Karnataka High Court
L.Natraj vs Susheelamma on 4 April, 2025
Author: K.Natarajan
Bench: K.Natarajan
1 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO.569 OF 2015(DEC/INJ)
C/W
REGULAR FIRST APPEAL NO.947 OF 2015(DEC/INJ)
C/W
REGULAR FIRST APPEAL NO.622 OF 2015(DEC/INJ)
IN RFA NO.569/2015:
BETWEEN:
1 . SUSHEELAMMA
AGED ABOUT 65 YEARS,
W/O R RAMAIAH REDDY,
R/AT KAGGADASAPURA VILLAGE,
C. V. RAMAN NAGAR POST,
BANGALORE-560093.
2 . A MAMATHA,
AGED ABOUT 39 YEARS,
D/O ANNAIAH REDDY,
R/AT CHELKERE,
KALYAN NAGAR POST,
BANGALORE-560043.
...APPELLANTS
(BY SMT. SRUTI C. CHAGANTI, ADVOCATE)
2 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
AND:
1. T. LAKSHMAN REDDY,
S/O THANGAVELU REDDY,
AGED ABOUT 73 YEARS,
SINCE DEAD BY LRS.,
A) SMT. L. SUMATHI,
D/O LATE SRI. T. LAKSHMAN REDDY,
AGED ABOUT 42 YEARS,
R/AT NO.699, 2ND "A" MAIN ROAD,
AJARNALAPPA LAYOUT,
ST. THOMAS TOWN POST,
KACHARKANAHALLI,
BENGALURU-560084.
B) SHRI. I. MANJUNATH,
S/O LATE SRI. T. LAKSHAMAN REDDY,
AGED ABOUT 39 YEARS,
R/AT NO.595, 9TH 'B' CROSS,
THRIVENI ROAD,YASHWANTHPUR,
BENGALURU-560022.
C) SMT. L. MEENAKSHI,
D/O LATE SRI T. LAKSHMAN REDDY,
W/O SRI. SHIVAKUMAR
AGED ABOUT 36 YEARS,
R/AT NO.790,
9TH 'B' CROSS, THRIVENI ROAD,
YASHWANTHPUR,
BENGALURU-560022.
2. L. NATRAJ
S/O T LAKSHMAN REDDY,
AGED ABOUT 32 YEARS,
R/AT NO.595,
9TH 'B' CROSS, THRIVENI ROAD,
II PHASE,I STAGE, GOKULA
BANGALORE-560054
3 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
3. H LATHA
AGED ABOUT 51 YEARS,
W/O K HARIBABU
4. H DEEPIKA
AGED ABOUT 30 YEARS,
D/O K HARIBABU
BOTH ARE R/AT NO. 4
DEFENCE AVENUE,
CHELKERE KALYAN NAGAR POST,
BENGALURU-43
5. S. SRINIVAS
AGED ABOUT 20 YEARS,
S/O SADANANDA
6. S. CHITRA,
AGED ABOUT 18 YEARS,
D/O SADANANDA
7. S. MUNIRAJU
AGED ABOUT 21 YEARS,
S/O SADANANDA
8. SMT. A. RATHNAMMA,
AGED ABOUT 56 YEARS,
W/O LATE SADANANDA,
RESPONDENT NOS.5 TO 8 ARE R/AT
NO.1003, OLD B CHANNASANDRA
MAIN ROAD,
OPP YELLAMMA STORES
DODDABANASWADI,
BANASWADI POST,
BENGALURU-43
9. K. INDUSEKHAR
AGED ABOUT 50 YEARS,
S/O LATE K. MOHAN NAIDU
R/AT NO.1-150,
4 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
BANGARUMITTA,
AVILALA POST,
TIRUPATHI RURAL,
CHITTOOR DISTRICT,
ANDHRA PRADESH
....RESPONDENTS
[BY SRI. C.M. NAGABHUSHANA, ADVOCATE FOR R1(A) TO (C);
SRI. SATYANARAYANA REDDY, ADVOCATE FOR R5 TO R7;
SRI. A. SATHISH, ADVOCATE FOR R8;
SRI. VINAYAKA B., ADVOCATE FOR R9;
NOTICE TO R2 TO R4 SERVED]
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
01.04.2015 PASSED IN O.S.NO.922/2006 ON THE FILE OF XLIII
ADDITIONAL CITY CIVIL JUDGE, CCH-44 BENGALURU,
DECREEING THE SUIT FOR DECLARATION AND INJUCTION.
IN RFA NO.947/2015:
BETWEEN:
L.NATARAJ
S/O T LAKSHMAN REDDY,
AGED ABOUT 52 YEARS,
RESIDING AT NO.595,
9TH B CROSS, TRIVENI ROAD,
II PHASE, I STAGE, GOKULA
BANGALORE.
...APPELLANT
(BY SRI B. V. SRINIVAS, ADVOCATE)
AND
1. SUSHEELAMMA
AGED ABOUT 65 YEARS,
W/O R RAMAIAH REDDY,
RESIDING AT
KAGGADASAPURA VILLAGE,
C. R. RAMAN NAGAR POST,
5 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
BANGALORE-93.
2. MAMATHA
AGED ABOUT 30 YEARS,
D/O H ANNAIAH REDDY,
R/AT CHELIKERE,
KALYAN NAGAR POST,
BANGALORE-43
3. T LAKSHMAN REDDY
S/O THANGAVELU REDDY,
SINCE DEAD BY HIS LRS.,
a) SMT. L. SUMATHI
D/O LATE T. LAKSHMAN REDDY,
AGED ABOUT 42 YEARS,
RESIDING AT NO. 699,
2ND A MAIN ROAD,
AJAMALAPPA LAYOUT,
ST. THOMAS TOWN POST,
KACHARAKANAHALLI,
BENGALORE-560084.
b) SRI. K MANJUNATH
S/O LATE T. LAKSHMAN REDDY,
AGED ABOUT 39 YEARS,
RESIDING AT NO.595, 9TH
B CROSS, THRIVENI ROAD,
YESHWANTHPUR,
BENGALURU-560022.
c) SMT.L. MEENAKSHI
D/O LATE T. LAKSHMAN REDDY,
W/O SRI. SHIVAKUMAR,
AGED ABOUT 36 YEARS,
RESIDING AT NO. 790, 9TH B CROSS,
THRIVENI ROAD,
YESHWANTHPUR,
BENGALURU-560022.
6 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
4. H LATHA
AGED ABOUT 22 YEARS,
W/O K HARIBABU
5. H DEEPIKA
AGED ABOUT 21 YEARS,
D/O K HARI BABU
BOTH ARE R/AT NO.4 DEFENCE AVENUE,
CHELKERE KALIAN NAGAR POST,
BENGALURU-560043.
6. S. SRINIVAS
S/O SADANANDA
AGED ABOUT 20 YEARS,
7. S. CHITRA
AGED ABOUT 18 YEARS,
D/O SADANANDA
8. S. MUNIRAJU
AGED ABOUT 21 YEARS,
S/O SADANANDA
9. SMT. A. RATHNAMMA
AGED ABOUT 56 YEARS,
W/O LATE SADANANDA
NO.6 TO 9 ARE RESIDING AT NO.1003
OLD B CHANNASANDRA MAIN ROAD,
OPP YELLAMMA STORES
DODDABANASWADI,
BANASWADI POST,
BENGALURU-560043.
....RESPONDENTS
(BY SRI C. M. NAGABHUSHANA, ADVOCATE
FOR LR'S OF R3 AND ALSO FOR R4, R5;
V/O DATED 20.02.2023 SMT. SRUTI C. CHAGANTI,
ADVOCATE FOR R1 AND R2;
SRI. VISHWANATH SHETTY, ADVOCATE FOR R6 TO R9)
7 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 OF
CPC, SET ASIDE THE JUDGMENT AND DECREE DATED 01.04.2015
PASSED BY COURT OF 43RD ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU IN O.S.No.922 OF 2006 BY
ALLOWING THIS APPEAL WITH COSTS IN THE INTEREST OF
JUSTICE.
IN RFA NO.622 OF 2015:
BETWEEN
1. T. LAKSHMAN REDDY
DEAD BY LRS
a) SMT. L. SUMATHI
AGED ABOUT 42 YEARS,
D/O LATE T. LAKSHMANA REDDY,
b) SRI. L. MANJUNATH
AGED ABOUT 40 YEARS,
S/O LATE T. LAKSHMANA REDDY,
C) SMT. L. MEENA
AGED ABOUT 38 YEARS,
D/O LATE T. LAKSHMANA REDDY,
APPELLANT 1 (A) TO 1 (C) ARE R/AT NO.595,
9TH B CROSS, TRIVENY ROAD,
II PHASE, I STAGE,
YESHWANTHAPUR,
BENGALURU-560054.
2. SMT. H LATHA
AGED ABOUT 51 YEARS
W/O K HARIBABU
R/AT NO.4, DEFENCE AVENUE
CHELKERE, KALYAN NAGAR POST,
BANGALORE - 560 043
8 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
3. SMT. H DEEPIKA
AGED ABOUT 30 YEARS
D/O K HARIBABU
R/AT NO.4, DEFENCE AVENUE,
CHELKERE, KALYAN NAGAR POST,
BANGALORE - 560 043.
...APPELLANTS
(BY SRI. C. M. NAGABUSHANA AND
SRI. K. S. UDAY, ADVOCATES FOR LR'S DECEASED A1)
AND
1. SADANANDA @ ANAND
SINCE DEAD BY HIS LR'S
a) S. SRINIVAS
AGED ABOUT 20 YEARS,
S/O LATE SADANANDA @ ANAND
R/AT H.L.NO.1003,
OLD B. CHANNASANDRA MAIN ROAD,
DODDABANASWADI,
BENGALURU-560043.
b) S. CHITRA
AGED ABOUT 18 YEARS,
D/O LATE SADANANDA @ ANAND
R/AT H.L.NO.1003, OLD
B. CHANNASANDRA MAIN ROAD,
DODDABANASWADI,
BENGALURU-560043.
C) S. MUNIRAJU
AGED ABOUT 21 YEARS,
S/O LATE SADANANDA @ ANAND
R/AT H.L.NO.1003,
OLD B. CHANNASANDRA MAIN ROAD,
DODDABANASWADI,
BENGALURU-560043.
