Karnataka High Court
Bangalore Development Authority vs R. Ramachandran on 8 December, 1992
Equivalent citations: ILR1993KAR116, 1993(1)KARLJ1
JUDGMENT N.D.V. Bhat, J.
1. These ten Appeals arise out of ten suits viz., O.S.Nos. 5391/1989, 5373/1989, 2231/1990, 5372/1989, 5390/1989, 5374/1989, 5375/1989, 6678/1989, 5389/1989 and 5371/1989 respectively on the file of the XIII Additional City Civil Court, Bangalore. The said ten suits were filed by different plaintiffs who are the respective respondents before this Court in these ten Appeals.
2. The appellant - B.D.A. was a party defendant in each of the aforesaid ten suits. The lower Court decreed the suit of each of the plaintiffs for permanent injunction by his common judgment delivered in these suits after clubbing them together. Being aggrieved by the judgment, which has gone against the B.D.A. in each of the said suits, the B.D.A. has preferred these ten Appeals.
3. The facts relevant for the disposal of these Appeals, briefly stated, are as under:
Each of the plaintiffs in the aforesaid ten suits filed before the City Civil Court prayed for a decree for permanent injunction. The pith of the allegation made by each of them in the course of their plaint is that the respective properties which are designated by different site numbers in Sy.No. 80 of Banasawadi Village were purchased by each of them by different Sale Deeds referred to in each of the plaints. It is the case of the plaintiffs that their sites which were comprised in Sy.No. 80 of Banasawadi Village originally belonged to one Doddanna. Further it is their case that an area of 2-00 acres in the said Sy.No. was purchased by Dodda Hanumanthegowda from Doddanna by virtue of a Sale Deed dated 29.6.1964 which document is marked before the lower Court as Ex.P9. It is also their case that subsequently there was a partition between Dodda Hanumanthegowda and his brothers by a regular Partition Deed dated 8.7.1965 which is marked before the Jower Court as Ex.P.10. Further it is the case of the plaintiffs in each of these cases that subsequently each one of them purchased an area, described in each plaint, in the said property from the respective persons.
K.S.Narayana (plaintiff in O.S.No. 5371/89) purchased a portion of property viz., Site No. 46 by a Sale Deed dated 3.6.1985; B.V.Premalatha (plaintiff in O.S.No. 5372/89) purchased her site viz., site No. 44 by a Sale Deed dated 30.5.85; Similarly K.S.Ganesh Kumar (plaintiff in O.S.No. 5373/89) purchased site No. 32 by a Sale Deed dated 12.7.1985; P.Sampathkumar (plaintiff in O.S.No. 5374/89) purchased his Site No. 53 on 30.3.1985; in the same way, K.S.Sudarshana (plaintiff in O.S.No. 5373/89) purchased his site No. 45 by a Sale Deed dated 30.5.1985; in the same way, B.L.Seshadri Iyengar (plaintiff in O.S.No. 5389/89) purchased site No 43 by a Sale Deed dated 3.6.1985; Smt. N. Geetha (plaintiff in O.S.No. 5390/89) purchased a site in No. 38 by a Sale Deed dated 23.12.1985; R.Ramachandran (plaintiff in O.S.No. 5391/89) purchased a site in No. 38 by a Sale Deed dated 4.7.1985; in the same way R.Sreeramachar (plaintiff in O.S.No. 6678/89) purchased site No. 52 by a Sale Deed dated 14.3.1985; and Suresh Hebbar (plaintiff in O.S.No. 2231/90) purchased his site No. 55 by a Sale Deed dated 18.4.1985. It is the case of each of these plaintiffs that they have been in possession of their respective sites comprised in Sy.No. 80 of Banasawadi village ever-since they were inducted on the land by virtue of the Sale Deeds executed in their favour. It is alleged by them that they have erected a structure in their respective sites and that they have been in possession and enjoyment of the suit property. Bangalore Development Authority that is to say, the defendant, however, started interfering with their possession and enjoyment of the suit property. It is under these circumstances, each one of them chose to file a suit for a decree for permanent injunction.
