed in LA Mis. No.75/1967 dated 01.12.1969, there was a direction to CITB to reconvey the aforesaid 16 sites and Linganna has paid reconvey charges and so far 16 sites have not been reconveyed to Sri. L.Linganna till his death and after his death the B.D.A. did not execute the deed of conveyance of all the 16 sites either in the name of this defendant or the other successors of Sri. L.Linganna and denied execution of agreement to sell and WILL in favour of plaintiff and sought to pass an order in their favour, they have also not chosen to lead oral or documentary evidence and so by this, they have also literally left the suit uncontested. Further the defendant No.3 died 38 O.S. No.4626/2008 during the pendency of the suit and her legal heirs were though brought on record, they have also not chosen to contest the suit and so by this, it is only the defendant No. 10 who is the contesting party to the suit.
22. It is the contention of the defendants No.3 and 10 that Sri. L.Linganna had executed deed of sale on 22.12.1958 in favour of father of defendant No.3 in respect of sites No.21, 22, 30 and 31 and immediately, after 10 months of purchase since acquisition proceedings was initiated, by virtue of the order passed by Hon'ble Apex Court, the CITB had resolved to reconvey the revenue sites to the purchasers subject to conditions regarding payment of layout charges and accordingly, the suit schedule property was resolved to be sold in favour of father of defendant No.3 Shankaran and site No.161 was resolved to be sold in favour of Sananthana Murthy and since father of defendant No.3 39 O.S. No.4626/2008 had expired, as per the mutual understanding between the defendant No.3 and Sanathana Murthy site No.161 and 160 were mutually exchanged and accordingly, reconveyance deed came to be executed and suit property was sold in favour of defendant No.3.
23. So now in the instant suit, the controversy revolves around the agreement of sale alleged to have been executed by Sri. L.Linganna in favour plaintiff and as to the due execution of WILL dated 11.06.1984 which according to the plaintiff was executed by Sri. L.Linganna bequeathing the schedule property in his favour and agreement of reconveyance dated 12.01.1973 and the sale deed executed by defendant No.1 in favour of defendant No.3 dated 16.05.2005 and the sale deed executed by the legal heirs of defendant No.3 in favour of defendant No.10. So the initial burden of proving the due execution of agreement of sale and as to the 40 O.S. No.4626/2008 bequest made by Sri. L.Linganna under WILL dated 11.06.1984 lies on the plaintiff.
24. Learned counsel for plaintiff in his arguments submits that the sale deed in favour of defendant No.3 executed on 16.05.2005 in respect of revenue sites No.21, 22, 30 and 31 purchased by Shankaran on 22.12.1958 from Sri. L.Linganna is not produced either by the defendant No.3 or 10 and hence, it has to be held as not proved and getting the reconveyance agreement followed by sale deed by fraudulent means from B.D.A. in favour of Shankaran and the alleged exchange of sites between Sanathana Murthy and Shankaran is not proved.
25. It is further submitted that as per Ex.P.7 and Ex.P.8 endorsements, it confirms that defendant No.1 collected reconveyance charges from Sri. L.Linganna, 41 O.S. No.4626/2008 acknowledging his ownership and Ex.P.8 clearly covers site Nos.160 and 161 and therefore, it is not open for any other person much less to the vendors of defendant No.10 to contend that they had paid reconveyance charges. It is further submitted that the doctrine of estoppel by representation as upheld in case of B.L.Sreedhar and others V/s K. M. Munireddy (Dead) and others AIR 2003 SC 578, it prevents the defendants No.3 or 10 from asserting contrary claims. The plaintiff entered into an agreement of sale as per Ex.P.1 in respect of suit site for total consideration of Rs.18,000/- and since he was traveling abroad the sale deed could not be executed. However, Sri. L.Linganna executed will dated 11.06.1984, bequeathing the site in favour of plaintiff. The defendant No.3 by misrepresenting got succeeded in obtaining registered sale deed in reconveyance with Shri. B.L.Jayadeva, who falsely represented that father of defendant No.3 had purchased 42 O.S. No.4626/2008 site No.160 and a registered sale deed dated 15.10.1965 and based on the false representation, reconveyance deed is executed. Ex.P.12 to Ex.P.14 highlights the fraud played besides the fact that the advocate Sri. Jayadeva had not enclosed the copy of the sale deed relating to site No.160. Site No. 160 was reconveyed to Sri. L.Linganna on 31.03.1970 and Linganna paid reconveyance charges to CITB on 12.02.1971. The said contention of plaintiff is supported by Ex.P.12 to Ex.P.16.
26. It is further submitted that the revenue sites purchased by S.L.Shankaran have lost their identity when CITB carved out only 16 sites out of 60 X 90 ft. against 36 sites and therefore the so called sketch produced and relied upon by defendant No.10 is of no use. The size of the revenue sites and CITB sites are not one and the same and B.D.A. has admitted in the writ petition in Ex.P.11 that revenue sites have lost its identity 43 O.S. No.4626/2008 and vide resolution dated 20.12.1967 it was resolved to reconvey the lands to owners including Linganna. The CITB has not recognized revenue site holders and on the other hand, only the landlords whose lands were notified for acquisition were eligible for reconveyance and Sri. Sanathana Murthy and Shankaran and other revenue site holders got issued notice vide Ex.P.14 wherein CITB has asked them to contact Linganna for payment of lay out charges and therefore it is clear that revenue site sales have not been recognized and only Linganna who was the khatedar was recognized as owner eligible for reconveyance. Thus, in the backdrop of decision of the Government, coupled with the resolutions of the CITB, that original landlords have to be reconveyed, the lands acquired. It is established that Linganna paid reconveyance charges and the defendants No.3 or 10 cannot contend that Linganna sold site to her father. 44
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27. Now, so far as exchange of sites between Sri. Sanathana Murthy and Shankaran is concerned, learned counsel for plaintiff in his arguments submits that there is no exchange deed in existence and no document is produced by defendant No.3 or defendant No.10 and in the absence of registered exchange deed, the claim of defendant No.3 becomes invalid as held by Hon'ble Apex Court in case of Shyam Narayan Prasad V/s. Krishna Prasad reported in AIR 2018 SC 3152 wherein it is held that since the deed of exchange has not been registered, it cannot be taken into account. Further, to validate the claims of exchange, proper documentation is essential and the Hon'ble Supreme Court in case of Atla Sidda Reddy V/s. Busi Subba Reddy and Ors. has highlighted the importance of valid documentation in establishing ownership stating that the sequence of transactions must be supported by credible evidence.
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28. Now, so far as the execution of the WILL is concerned, the counsel for plaintiff in his arguments submits that by virtue of the WILL dated 11.06.1984, the suit property is bequeathed in favour of the plaintiff and Section 61 of the Indian Succession Act, 1925 provides that a WILL made under fraud is void and according to the plaintiff there is no evidence to invalidate the WILL, which implies that he may rely on the WILL itself as a valid testamentary document and the plaintiff need not demonstrate that the WILL was executed in accordance with Section 63, which outlines the requirements for a valid WILL and the plaintiff counsel relying on the principle laid down in case of Vidya Wanti V/s. Durga report4ed in AIR SCW 4926 wherein Hon'ble Apex Court has held that "unless the evidence overwhelmingly disproves the authenticity of such a testamentary document, a burden that had not been met by the respondents, the will should be given effect in line with 46 O.S. No.4626/2008 testator's intentions". Thus, as a beneficiary under WILL, the plaintiff is entitled to seek a declaration of his legal right to the property under Section 34 of the Specific Relief Act. Thus the plaintiff has established in proving the agreement of sale and the WILL and the absence of registered exchange deed, the defendant No.1 lacks authority to execute reconveyance deed and the failure to meet ownership conditions undermine the claim of defendant No.3 and thus sought to decree the suit.