9 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
2. SMT. SUSHEELAMMA
AGED ABOUT 65 YEARS
W/O R RAMAIAH REDDY
R/AT KAGGADASAPURA VILLAGE,
C V RAMAN NAGAR POST,
BANGALORE - 560 093
3. SMT. A. MAMATHA
AGED ABOUT 39 YEARS,
D/O H ANNAIAH REDDY
R/AT CHELKERE
KALYAN NAGAR POST,
BANGALORE - 560 043
4. L. NATARAJ
S/O T LAKSHMAN REDDY,
AGED ABOUT 32 YEARS
R/AT NO. 595, 9TH B CROSS,
TRIVENI ROAD,
II PHASE, I STAGE,
YESHWANTHAPUR,
BANGALORE - 560 054
...RESPONDENTS
(BY SRI. VISHWANATH SHETTY, ADVOCATE FOR LR'S OF R1;
SRI. VARUN PAPIREDDY, ADVOCATE FOR R2, R3 AND R4 )
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE
THE JUDGMENT AND DECREE DATED 01.04.2015 PASSED IN
O.S.NO.922/2006 BY THE LEARNED XLIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-44), BY ALLOWING
THE APPEAL, THEREBY DISMISS THE SUIT OF THE PLAINTIFF
WITH COST, IN THE INTEREST OF JUSTICE.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 10.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
10 RFA NO.569/2015
C/W RFA NO.947/2015
RFA NO.622/2015
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 10.01.2025
PRONOUNCED ON : 04.04.2025
CAV JUDGMENT
These appeals are filed by the appellants/defendants under section 96 of CPC for setting aside the judgment for having decreed the suit of the plaintiff passed in OS No.922/2006 dated 1.4.2015 by XLIII Additional City Civil and Sessions Judge, CCH- 44, Bengaluru.
2. Heard the arguments of learned counsel for the appellants and counsel for the respondents.
3. In RFA No.569/2015, the appellants were the defendants Nos.1 and 6, respondent Nos.1(a) to (c) are the legal heirs of defendant No.3, respondent Nos.2, 4, and 5 are defendant Nos.2, 4 and 5 before the trial court.
4. In RFA No.622/2015, the appellants are the legal heirs of defendant No.3 and defendant Nos.4 and 5, respondent No.1 is the plaintiff and respondent Nos.2 to 4 are defendant Nos.1, 6 and 2 before the trial court.
11 RFA NO.569/2015C/W RFA NO.947/2015 RFA NO.622/2015
5. In RFA No.947/2015 appellant is defendant No.2, respondent Nos.1 and 2 are defendant Nos.1 and 6, respondent Nos.3(a) to (c) are the legal heirs of defendant No.3 and respondent Nos.4 and 5 and defendant Nos.4 and 5 before the trial court. The ranks of the parties are retained as per the trial court, for the sake of convenience.
6. The case of the plaintiffs before the trial court is that the plaintiff has filed a suit for declaration to declare that the plaintiff is absolute owner in peaceful possession and enjoyment of the scheduled property and seeking for injunction, restraining the defendants from interfering with the possession and enjoyment of the scheduled property with other reliefs.
7. It is alleged that the plaintiff is the son of one late Munivenkatappa and grand son of one Pillappa @ Munivenkatappa. The suit schedule property bearing Sy.No.112/1 measuring 29 guntas and Sy.No.112/2 measuring 1 acre 12 guntas, totally measuring 2 acres 1 guntas of Kowdenahalli village, K.R. Puram Hobli, Bangalore South Taluk, now comes to Bangalore East Taluk (hereinafter referred as suit schedule property), is the ancestral property of plaintiff. The said land was 12 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 a jodi inam land governed by the provisions of Personal and Miscellaneous Inams Abolition Act, and the same was in occupation and cultivation of the ancestors of plaintiff. It is further contended that during the lifetime of the father of plaintiff, the said Inam Abolition Act came into effect and as per the provisions of the said Act, the suit lands came to be registered in the name of father of plaintiff as kadim tenant by the Special Deputy Commissioner, in Inam Abolition in proceedings No.78/1959-60.
8. It is further contended that the name of the father of plaintiff came to be entered in all the revenue records i.e., RTC from 1974-75 to 1989-90. During the lifetime of father of plaintiff, he obtained the loan from Primary Co-operative Bank Ltd., Bangalore on 5.6.1978, in that connection, created the charge in favour of said bank in respect of the schedule property for availing finance from the bank. At the time of granting the loan, bank officials had visited the spot of the schedule property and verified the scheduled property and after being satisfied about the possession and enjoyment of the property by the father of the plaintiff, had granted the loan. The father of the plaintiff acquired 13 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 impeachable right, title and interest over the property and in physical possession of the property. During the lifetime of his father, at the oral partition, amongst the family members of the plaintiff, the schedule property was fallen to the share of plaintiff as early as 1984. The other family members were allotted with different lands. Hence, plaintiff is entitled to claim the right, title and interest and protect his possession over the schedule property. The father of the plaintiff died intestate dated 24.12.1990, leaving behind the plaintiff to succeed the schedule property.
9. It is further alleged that the revenue authorities without any justification, without there being any orders, have illegally rounded off the name of the father of plaintiff in column No.9 of the RTC extract in the year 1986 to 1989 and the said revenue entries are contrary to the earlier RTC entries and without any authority, the right, title and interest over the property, the revenue authorities without any justification, have illegally affected the mutation in favour of defendant No.1, in M.R.No.11/1989-90 that the alleged sale deed standing in her favour in respect of land in survey No.110/1 of Kowdenahalli 14 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 village, but illegally assumed that she has got alleged possession in the schedule property, contrary to the reality, right, title and interest over the property.
10. It is further contended that the plaintiff referred an appeal before the Assistant Commissioner, Bangalore North Sub- division, Bangalore in RA No.440/05-06 and the case was posted on 7.3.2006, by pending consideration, the said appeal filed against defendant No.1 and the revenue authorities. The land bearing Sy.No.110/1 allegedly purchased by the defendant No.1, from her alleged vendor on 13.7.1972 is totally different schedule property from the schedule property ie., Sy.No.112/1 and 112/2 and the properties have got different boundaries. Though there is no identification of both properties, the revenue authorities have illegally affected the impugned mutation in favor of the defendant No.1 and the same was challenged before the revenue proceedings, by taking advantage of illegal revenue entries and the alleged sale deed in favour of defendant No.2, to the extent of 8¾ guntas in a portion of the schedule property, without there being any right, title or interest or possession over the schedule property. The illegal documents created by defendant No.1 in 15 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 favour of defendant No.2, in any portion of the schedule property does not bind upon the right, title and interest over the plaintiff and has no legal consequences with regard to any right, title and interest, of the plaintiff. It is further contended that the original grant order passed by the Special Deputy Commissioner is not immediately available with the plaintiff, as the same was misplaced during the lifetime of the father of the plaintiff and he could not locate the same. However, the extract of the VIII Register maintained by the competent authority is produced where there is a mention of confirming the occupancy right upon the father of the plaintiff as kadim tenant. Plaintiff approached the office of Tahsildar for the certified copy of the grant order in case No.78/59-60, but the jurisdictional Tahsildar has issued endorsement on 10.1.2006 stating that the file is not available. The defendants are total strangers to the schedule property and they have no manner of right, title or interest in the schedule property, despite the same, the defendants made attempts to interfere with the plaintiff's peaceful possession and enjoyment over schedule property on 26.1.2006, which was resisted by the plaintiff and his family members with great difficulty. It is further contended that in view of the sharp increase, in the value of the 16 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 land in the village, the defendant trying to dispossess the plaintiff from the scheduled property. Though the defendant No.1 said to have got sale deed in respect of land bearing Sy.No.110/1 of Kowdenahalli village and without there being any identity of the property, out of the frustration making hectic efforts to interfere with the peaceful possession and enjoyment of the schedule property of the plaintiff and trying to dispossess, the plaintiff by creating third party interest over the schedule property. Accordingly, filed the suit for seeking declaration and injunction.
11. The defendant No.1 appeared and filed written statement contending that the suit is not maintainable, the plaintiff has no legal right to file the suit. He has not approached court with clean hands, suppressed the material facts and not entitled for any Orders. This suit is barred by principles of Law of Limitation and that the property of the plaintiff is unidentified, unascertained property by creating and concocting the story filed the suit.
12. It is further contended that the land bearing Sy.No.110/1, resurvey No.112/1 and 112/2 together measuring 2 acres 1 guntas situated at Yerranapalya, K.R.Puram Hobli, 17 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Bangalore South Taluk bounded on east by Government channel and Channasandra Ramaiah's land (earlier belonged to Munihanumaiah), west by Kasavanahalli Venkatappa's land, north by road and M.Muniyappa's land, south by Kasavanahalli Thimmareddy's land, which was originally belonged to M.Muniyappa and his sons i.e, M.Narayanappa and M.Mahesh Kumar, from whom defendant No.1 had purchased the same under registered dale deed dated 13.07.1972, which was registered in the office of the Sub-Registrar, Bangalore South Taluk, Bangalore. Since from the date of purchase, the defendant No.1 is in peaceful possession and enjoyment of the scheduled property, khata and RTC and other revenue records in her name. She also got mutated her name in M.R.No.11/89-90. The property has been measured, fixed the hudbust and sketch prepared. The land is in her possession measuring 2 acres 1 guntas and tallies with Sy.No.112/1 and 112/2, instead of 110/1. It is further contended that where there is a mistake in the document regarding survey number but tallies with the boundaries. The boundaries mentioned in the property, in the document will prevail over the survey number, since the area and boundaries of the land are currently mentioned while writing the 18 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 land in Sy.No.110/1, the survey number was wrongly mentioned in the sale deed. Hence, identification of the property, the area and the boundaries has to be looked into. Defendant No.1 had purchased the said property under sale deed dated 13.07.1972. The defendant No.1 is in possession and enjoyment of the property from past 29 years. She has put up poultry farm sheds and other rented buildings and remaining vacant portion of the land is in her lawful possession and enjoyment.