4. Each of the suits filed by the plaintiffs was resisted by the defendant - B.D.A. who is the appellant in these Appeals.
5. Among other things, the defendants (appellant) contended in the written statement that the suit filed by each of the plaintiffs is not maintainable in law. According to defendant, documents and other records referred to by the plaintiffs in their respective plaints are all concocted and stage managed, to grab the property. Apart from denying the various allegations made by the plaintiffs in their respective suits defendant took up a contention that Sy.No. 80 of Banaswadi village measuring 2 acres 13 1/2 guntas has been acquired by the defendant and an award was passed and approved by the Deputy Commissioner, B.D.A. on 15.6.1988. It is further stated by the defendant in each of the written statements filed by it in the course of the said ten suits that the possession of the said land has been taken over and handed over to the Engineering Section, Bangalore Development Authority on 22.6.1988 after completing all the formalities. Defendant also pointed out in the course of its written statement that the compensation amount was deposited in the City Civil Court under Sections 30 and 31(2) of the Land Acquisition Act. Defendant asserted that it is the B.D.A. which has been in possession of the property after having taken the same in the way and manner as stated earlier, ft is contended that plaintiffs in each of the aforesaid suits are not entitled to maintain the suit as they were never in possession of the suit schedule property. On these grounds, in substance, defendant prayed for the dismissal of the suits.
6. The lower Court in each of the aforesaid ten suits raised issues which are identical. The lower Court cast the issues in each of the suits as reflected in para-3 of its judgment which read as under:
1. Whether the plaintiff proves lawful/juridical possession of the suit property?
2. Whether the plaintiff proves valid issuance of notice under Section 64 of the B.DA Act?
3. Whether the plaintiff is entitled to permanent injunction sought for?
4. To what reliefs and order the parties are entitled?
7. Before the lower Court, common evidence was recorded in O.S.No. 5371/1989. Plaintiffs In each of the suits has examined himself and they are referred as P.Ws.1 to 10. Ex.P1 to P.65 are marked for the plaintiffs. On behalf of the defendant two witnesses are examined, Ex.D1 to Ex.D.15 are marked for the defendant.
8. The lower Court on a consideration of the evidence on record and for the reasons reflected in its common judgment relating to all the ten suits held that the plaintiffs were in lawful possession of the suit land on the date of the suit. The lower Court also took the view that each of the plaintiffs has proved that valid notice under Section 64 of the B.D.A, Act was issued by them. The lower Court in view of the said findings decreed the suit of each of the plaintiffs for permanent injunction. It is this judgment which is appealed against by the B.D.A. in these ten Appeals.
9. Sri K.S. Nagaraja Rao, learned Counsel for the respondents in each of the cases, after the oral arguments were closed, also submitted a written argument. Sri C.B.Srinivasan, learned Counsel for the appellant was given an opportunity to give his say with reference to the same and he submitted that he has no written argument as such. However, Sri Srinivasan briefly addressed his arguments with reference to the points raised in the written arguments submitted by the learned Counsel for the respondents.
10. The following Points arise for consideration in each of the aforesaid Appeals:
1) Whether the plaintiff has proved his possession on the date of the suit?
2) Whether the suit in the form in which it is brought is maintainable?
3) Whether the decree passed by the lower Court is sustainable?
4) What order?
Point Nos. 1 and 2:
It is seen that the lower Court had taken the view that the notification under Section 17 and the declaration under Section 19 of the B.D.A. Act do not stand the test of the requirements reflected in the said Sections. In that view of the matter, it is held by the lower Court that the entire acquisition proceedings initiated in respect of the lands in question that is to say, an area of 2-00 acres in Sy.No. 80 of Banasawadi village is vitiated. The lower Court has pointed out that the persons who are shown to have had the right in respect of the land in question on the relevant date on which the preliminary notification was issued, were not shown in the preliminary notification under Section 17 and the declaration under Section 19 of the B.D.A. Act. The lower Court has also taken the view that plaintiff in each of these cases was in possession of the respective sites comprised in an area of 2-00 acres in Sy.No. 80 of Banasawadi village. In that view of the matter, the lower Court has chosen to decree the suit of each of the plaintiffs.