29. On the contrary, the counsel for defendant No.10 in his arguments submits that the plaintiff has sought for declaration that the agreement of reconveyance and sale deed are null and void and these documents being registered instruments have created interest in immovable property and in view of ruling in Ramti Devi V/s. Union of India reported in (1995) 1 SCC 198 and Prem Singh and Ors. V/s. Birbal 47 O.S. No.4626/2008 and Ors. reported in (2006) 5 SCC 353 and in case of Smt. Uma Devi V/s. Sri. Ananda Kumar 2025 INSC 434, the day they were registered they are supposed to be the knowledge of everyone and the plaintiff has admitted that he had knowledge of the execution of sale deed in his cross examination and hence the suit is barred by time. It is further submitted that the plaintiff who is seeking for declaration has to prove his case with valid documents and cannot by any stretch of imagination rely upon the weakness of the defendant as held by the Hon'ble Supreme Court in case of Union of India V/s. Vasavi Co- op. Housing Society Ltd reported in AIR 2014 SC 937. Now so far as the sale deed dated 11.12.2014 is concerned, it is stated that the plaintiff did not seek for any relief for declaration within 3 years and as such, the suit is now barred by time as held by Hon'ble Apex Court in case of Prem Singh & Ors. V/s. Birbal & Ors. reported in 2006 5 SCC 353. So far as the agreement of sale 48 O.S. No.4626/2008 dated 18.12.1969 is concerned, it is submitted that it is a tampered document with whitener fluid and the plaintiff has not examined any witnesses to prove the due execution of agreement of sale and so far as the exchange agreed between Sanathana Murthy and Shankaran is concerned, they have decided to exchange their respective entitlement and requested CITB for exchange of site, prior to actual reconveyance and thereafter formal agreements of reconveyance were executed by B.D.A. in their favour and the reconveyance agreement had been exchanged and registered and possession certificates had been issued prior to such exchange and hence there was no necessity for exchange deeds to be executed by B.D.A. or CITB agreeing to reconvey sites. Further as per Ex.D.29, a table prepared by CITB shows that the revenue sites are given corresponding site Nos.160 and 161 respectively and this makes it clear that by the time preliminary 49 O.S. No.4626/2008 notification was issued, S.L.Shankaran and Sanathan Murthy had already purchased revenue sites under Ex.P.17 and Ex.P.18 and therefore the question of Linganna being in possession of site to enable him to deliver CITB site No.160 to the plaintiff does not arise and the plaintiff has much canvassed regarding the letter dated 17.05.2004 sent by advocate Mr. B.N.Jayadeva referring to the sale date dated 19.06.1974 which date had been wrongly mentioned by the advocate and the B.D.A. its letter dated 05.06.2006 Ex.P.26 has clarified that B.D.A. has executed an agreement sale deed on 16.05.2005 in favour of Smt. Usha on the basis of reconveyance agreement dated 18.01.1973 and therefore it is not on the basis of the document referred to in the letter of Mr. B.N.Jayadeva and thus the plaintiff has failed to establish his claim before the Court and contending these facts sought for dismissal of suit. 50
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30. Having heard the arguments putforth by both the counsels and keeping in mind the ratios laid down in the aforesaid judgments, this Court proceeds to analyse the evidence placed on record.
31. In order to discharge the burden cast upon the plaintiff, he got examined as P.W.1 and he has in his evidence deposed that Sri. L.Linganna entered into an agreement of sale dated 18.12.1969 to sell the suit property and the total sale consideration payable was Rs.18,000/- and the plaintiff paid the entire sale consideration amount to Sri. L.Linganna on the date of agreement itself and since he paid the entire sale consideration, physical possession of the schedule property was handed over to the plaintiff as part performance of agreement of sale. He has deposed that since he was residing abroad for some time, the sale deed could not be executed and hence Sri. L.Linganna 51 O.S. No.4626/2008 executed a WILL on 11.06.1984 bequeathing the entire schedule property to the plaintiff. However, the plaintiff continued to be in possession since the date of agreement of sale dated 18.12.1969. Thus he has stated that he is the absolute owner of the suit property by virtue of agreement of sale and the WILL and except the plaintiff, no other person has any right, title or interest over the schedule property. Since Sri. L.Linganna passed away pending reconveyance deed to be executed, the defendants No.1 and 2 are required to transfer the schedule property in his favour and also in view of the WILL left by Late. Sri. L.Linganna. He has stated that the very fact of taking the reconveyance deed dated 12.01.1973 and the fact that later taking absolute sale deed dated 16.05.2005 from B.D.A. indicates that the defendant No.3 has interfered with the rights of the plaintiff over the schedule property. The defendant No.3 has secured the said documents from defendant No.1 by 52 O.S. No.4626/2008 playing fraud in collusion with the officials of defendants No.1 and 2 and as such, they are null and void. P.W.1 has deposed that the reconveyance deed and the sale deed do not relate to the suit property and as per the endorsement issued by the jurisdictional Sub-Registrar dated 15.10.1965, no sale deed is executed in respect of site No.160. The CITB has not demanded for any payment from defendant No.3 and there is no document to show there has been demand by B.D.A. for payment and the defendant No.3 has made payment of layout charges. This shows the reconveyance deed is obtained by misrepresentation. The CITB had demanded entire reconveyance charges from Sri. L.Linganna and Sri. L.Linganna himself has paid the charges and therefore, the defendant No.1 had no right to execute reconveyance deed in favour of defendant No.3 or to issue possession certificate.
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32. So far as, the exchange of sites between Sanathana Murthy and Shankar is concerned P.W.1 has deposed that CITB executed reconveyance deed in favour of defendant No.3 on 07.08.1972 in respect of site No.167 and as on that date, there was no offer or acceptance of exchange of sites interse and it is a concocted story of defendant No.3 that site No.160 and 161 were exchanged as per their mutual understanding. The said Sanathana Murthy and father of defendant No.3 had issued notice dated 11.05.1970 which discloses that neither there was any proposal nor any assurance to reconvey any site. The said S.L.Shankar died on 03.09.1970 and Santhana Murthy had already secured reconveyance deed in respect of site No.161 and sold to Mr. B.N.Jayadeva by sale deed dated 14.08.1972 and so there was no need or reason to exchange the sites between them interse. The sites were worth of more than Rs.100/- as on the date of the alleged 54 O.S. No.4626/2008 exchange and hence, it required compulsory registration and in the absence of registration, the plea of defendant No.3 cannot be looked into. If there was exchange of sites, the same would have been included in the agreement of reconveyance or sale deed. Once immovable property was acquired by CITB and vested with the government it is free from all encumbrances and therefore, all the transaction prior thereto become non- est in law and therefore, the defendant No.1 had no authority to reconvey the land in favour of defendant No.3. On the death of Sri. L.Linganna, he has stepped into his issues in view of agreement of sale and the WILL and hence, he is the owner in possession and enjoyment of the suit schedule property and sought to decree the suit.
33. In support of his evidence P.W.1 has relied upon Ex.P.1 which is the agreement of sale dated 55 O.S. No.4626/2008 18.12.1969 entered into between Sri. L.Linganna and plaintiff herein in respect of site No.160 formed out of Sy. No.2 and plot No.3, which shows the flow of title in favour of prospective vendor Sri. L.Linganna according to which the vendor had purchased the said property for valuable consideration of Rs.52,500/- from Rani Saheb under sale deed dated 31.10.1958 and the said property is agreed to be sold for consideration of Rs.18,000/- and it also recites that the property is free from encumbrances and the vendor has received full sale consideration of Rs.18,000/- and in part performance of this agreement has put the purchaser in possession of the schedule site and has agreed to execute sale deed in due course of time. So this document shows that the plaintiff has paid full sale consideration of Rs.18,000/- and possession is delivered in his favour and there is no time limit fixed for execution of sale deed and it shows that sale deed will be executed in due course of time. 56
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34. The other document relied upon by P.W.1 is the WILL dated 11.06.1984 marked as Ex.P.2 which shows that the said WILL is executed by Sri. L.Linganna and it recites that pursuant to his purchase of Sy. No.2, plot No.3A, the property was acquired by the Government of Mysore by issuing notification dated 14.10.1959 and the acquisition proceedings was challenged before the Hon'ble Supreme Court and in the meantime, the CITB took a decision to reconvey the lands to the land owners and entered into agreement with Sri. L.Linganna and reconveyed 15 sites of 60X90 ft. each including site No.160, 161 and 162 etc. It is also stated that he had entered into agreement to sell in respect of site No.160 in favour of plaintiff on 18.12.1969 and since he could not contact the prospective purchaser Basanna i.e. the plaintiff as he was traveling a lot abroad and also since Sri. L.Linganna has received the entire sale consideration amount he has executed the WILL 57 O.S. No.4626/2008 bequeathing the site in favour of the plaintiff by appointing Shri. G.Thotadappa as an executor of the WILL. These are the two documents relied upon by the plaintiff to establish his right over the schedule property.