13. It is further contended that the CMC authorities attempted to construct the Community Hall in a portion of the land bearing Sy.No.112/1 and 112/2 belonged to defendant No.1, in the year December 2000 and also attempted to interfere with peaceful possession and enjoyment of the property by defendant No.1. Hence, defendant No.1 filed suit against CMC, in O.S.No.81/2001 and also obtained the order of status-quo. Once again the CMC and its subordinates attempted to interfere in Sy.No.112/1 and 112/2 and tried to dig pit in the property on 03.05.2002. A suit for permanent injunction was filed in O.S.No.3506/2005 and obtained temporary injunction against 19 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 CMC on 07.07.2005 and MFA No.6783/2005 came to be filed, which is still pending.
14. The defendant No.1, further contended that the plaintiff has no right, title and interest over the property and created and concocted the documents and filed the suit on imaginary reliefs and further denying all the averments made in the plaint, prayed for dismissal of the suit.
15. The defendant No.2 appeared through the counsel and also filed written statement contending that the suit is misconceived, bereft of merits, beyond truth and further contended the averments made in the paragraph No.3 of the plaint is not within the knowledge of defendant No.2. The defendant No.1/Smt. Susheelamma purchased the property on 13.07.1972 which was 2 acres 1 guntas in survey No.110/1 and resurvey No.112/1 and 112/2. The pahanis and mutation are transferred in her name. The defendant No.1 transferred and sold 8¾ guntas in favor of the one L.Nataraj (defendant No.2) vide sale deed dated 30.6.1995 which was registered before the office of the Sub Registrar, KR Puram. The defendant No.1 had acquired the said property by way of grant from Special Deputy 20 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Commissioner, Inam Abolition. Further denied other averments are not within the knowledge of defendant No.2. Hence, prayed for dismissal of the suit.
16. Defendant Nos.3 to 6 were also impleaded and defendant No.6 filed written statement contending that the suit of the plaintiff filed is unrighteous claiming the decree for declaration. The defendant No.6 also disputed the correctness of the averments and allegations of the plaintiff and further denied the averments made in the paragraph No.3 of the plaint and contended that the plaintiffs suppressed the material facts and filed the suit. It is further contended that the defendant No.1 purchased the property in survey No. 112/1 and 112/2 measuring 2 acres 1 guntas under registered sale deed in 1972. The survey numbers were wrongly mentioned. Thereafter resurvey number has been assigned. The defendant No.1 sold 8¾ guntas to the defendant No.2 on 30.06.1995. The defendant No.1 has formed site in the remaining extent of the land in survey No.112/2 and a portion of 112/1 and sold sites formed therein in favour of different persons including defendant No.6 and purchased the site Nos.20 and 21 in survey No.112/2 from the defendant no.1 under 21 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 the sale deed dated 11.06.2004. Some of the purchasers put up constructions, roads build and water and sanitary connections were obtained. Plaintiffs fully knowing the formation of sites, construction of buildings and brick manufacturing factory, has suppressed the fact and filed the case. Further denying all the averments made in the plaint by plaintiff and prayed for dismissing the suit.
17. Based upon the pleadings the trial court framed 5 issues and 2 additional issues as under:-
"ISSUES"
1. Whether plaintiff proves that he is the absolute owner in possession of the plaint schedule property?
2. Whether the plaintiff proves that the defendants unnecessarily interfering with the plaintiff's peaceful possession and enjoyment of plaint schedule property?
3. Whether the plaintiff is entitled for the relief of declaration as sought?
4. Whether plaintiff is entitled for the relief of Permanent Injunction as sought?
5. What order or decree?
22 RFA NO.569/2015C/W RFA NO.947/2015 RFA NO.622/2015 Additional issues dated 3/10/2013
1. Whether 6th defendant proves that the suit is bad for non joinder of necessary parties as alleged in para-12 of the Written Statement?
2. Whether 6th defendant proves that the suit is not properly valued and Court Fee paid is not in accordance with law as alleged in para-12 of the Written Statement?"
18. In order to prove the case of the plaintiff, the plaintiff got himself examined as PW.1 by filing affidavit in lieu of examination-in-chief. Subsequently, his son was examined as PW.1 through GPA and got marked 46 documents, as per Ex.P1 to P46. On behalf of the defendants, Power of Attorney Holder of the defendant Nos.1 and 6 were examined as DW.1 and got marked 89 documents. On behalf of defendant No.2, he himself was examined as DW.2 and got marked documents from Exs.D.91 to D.167. After hearing the arguments, the trial court answered the issue Nos.1 to 4 in the affirmative and additional issue No.1 in the negative and additional issue No.2 in the affirmative. Ultimately the suit of the plaintiff came to be decreed, by declaring the plaintiff as absolute owner of the scheduled property and injunction was granted against the defendants. Hence, the defendants are before this court.23 RFA NO.569/2015
C/W RFA NO.947/2015 RFA NO.622/2015
19. The defendant Nos.1 and 6 have filed the RFA No.569/2015. RFA No.622/2015 is filed by the defendant No.3, 4 and 5. RFA No.947/2015 is filed by the defendant No.2.
20. Learned counsel appearing for the appellants i.e, defendant Nos.1 and 6 has contended that the trial court committed error in decreeing the suit of the plaintiff. The deceased plaintiff had staked a claim to the scheduled property by virtue of oral partition and he has contended that the property was listed in the name of his father under Inam Abolition Act and his father died intestate on 24.12.1990 and he has succeeded the scheduled property and contended that the defendants have no right, title, interest over the property, but he has not placed any legally acceptable, cogent material to support the case of the plaintiff. But the trial court wrongly decreed the suit.
21. It is further contended that the appellant No.1 purchased the land in survey No.112/1 and 112/2 of Kowdenahalli village, measuring 2 acres 1 guntas from Muniyappa and his sons on 13.07.1972. The sale deed was executed in her favour. The survey number was incorrectly mentioned as Sy.No.110/1 instead of Sy.Nos.112/1 and 112/2. The location and boundaries for 2 24 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 acres 1 gunta of Sy.Nos.112/1 and 112/2 of Kowdenahalli village has been confirmed by way of survey conducted by the survey authorities. The Phode took place, the boundaries were fixed and it was noticed by the defendant No.1 in the sale deed and an incorrect survey number has been mentioned and therefore it is resurveyed and confirmed it was land in survey No.112/1 and 112/2. The court below has not properly appreciated the evidence on record, while granting the decree.
22. It is further contended that the appellant No.1 had sold 8¾ guntas of land out of 2 acres 1 guntas in favour of the respondent No.1 under the sale deed dated 30.06.1995 and he was in possession and enjoyment of the property. The appellant No.1 has formed the sites in remaining extent of land in Survey No.112/1 or 112/2 of Kowdenahalli village and sold to some of the purchasers and they put up the constructions, sanitary connections were given, but the plaintiff wrongly shown the suit as agricultural land, which had lost the agricultural character. He further contented that the Power of Attorney holder of appellant was examined as DW1 and produced 89 documents. The defendant No.2 was examined as DW2 and he also got marked 25 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 documents from Exs.D91 to 166. The appellant No.1 also filed suit against CMC in OS.No.81/2001 which was dismissed for default. The appellant also filed suit in O.S.No.3506/2005 against chief officer of the CMC, KR Puram and obtained the decree at Ex.D52 the decree passed by the Civil Court, was not considered. It is further contended that the brother of the plaintiff filed suit in O.S.No.4676/2011 in respect of 1 acre 12 guntas in survey No.112/2 of Kowdenahalli village. The suit was dismissed. The same was not appreciated by the trial court. The plaintiff's brother's wife and children and his sister Jayamma filed Revenue Appeal in 563/2006-07 in respect Sy.No.112/3 of Kowdenahalli village. The plaintiff was respondent No.3 in the said case where the father of Plaintiff was owning only 1 acre 3 guntas in survey No.112/3. The same is at Ex.D46 which was not considered. Further contended that the trial court considered only documents of the plaintiff. The father of the plaintiff died intestate with only 1 acre 3 guntas of land, even assuming for the purpose of document, the suit property, family partition and they have mortgaged the land as per Ex.P21. The boundaries mentioned do not match with the boundaries in Survey Nos.112/1 and 112/2. 26 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 The plaintiff claimed the entire survey No. 112/3 of Kowdenahalli village, which is not correct.
23. Learned counsel for the appellant further contended that the claim of the suit scheduled property which was Inam Abolition land granted to his father, when the appellant has disputed the same, therefore it is on the plaintiff to discharge the burden and the documents of plaintiffs were defective. Therefore, the judgment of the trial court calls for interference and is liable to be set aside.
24. Learned counsel for the appellant in RFA No.947/2015, where the defendant No.2 in the trial court who is the purchaser of the portion of the property measuring 8 ¾ guntas from the defendant No.1 on 30.06.1995. Learned counsel has contended that as on the date of filing of the suit, plaintiff was not in the possession of the schedule property and Smt.Susheelamma/defendant No.1 was in possession of the schedule property though the sale deed mentioned as Sy.No.110/1 but it is in Sy.Nos.112/1 and 112/2. The MR (mutation record) was defected in the name of the defendant. 27 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Thereafter, the defendant No.2 purchased in the year 1995 as per Ex.P42 and mutation entry in Ex.P43. He further contended that the land was resurveyed and renumbered as Sy.No.112/1 and 112/2. It is also further contended that at Ex.D4 is registered sale deed at undisputed point of time, there is presumption in favour of defendant No.1 regarding the sale deed. As per the evidence of the plaintiff, the defendant in possession of the schedule property, therefore, seeking declaration without seeking possession is not maintainable. Further contended that subsequently layout were formed in the property by the defendant No.1, sold the sites to the defendant Nos.3 to 5 under the sale deeds at Exs.D120 to 137. Ex.D139 to P149 are the certificates issued by BBMP and Tax was paid for the sites. Therefore, the plaintiff is not entitled for any relief.
25. Learned counsel further contended that the property claimed by the plaintiff was under the Inam Abolition act, granted in 1959. Entire issues were framed by shifting the burden of the plaintiff. The plaintiff was not proved the title, no title deed is produced, if there is any mistake in survey number which is to be rectified. The weakness of the defendant cannot be considered for 28 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 decreeing the suit. The burden of proof is on the plaintiff to prove the case. There is a cloud over the title. Defendant No.1, sold the property to defendant No.2, the sale deed is challenged without seeking cancellation of the sale deed. The relief cannot be granted. Hence, the finding of the trial court is not correct. Hence, prayed for allowing the appeal.