11. It will have to be seen as to whether the view taken by the lower Court is in order. The main thrust of the submission made by Sri C.B.Srinivasan, learned Counsel for the appellant is that, having regard to the fact that the acquisition of the land in question was under the provisions of the B.D.A. Act, the notice if at all is required to be given only to a person whose name appears in the assessment list of the local authority or the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired. In this context, the learned Counsel for the appellant invited the attention of this Court to the provisions of Section 17(5) of the B.D.A. Act, Dilating on this aspect, the learned Counsel pointed out that neither the plaintiffs nor the persons from whom they are said to have purchased the respective sites are the persons who are covered by the said sub-section and that therefore, they were not entitled to any notice at all. The learned Counsel also pointed out that the B.D.A. after having acquired the land took possession of the property and that therefore, the property has vested in it.
12. On the other hand, Sri Nagaraja Rao, learned Counsel for the respondents submitted that the predecessors in title of the plaintiffs are the persons whose names appeared in the assessment list of the local authority and that therefore notice as required by Section 17(5) of the B.D.A. Act was a must and in the absence of such a notice the entire acquisition proceedings as against them stood vitiated and that the same is not at all binding on them and consequently on the present plaintiffs. The learned Counsel took this Court to the several documents exhibited in the case in support of his submission that the predecessors in title of the plaintiffs were the persons who were covered by the provisions of Section 17(5) of the B.D.A. Act. The learned Counsel contended that the possession of the property was not at all taken by the B.D.A, and the award said to have been passed by the B.D.A. does not meet the requirements of an award under Section 11 of the Land Acquisition Act. It is also pointed out by the learned Counsel that the property does not vest in B.D.A. unless and until the formalities adumbrated in Section 36 of the B.D.A. Act are fulfilled. With reference to a question posed by the Court as to whether a relief of declaration is not necessary in a case like the one in hand, the learned Counsel submitted with reference to certain authorities that a relief of declaration is not necessary at all in a case where plaintiff has prayed for a decree for injunction on the basis of his lawful possession. The learned Counsel also contended that since such a defence having not been taken by the defendants in the course of their written statement or for that matter in the course of the proceeding before the lower Court it is not open for them to raise such a contention in the appellate Court for the first time. Sri Nagaraja Rao supported his submission on the basis of certain authorities which will be referred to herein below at the appropriate place.
13. Before adverting to the submissions made by the learned Counsels, it would be indeed convenient to refer to the provisions of Sections 17 and 19 of the B.DA Act. It would also be incidentally relevant to extract the provisions of Section 4(1) of the Land Acquisition Act as amended by Karnataka Act No. 17/1961. Section 4(1) as amended by Karnataka Act No. 17/1961 reads thus:
"Prohibition of preliminary notification and powers of officers thereupon -
(1) Whenever it appears to the appropriate Government or the Deputy Commissioner that land in any locality is needed or is likely to be needed for any public purpose, a notification stating the purpose for which the land is needed, or likely to be needed, and describing the land by its survey number, if any, and also by its boundaries and its approximate area; shall be published in the Official Gazette, and the Deputy Commissioner shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The Deputy Commissioner may also cause a copy of such notification to be served on the owner, or where the owner is not the occupier, on the occupier of the land.
Explanation- The expression 'convenient places' includes, in the case of land situated in a village, the office of the panchayat within whose jurisdiction the land lies."
I may point out here that by Act No. 33/1991 there was further amendment to Section 4(1) of the Act bringing into being an additional obligation to cause the publication in two daily newspapers circulating in the locality also.