35. Ex.P.3 is the agreement of reconveyance dated 12.01.1973, which is the disputed document which shows the then CITB has executed the agreement in favour of defendant No.3 in respect of the suit schedule site subject to various terms and conditions stipulated therein and to pay layout charges at the rate of Rs.10/- per sq. yard. The said reconveyance agreement is also subject to condition that the defendant No.3 shall withdraw the case for higher compensation under Section 18 of the Land Acquisition Act and shall repay the amount of compensation already drawn with interest admissible under the Act from the date on which the said amount was actually received by defendant No.3. So 58 O.S. No.4626/2008 these terms makes it clear that, the defendant No.3 had filed case seeking higher compensation and this shows that her property was also subject matter of acquisition and this also makes it clear that before acquisition proceedings she had acquired right over site No.160, consequent to which she had to seek higher compensation under Section 18 of the Act.
36. Ex.P.4 is the disputed sale deed dated 16.05.2005 which shows the defendant No.1 has sold the property in favour of defendant No.3 and it also refers to the reconveyance agreement dated 18.01.1973 executed in favour of defendant No.3. This document also shows possession is delivered in favour of defendant No.3 vide possession certificate dated 19.06.1974. Ex.P.5 is the agreement of reconveyance dated 07.08.1972 executed by CITB in favour of Sri. Sanathana Murthy in respect of site No.161 which is also 59 O.S. No.4626/2008 subject to similar terms and conditions as per Ex.P.3. Ex.P.6 is the proceedings of the then CITB which shows that site No.161 was offered for reconveyance to Sri. S.L.Shankar i.e. the father of defendant No.3 and he has paid the layout charges and likewise site No.160 was offered for reconveyance to Sri. S.R.Sanathana Murthy and this document also makes it clear that both parties have filed a joint affidavit wherein which they have submitted their willingness for exchange of site No.160 and 161 interse and by virtue of the compromise, site No.160 is ordered to be reconveyed to Smt. S.S.Usha i.e. defendant No.3 and site No.161 is resolved to be reconveyed to Sri. Sanathana Murthy subject to payment of the requisite charges. So these documents makes it clear that by virtue of the mutual understanding between defendant No.3 and Sri. Sanathana Murthy, site No.160 is reconveyed and sale deed is executed in favour of defendant No.3 as per Ex.P.3 and Ex.P.4 and as per 60 O.S. No.4626/2008 Ex.P.5 site No.161 is reconveyed in favour of Sri. Sanathana Murthy. Ex.P.7 is the letter dated 25.03.1970 regarding the reconveyance of 9,000 sq. yards of land acquired by CITB subject to the terms and conditions mentioned therein and this letter shows the letter is addressed offering to reconvey 15 sites bearing Nos.155/A, 156, 156/A, 162, 162/A, 163, 164, 157, 158, 159, 160, 160/A, 161, 161/A and 157/A. Ex.P.8 is the letter submitted by Sri. L.Linganna to CITB dated 12.08.1976 about the details of payments done in respect of the sites mentioned therein which also includes the suit schedule sites and as to the dates on which payments were made. Ex.P.9 is the sale deed dated 14.08.1972 which shows Sri. Sanathana Murthy has sold the site reconveyed in his favour i.e. site No.161 in favour of Sri. B.N.Jayadeva. Ex.P.10 is the Resolution of the Board Meeting of CITB dated 11.08.1971 which shows that Sri. L.Linganna had sold some sites after 61 O.S. No.4626/2008 preliminary notification and before award and these sales may be ignored and reconveyance should be done to him as if the land is still in his ownership as he was the owner of these sites on the dates of preliminary notification and it also shows that some alienees had purchased sites from Sri. L.Linganna between the date of preliminary notification and final notification and as per the award the sites would be transferred to the said purchasers according to his commitment.
37. Ex.P.11 is the statement of objections of B.D.A. in W.P. No.5748/2006, which shows the said petition is filed challenging the agreement of re- conveyance executed between the erstwhile CITB and the defendant No.3 on 12.01.1973 and subsequent sale deed dated 16.05.2005 on various grounds and in the said petition, the B.D.A. has filed objection stating that the Government of Mysore, vide gazette notification 62 O.S. No.4626/2008 dated 14.10.1959, acquired 108 acres of palace land showing names of Sri Lingaiah and others as khatedars and it was challenged in LA Mis. No.75/1967 O.S. No.446, which was dismissed vide order dated 01.08.1973 as against the judgment, R.A. No.100/1973 was filed by Linganna, which came to be allowed on 31.01.1974 directing CITB to reconvey sites Nos.156 and 157 of RMV extension and RSA No.367/1975 filed by CITB also came to be dismissed on 21.10.1976. It is stated that the CITB totally revised Linganna's layout comprising of 36 sites and out of 36 sites carved out only 16 sites and formed a fresh layout with the formation of additional road and vide resolution dated 20.12.1967 resolved to convey the land to some of the owners including Linganna on 25.03.1970 9,000 square yards comprising 15 sites including site No.16 was resolved to be reconveyed subject to certain conditions mentioned therein.
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38. It is necessary to note that these contentions raised by the B.D.A. in the said petition is corroborated by the documents herein before discussed. Further in the said objection, B.D.A. has contended that Sri. L.Linganna had not executed any agreement of sale or any sale deed in favour of anyone in respect of site No. 160 and as such, CITB executed an agreement of reconveyance in favour of defendant No.3 and also executed sale deed on 16.03.2005 in favour of defendant No.3 in respect of site No.160 and hence, the defendant No.3 or her father had not purchased site No.160 from Linganna as per the records of CITB pertaining to the period of 1960 and 1970. So, this objection statement makes it clear that BDA has admitted that earlier to the execution of the reconveyance deed and the sale deed in favour of defendant No.3 there was no sale executed in favour of defendant No.3 in respect of suit property. 64
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39. Ex.P.12 is the copy of the order passed by the Hon'ble High Court in W.P. No.5748/2006, which shows that, as per the memo filed by the plaintiff herein, the petition is dismissed as withdrawn. Ex.P.13 is the endorsement issued by the Sub Registrar dated 13.03.2006, which shows the plaintiff herein has sought to furnish, the copy of the sale deed dated 15.10.1965 alleged to have been executed by Linganna in favour of S.L.Shankar and it is endorsed by the registrar that they have verified the records for the period 01.04.1957 to 31.03.1974 and that they could not trace out the sale deed dated 15.10.1965 alleged to have been executed by Linganna in favour of S.L.Shankar. But it is not the case of defendant No.3 that the date of sale deed was 15.10.1965 and on the other hand, it is their defence that the sale deed was executed on 22.12.1958. Hence, this endorsement is of no assistance to the plaintiff to establish that sale deed dated 16.05.2005 was not 65 O.S. No.4626/2008 executed in favour of S.L.Shankar. Likewise Ex.P.14 is also the endorsement issued by the Assistant Commissioner dated 22.07.2006 shows that the plaintiff has sought for details of reconveyance in respect of site No.160 and sought to furnish the sale deed dated 10.01.2005 alleged to have been furnished by Sri. B.N.Jayadeva, according to which, Sri. L.Linganna had sold the property in favour of S.L.Shankar and it is stated that the said Sri. B.N.Jayadeva had not furnished copy of the sale deed dated 10.01.2005. So, this also shows it is not the case of defendant No.3 that sale deed was executed on 10.01.2005 and hence, this document is also of no assistance to the plaintiff.