26. Learned counsel for the appellant in RFA No.622/2015 also appeared for defendant Nos.3 to 5 contended that the sites were purchased by defendant Nos.4 to 5 from the defendant No.1/Susheela under sale deed dated 1.12.2003 as per Ex.D154. Defendant died and legal heirs of defendant No.3 were brought on record. Defendant No.3 had purchased site measuring 30x40 on 21.4.2003 as per Ex.D.144 from defendant No.1. The suit was filed on 30.01.2006. Therefore, defendant Nos.3 to 5 were brought on record by impleading as additional respondent. The declaration suit to be filed within 3 years but suit was filed beyond the said period which was barred by the limitation. The defendants were brought on record, on the order dated 23.07.2013. Therefore, the suit against defendant Nos.3 to 6 is liable to be dismissed. Defendant No.3 to 6 not given any chance 29 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 to file written statement and rejected the suit. The application was not challenged and no amendment was brought for seeking relief against adding the defendant Nos.3 to 5. The Sale deed of defendant No.3 to 5 were not sought for cancellation and it stands as it is. The relief is barred by limitation. The cancellation of the sale deed is not sought. The plaintiff has title over the suit schedule property.
27. Learned counsel for the appellants has contended that the documents show the name of the grand father of the plaintiff as Munivenkatappa son of Pillappa and also contended that the plaintiff has not established the grand father's name as Pillappa son of Munivenkatappa. The plaintiff has contended that there was oral partition in the property. The plaintiff Sadananda died without issues. Sadananda said to be sold property by retaining 1 acre 3 guntas of land as per the proceedings before the Assistant Commissioner. The very statement of Sadananda was seen in the Assistant Commissioner's report. As per the said document, it shows that only 1 acre 3 guntas of land. The title deed is not produced along with the suit. The grant order as per Ex.P.18 is also not proved before the court. It is mentioned that 20 guntas 30 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 granted to Munivenkatappa son of Venkatappa and Sl. No.2 is mentioned as Sy.No.112/2 Munivenkatappa son of Pillappa. Both are two different persons. In patta book, it is shown as Munivenkatappa son of Pillappa. Khatha number is 105, whereas RTC shows khatha number is 95.
28. It is further contended by the learned counsel for the appellants that the additional documents produced in respect of RTC survey No. 112/3 of 1 acre 3 guntas and not produced any documents to identify the property of Sadananda son of Munivenkatappa, who is the son of Pillappa. Ex.P.18-settlement deed shows two different persons. The parties have created the document. The mutation extract is absent. It is further contended that Sadananda filed a suit against one Chitra Annaswamy in O.S. No. 2735 of 2006 and the Court Commissioner has been appointed. There is no reference in respect of 2 acres of land in the sketch. The suit without seeking possession is not maintainable. There is no finding on the document produced before the trial court. The writ petition is disposed of without finding as to whether the plaintiff established title in survey Nos.112/1 and 112/2. The judgment of the trial court is not a 31 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 judgment in the eye of law and there is no discussion on the documents produced by the parties. The suit is barred by limitation. Hence, prayed for allowing appeal.
29. Per contra, learned counsel for respondents has supported the judgment of the trial court contending that the land in Survey No.112 was a granted land situated at Kowdenahalli village belonged to father of the plaintiff that Munivenkatappa son of Pillappa. The Special Deputy Commissioner granted occupancy right in favour of the father of the plaintiff on 05.06.1979. The property was pledged with Primary Co-operative Bank Ltd. for obtaining loan. Munivenkatappa died on 24.12.1990. There was oral arrangement in the year 1984 between Sadananda and Anjanappa. The name of the plaintiff was entered in the revenue records as per MR No.11/1989-90. The appellant filed an appeal to the Assistant Commissioner, which was allowed on 10.06.2010 and a revision was filed before the Deputy Commissioner in revision petition No.117/2010-11, which was upheld. A writ petition was filed in W.P. No.16102/2014. Defendant No.1- Susheelamma claimed as owner in survey No.110/1, but she was not having the title over the property which was purchased by her 32 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 on 13.07.1972. The boundary is altogether different. It is the plaintiffs' schedule property and defendants' property. It is further contended that if there is mistake in survey number, there must be a modification/rectification in the survey number in the sale deed, but the same was not done. The defendants set up title over the property of the plaintiff. The property purchased by the defendant is survey No.110, but claims survey No.112. Survey No.110 has different boundary and unclaimed property also can be claimed, if the land is forfeited. The ADLR tried to survey the land, but had no power to initiate revenue proceedings. Under the sketch of the land grant, the ownership is required. When the plaintiff is in possession over the schedule property, the question of claiming dispossession cannot be accepted. Therefore, the suit is maintainable. There is no need to seek possession of the schedule property when the plaintiff himself was in possession. It is further contended that in Ex.P.18-settlement register, the names of Munivenkatappa son of Munivenkatappa and Munivenkatappa son of Pillappa are mentioned. Exs.P.19 and 21 are undisputed documents and available at undisputed point of time.33 RFA NO.569/2015
C/W RFA NO.947/2015 RFA NO.622/2015
30. The learned counsel for the respondents contended that the respondent has produced the order of the grant dated
03.07.1960 in favour of Munivenkatappa son of Pillappa and submitted that no third party can come and interfere with the schedule property. In the revenue proceedings, the Deputy Commissioner has remitted back the matter for fresh consideration. The spot Panchanama was prepared. The Assistant Commissioner passed an order on 27.01.2012 and has confirmed the earlier order of the Assistant Commissioner. The suit was filed in O.S. No.922/2006 and decree was granted on 01.04.2015. The writ petition filed by the plaintiff to enter the name of the plaintiff was allowed subject to the result of the decree on 16.12.2021 and the name of the husband of defendant was entered subsequently and the same was displaced in 2009-
10. The land of the plaintiff is available under Ex.D.86-village map. There is no existence of the land in dispute. The boundary of the plaintiff is in conformity with the village map-Ex.D.86. The defendant wanted to shift the property from Sy. No.110 to Sy. No.112. Except mutation, there is no reference about conducting the survey. As per the survey manual, notice shall be issued to the neighbouring land owners and that was not done. Fixing the 34 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 boundary in the sale deed is disputed. It is further contended that previously, the name of the plaintiff was rounded of showing the name of the government in the owner's column. The document reveals that the Assistant Commissioner issued notice on 27.01.2001 and there was an order of restoration of the name in the revenue records subject to the result of the suit. It is further contended that the claim of the defendant is based upon ADLR proceedings and it is not proved before the civil court. It is contended that how the ADLR given finding while giving the new survey number. The revenue authorities have power to transfer survey numbers and assign the survey numbers. The other defendants will not get any title over the property as the first defendant did not derive any title. As per the principles of "nemo dat quod non habet", the purchaser of the property shall determine the possession of the property if their vendor is in possession. The defendants have purchased the property without conducting any spot inspection and they claim the property wrongly according to their convenience. The judgments cited by the defendants' counsel are not applicable to the case on hand and hence, prayed for dismissing the appeal.
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31. During the pendency of the appeal, the 1st appellant filed an interlocutory application in I.A. No.1/2024 the orders in case No.106 along with 11 documents contending that respondent Nos.5 to 8 claimed right over the land in Sy. Nos.112/1 and 112/2, whereas the plaintiff filed the suit in O.S. No.922/2006 and admitted various civil proceedings that his father was granted land in Sy. No.112/3 vide order passed in case No.106 and that he claimed the land in Sy. No.112/1 and 112/2 is without any foundation. The RTCs and the order passed in case No.106 were obtained. These documents pertained to Sy.No.112/3 and 112/4 for the years 1981-82 to 1985-86. The daughter-in-law and the grand children of Munivenkatappa filed a partition suit in O.S.No.5181/2011 in respect of Sy.No.112, Kowdenahalli village, where the appellant was impleaded as defendant No.15 which shows that there was no claim against the lands in Sy. Nos.112/1 and 112/2. It is further stated in the affidavit that, the plaintiff filed an application for amendment of plaint in O.S. No.5181/2011 and O.S. No.922/2006 which shows vexatious and abuse of process of law for grabbing the land. A final order was also passed under the Securitization Act case. These 11 documents 36 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 were not able to be produced in the trial court for considering them as additional evidence.
32. Learned counsel for the appellant has also filed another I.A. No.2/2024 under Order XLI Rule 27 of CPC seeking permission to produce another 7 documents like sale deed, release deed, gift deed by the family members of the plaintiff by taking similar contentions. Those documents were not able to be produced in the trial court for considering them as additional evidence. Hence, prayed for allowing the application.
33. The respondents have filed objections on the applications. Respondents No.1 also filed interlocutory application under Order 41 Rule 27 of CPC with documents i.e., judgment of the High Court as well as the order passed by the Assistant Commissioner and the Deputy Commissioner in revenue proceedings, which is also a part of the evidence adduced by the defendants.
34. Heard the arguments of counsel for both sides and perused the records.
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35. The points that arises for consideration are :
(i) Whether the plaintiff proves that he is the absolute owner and in enjoyment of the schedule property and defendants are trying to interfere with the schedule property?
(ii) Whether the suit of the plaintiff is maintainable without seeking possession as contended by the defendants?
(iii) Whether the appellant made out a sufficient cause for taking the documents produced along with I.A. No.1 and 2/2024 under Order 41 Rule 27 of CPC?
(iv) Whether the I.A.No.1/2025 filed by the
respondent under Order 41 Rule 27 of CPC
deserves to be allowed?
(v) Whether the judgment of the trial court calls for interference?
36. On perusal of the records, to prove the case, the plaintiff himself was examined as P.W.1 in the earlier occasion, and later, P.A. holder was examined as P.W.1, who is the son of the plaintiff-Sadananda, and got marked 46 documents as per Exs.P.1 to P.46. On behalf of the defendants, defendant No.1 was 38 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 examined himself as D.W.1 and defendant No.2 was examined himself as D.W.2 and got marked 167 documents as per Exs.D.1 to D.167.
37. In order to prove the case of the plaintiff, previously the plaintiff himself filed affidavit and Subsequently his son Muniraju was examined as PW.1 - Power of Attorney holder of the plaintiff and he has filed affidavit in view of evidence and reiterated the averments made in the plaint. In support of his contention, to prove that they are in lawful possession and enjoyment of schedule property, the plaintiff produced the following documents:-
(i) Ex.P1 is the copy of the record of right, tenancy and crop inspection report which reveals that the Sy.No.112 stood in the name of Munivenkatappa @ Munivenkatappa and it is Inam D.C. order which measures 2 acres and 1 gunta of land of Kowdenahalli village.