Section 17 of the B.D.A. Act reads as under:
"Procedure on completion of scheme (1) When a development scheme has been prepared, the Authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours. (2) A copy of the said notification shall be sent to the Corporation which shall, within thirty days from the date of receipt thereof, forward to the Authority for transmission to the Government as hereinafter provided any representation which the Corporation may think fit to make with regard to the scheme.
(3) The authority shall also cause a copy of a the said notification to be published in three consecutive issues of the official Gazette and affixed in some conspicuous part of its own office, the Deputy Commissioner's office the Office of the Corporation and in such other places as the Authority may consider necessary.
(4) If no representation is received from the Corporation within the time specified in Sub-section (2), the concurrence of the Corporation to the scheme shall be deemed to have been given.
(5) During the thirty days next following the day on which such notification is published in the official gazette the Authority shall serve a notice on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the Authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made.
(6) The notice shall be signed by or by the order of the (Chairman), and shall be served.
(a) by personal delivery of, if such person is absent or cannot be found, on his agent, or if no agent can be found, then by leaving the same on the land or the building; or
(b) by leaving the same at the usual or last known place of abode or business of such person; or
(c) by registered post addressed to the usual or last known place of abode or business of such person."
Section 19 of the B.D.A. Act is as follows;
"Upon sanction, declaration to be published giving particulars of (and to be acquired -
(1) Upon sanction of the scheme, the Government shall publish in the official gazette declaration stating the fact of such sanction and that the land proposed to be acquired by the Authority for the purposes of the scheme is required for a public purpose.
(2) The declaration shall state the limits within which the land proposed to be acquired is situate, the purpose for which it is needed, its approximate area and the place where a plan of the land may be inspected.
(3) The said declaration shall be conclusive evidence, that the land is needed for a public purpose and the Authority shall, upon the publication of the said declaration, proceed to execute the scheme.
(4) If at any time it appears to the Authority that an improvement can be made in any part of the scheme the Authority may after the scheme for the said purpose and shall subject to the provisions of Sub-sections (5) and (6) forthwith proceed to execute the scheme as altered.
(5) If the estimated cost of executing the scheme as altered exceeds, by a greater sum than five percent the estimated cost of executing the scheme as sanctioned, the Authority shall not, without the previous sanction of the Government, proceed to execute the scheme as altered.
(6) If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than that specified in the schedule referred to in clause (a) of Sub-section (1) of Section 18, the provisions of Sections 17 and 18 and of Sub-section (1) of this Section shall apply to the part of the scheme so altered in the same manner as if such altered part were the scheme."
14. It is necessary to point out here that the safe deeds on the basis of which the plaintiffs in the different suits assert their title to prove their lawful possession of the lands in question were admittedly executed after the acquisition proceeding was initiated, that is to say, after the preliminary notification was issued. The preliminary notification was issued on 26.5.1984 under No. BDA/SLAO/ PRO/T.557/84-85. There is no dispute about it. Further the declaration under Section 19 of the B.D.A. Act is shown to have been issued on 23.10.1986 under final notification No. HUD/368/MNX/86 as evidenced by Ex.D1. The sale deed executed in favour of K.S.Narayana (plaintiff in O.S.No. 5371/89) can be seen at Ex.P1. Similarly, the sale deed executed in favour of B.V.Premalatha (plaintiff in O.S.No. 5372/89) can be seen at Ex.P35. In the same way, the sale deeds executed in favour of Ganesh Kumar (plaintiff in O.S.No. 5373/89), in favour of Sampath Kumar (plaintiff in O.S.No. 5374/89), in favour of Sudarshana (plaintiff in O,S,No. 5375/89), in favour of Seshadri Iyengar (plaintiff in O.S.No. 5389/89), in favour of Smt N.Geetha (plaintiff in O.S.No. 5390/89), in favour of Ramachandran (plaintiff in O.S.No. 5391/89), in favour of Srreramachar (plaintiff in O.S.No. 8678/89) and in favour of Suresh Hebbar (plaintiff in O.S.No. 2231/90) can be seen at Exhibits P.51, P.12, P.18, P.24, P.29, P.41, P.60 and P.46 respectively and that they are all of the years 