40. Ex.P.15 is the official memorandum dated 17.12.2005 which shows site Nos.160 and 161 was not sold by Sri. L.Linganna in favour of S.L.Shankar and S.Santhana Murthy. But he further states that the sites 66 O.S. No.4626/2008 were sold by referring to revenue site numbers and they have furnished the copy of the sale deed in favour of the plaintiff herein. Ex.P.17 and Ex.P.18 are the copies of the sale deeds furnished to the plaintiff dated 22.12.1958, which shows L.Linganna has sold revenue sites Nos.19, 20, 28 and 29 each measuring 43 ft. X 65 ft. in favour of Sri. Sanathana Murthy for consideration of Rs.8,400/-. Likewise he has sold site Nos.21, 22 and 30 each measuring 43 ft. X 65 ft. for consideration of Rs.6,000/- in favour of S.L.Shankar i.e. the father of defendant No.3 and it is stated that the property is free from all encumbrances and has lawfully conveyed right in favour of Sanathan Murthy and S.L.Shankar. Ex.P.19 is the legal notice issued by both the purchasers Sanathan Murthy and Shankar to the chairman of CITB dated 11.05.1970 wherein it is clearly stated that they had purchased sites in Sy. No.2 from Linganna in the year 1958 prior to the preliminary notification for acquisition of 67 O.S. No.4626/2008 the said property and by the time preliminary notification was issued, the said Sanathan Murthy and Shankar were the absolute owners in possession of the other sites and though they have received communication from the office on 19.02.1968 and they have requested to reconvey the property and that they would pay the lay out charges payable by each one of them in respect of reconveyance. Ex.P.20 is the extract from the plan of Rajmahal Village extension in Sy. No.2, Plot No.B, which shows the formation of 16 sites and also the formation of road in the layout. Ex.P.21 to Ex.P.24 are the unofficial memorandum issued by defendant No.1, which shows the plaintiff has sought to furnish the copy of the sale deed dated 15.10.1965 and 10.01.2005 and it is stated that no such sale deeds were furnished by Advocate D.L.Jayadeva to their office. Ex.P.25 is the letter submitted by defendant No.3 dated 21.05.1974 seeking possession certificate of site No.160. Ex.P.26 is the 68 O.S. No.4626/2008 endorsement issued by B.D.A., which makes it clear that the plaintiff had submitted representation before the B.D.A. seeking reconveyance of site No.160 based on the agreement to sell dated 18.12.1969 and WILL dated 11.06.1984 and it is clearly stated in the endorsement that site No.160 was sold by Linganna before execution of WILL and agreement to sell, in favour of S.L.Shankar and by executing reconveyance deed dated 18.01.1973 and sale deed dated 16.05.2005 the property is already sold in favour of Smt. S.S.Usha and hence there is no question of reconveyance of the property in favour of plaintiff and there is no reason to cancel the sale deed or possession certificate issued in favour of Smt. Usha. Ex.P.28 is the possession certificate dated 19.06.1974, which shows possession of site No.160 i.e. the suit schedule property is given to defendant No.3. Ex.P.31 shows khata is transferred to the name of defendant No.3 as per khata certificate dated 17.06.2004. Ex.P.36 69 O.S. No.4626/2008 is the letter dated 16.05.2005 by which B.D.A. has informed defendant No.3 about execution of the sale deed.
41. On analysis of the documents relied upon by the plaintiff, it shows that the Government of Mysore vide notification dated 14.10.1959 had acquired the property of Lingaiah i.e. Sy. No.2, Plot No.3A of Rajmahal Vilas extension and Ex.P.17 and Ex.P.18 shows, much before the preliminary notification, sale deed is executed by Sri. L.Linganna in favour of father of defendant No.3 Shankar and Sanathan Murthy and has sold site numbers site Nos.21, 22 and 30 in favour of Shankar and sites Nos.19, 20, 28 and 29 in favour of Sanathan Murthy. Further the documents placed on record also makes it clear by virtue of mutual understanding between the parties, B.D.A. executed sale deed on 16.05.2005, in favour of defendant No.3, in view of exchange of site 70 O.S. No.4626/2008 No.160 and 161, between Sri. Santhana Murthy and Smt. Usha, the daughter of Shankaran. The revenue sites Nos.19, 20, 28 and 29 which earlier belonged to Sanathana Murthy was re-numbered as site No.160 was reconveyed in favour of defendant No.3 and site Nos.21, 22 and 30 was re-numbered as 161 was taken by Sanathan Murthy.
42. During cross-examination of P.W.1 he says he has not at all visited the suit schedule property whenever he came to Bengaluru and he stayed at Bumbai from 1970 to 1995 and he started to coming to Bengaluru from the year 1985 onwards and used to stay for 3-4 days at Bengaluru and he stayed for maximum period of one month in the year 1998 and during his stay at Bengaluru, he has not made any attempts to know about the suit schedule property and the events that has taken place with regard to the same. Further he admits 71 O.S. No.4626/2008 that he came to know about execution of agreement of reconveyance in the name of defendant No.3 in the year 1973 itself and after knowing about the same he has not initiated any legal action against defendant No.3. Further there is a clear admission by P.W.1 that sites No.19, 20, 28 and 29 measuring 43 X 65 ft. each were sold by Sri. L.Linganna under registered Sale Deed dated 22.12.1958 in favour of Sri. Sanathana Murthy and he also admits that possession was delivered in favour of Sri. Sanathana Murthy and denies that under sale deed dated 22.12.1958 Sri. L.Linganna sold sites No.21, 22, 30 and 31 measuring 43 X 65 ft. each in favour of Sri. S.L.Shankaran and he volunteers that Sri. S.L.Shankaran purchased 3 sites and another site was purchased by his sister S.L.Prabha. So by this there is clear admission of purchase of sites by Shankar prior to notification. He also admits the sites purchased by Sri. Sanathana Murthy and Sri. S.L.Shankaran were notified 72 O.S. No.4626/2008 by CITB and the acquisition proceedings have been enforced. But he denies that the sites purchased by Sri. Sanathana Murthy was renumbered as site No.160 as per CITB layout plan and site No.19 and 20 were renumbered as 160/A and site No.21 and 22 was renumbered as site No.161 and site No.30 and 31 were renumbered with new No.161/A. He also admits that the Government vide letter dated 27.07.1961 directed the CITB to reconvey the lands in the acquired area and he is aware of the fact that the CITB had executed reconveyance deed in favour of defendant No.3.
43. So far as the execution of agreement dated 18.12.1969 is concerned he denies the suggestion putforth that Sri. L.Linganna had no subsisting right in the suit schedule property and so far as, the readiness and willingness on the part of the plaintiff to get the sale deed executed is concerned, P.W.1 admits that he had 73 O.S. No.4626/2008 no difficulty or impediment to get the sale deed executed during his stay in India by approaching Sri. L.Linganna and the suggestion putforth that Linganna had not executed any agreement of sale as per Ex.P.1 and Ex.P.1 is a tampered document, as there is no name of stamp vendor and it is tampered by using whitener are all denied by P.W.1.
44. So the evidence of P.W.1 shows that though he claims that Ex.P.1 is executed in his favour he has not made any efforts seeking execution of sale deed in his favour during life time of Sri. L.Linganna and further his evidence makes it clear that he stayed for a temporary period at Bengaluru and during this period he has not made any efforts to know about the events that has taken place with respect to suit property and he had knowledge of the sale of revenue sites by Linganna before notification in favour of Shankar and Sanathana 74 O.S. No.4626/2008 Murthy and acquisition of the schedule property and as to the reconveyance executed by CITB in favour of defendant No.3.
45. On the contrary, the defendant No.10 got examined himself as D.W.1 and has in his evidence deposed that Sri. L.Linganna under a deed of sale dated 30.10.1958 purchased plot No.3 measuring 280 ft. X 390 ft. from Rani Saheb and formed residential sites measuring 43X65 ft.