(ii) Ex.P2 is the RTC pertaining to the year 1974-75, 1975-
76, 1976-77 which also reveals Sy.No.112/1 and 112/2 to an extent of 2 acres and 1 gunta showing in the name of 39 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Munivenkatappa, said to be the father of the plaintiff. Ex.P4 also reveals that the record of right in the name of said Munivenkatappa.
(iii) Ex.P5 reveals the Munivenkatappa name has been rounded off and shown as Sarkari in No.78/59-60. The said RTC in respect of 1981-1982-83 till 1985-86.
(iv) Ex.P6 is also RTC for the year 1986-87 till 1988-89 in respect of Sy.No.112/1 measuring 29 guntas.
(v) Ex.P7 in respect of Sy.No.112 for the year 1999-2000 wherein the name of the respondent No.1 has been entered in the RTC vide MR.No.11/1989-90.
(vi) Exs.P8, P9, P10, P11, P12, P13 and P14 reveals the name of the appellant No.1/defendant No.1 shown as Khathedar along with the name of the defendant No.2/Nataraj as co- khatedar in the year 2003-04 onwards.
(vii) It appears after the selling of a portion of the property by the defendant No.1 in favour of the defendant No.2 for 8 ¾ guntas of land he has got his name in the revenue records as per MR.No.12/96-97.
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(viii) Ex.P17 is Patta and Rasidhi book for the year 1977-78 with respect to land in Sy.Nos.112/1 and 112/2 mentioned in the name of Munivenkatappa and pillappa wherein the defendant seriously disputed in respect of the name of the khatedar and khata No.105.
(ix) Ex.P18 is settlement register extract which shows 29 guntas of land in Sy.No.112/1 which has been granted to Munivenkatappa son of Munivenkatappa and in Sy.No.112/2, 1 acre 12 guntas has been granted to Munivenkatappa son of Pillappa, these documents also seriously disputed by the defendants in respect of 2 names appeared in the grant order.
(x) Ex.P20 is an application filed by the plaintiff's father Munivenkatappa for borrowing the loan by pledging the land in the year 1972-78, where it reveals in Sy.No.112/1 to the extent of 29 guntas and in Sy.No.112/2 to the extent of 1 acre 12 guntas of land pledged.
(xi) Ex.P21 said to be Aadhar Patra shows the name of Venkatappa son of Pillappa and his children Anjanappa, Sadananda(plaintiff) were executed the document in favour of the 41 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 bank. The said document executed by the appellant, his brother and his father all of them were signed by Munivenkatappa.
(xii) Ex.P22 is 'E extract' of Sy.Nos.112/1 and 112/2. Ex.P23 is the receipt issued by the Bank for having paid amount which shows name of Munivenkatappa, the son of Pillappa dated 7.3.1984.
(xiii) Exs.P24, 25 are also the same receipts to show the loan amount were paid by the plaintiff - Sadananda. Ex.P26 is the certificate for having obtained the loan by Munivenkatappa son of Pillappa from the Prathamika Sahakar Bhoo Abhivriddi Bank on 7.3.1984. Ex.P27 is Khatha extract stands in the name of Sadananda dated 8.3.2004 in respect of Sy.Nos.112/1 and 112/2 his khatha between 1.6.1989 to 2.3.2004 for 15 years.
(xiv) Ex.P28 is death certificate of Munivenkatappa who said to be died on 24.12.1990.
(xv) Ex.P29 is the endorsement issued by the Shirasthedar of Tahsil office K.R.Puram to the plaintiff stating that there is no document available in respect of Case No.78/59-60 in respect of Sy.Nos.112 and 114.
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(xvi) Ex.P30 is sale deed of the defendant No.1 dated 13.7.1972 for having purchased the land in Sy.No.110/1 of Kowdenahalli village measuring 2 acres and 1 gunta.
(xvii) Ex.P31 is memorandum of appeal is filed by the plaintiff under section 136(2) of Karnataka Land Revenue Act as against the defendant No.1/Susheelamma for restoring the Sy.Nos.112/1 and 112/2 alleging that the defendant No.1 though purchased land in Sy.No.110/1, but got changed her name in Sy.Nos.112/1 and 112/2. Ex.P32 is the order sheet in the said proceedings.
(xviii) Ex.P33 is MR extract No.11/1989-1990 wherein the defendant No.1/Susheelamaa changed the survey number from Sy.No.110/1 to Sy.Nos.112/1 and 112/2. The said documents have been challenged by the plaintiff by filing appeal before Assistant Commissioner. The Assistant Commissioner vide order 10.6.2010 restored the name of the plaintiff by setting aside the name of the defendant No.1.
(xvix) Ex.P36 is extract of VIII register showing the name of the plaintiff's father in respect of case No.78/59-60.
(xx) Ex.P38 is RTC for the year 1976-77 till 1979-80 in respect of Sy.No.110/1 belongs to one Ramaiah Reddy, 43 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Kullamuniappa and subsequently the name of the defendant No.1 Susheelamma was entered in the revenue record, which reveals after the purchase of the property by the defendant No.1 from Kullamuniappa in Sy.No.110/1 and her name was mutated in 1979 and prior to that, the land in Sy.No.110/1 was stood in the name of the defendant No.1's vendor Kullamuniappa and the said Kullamuniappa's children sold the property to the defendant No.1 on 13.7.1972. Thereafter, the name of the defendant No.1 was entered in revenue record until changing her vendor's name was depicted in the revenue record at Ex.P38. The defendant No.1 purchased the property in Sy.No.110/1 is not in dispute.
(xxi) Ex.P39 is another revenue records RTC showing the name of Ramaiah in respect of Sy.No.110/1 measuring 2 acres and 16 guntas by excluding 3 guntas of kharab. Susheelamma i.e., name of defendant No.1 was also referred in the RTC.
(xxii) Ex.P40 is another RTC in respect of Sy.No.110/1 shows exclusive name of Smt.Susheelamma, the defendant No.1 and in the cultivator column, the name of Ramaiah Reddy has been mentioned and in the column No.9, the defendant No.1 name is mentioned.
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(xxiii) EX.P41 record of rights for the year 2009-10 where Sy.No.110/1 reveals there is no names mentioned in the RTC which goes to show that the defendant No.1 got changed the Sy.No.110/1 into Sy.Nos.112/1 and 112/2. Thereby the land bearing Sy.No.110/1 does not reflect the name of the defendant.
(xxiv) Ex.P42 is sale deed executed by defendant No.1 in faovur of defendant No.2/Nataraj for alienating 8¾ guntas of land in Sy.No.112/2. The sale deed was executed in 1995.
(xxv) Ex.P43 is MR extract No.12/1996-1997 for having mutated the name of defendant No.2 Nataraj in respect of 8 ¾ of guntas of land based upon the Ex.P42.
(xxvi)Ex.P44 is mutation record showing the name of the plaintiff, thereafter changing the name of the defendant No.1 and also the defendant No.2. These documents were effected as per the order of the Assistant commissioner.
(xxvii) Ex.P45 is the RTC for the year 2010-11 which reveals the land in Sy.No.112/1 stands in the name of the plaintiff as per MR.No.7/2010-11.
(xxviii) Ex.P46 is RTC in respect of Sy.No.112/1 this also affected after the order of Assistant Commissioner. 45 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015
38. On perusal of these documents which clearly goes to suggest that, the land in question was Sy.Nos.112/1 and 112/2 basically belongs to Munivenkatappa son of Munivenkatappa as per the grant order during the year 1959-60. Ofcourse, there is little discrepancies in respect of the father name as Munivenkatappa son of Munivenkatappa @ Pillappa. It is nobody's case that these persons are two different persons. The land in Sy.No.112/1 measuring 29 guntas and land in Sy.No.112/2 measuring 1 acre 12 guntas totally measures 2 acres 1 guntas cannot be said to belonging to the Venkatappa and Munivenkatappa as it was continued in his name. The said Munivenkatappa borrowed the loan by pledging the land and continuously the name of the Munivenkatappa stood in the revenue records until changing the name of the defendant No.1 in 1990. Therefore, the question of whether the father of the plaintiff was Munivenkatappa S/o Munivenkatappa @ Pillappa has no relevance decide the dispute. On the other hand it is a categorical case of defendant that she has purchased land in Sy.No.110/1 which was actually 2 acres 16 guntas excluding 3 guntas of kharab in the year 1972 from Muniappa and Muniappa's name was continued in the revenue record in respect of 46 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Sy.No.110/1. Subsequently, the defendant No.1 got changed the survey number as Sy.Nos.112/1 and 112/2 measuring 2 acres 1 guntas. There is contradiction in respect of the measurement of the land stood in the name of her vendor of the 1st defendant in the RTC and the sale deed. The defendant also contended that though she has purchased the land in Sy.No.112/1 and 112/2 but the survey number was wrongly mentioned in the sale deed as Sy.No.110/1. Therefore, learned counsel for the appellants contended that the boundary should be looked into and prevails over the measurement or the survey number. Though it is well settled, if any dispute in respect of measurement of the property, the boundaries shall prevail over the measurement but in order to change the survey number from Sy.No.110/1 to Sy.Nos.112/1 and 112/2 she has not got rectified the sale deed as per Ex.P30. It is also well settled that if the parties to the sale deed found any error either in the survey number or in the boundary they are required to get it rectified by approaching Sub-Registrar office and register the rectified sale deed but that was not done and on the basis of the MR No.11/89-90 alleging that the survey was conducted and given new number as Sy.Nos.112/1 and 112/2. 47 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015
39. The defendant also not produced the proceedings of the ADLR or revenue proceedings before the court to show, that they really surveyed the lands belonging to the defendant and in order to survey the land, the authorities were required to issue the notice to the adjacent land owners and prepare the survey report, by showing the survey sketch, then only they have to assign new survey number, but no such proceeding took place in the case of the defendant. However, without any documents, any proceedings, whether issuing notice to the adjacent land owners, even that too the name of the plaintiff's father was shown as khatedar column of RTC as owner in the revenue record. It is duty of the authorities to issue notice to the plaintiff or plaintiff's father and then could have given new survey number. Even otherwise, once the land has been surveyed in the said village, it cannot be given as new survey number to a single land by excluding other lands, adjacent to each other. Therefore, the contention of the defendant/appellant counsel that the land in Sy.No.110/1 was not correct but it was the Sy.Nos.112/1 and 112/2 and that the defendant has not explained how the Sy.No.110/1 which was measuring 2 acres 19 guntas originally including 3 guntas kharab land has been reduced to 2 acres 1 48 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 guntas and assigning 2 different survey numbers as Sy.Nos.112/1 and 112/2 from Sy.No.110/1.