1985. It is therefore, clear that the sates executed in favour of the respective plaintiffs admittedly are after the preliminary notification was issued under Section 17 of the B.DA Act, However, plaintiffs have produced documents to show that their vendors had title in respect of the lands in question and that their names were reflected in the assessment list of the local authority or in the revenue register as being primarily liable to pay the property tax or land revenue assessment, as on the date of the preliminary notification. Ex.P.42 is the assessment list relating to site No. 38 which is the subject matter of the suit in O.S.No. 5391/89. Ex.P.52 is the assessment list relating to site No. 32 which is the subject matter of the suit in O.S.No. 5373/89. Similarly, Ext.P.47 is the assessment list pertaining to site No. 55 which is the subject matter of the suit in O.S.No. 2231/90. In the same way, Ex.P,37 is the assessment list relating to site No. 44 which is the subject matter of the suit in O.S.No. 5372/89, Further Exhibits P.30, P.13, P.19, P.61, P.25 and P.2 are the assessment lists and/or extract of the demand registers relating to site Nos. 40, 53, 45, 52, 43 and 46 which are respectively the subject matters of suits at O.S.Nos. 5390/89, 5374/89, 5375/89, 6678/89, 5389/89 and 5371/89. These documents would go to show that the names of the vendors of the properties to plaintiffs were bracketed as the owners of the sites and that the names of the respective plaintiffs were shown as the owners.
At this juncture only it is necessary to point out here that an area of two acres of land originally belonged to one Doddanna and that the said Doddanna is shown to have executed a sale deed in respect of 2.00 acres of Sy.Nq.80 of Banaswadi village in favour of one Sri Hanumanthegowda. This is clear from the registered sale deed dated 29.6.1964, which is marked as Ex.P9. At this juncture only it is relevant to notice that the said land appears to have been converted into non-agricultural land as is reflected from Ex.P4. It is also necessary at this juncture to point out that there is a recital in Ex.P9 to the effect that the purchaser is entitled to the benefit of the conversion if granted by the Government and which was applied for by the vendor. It is further seen that after Hanumanthegowda purchased the property there appears to have been a partition between Hanumanthe Gowda and his brothers Narayanagowda and Munegowda. Ex.P.10 is the partition deed dated 8.7.1965. It is also disclosed that Hanumanthe Gowda effected further partition in respect of the sites which were allotted to him in the partition deed at Ex.P.10. The said partition was between himself and his sons, Vijayadevegowda and Narayanaswamy. It is also disclosed that the plaintiffs in O.S.Nos. 5371/89, 5373/89, 5389/89, 5391/89 and 6678/89 have purchased their respective sites from S.Narayana Gowda. It is further disclosed that the plaintiffs in O.S.No. 5372/89 and O.S.No. 5375/89 purchased the sites from Narayanaswamy, s/o Hanumanthe Gowda. Then again it is disclosed that plaintiff in O.S.No. 5374/89 purchased the site from Vijayadevegowda, s/o Hanumanthe Gowda. It is also disclosed that plaintiff in O.S.No. 5390/89 purchased the property from one Panchakshara Sivacharaswamy who got the property from D.Hanumanthe Gowda. It is further seen that plaintiff in O.S.No. 2231/90 has purchased the site from D.Hanumanthe Gowda. The registered Sale Deeds evidencing the sale of the different sites in favour of the respective plaintiffs are already referred to earlier. It is also significant to notice here that the defendant has not produced any document to show that at the relevant point of time that is to say, at the time of preliminary notification was issued, the name of Doddanna was there in the assessment list and/or demand register. The relevant portion of the evidence of D.W.1 Vijaya Koshava Reddy, S.D.A. in Land Acquisition Office reads as under:
"The preliminary notification was issued on 26.5.1984. Even in the preliminary notification the names of Byanna, Doddanna and Hanumanthappa is shown and their names are also shown as Khatedars in the final notification. Before issuance of preliminary notification the E.G. were obtained in respect of Sy.No. 80. The E.G. were obtained to an extent of 14 years. The file relating to E.G., I.L. and R.R. relating to Sy.No. 80 was also dealt by me. Without verifying the records, I cannot tell whether E.C. IL & RR obtained in respect of Sy.No. 80 could be produced. Even after filing of the case, I have not verified about the availability of EC, IL & RR extracts obtained at the time of preliminary notification. Even at the time of filing of final notification we obtained E.G. relating to Sy.No. 80. From the verification of file I say that the EC obtained at the time of preliminary notification and the final notification were not available."