46. It is stated that Sri. L.Linganna under a deed of sale dated 22.12.1958 sold site Nos.19, 20, 28 and 29 each measuring 65 X 43 ft. in favour of one Sri. Sanathana Murthy and placed him in possession of the same and on the same day, under deed of sale dated 22.12.1958 he sold site No.21, 22, 30 and 31 each measuring 43 X 65 ft. in favour of Sri. S.L.Shankaran i.e. 75 O.S. No.4626/2008 the father of defendant No.3. After 10 months of the purchase, the CITB published preliminary notification dated 14.10.1959 and vast extents of land of Rajamahal village was proposed to be acquired including the plots belonging to Smt. Rani Saheb which had by then sold in favour of Sri. L.Linganna who had formed sites and sold to various persons including the father of defendant No.3. The acquisition proceedings were challenged before the Hon'ble Apex Court, which confirmed the acquisition proceedings under order dated 11.12.1965. Pursuant to the acquisition proceedings CITB formed sites. As per the sketch prepared by the CITB site No.28 and 29 sold in favour of Sri. Sanathana Murthy is numbered as 160 and site No.19 and 20 is presently numbered as 160/A and the remaining 2 sites No.21 and 22 are numbered as site No.161 and site No.30 and 31 are numbered as site No.161/A. In the meanwhile, the Government addressed a letter dated 27.07.1961 76 O.S. No.4626/2008 directing CITB to reconvey the lands in the acquired area to the owners from whom it was acquired keeping such portion as is necessary to form the layout. Accordingly, on 20.12.1967 CITB resolved to take up cases of all those persons who had purchased the property which was subjected to notification and reconvey their respective revenue sites to them subject to conditions regarding payment of layout charges. In terms of the said resolution CITB resolved to reconvey site No.160 and 161 in favour of Sri. Sanathana Murthy and Sri. S.L.Shankaran respectively. By that time, the father of defendant No.3 had expired and as per the understanding arrived between the heirs of Sri. S.L.Shankaran, site No.161 was agreed to be given to defendant No.3 and simultaneously Sri. Sanathana Murthy was eligible for site No.160 and defendant No.3 was eligible for site No.161 and accordingly, on their request site No.160 i.e. suit schedule property was 77 O.S. No.4626/2008 reconveyed to defendant No.3 under reconveyance agreement dated 12.01.1973. Accordingly, she was placed in possession of suit schedule property and thus, she became the absolute owner of the suit schedule property having acquired through her father under earlier sale deed dated 22.12.1958.
47. It is further contended that, subsequently, B.D.A. executed a sale deed on 16.05.2005, in favour of defendant No.3, in view of exchange of site No.160 and 167, between Sri. Santhana Murthy and Smt. Usha, the daughter of Shankaran, the revenue sites Nos.19, 20, 28 and 29 which earlier belonged to Sanathana Murthy was re-numbered as site No.160 was reconveyed in favour of defendant No.3 and site Nos.21, 22 and 30 was re- numbered as 161 was taken by Sanathan Murthy. Sri. L.Lingana having sold his rights in respect of revenue site Nos.19, 20, 28 and 29 and the its property was sold 78 O.S. No.4626/2008 on 22.12.1958 prior to preliminary notification issued by CITB, B.D.A. Sri. L.Linganna had no right whatsoever to enter into agreement of sale in respect of suit schedule property in favour of plaintiff.
48. D.W.1 has further deposed that Sri. L.Linganna having sold all the revenue sites except site No.156 and 157 Sri. L.Linganna restricted his claim only in respect of two sites, since he had sold revenue sites No.28 and 29 in the year 1958 itself, he did not have any right in respect of site No.28 and 29 which was later renumbered as site No.160 and as such, Sri. L.Linganna could not have agreed to sell the site in favour of plaintiff.
49. It is further stated that CITB, acting on the representation made by the purchasers of the sites prior to acquisition in so far as it relates to the plot of Sri. L.Linganna is concerned, decided to reconvey 15 sites 79 O.S. No.4626/2008 each measuring 90 ft. X 60 ft. as could be gathered from the letter dated 27.03.1970. Further the said Linganna filed W.P. No.270/1971 seeking for reconveyance of site No.155, which was dismissed as withdrawn. He filed O.S. No.446/1973 and sought for reconveyance of site No.156 and 157 and restricted his claim to site No.156 and 157 only. It is stated that B.D.A. has reconveyed 12 sites and is yet to reconvey 4 more sites. It may not be correct, as the B.D.A. had agreed to reconvey 15 sites out of which 12 sites already had been reconveyed and in the said writ petition No.270/1971, the B.D.A. had agreed to reconvey site No.155. Therefore, total sites reconveyed and agreed to reconvey added to 13 sites leaving a balance of 2 sites, i.e. site No.156 and 157 and when site No.156 and 157 were kept for public auction. Sri. L.Linganna filed O.S. No.446/1974 restricting that B.D.A. had by then reconveyed 13 sites, leaving only site No.156 and 157, in respect of which a decree was 80 O.S. No.4626/2008 passed in R.A. No.100/1973. It is clear that Sri. L.Linganna had no issue with regard to reconvey of petition site No.160.
50. It is further contended that defendant No.3 died on 19.04.2013 leaving behind her husband Sri. Sreekantaiah Sreenath and his son Sri. Nikil Sreenath i.e. defendants No.3(a) and 3(b) as his legal representatives to succeed the estate left behind by her including the suit schedule property and they in turn conveyed their right in respect of suit property in favour of defendant No.10 under registered sale deed dated 11.12.2014. Pursuant to the execution of sale deed, the defendant No.10 applied to B.B.M.P. for transfer of khata in his name and the proceedings are pending before B.B.M.P. and as such, this defendant is unable to obtain the khata and produce the same. Thus, the suit is filed only with an intention to knock off the valuable property 81 O.S. No.4626/2008 of the defendant No.10 and the plaintiff has no right over the schedule property and contending these facts sought for dismissal of suit.
51. In support of his evidence D.W.1 has relied Ex.D.1 which is the sale deed dated 16.05.2005 which is executed by CITB in favour of the G.P.A. holder of Smt. S.S.Usha i.e. defendant No.3 herein. Ex.D.2 is the khata certificate which shows site No.160 stands in the name of defendant No.3. Ex.D.3 to Ex.D.5 are the khata registration certificates which also shows the name of defendant No.3. Ex.D.6 is the sale deed dated 11.12.2014 which shows the legal representatives of deceased defendant No.3 have sold the property in favour of defendant No.10 for consideration of Rs.4,52,00,000/-. Ex.D.7 to Ex.D.9 are the Uttara certificate, khata certificate and khata extract which shows, pursuant to the sale deed, the name of defendant 82 O.S. No.4626/2008 No.10 finds placed in these documents. Ex.D.10 to Ex.D.12 are the tax paid receipts which shows the defendant No.10 is paying tax to the concerned authority. Ex.P.13 is the approved sanction plan. Ex.D.14 is the license issued to the defendant No.10 to put up construction in the suit schedule site. Ex.D.15 is the fee deposited by defendant No.10 towards license fee, betterment charges and other charges mentioned in the application. Ex.D.16 is the copy of the DD. Ex.D.17 to Ex.D.20 are the photos and CD which shows a shed in the suit premises with a gate installed therein. Ex.D.21 is the electricity bill. Ex.D.22 shows the defendant No.10 has preferred review petition before the Joint Commissioner, B.B.M.P. West Zone in respect of the khata transferred to the name of Sri. L.Linganna and vide order dated 26.12.2015, the khata effected in the name of dead person Sri. L.Linganna is cancelled and it is directed to the ARO to restore the khata to the name of 83 O.S. No.4626/2008 defendant No.3 Usha and to consider the request of defendant No.10 for transfer of khata to his name accordingly.