40. The evidence of PW1 that he has given evidence by asserting his right over the property and in cross examination he has once again stated that the boundaries mentioned as Sy.No.112/4 also belongs to the plaintiff and Sy.No.112 was also granted in case No.106 and denied all the suggestions made by the defendant counsel.
41. The defendant also examined as DW.1 a PA holder and got marked various following documents:-
(i) Ex.D1 was copy of the release deed by the plaintiff in favour of one Muniraju in respect of property bearing Sy.No.110/1 and old No.55/2 and this property does not reveal any survey number and there was some reference in the said deed, where one Eerappa died intestate and his brother Pillappa also died by leaving behind Munivenkatappa @ Somaiah, son of Pillappa @ Munivenkatappa. Ofcourse there are some sites which 49 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 were formed but there is no Sy.Nos.112/1 and 112/2 mentioned in those sale deeds.
(ii) Ex.D2 is GPA given by the Susheelamma for giving evidence before the court
(iii) Ex.D4 is sale deed dated 13.7.1972 for having purchased land in Sy.No.110/1 there is no dispute that she has purchased land in Sy.No.110/1.
(iv) Ex.D5 is MR extract No.11/89-90 for having changed the survey number, this documents is already produced and marked by the plaintiff.
(v) Ex.D6 is mutation entry showing the name of the plaintiff in respect of Sy.No.112/1, later changing the name of the defendant No.1 and once again it was stood in the name of the plaintiff on 27.9.2010.
(vi) Ex.D7 is also mutation extract in respect of Sy.No.112/2.
(vii) Ex.D8 is the index of land showing the land in Sy.No.110/1 measuring 2 acres 19 guntas
(viii) Ex.D9 is record of rights, tenancy and crop inspection report which also reveals that the Sy.No.110/1 were standing in the name of Kullamuniappa which also reveals 50 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 2 acres 16 guntas of land stands in the name of the vendor of the defendant no.1
(ix) Ex.D10 shows record of rights and name of the defendant No.1 entered after the purchase of the land in Sy.No.110/1.
(x) Ex.D11 is the VIII register extract, which also reveals in respect of Sy.No.110/1 measuring 2 acres 1 guntas stands in the name of Kullamuniappa in respect of Case No.109 whereas in case No.106/59 in respect of Sy.No.112/2 the land showing name of Munivenkatappa son of Pillappa. This documents clinches the issue that the land in Sy.No.112 has been granted to one Munivenkatappa son of Pillappa and in Sy.No.110/1 was granted to Kullamuniappa who is the vendor of defendant No.1.
(xi) Ex.D12 is the RTC, where the name of the defendant No.1 was mutated by making round off as Sarkar (Government) and showing the name of Susheelamma from which dispute arises between the parties. It is not the case of the defendant that the land in Sy.Nos.112/1 and 112/2 has been forfeited to the Government and it was granted to defendant No.1, but it is clear case of defendant that 51 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 she has got changed the survey number from Sy.No.110/1 to Sy.Nos.112/1 and 112/2.
(xii) Exs.No.D13, D14 and 15 , 16 to 23 are the documents wherein the name of Susheelamma the 1st defendant entered in respect of Sy.No.112, in view of MR-11/89-90 subsequently the name of defendant No.2 also mutated as he has purchased the portion of property from defendant No.1 as per Ex.D24 to 32. Exs.No.33, 34 to 35 are tax paid receipts showing the Sy.No.112/1 and 112/2.
(xiii) Exs.D38 and 39 shows tax paid for the Sy.No.110/1.
(xiv) Exs.D40, 41 also reveals that tax were paid for the land in Sy.No.110/1, these receipts shows both in Sy.No.110 and 112 therefore this documents are not acceptable in evidence, it contradicts with each other.
(xv) Exs.D.43 and 44 are tax paid receipts showing the name of defendant No.1 Susheelamma. Ex.D.45-krushi passbook showing the name of defendant No.1.
(xvi) Ex.D.46 is the copy of appeal in R.A.563/2006-07 and Ex.D.47 is statement of objection filed in the said appeal in R.A.563/2006-07 filed by respondent No.3 therein, which reveals one Lakshmammma, wife of Anjanappa and 52 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 the sister in law of plaintiff, filed an appeal before the Assistant commissioner for mutating her name in Sy.No.112 of Kowdenahalli village claiming that it was 4 acres 1 gunta of land and some portion of land sold by the original grantee and the remaining land was only 1 acre 3 guntas and it was assigned as new survey No.112/3. In the said appeal, the plaintiff was also impleaded as party and objected the same, which reveals that the said dispute was between Anjanappa, the brother of plaintiff and the plaintiff-Sadananda in respect of Sy. No.112/3 measuring 1 acre 3 guntas which was effected in the name of respondent No.2 therein vide M.R. No.23/2004-05 dated 03.12.2004. This document will not be useful to the defendants as the land was altogether different from the suit schedule property, which is No.112/1 and 112/2 measuring 2 acres 1 gunta.
(xvii) Ex.D.48 copy of the plaint in O.S. No.4676/2011 filed by family members of Anjanappa, the brother of the plaintiff, claiming right over the property in Sy. No.112/2 measuring 1 acre 12 guntas i.e. part of the suit schedule property where it was not included Sy. No.112/1 53 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 measuring 29 gutnas, wherein the plaintiff was not made as party.
(xviii) Ex.D.49 is the order sheet in O.S No.4676/2011 filed by the family members of brother of the plaintiff, where the plaint came to be dismissed for non prosecution and there is no determination of rights of the parties in the said suit in respect of Sy. No.112/2 in favour of the defendants. Therefore, the said document is also not useful to the defendants' case.
(xix) Ex.D.50 copy of the plaint in O.S No.3506/2005 filed by defendant No.1-Susheelamma against CMC claiming the land in Sy. No.110/1 and resurvey No.112/1 and 112/2 and the defendant-CMC attempted to construct a community hall, the suit was filed by the defendant No.1 which came to be decreed restraining the CMC from constructing a community hall as per Ex.D.51 and 52, wherein the plaintiff and his family members were not made as party. Therefore, the finding in the said case O.S. No.3506/2005 is not binding on the plaintiff. (xx) Ex.D.53 is the gift deed where Smt. Lakshmamma, the wife of Anjanappa said to be gifted site to her son Sri 54 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Basavaraj.A carved out of property No.110/1, which is site No.11. There is no reference that this site was carved out of Sy. No.112/1.
(xxi) Ex.D.54 is order passed in revision petition filed by the defendant No.1-Susheelamma as against the order passed by the Assistant Commissioner for setting aside the name of defendant No.1 and restoring the name of the plaintiff, wherein the Deputy Commissioner set aside the order of the Assistant Commissioner and restored the name of the defendant No.1.
(xxii) Ex.D.55 is corrigendum in respect of the land belongs to defendant No.2 measuring 8 acres 14 guntas.
(xxiii) Ex.D.56 to 62 showing the photographs for existence of some sheds and compounds in some properties.
(xxiv) Ex.D.63 is a sale deed executed by the very defendant No.1-Susheelamma in favour of one Mamatha on 11.06.2004 in respect of site Nos.20 and 21.
(xxv) Ex.D.64 is Encumbrance Certificate, Ex.D.65 is khatha B-
Extract, Ex.D.66 tax paid receipt dated 03.07.2010 for having paid tax for three years. Ex.D.67 tax paid receipts of Mamatha. Exs.D.68 and 69 is the receipt for paying the 55 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 taxes. Ex.D.70 is also for making of tax, Exs.D.71, 72 to 76 are the tax paid receipts paid to the corporation in respect of said site. These documents were created subsequent to the alienation of site by the defendant No.1-Susheelamma based upon Ex.D.63. The said Mamatha will get right only if the defendant No.1 gets right over the property in dispute.
(xxvi) Ex.D.77 is amended plaint in O.S. No.81/2001 filed by the defendant No.1-Susheelamma as against CMC, which was already discussed by this Court as she has obtained decree in another case but the said suit O.S. No.81/2001 has been dismissed for non prosecution on 21.10.2003 and there is no finding in favour of the defendant No.1. (xxvii) Ex.D.79 amended plaint of the plaintiff-Sadananda in O.S.No.2735/2006 filed against one Chitra Annaswamy and other 13 members where the defendants are not parties in which the plaintiff claiming the land in Sy. No.112 measuring 2 acres has been granted in case No.106/1959-60 in favour of his father and the same was phoded and reassigned in Sy.No.112/3 and he has claimed the property was 2 acres in Sy. No.112/3 and in the said 56 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 suit, the defendants have filed application for appointment of Commissioner and the Commissioner was appointed as per the Ex.D.80-order sheet. In the said suit, the Commissioner visited the spot by issuing notice as per Ex.D.81, surveyed the land and given report, as per Exs.D.82 and 83, stating that the land in Sy. No.112/3 is having the extent of 1 acre 3 guntas but not 2 acres as claimed by the plaintiff in the said suit. It is also stated by the Commissioner that the sites were formed in Sy.No.112/3.
(xxviii) Ex.D.84 is the sketch in respect of Sy. No.112/1, 112/2, 112/4 and a portion of 112/3 and Sy. No.100. Ex.D.85 is copy of Tippani and Ex.D.86 is village map goes to show that there is existence of land in Sy. No.112/4, and, on the southern side Sy. No.112/4 the sites were formed, and, on the western side, the land in Sy. Nos.112/1 and 112/2 are situated. This dispute is altogether different in respect of land in Sy. No.112/3, but not pertaining to the suit schedule property in Sy.No.112/1 or 112/2.