Under these circumstances, the presumption with reference to the names of the predecessors in title of plaintiffs having been there in the year 1984 and whose names were not shown in the preliminary notification is also probabilised. Further the presumption available under Section 114 of the Evidence Act can be drawn with reference to certain years next before the date of the preliminary notification also.
15. It is in that context of the aforesaid facts which can be said to have been safely established by acceptable evidence that the submissions made by the learned Counsels appearing on either side will have to be examined.
16. The crucial aspect required to be considered is as to whether the acquisition of the land in question is void. As noticed above, it is clear that the preliminary notification, admittedly did not disclose the names of the persons who had had the title to the property on the date of the preliminary notification and who had acquired the said title by regular registered sale deeds. The notification only discloses the names of one Byanna s/o Hanumanthappa, Doddanna s/o Sonnappa and Appayya who, it appears, had lost their title by then. The names of the persons whose names are entered in the assessment list/demand register are not reflected in the notification, it is not the case of the B.D.A. that individual notices were served on them, in this connection, the learned Counsel for the respondents has strongly relied on the Decision in B.L.SOMANNA v. STATE OF KARNATAKA AND ANR., 1980(2) KLJ 286 rendered in the context of Sections 5A and 5A(2) of the Land Acquisition Act In the said case, this Court has held that compliance with Sections 4(1) and 5A(2) of the Land Acquisition Act is mandatory and non-compliance of the same would render the entire acquisition proceeding vitiated. It is also pointed out in the said case that under Section 128(4) of the Karnataka Land Revenue Act it was mandatory on the part of the registering authority to make a report and under Section 129 it was mandatory on the part of the prescribed officer to enter in the register of mutations of any such report received from the registering authority and that failure on the part of the registering authority to report and the prescribed officer to enter in the mutation register, the names of the petitioners cannot be allowed to prejudice the petitioners. Support is also sought from the Decision of this Court in N.SHIVANNA v. STATE OF KARNATAKA & ANR., 1980(1) KLJ 419 That is a Decision which was rendered with reference to the provisions of Section 3(2) of the Karnataka Acquisition of Land for Grant of House Sites Act, 1972, In the said case, this Court, among other things, pointed out that under Section 128(1) of the Land Revenue Act, in the case of acquisition of right under a registered document required to be entered in the record of rights and the register of mutations, the person acquiring the right under such document need not make a report and it is incumbent upon the registering authority to make a report of the acquisition of right to the prescribed officer who shall on receipt of such report, enter in the register of mutations every report made to him and that therefore, the failure on the part of the prescribed officer to make entries cannot jeopardise the right acquired under the registered deed. This Court has also pointed out in the said case that under Section 3(2) of the Acquisition Act, ft is the duty of the authorities before issuing the notification under Section 3(1) to collect necessary information about ownership and possession of the land proposed to be acquired and include their names in the notifications under Section 3(1) and (4), It is emphasised in the said case that where petitioner had acquired title to the land under registered deeds long prior to the commencement of the acquisition proceeding and notices were not issued to him as his name was not entered in the record of rights, the acquisition proceedings were vitiated. The learned Counsel, Sri Nagaraja Rao, with reference to the observations made in the aforesaid cases, in particular, pointed out that in the facts and circumstances of this case, the entire acquisition proceeding is rendered vitiated and void.