52. Ex.D.23 & Ex.D.24 are the documents which shows he had obtained electricity connection from BESCOM to the suit property. Ex.D.25 is the document issued under Right to Information Act by B.D.A. which shows at the time of preliminary notification 5 persons including Sri. L.Linganna owned property in plot No.3B and it is stated that Sri. L.Linganna is yet to furnish the list of persons for distribution of sites going to his share and the CITB has proposed the sites for reconveyance and it shows site No.160 is proposed to be reconveyed in favour of Sri. Sanathana Murthy and site No.161 is proposed to be reconveyed in favour of Sri. S.L.Shankaran and 161/A is proposed to be reconveyed in favour of S.L.Prabha. Ex.D.26 is the material 84 O.S. No.4626/2008 document furnished by CITB in respect of Sy. No.2, plot No.3B of Rajmahal Vilas Extension and it shows the details of the owners of the property before preliminary notification and the sites held as per revenue site pattern and the extent of sites and extent of land used for formation of roads and the balance available to form sites and it also shows the corresponding CITB site numbers within which major portion of the site lies and this document clearly shows sites No.19, 20, 28 and 29 which was purchased by Sri. Sanathana Murthy totally measures 1242 sq. yards and the corresponding CITB site number site No.160 and likewise, the revenue sites No.21, 22 and 30 purchased by Sri. S.L.Shankar are given corresponding CITB site No.161. Ex.D.27 is the possession certificate issued to defendant No.3. Ex.D.28 shows the correct dimension of site No.160.
53. So these documents relied upon by D.W.1 establishes that based on Ex.D.1 sale deed, legal 85 O.S. No.4626/2008 representatives of defendant No.3 have sold the suit schedule property in favour of defendant No.10 and based on the said sale deed, khata is transferred to the name of defendant No.10 and he has obtained electricity connection and has obtained sanction plan from concerned authority by paying requisite charges and the documents produced by him clearly establishes that the revenue sites numbers purchased by Sri. Sanathana Murthy and Sri. S.L.Shankaran were assigned site No.160 and 161 respectively.
54. During cross-examination of D.W.1 he denies that he has no document to show site No.160 and 161 were purchased by Sri. Sanathana Murthy and Sri. S.L.Shankaran. But it is necessary to note that, the plaintiff himself has produced the documents Ex.P.17 and Ex.P.18 itself shows the purchase of the revenue sites by Sri. Sanathana Murthy and Sri. S.L.Shankaran 86 O.S. No.4626/2008 and the documents produced by the defendants shows those sites were given corresponding CITB site No.160 and 161 respectively.
55. Further D.W.1 says he purchased the site No.160 after the death of Sri. S.L.Shankaran from legal heirs of Smt. Usha and after purchase he came to know that revenue sites were purchased by Sri. Sanathana Murthy and Sri. S.L.Shankaran from Sri. L.Linganna and he has clearly deposed that Sri. Sanathana Murthy was the owner of revenue sites No.19, 20, 28 and 29 and Sri. S.L.Shankaran was the owner of revenue sites No.21, 22 and 30. D.W.1 says site No.161 is purchased by advocate Sri. B.N.Jayadeva and he purchased the site from one Sri. Sanathana Murthy and further says Usha and Sri. Sanathana Murthy mutually exchanged site No.160 and 161 and as per mutual exchange B.D.A. has executed reconveyance deed in favour of Usha in 87 O.S. No.4626/2008 respect of site No.160 and he purchased the said site. The other suggestions putforth that since B.D.A. had reconveyed sites in favour of Sri. L.Linganna there was no question of B.D.A. reconveying the sites to Sri. Sanathana Murthy or Sri. S.L.Shankaran is denied and denies that Sri. S.L.Shankaran had no right over site No.160 and 161.
56. So the evidence of D.W.1 shows he has consistently deposed about his title and possession over the schedule property and that the revenue sites were purchased from Sri. L.Linganna by Sri. Sanathana Murthy and Sri. S.L.Shankaran and both have mutually agreed to exchange the sites and accordingly, reconveyance deed was executed by CITB and he purchased the suit site from legal heirs of defendant No.3.
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57. On analysis of the evidence placed on record it is evident that the plaintiff is relying upon the agreement of sale dated 18.12.1969 and the WILL dated 11.06.1984 in order to establish his right over the suit schedule property. So far as the execution of agreement to sell is concerned, it is settled law that a person cannot seek enforcement of agreement of sale, who failed to aver and prove that he had performed or had always been ready and willing to perform the essential terms of the contract, which were to be performed by him. It could also not be enforced in favour of a person who failed to aver in the plaint the performance of, or readiness and willingness to perform the contract according to its true construction. The material questions, which are required to be considered is as to whether there exists a valid and concluded contract between the parties for sale and whether the plaintiff has been ready and willing to perform his part of contract and whether the plaintiff has, 89 O.S. No.4626/2008 performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; These requirements have to be pleaded and proved by the plaintiff
58. But it is necessary to note that the admission of P.W.1 makes it clear that he had every opportunity to get the sale deed executed during his stay at Bengaluru and he has not approached Sri. L.Linganna for the execution of sale deed as per Ex.P.1. Further, the plaintiff has not chosen to examine any of the attesting witnesses to the document. It is necessary to note that when all the defendants have seriously disputed the execution of agreement of sale by Sri. L.Linganna, the burden was upon the plaintiff to establish the due execution of agreement of sale and as to the passing of consideration and it was obligatory on the part of plaintiff 90 O.S. No.4626/2008 to establish his readiness and willingness to perform his part of contract during life time of Linganna. Absolutely no evidence is forthcoming either to prove that the agreement of sale was executed by Sri. L.Linganna or that he has paid entire sale consideration amount to the Sri. L.Linganna. Except the self serving testimony of plaintiff and Ex.P.1, there are no documents forthcoming to prove the due execution of agreement of sale. So by this, the plaintiff has failed to establish the execution of agreement of sale dated 18.12.1969 by Sri. L.Linganna in his favour.
59. Now the other document relied upon by the plaintiff is the WILL dated 11.06.1984 alleged to have been executed by Sri. L.Linganna during his life time. It is necessary to take note of the fact that, the plaintiff has not chosen to examine any of the attesting witnesses to the WILL. Learned counsel for plaintiff in his arguments 91 O.S. No.4626/2008 submits that there is no evidence on record to invalidate the WILL which implies that the plaintiff may rely on the WILL itself as a valid testamentary document and the plaintiff need not demonstrate that the WILL was executed in accordance with Sec.63 of Indian Succession Act and the WILL being executed by Sri. L.Linganna signed by the testator and attested by two witnesses shows the requirements of the valid WILL is established and unless there are evidence which disproves the authenticity of the WILL, the WILL should be upheld has held by the Hon'ble Apex Court in Vidya Wanthi V/s. Durga Dass case. But it is important to take note of the fact that, all the defendants herein have seriously denied the due execution of the WILL and the defendants No.5 to 9 in their written statement have contended that the plaintiff is stranger to Sri. L.Linganna and hence, there was no question of Sri. L.Linganna bequeathing the schedule property in favour of the 92 O.S. No.4626/2008 plaintiff. So when there is serious dispute about the execution of the WILL and that the defendants have raised suspicion about the due execution of the WILL the burden is upon the plaintiff being the propounder of the WILL to establish that the WILL was executed by testator during his sound disposition state of mind and it is upon him to dispel the suspicious circumstances surrounding the due execution of WILL.
60. It is well settled proposition of law regarding proof of WILL that burden is always on the propounder to prove the due execution of the WILL and in the absence of any suspicious circumstances as to the execution of the WILL, the proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge his onus and where there are suspicious circumstances as to the genuinity of the WILL, onus is on the propounder to explain to the satisfaction of the court 93 O.S. No.4626/2008 that the WILL is genuine. How to prove the execution of WILL has been succinctly laid down by the Hon'ble Apex Court in H.V. Iyangar V/s B.N. Thimmajamma, AIR 1959 SC 443, where in the Hon'ble Apex Court has held as follows:
HELD- "In dealing with the proof of WILLS, the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the WILL was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature of his own free will Ordinarily, when the evidence adduced in support of the WILL is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder. In other words, the 94 O.S. No.4626/2008 onus on the propounder can be taken to be discharged on proof of the essential facts just indicated".