(xxix) Ex.D.86 is also village map produced by both parties by enlarging the same. The village map clearly depicts the 57 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 existence of Sy.No.110 in the said village Kowdenahalli. Apart from the land in Sy.No.110, the land in Sy. No.112 is also found in the village map. The boundaries mentioned in the village map (enlarged village map produced by both parties) shows that on the eastern side of land in Sy. No.110, the water channel flows downwards to south. As per the survey map, Sy. No.112 is situated on the northern boundary of the Sy. No.110. On the southern west side of the land in Sy. No.109 is situated. On the western side, Sy. No.111 is situated. On perusal of this map, it clearly reveals that the land purchased by defendant No.1-Susheelamma is Sy.No.110 but not Sy.Nos.112/1 and 112/2. It is also the case of defendant No.1 that she has purchased Sy.No.110 only, but not Sy.Nos.112/1 and 112/2, which is altogether a different property.
(xxx) That apart, as stated above the land in Sy.No.110 has been purchased from one Kulla Muniyappa, who was the owner and grantee of Sy.No.110. Defendant No.1- Susheelamma had also not produced any document to show that Muniyappa was owner and was in possession of 58 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Sy.Nos.112/1 and 112/2 in order to transfer the right over the property to defendant No.1. Therefore, when the vendor of defendant No.1 does not have right, title or interest over Sy.Nos.112/1 and 112/2, the question of claiming ownership by the defendant No.1 in Sy.Nos.112/1 and 112/2, is not correct and not acceptable. Even if the contention of the defendant is accepted that the land in Sy.No.110/1 was given new Sy.Nos.112/1 and 112/2 the land in original Sy.No.112/1 and 112/2 is existing, the said land in suit schedule property, there is no documents produced by defendant to show the Sy.Nos.112/1 and 112/2 was given any new survey number and both the lands are different.
(xxxi) Exs.D.87, 88 and 89 are the medical records of the defendant Susheelamma, which is not relevant to this case.
(xxxii) Ex.D.90 is the sale deed executed by defendant No.1 Susheelamma in favour of defendant No.2-Nataraj in respect of 8¾ guntas of land in Sy.No.112/2 on 30.06.1995, and based upon the said sale deed, he has got mutated his name in the revenue records as per 59 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Exs.D.91 to 96-RTCs. Ex.D.97 is Encumbrance Certificate. Ex.D.98 is said to be the certificate of registration of one Manjunatha said to be obtained licence for running a brick factory. Ex.D.99 is demand register. Exs.D.100 to 103 are the self declaration of tax and tax paid receipts. Ex.D.104 is MR extract for bifurcating 8¾ guntas of land on the sale deed. Exs.D.105, 106 and 108 are showing the name of defendant No.2 in respect of portion of property for obtaining electricity connection. Exs.D.109 to 114 are the electricity bills. Ex.D.115 to 118 are photographs. These documents are based upon the C.D- Ex.D.119 which says execution of sale deed by defendant No.1 in favour of defendant No.2 and 2nd defendant will get right over the property, only if defendant No.1 will be able to establish that she was the owner of the suit schedule property.
(xxxiii) Ex.D.120-sale deed executed by defendant No.1 in favour of defendant No.2 in respect of the site said to be formed by her.
(xxxiv) Exs.D.121 and 122 are Encumbrance Certificates and Ex.D.123 is tax paid receipt, Ex.D.124 is tax declaration, 60 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Ex.D.125 is tax paid receipt, Ex.D.126 to 129 are the tax paid receipts, Ex.D.130 is said to be water connection in the name of the 2nd defendant. Exs.D.131 to 134 are the electricity bills, Ex.D.135 and 136 are the photographs of defendant No.2 standing near the site and a house built adjacent to his site. There is no permission obtained for putting up construction in respect of the said property or on a site.
(xxxv) Ex.D.137 is copy of C.D. Ex.D.138 is the sale deed of defendant No.1-Susheelamma dated 03.09.2003 in favour of defendant No.2 for site No.15. Ex.D.139 is tax paid receipt, Ex.D.140 is another tax paid receipt. Exs.D.141 to 143 are photos and C.D. This also shows that defendant No.1 created document and sale deed in favour of defendant No.2.
(xxxvi) Ex.D.144-sale deed dated 21.04.2003 executed by defendant No.1 in favour of one T. Lakshman Reddy in respect of site Nos.14. Ex.D.145 is tax paid receipt by way of self declaration. Ex.D.146 is tax paid receipt. Exs.D.147 and 148 are photographs. Ex.D.150 is another sale deed of one Smt. Srilatha dated 24.04.2003 in favour 61 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 of Smt. K. Rukmini in respect of site No.1. There is no reference as to how Smt. Srilatha became the owner of the property for selling to the third person. Ex.D.151 is another sale deed dated 10.07.1997 executed by defendant No.1 in favour of one V. Murugesh Reddy in site No.16. Ex.D.152 is also a sale deed dated 10.07.1997 executed by defendant No.1 Susheelamma in favour of one Anjali for site No.17. Ex.D.154 is the sale deed by defendant No.1 in favour of Smt. H. Latha and H. Deepika for site No.23. Exs.D.156 and 157 are the tax paid receipts. Ex.D.158 is also tax paid receipt. Exs.D.159, 160, 161 to 162 are also the tax paid receipts. Ex.D.163 and 164 are the photographs of a vacant site. Ex.D.165 is copy of C.D., Ex.D.166 is GPA dated 20.01.2015 executed by Latha and Deepika in favour of defendant No.2 - Nataraj for giving evidence. Ex.D.167 is another GPA dated 20.01.2015 by Lakshman Reddy in favour of defendant No.2-Nataraj, which shows the site owners has given GPA to the 2nd defendant for contesting the matter on their behalf on the ground that they have purchased the sites from defendant No.1-Susheelamma.
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42. The defendant's case is that she has purchased land in Sy.No.110/1 and it was re-numbered as Sy.Nos.112/1 and 112/2 and it is not her case that she has purchased Sy.Nos.112/1 and 112/2. The plaintiff's claim is that he is the owner of land in Sy.Nos. 112/1 and 112/2.
43. Now coming to the I.A.No.1/2024 filed by the appellant under Order 41 Rule 27 of CPC with 11 documents, the first documents is grant order in case No.106 before the Special Deputy Commissioner on 13.7.1960, wherein land in Sy.No.112 has been granted to Munivenkatappa. The 2nd document is copy of the deposition in case No.106 claiming 2 acres in Sy.No.112 considering the same, 2 acres of land granted in Sy.No.112. The 3rd document is RTC for the year 1976-77 till 83-84 which reveals the RTC for the Sy.No.112/3 measuring 1 acre 3 guntas, wherein Munivenkatappa son of Pillappa's name is mentioned and another RTC of Sy.No.112/4 measuring 3 acres 18 guntas were mentioned and shown as case No.106. The documents No.6 is the certified copy of the plaint in OS.No.5181/2011 filed by one Basavaraj son of Anjanappa who is the son of brother of the plaintiff, filed the suit for partition and separate possession in respect of Sy.No.112/1, 112/2 and 112/3 and 37 guntas in 63 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 Sy.No.112/4 in all measuring 4 acres and 11 guntas of land. The 7th document produced reveals the legal heirs of deceased Sadananda plaintiff's herein filed written statement and claimed that there was a partition among them. The property in Sy.No.112/1 and 112/2 measuring 2 acres 1 guntas has fallen to the share of Sadananda (the plaintiff) and land in Sy.No.112/3, 112/4 and Sy.No.100 was fallen to the share of Anjanappa. On perusal of these documents 1 to 8 clearly reveals there was dispute between the Sadananda plaintiff and his brother's family in respect of Sy.No.112/3 and 112/4 and Sy.No.100 including the suit schedule property in Sy.No.112/1 and 112/2, which also substantiates the contention of the plaintiff that the plaintiff is asserting that he is the owner and in possession of the land in Sy.No.112/1 and 112/2 measuring 2 acres and 1 guntas. In the earlier documents produced by the defendant also considered in the previous suit between the family members of the plaintiff's brother and the plaintiff in respect of Sy.No.112/3 which was only 1 acre 3 guntas available and not 2 acres claimed in the said suit. Document No.8 is amendment sought in the said suit. Document No.9 objection for the defendant for the amendment wherein the amendment the land in Sy.No.112/1 and 112/2 has been 64 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 included. The document No.10 RTCs showing the name of the plaintiff's wife Rathnamma in column No.9 in respect of Sy.No.112/1 and 112/2. It appears the name of the plaintiff mutated as per the order passed by the Assistant commissioner in the appeal filed by the original plaintiff under section 136(2) of Karnataka Land Revenue Act. Ofcourse the said order has been set aside by the deputy commissioner in the revision. Therefore, these documents even if it is produced and allowed to produce by the defendant/appellant, it will not support the case of appellant/ defendant on the other hand it will strengthen the arguments addressed by the plaintiff's counsel.
44. Another document No.11 is an order passed by the DRT in securitisation application No.263/2018 which reveals the recovery application has been filed against Lakshmamma and others where the schedule of the property was shown as house No.43, wherein at paragraph No.10 which reveals there are various sites and its number found which were curved out of Sy.No.112, 100, 112/3. But these documents were not shown the schedule property in Sy.No.112/1 and 112/2. Therefore, these documents cannot be acceptable in favour of the appellant as additional evidence hence they are liable to be rejected. 65 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015
45. As regards to the I.A.No.2/2024 the appellant also filed some documents under Order 41 Rule 27 of CPC, a certified copy of the sale deed dated 7.8.1943 has been produced in respect of one Muniswamy executed in favour of one Eerappa by the one Chandrakas and the sale deed reveals that the said Chandrakas purchased the property on 7.8.1918 from one Thimmaiah in Sy.No.55/2 where the boundaries were mentioned and it is contended by the appellant that these boundaries are matching with the boundaries stated by the plaintiff in respect of land pledging with the PLD bank while borrowing the loan. The 2nd documents is release deed by family of one Anjanappa in favour of Lakshmamma wife of Anjanappa sites were formed in Sy.No.112/3 and later documents No.3 reveals gift deed dated 23.7.2010 by Lakshmamma who is wife of the Anjanappa executed in favour of Basavaraj which is pertaining to old Sy.No.110/1 and 4th document a sale deed of Basavaraj in favour of Joseph and Jersy in respect of Site No.19 carved out of old Sy.No.55 and new Sy.No.110. Another sale deed of Basavaraj in favour of one Suhas executed in respect of site Nos.3 and 4 and these documents does not discloses the suit schedule property Sy.No.112/1 and 112/2 has been formed layout 66 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 by the family members of the plaintiff . Therefore, these documents also not useful to the appellant's case to prove the case of the appellant.