Sri C.B. Srinivasan, learned Counsel for the appellant has, in fact, pressed into service the Decision in M.V.RAMACHANDRAN v. STATE OF KARNATAKA, ILR 1992 KAR 174 particularly with reference to para-11 therein to contend that notice would be necessary only in respect of those persons who are referred to in Section 17(5) of the B.D.A. Act and not otherwise. Reliance has also been placed on Para-12 in the Decision in MUNIVEERAPPA v. STATE OF KARNATAKA, on the same point. However, having regard to the fact that the persons whose names were found in the assessment list and from whom the plaintiffs claim title, were not served with notices, the said Decisions would not be of any assistance to the appellant. At the same time, it is indeed necessary to see as to what is the impact of the Full Bench Decision of this Court in K.RANGASWAMY v. STATE OF KARNATAKA AND ORS., 1992 KAR 1483: 1992(3) KLJ 89 In the said case, the Full Bench of this Court has among other things, held as under:
"In view of the discussion made above referring to Section 4(1-A) and Section 45 it is clear that Section 4(1-A) only requires that the notification under Sub-section (1) of Section 4 shall also specify the date (such date not being less than thirty days from the date of publication of the notification) on or before which, and the manner in which, objection to the proposed acquisition may be made, under Section 5-A, In the case on hand, the preliminary notification Annexure-E shows the requirement of Sub-section (1-A) of Section 4 is complied with. That apart, Sub-section (1-A) of Section 4 has no bearing on the question with which we are concerned as it does not speak of service of individual notice. The land owner or the person interested could file objections to the, proposed acquisition within the date specified in the notification issued under Section 4(1) in view of the publication of notification under Section 4(1) in the Official Gazette and the publication of the substance of the notification in the concerned locality. Section 45 only deals with the mode of service of notices under the Act. The said section as in force in Karnataka reads:
"45. Service of notices:
(1) Subject to the provision of this Section and any rules that may be made under this Act, the mode of service of notices issued rider this Act shall be as follows:
xx xx xx Wherever notices are required to be served under the Act the mode of such service of notice is indicated in Section 45(1)(a), (b) and (c). This Section again does not make the requirement of service of individual notice of the notification issued under Section 4(1) mandatory. We have reached the firm conclusion that service of such individual notice is only directory. In cases where the service of individual notice is mandatory, it has to be done in the manner mentioned in Section 45."
A careful perusal of the aforesaid Decision, the relevant portion of which is excerpted hereinabove, would go to show that the provisions for notice to the persons interested referred to in Section 4(1) of the Land Acquisition Act as amended by Act No. 17/1961 is only directory and not mandatory. This Court in the said Decision, in substance, has ruled that what is mandatory is the publication of notification in the gazette and the publication of the substance of notification in the concerned locality and that the same would be sufficient to enable the affected persons to raise objections. Sri Nagaraja Rao, learned Counsel for the respondents submitted that the said Decision is not at all applicable to the facts of the instant case. He tried to distinguish the ratio in the said Decision by pointing out that in the said case, the Khatedars name has been correctly shown in the preliminary and final notifications and it was in that context that the Full Bench of this Court had held that personal notice was not mandatory. The learned Counsel has also pointed out that the said Decision is rendered in the context of the provisions of Section 4(1) of the Land Acquisition Act and that the acquisition in the instant case has been done in accordance with the provisions of the B.D.A. Act and on that count also the said Decision would not apply to the facts of the instant case. Dilating on this" aspect, the learned Counsel pointed out that acquisition by the B.D.A. is exclusively governed by Sections 17 and 19 of the B.D.A. Act and not by the provisions of the Land Acquisition Act, It was therefore, contended that the concept of "publication of declaration" occurring in the provisions of the Land Acquisition Act has no relevance to the acquisition under the B.D.A Act, In this connection, the learned Counsel has sought support from the observations made by this Court in the Decision in HANUMAN-THAPPA v. STATE OF KARNATAKA, ILR 1987 KAR 3024. This Court in the said case has observed that acquisition under the B.D.A. Act is not governed by Sections 4 and 6 of the Land Acquisition Act and that the same is exclusively governed by Sections 17 and 19 of the B.D.A. Act, The submission made by Sri Nagaraja Rao deserves to be examined closely.