61. It is also relevant to note that section 67 of The BSA 2023deals with the proof of the execution of the document required by law to be attested and it provides that such a document shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution. These provisions prescribes the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Thus the question as to whether the WILL set up by the propounder is proved to be the last WILL of the testator has to be decided in the light of these provisions. Thus the WILL has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act.
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62. As per the principles laid down in the aforesaid ratio and as per the aforementioned provisions the burden is upon the propounder of the WILL to remove all such circumstances and to prove that WILL was voluntarily executed by the testator after being fully aware of the contents and consequences of the bequeath made in the WILL and that the attesting witnesses have signed the WILL in the presence of the testator. But, as discussed supra, the said question have to be decided with reference to Section 67 of The BSA 2023, which requires that the examination of the attesting witness is mandatory. But in the instant suit apart from the self serving testimony of plaintiff, none of the attesting witnesses are examined. Admittedly the plaintiff is a stranger to the family of Linganna. His own evidence shows he had a short period of stay at Bengaluru during which he never approached Linganna for any purpose. So under such circumstances Execution 96 O.S. No.4626/2008 of WILL by Linganna in faovur of a stranger raises suspicion as to the due execution of WILL. So the plaintiff has failed to dispel the suspicious circumstances surrounding the due execution of WILL. So by this, the plaintiff has also failed to establish that Sri. L.Linganna has bequeathed the schedule property in favour of plaintiff under the WILL dated 11.06.1984.
63. On the other hand, the documents relied upon by the plaintiff himself i.e. Ex.P.17 and Ex.P.18 which are the sale deeds dated 22.12.1958 shows that revenue sites No.21, 22 and 30 were purchased by Sri. S.L.Shankaran from Sri. L.Linganna and sites No.19, 20, 28 and 29 were purchased by Sri. Sanathana Murthy and they were placed in possession of their respective sites and the sale deeds were executed prior to the preliminary notification dated 14.10.1959. Further, Ex.P.16 which is the letter of the Government dated 97 O.S. No.4626/2008 20.12.1967 shows the Government has directed the CITB to reconvey the revenue sites to the respective purchasers of sites. After the acquisition proceedings were upheld by the Hon'ble Supreme Court. Ex.P.16 makes it clear that a direction is issued to CITB to reconvey the site to the persons who had purchased the site prior to preliminary notification and also to the purchasers who purchased sites after preliminary notification from Sri. L.Linganna. Further, Ex.P.7 shows that 9000 sq. yards of land acquired by CITB is reconveyed to Sri. L.Linganna offering to convey 15 sites. Ex.P.7, Ex.P.10 and Ex.P.16 makes it clear that the CITB has categorized the sites to be reconveyed to the purchasers and resolution is passed on 11.08.1971 as per Ex.P.10 which shows that the resolution is passed to reconvey the land in favour of the purchasers before preliminary notification. It is also important to take note of the fact that, after preliminary notification dated 98 O.S. No.4626/2008 14.10.1959 the acquired land vested with the Government and the sites purchased by Sri. S.L.Shankaran and Sri. Sanathana Murthy were also located in the acquired property and hence, when the property vested with the Government, Sri. L.Linganna had no right over the schedule property and hence, there was no question of he executing agreement of sale in favour of the plaintiff on 13.12.1969. As discussed earlier, Ex.P.6 shows that the defendant No.3 and Sri. Sanathana Murthy have agreed to exchange site No.160 and 161 consequent to which the CITB has accepted their compromise and has reconveyed site No.160 in favour of the defendant No.3 under agreement of reconveyance dated 12.06.1973 and possession certificate dated 19.06.1974 and sale deed is executed on 16.05.2005. As discussed earlier, the plaintiff has in unequivocal terms admitted the purchase of the revenue sites by Sri. Sanathana Murthy and Sri. S.L.Shankaran 99 O.S. No.4626/2008 prior to preliminary notification and further, Ex.D.29 which is the table prepared by CITB indicates that sites No.19, 20, 28 and 29 corresponds to site No.160 and likewise sites No.21, 22, 30 and 31 corresponds to site No.161. So the purchasers having decided to exchange their respective sites requested CITB for such exchange prior to actual reconveyance and accordingly, reconveyance deed is executed in favour of defendant No.3 in respect of suit schedule site and later, sale deed came to be executed. So thus, the plaintiff has failed to prove the due execution of agreement of sale and as to the bequeath of schedule property under the WILL and on the other hand, the defendant No.10 has proved that the suit schedule property was reconveyed in favour of defendant No.3 by executing a valid reconveyance agreement dated 12.01.1973 and sale deed dated 16.05.2005. The plaintiff has failed to establish that by virtue of agreement of sale dated 18.12.1969 he is in 100 O.S. No.4626/2008 possession and has also failed to establish that the reconveyance deed dated 12.01.1973 and sale deed dated 16.05.2005 are null and void and non-est in the eyes of law. So having failed to prove his case, the plaintiff is not entitled for reconveyance of suit property or to get his name entered in the khata of the suit property and when the possession is not established he is not entitled for any of the reliefs claimed. On the other hand, the defendant No.10 has succeeded in establishing that the defendant No.3 purchased the suit schedule site under valid agreement of reconveyance and the sale deed and that the legal heirs of defendant No.3 being the absolute owners of the schedule property have validly conveyed the property in favour of defendant No.10 and the plaintiff has failed to establish that the sale deed dated 11.12.2014 executed in favour of defendant No.10 is null and void. Hence, this Court proceeds to answered issues No.1 to 6 in the Negative, 101 O.S. No.4626/2008 additional issues No.1 and 2 in the Affirmative and additional issue framed on 06.09.2016 in the Affirmative and additional issue No.5 in the Negative.
64. ISSUES NO.7 AND 8 :: The defendants No.3 and 10 having in their written statement contended that the suit is hit the principles of constructive resjudicata as the plaintiff herein had filed a writ petition in W.P. No.5748/2006 against the B.D.A. and others including this defendant before Hon'ble High Court and the writ petition came to be dismissed as withdrawn and the plaintiff had not sought leave of Hon'ble High Court to approach the civil Court and as such, the suit of the plaintiff is hit by Order 2 Rule 2 of C.P.C.
65. Ex.P.12 which is the copy of the order passed by Hon'ble High Court in W.P. No.5748/2006 no doubt shows it was filed by the plaintiff as against the B.D.A. 102 O.S. No.4626/2008 and defendant No.3, memo was filed seeking permission to withdraw the writ petition and accordingly, the petition is dismissed as withdrawn. Under such circumstances, when the earlier petition is withdrawn and when there is no adjudication of any issue, which is directly or substantially in issue in the present suit, the question of application of the principles of constructive resjudicata does not arise and neither the provision of Order 2 Rule 2 of C.P.C. is applicable. Hence, these issues are answered in the Negative.
66. ADDITIONAL ISSUE FRAMED ON 10.07.2012 AND ADDITIONAL ISSUE NO.6 FRAMED ON 13.06.2025 :: As stated earlier, the plaintiff has filed the present suit seeking declaration that the agreement of reconveyance dated 12.01.1973 and sale deed dated 16.05.2005 executed by defendant No.1 in favour of defendant No.3 is non-est in the eye of law and also for 103 O.S. No.4626/2008 declaration that the sale deed dated 11.12.2014 executed by defendants No.3(a) and (b) in favour of defendant No.10 are null and void and non-est in the eye of law. The defendants No.3 and 10 have raised a contention that the suit is barred by law of limitation. It is necessary to note that the plaintiff is challenging the reconveyance deed of the year 1973 and sale deed of the year 2005 and in his cross-examination he has very clearly admitted about the purchase of suit schedule property by Sri. Sanathana Murthy and Sri. L.Linganna way back in the year 1958 and also admits that he had knowledge of the execution of agreement of reconveyance deed in the name of defendant No.3 by B.D.A. in the year 1973 and after knowing about the same he has not initiated any legal action against defendant No.3. So this elucidation in the evidence of P.W.1 shows he had knowledge of execution of agreement of reconveyance way back in the year 1973 104 O.S. No.4626/2008 itself and he has not challenged the same. As per the judgment relied upon learned counsel for defendant in case of Ramti Devi V/s. Union of India reported in (1995) 1 SCC 198 and Prem Singh and Others V/s. Birbal and Others reported in (2006) 5 SCC 353 and in case of Smt. Umadevi V/s. Sri. Ananda Kumar reported in 2025 INC 434, the date on which the documents are registered, it pre supposes that it is to be the knowledge of everyone including anyone having right or interest in that property. Hon'ble Apex Court in case of Ramti Devi V/s. Union of India reported in (1995) 1 SCC 198 has held that:
A. Limitation Act, 1963 - Art. 113 - Sale deed executed by the defendant to discharge pre-existing debts and got registered and coming to the knowledge of the plaintiff on the same day - Suit for declaration that the plaintiff was the owner of the house and that the said sale deed, having been executed to stifle the proposed prosecution of the defendant, was void and 105 O.S. No.4626/2008 not binding on the plaintiff, filed beyond three years from the date of execution/registration of the sale deed, held, time barred - Such suit also barred by Sec.92 of Evidence Act.