46. The document No.7 reveals, the order of the Special Deputy Commissioner for granting land in Sy.No.110 measuring 2 acres 1 guntas in favour of Kullamuniappa on 13.7.1960. The another document is deposition of Kullamuniappa in case No.109 where he has stated that he is having land in Sy.No.58, 57/1 and 55/2 and requested for granting Sy.No.110/2-1 in his favour. Thereby, the contention of the appellant goes to show that the land in Sy.No.110 belongs to her vendor and she has rightly purchased the same which is Sy.No.110 as it was in cultivation by the vendor of the defendant, these two documents were taken to record as additional evidence but these two documents supports the case of the respondent/plaintiff to show the defendant has purchased a land in Sy.No.110 of Kowdenahalli village but not in Sy.No.112/1 or 112/2. Therefore the question of changing the survey number giving new survey number without following the procedure in accordance with law, it cannot be acceptable that the defendant is in possession and enjoyment of the land in Sy.Nos.112/1 and 112/2. Therefore, whatever the evidence lead 67 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 by DW1 and DW2 will not help to the defendant's case and the land in Sy.Nos.110/1 and 112/2 and 112/2 are two different properties.
47. On the other hand, all these documents were categorically goes to show without any semblance of doubt that the land in Sy.No.112/1 and 112/2 has been in possession and enjoyment of the plaintiff's father and subsequently it also reveals the father of the plaintiff having land in Sy.No.112/3 and 112/4 and Sy.No.100 later which was divided or shared between both brother Anjanappa and Sadananda. The land in Sy.Nos.112/1 and 112/2 fallen to the share of the plaintiff and Sy.No.112/3 and 112/4 fallen to the share of Anjanappa apart from Sy.No.110 wherein the family member of the Anjanappa were formed the layout and sold to various persons and references are available in the said sale deeds, gift deeds that the Sy.No.110 was old number of the Sy.No.55/2.
48. As regards to the I.A.No.1/2025 filed under Order 41 Rule 27 of CPC, the documents produced by the respondent which reveals the order of the Assistant commissioner under section 136(2) of KLR Act, has been set aside by the Deputy 68 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 commissioner vide order dated 28.2.2014 by invoking section 136(3) of KLR Act and restored the name of the defendant No.1 and 2 and the same was challenged by the plaintiff before the High Court in W.P.No.16102/2014 (KLR-RR/SUR). The co-ordinate bench of this court has set aside the order of the Deputy Commissioner and directed to continue the name of the plaintiff Sadananda in the revenue records until deciding this case by this Court in RFA No.569/2015 vide order dated 16.12.2021, these documents are not in dispute.
49. The order of the Assistant commissioner also produced by both the parties which was passed on 27.1.2012 in RA (B)(33/2011-12) the Assistant commissioner has elaborately dealt with the contention of both parties the plaintiff and defendant herein and set aside the order of the tahsildar while allowing the appeal filed by the plaintiff, wherein reference available as under:-
"In furtherance, the spot was also inspected with due notice to both the parties, along with the Tahsildar, Taluk Surveyor and Revenue Inspector on 21.1.2002 and it is found that the land in question is in possession and occupation of the Petitioner herein. "69 RFA NO.569/2015
C/W RFA NO.947/2015 RFA NO.622/2015
And finally it is stated that the petitioner (i.e., the plaintiff Sadananda) in possession of the property in Sy.Nos.112/1 and 112/2 measuring 2 acres 1 guntas.
50. Though the said order has been set aside by the Deputy Commissioner, which was once again reversed by the High court and restored the name of the plaintiff but on perusal of the observation made by Assistant Commissioner, after issuing the notice to the parties, the Assistant Commissioner visited the spot, verified the spot and he has found the plaintiff in possession and enjoyment of the schedule property as stated by the plaintiff. Therefore, the evidence of the PW1 and the documents clearly corroborates each other to prove the contention of the plaintiff that the suit schedule property was in possession of the plaintiff and considering the record the trial court rightly decreed the suit of the plaintiff. Hence answered the point No.1 in affirmative in favour of the plaintiff/respondent.
51. The respondent counsel also contended when the plaintiff is in possession of the suit schedule property which reveals from the Assistant Commissioner order and proved the possession over the schedule property such being the case, 70 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 question of seeking possession in the suit does not arise. On perusal of evidence on record the plaintiff was successful in proving that he was owner in possession of the schedule property and thereby the Trial Court rightly decreed the suit and there is no need to reverse the findings on issue No.1 and 2.
52. Learned counsel for both parties relied upon various judgments in their favour, in respect of 2024 5 SCC 282 in the case of Vasantha (Dead) Thr. L.R. vs Rajalakshmi @ Rajam (Dead) Thr. Lrs. wherein the Hon'ble Supreme Court has held seeking declaration relief without seeking recovery of possession the suit is not maintainable. The principle laid down by the Hon'ble Supreme Court will not applicable to the case on hand as the plaintiff is able to show he is in possession and enjoyment of schedule property as on the date of filing the suit.
53. Another judgment reported in ILR 2007 KAR 339 in the case of Sri Aralappa vs. Sri Jagannath & others (the coordinate bench of this court taken the similar view that declaration without seeking possession cannot be granted.
54. Another judgment (2014) 2 SCC 269 in the case of Union Of India & Ors vs Vasavi Co-Op. Housing Society Ltd. 71 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 wherein it is held that the revenue records will not confer the right to title over the property. There is no dispute in respect of the principle held by the Hon'ble Supreme Court. Herein this case the property has been granted to the father of the plaintiff and subsequently the same was partitioned by the petitioner and his brother and continued to be in possession. Therefore, the question of stating the plaintiff is not the owner of property does not arises. On the other hand the defendant also purchased the property from a grantee Muniyappa under the sale deed in respect of Sy.No.110 but not in Sy.No.112/1 and 112/2, both the properties are altogether different. The boundaries are also different from each other , even on perusal of the plaint schedule and the schedule given by the defendant are altogether different properties.
55. The property of the plaintiff in Sy.Nos.112/1 and 112/1 with boundaries stated in the plaint whereas the property of the defendant in Sy.No.110 is some other boundary, therefore both cannot be clubbed with each other and the property of the plaintiff available and seen from the village map produced by both the parties, such being the case, the contention of the defendant cannot be acceptable that she is in possession of Sy.No.112/1 and 72 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 112/2. It is only given as Sy.No.112/1 and 112/2 to the Sy.No.110/1. But land in Sy.No.112/1 and 112/2 is not disturbed.
56. Though, the learned counsel for the appellant has vehemently contended that even if the survey number or measurement is wrong, the boundary of the property prevails over the measurement. There is no dispute in respect of the principle that boundary will prevail over the measurement of the property. But the case of the defendant/appellant was that she has purchased the property from her vendor Kulla Muniyappa on 13.07.1972. The said land was Sy.No.110 of Kowdenahalli village and the said Sy.No.110 was granted land to her vendor by the Special Deputy Commissioner for abolition. In support of her case, she has produced the document No.7 along with I.A. under Order 41 Rule 27 CPC. The said document reveals that on 13.07.1960 the Special Deputy Commissioner for Inam Abolition, Bengaluru granted land in Sy.No.110 in case No.107. The second document is evidence before the Deputy Commissioner where he claims that he is cultivating Sy.No.110. Based upon the application made by him, the Deputy Commissioner granted Sy.No.110 to the vendor of the defendant and the same land has 73 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 been purchased by defendant No.1 under sale deed dated 13.07.1972. It is categorical admission that the vendor of the defendant sold land in Sy.No.110 and she has purchased the land in Sy.No.110 of Kowdenahalli village. Such being the case, claiming the right over the Sy.No.110/1 and Sy.No.110/2 is not correct. It is not the case of the defendant that she has purchased the land in Sy.Nos.112/1 and 112/2 and also it is not the case of the defendant that her vendor Kulla Muniyappa was the owner and the grantee of Sy.Nos.112/1 or 112/2. Such being the case, the very assertion of the defendant that suit schedule property of the plaintiff in Sy.No.112/1 and Sy.No.112/2 belongs to defendant is not correct and trying to claim the suit schedule property as if she has purchased the same. Therefore, the contention of the learned counsel for the appellant cannot be acceptable.
57. The learned counsel for the appellant No.2/ defendant No.2 also relied upon the same judgment which is relied by the appellant No.1 to the fact and circumstance of the case and detailed consideration of evidence on record both oral as well as 74 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 the documentary evidence, the said judgments are not applicable or helpful to the case of the appellants.
58. In view of the observation and findings in the above paragraphs of judgment, the contention of the other appellants in other connected appeals who are subsequent purchasers from the first defendant and when the first defendant herself do not have any right over the land in Sy.Nos.112/1 and 112/2, the other defendants also cannot claim any right over the said property. On the other hand, the property of the defendant is situated in Sy.No.110 and if at all they have purchased the property which is in Sy.No.110, they are not entitled for any relief in the suit filed by the plaintiff which is for the suit schedule property altogether different from the property of the first defendant.
59. The documents produced by the respondent especially the order of the Assistant Commissioner clearly reveals the plaintiff is in possession of the property that observation was made after making spot inspection and passed the order. Considering the same, the I.A.No.1/2025 filed by the respondent under Order 41 Rule 27 of CPC deserves to be allowed, by accepting the additional evidence, whereas the documents of the 75 RFA NO.569/2015 C/W RFA NO.947/2015 RFA NO.622/2015 appellant supports the case of the respondent rather than the appellant's case. Therefore, those documents not useful to the appellant and hence I.A.Nos.1/2024 and 2/2024 are deserved to be dismissed.
60. The Trial Court, after considering and appreciating the evidence on record, both documentary and oral evidence, rightly decreed the suit of the plaintiff, therefore the judgment of the trial court does not call for any interference of this court. The appeals are devoid of merits and are liable to be dismissed.
61. Accordingly, I.A.Nos.1 and 2 of 2024 filed under Order 41 Rule 27 of CPC by the appellant are dismissed. I.A.No.1/2025 filed by the respondent is allowed. Consequently, RFA Nos.569/2015, 947/2015 and 622/2015 are dismissed.
Draw decree accordingly.
Sd/-
(K.NATARAJAN) JUDGE CS/AKV CT:SI