67. So in the instant suit, the plaintiff has admitted that he had knowledge of execution of registration of deed of conveyance in the year 1973 and the present suit is filed in the year 2008. Therefore, the question is whether the suit is within limitation as per Article 59 of Limitation Act which provides that for the purpose of cancellation or setting aside an instrument or decree, or for rescission of a contract, the period of limitation is three years and the time commences from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. So as seen from the evidence, the plaintiff had knowledge of 106 O.S. No.4626/2008 the document way back in the year 1973 itself and limitation begins to run from that date and three years limitation has been barred on the date when the suit was filed. Hence, it can be held that, the relief of declaration that the reconveyance deed dated 12.01.1973 and sale deed dated 16.05.2005 are null and void and non-est in the eye of law or barred by law of limitation.
68. Further so far as, the sale deed executed in favour of defendant No.10 dated 11.12.2014 is concerned, the said document is executed in the year 2014 and defendant No.10 is impleaded as party on 07.09.2015 by filing I.A. No.13 under Order 1 Rule 10(2) of C.P.C. So the sale deed is executed in favour of defendant No.10 on 11.12.2014 and he has been brought on record as defendant No.10 on 07.09.2015 and the declaratory relief is sought by filing I.A. No.26 which came to be allowed by this Court on 02.06.2025. 107
O.S. No.4626/2008 So though the plaintiff had knowledge of purchase of property by defendant No.10 way back in the year 2015 and he was brought on record as party to the suit, the relief of declaration is not sought and it was first time sought in the year 2025. So this shows that the relief sought for declaration that the sale deed dated 11.12.2014 executed by defendants No.3(a) and (b) in favour of defendant No.2 is null and void and non-est in the eye of law also barred by limitation by virtue of Art. 59 of Limitation Act. Accordingly, this Court proceeds to answer aforesaid additional issues are answered in the Affirmative.
69. ISSUES NO.9 AND 10 :: In view of findings on the aforesaid issues, the plaintiff is not entitled for any of the reliefs claimed and hence, these issues are answered in the Negative.
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70. ISSUE NO.11 :: In view of findings on the aforesaid issues, this Court proceeds to pass the following;
ORDER Suit of the plaintiff is dismissed.
Both parties shall bear the cost of the suit.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this 25 th day of September, 2025).
(VEENA N.) XL ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF:
(A) PLAINTIFFS SIDE ::
P.W.1 :: T.M.C.Basanna
(B) DEFENDANTS SIDE ::
D.W.1 :: N.Prathap Kumar
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II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF:
(A) PLAINTIFFS SIDE :
Ex.P.1 :: Original agreement of sale dated 18.12.1969 Ex.P.2 :: Original WILL dated 11.06.1984 executed by Sri. L.Linganna Ex.P.3 & :: Certified copies of reconveyance deed Ex.P.4 dated 12.01.1973 and sale deed dated 16.05.2005 Ex.P.5 :: Certified copy of the reconveyance deed dated 07.08.1972 Ex.P.6 :: Certified copy of the proceedings sheet maintained by CITB prior 07.08.1972 Ex.P.7 & :: Certified copy of the letter addressed by Ex.P.8 CITB dated 25.03.1970 and a letter of Sri. L.Linganna dated 12.08.1976 Ex.P.9 :: Certified copy of sale deed dated 14.08.1972 Ex.P.10 :: Certified copy of the resolution of CITB dated 28.07.1971 Ex.P.11 :: Certified copy of objection statement filed by B.D.A. in W.P. No.5748/2006 Ex.P.12 :: Final order passed in W.P. No.5748/2006 Ex.P.13 :: Certificate issued by the Sub-Registrar dated 15.10.1965 Ex.P.14 to :: Certified copy of endorsement dated Ex.P.16 22.07.2006, 17.12.2006, 20.12.1966 110 O.S. No.4626/2008 Ex.P.17 & :: Certified copies of sale deeds dated Ex.P.18 22.12.1958 Ex.P.19 :: Certified copy of the notice dated 11.05.1970 Ex.P.20 :: Certified copy of the sketch Ex.P.21 to :: Certified copy of the endorsements dated Ex.P.23 14.03.2006, 15.07.2006 & 07.01.2010 Ex.P.24 :: One challan Ex.P.25 :: Certified copy of the letter dated 22.05.1974 Ex.P.26 :: Certified copy of endorsement dated 03.06.2006 Ex.P.27 :: Certified copy of the reconveyance agreement dated 07.08.1972 Ex.P.28 :: Certified copy of the possession certificate dated 19.06.1974 Ex.P.29 & :: Certified copies of the letters dated Ex.P.30 19.06.1974 & 17.05.2004 Ex.P.31 to :: Certified copies of khata certificates Ex.P.33 Ex.P.34 :: Certified copy of the letter dated 14.10.2004 Ex.P.35 :: Certified copy of the possession certificate of site No.162 Ex.P.36 :: Certified copy of the registration Ex.P.37 to :: Certified copies of the sale deeds dated Ex.P.39 01.04.1970 dated 05.04.1973 111 O.S. No.4626/2008 Ex.P.40 :: The relevant extract of register office maintained by then CITB relating to the suit obtained under the RTI Act Ex.P.41 :: Certified copy of statement of Sri. S.L.Shankaran dated 03.03.1961 (B) DEFENDANTS SIDE ::
Ex.D.1 :: Original sale deed dated 16.05.2005 Ex.D.2 :: Khata certificate dated 17.06.2004 Ex.D.3 :: Notice dated 19.11.2005 sent by Corporation Ex.D.4 :: Khata certificate dated 17.12.2005 Ex.D.5 :: Khata extract dated 17.12.2005 Ex.D.6 :: Original sale deed dated 11.12.2014 Ex.D.7 :: Uttara patra Ex.D.8 :: Khata certificate dated 14.01.2016 Ex.D.9 :: Khata extract dated 14.01.2016 Ex.D.10 :: Tax paid receipt Ex.D.11 :: Challan Ex.D.12 :: Tax paid receipt Ex.D.13 :: Approved plan Ex.D.14 :: Original license issued by Corporation Ex.D.15 :: Receipt dated 19.02.2016 Ex.D.16 :: Copy of acknowledgment of cheque Ex.D.17 to :: 3 photographs and CD Ex.D.20 112 O.S. No.4626/2008 Ex.D.21 :: Electricity bill paid receipt Ex.D.22 :: Certified copy of orders passed in Rev.P. No.17/2015-16 by B.B.M.P. Ex.D.23 :: Sanction letter issued by BESCOM Ex.D.24 :: Electricity bill Ex.D.25 :: Documents obtained RTI Act from B.D.A. Ex.D.26 :: List of sites under re-allotment scheme in Sy. No.2 and plot No.3B Ex.D.27 :: Possession certificate in respect of site No.160 Ex.D.28 :: Correct dimension report of site No.160 Ex.D.29 :: Tippani in respect of Sy. No.2 (VEENA N.) XL ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.