17. The provisions relevant for consideration with reference to Section 4(1) of the Land Acquisition Act on the one hand and Section 17 of the B.D.A.Act on the other are already extracted earlier. It is, therefore, not necessary to cull out the same here again. It is necessary to point out the same here that in Section 4(1) of the Land Acquisition Act, the Deputy Commissioner apart from publishing a notification in the official gazette and in two daily newspapers circulating in the locality is also obliged to cause publication of the substance of such notification to be given at convenient places in the said locality and may also cause a copy of such notification to be served on the owner. I hasten to add here that the obligation to publish the notification in two daily newspapers circulating in the locality is incorporated in Section 4(1) of the Land Acquisition Act by Act No. 33/1991. The said obligation to publish in the newspapers was not there next before Act No. 33/1991 came into force. It is significant to notice here that there is an obligation on the part of the Deputy Commissioner to cause the substance of the notification to be given at convenient places in the said locality. Further, the word used in Section 4(1) of the Land Acquisition Act, with reference to service of notice to the owner is 'may'. However, in Section 17(5) of the B.D.A.Act, a mandatory duty is cast upon the authority to give a notice on every person whose name appears in the assessment list of the local authority or the land revenue register as being primarily liable to pay the property tax. Apart from the fact that the word used is 'shall' in Sub-section (5) of Section 17 of the B.D.A.Act, the said notice is a notice required to be given during 30 days next after the following day on which such notification is published. It is, therefore, clear that the language reflected in Section 4(1) of the L.A.Act on the one hand and Section 17 of the B.D.A.Act on the other is quite different, with reference to the expression relevant for consideration. It is also significant to notice here that in Section 17(6) of the B.D.A.Act even the mode of service of the said notice is given. Apart from that, Sub-section (5) of Section 17 of the B.D.A. Act is a separate self-contained provision enacted for the purpose of causing the service on every person whose name appears in the assessment list etc. Further it is also necessary to point out here that the period during which such notice is required to be issued, is after the publication of notification in the gazette and not simultaneously with the said notification. It, therefore, becomes manifest that the two provisions relevant in the context of the point under consideration are not identical. It would therefore follow that the Decision in Rangaswamy's case would not apply to the facts of the instant case.
18. As pointed out earlier, the names of the predecessors in title of the respondents were very much there in the assessment list and/or demand register. Further they were also the persons who acquired title from the erstwhile owners under registered sale deeds. It is significant to notice here that Doddanna whose name finds a place in the notification at Ex. D1 had lost his title long prior to the notification in question. His successors referred to earlier had acquired title to the two acres of land by regular registered Sale Deeds. Under these circumstances, it is clear that the predecessors in title of plaintiffs, whose names were there in the demand register and/or assessment list were required to be given a notice as provided for under Section 17(5) of the B.D.A.Act. If that be so, what is the effect of failure to give notice to them is a question which is required to be considered next. At this juncture it is necessary to mention here that this aspect though dealt with in great detail is an aspect which is incidental to the main issue. This aspect in a suit for permanent injunction would arise for consideration incidentally to see as to whether plaintiffs' possession, if at all, was lawful on the date of the suit, With reference to the question as regards as to what will be the effect of failure to comply with the mandatory requirement of a statute, the Decision relevant for consideration is the one in KHUB CHAND AND ORS. v. STATE OF RAJASTHAN AND ORS., 1967 (1) SCR 120 In the said case, the Supreme Court was considering the impact of the failure to comply with the mandatory requirement of Sections 4 and 5 of the Rajasthan Land Acquisition Act. Dealing with that aspect, the Supreme Court has, among other things, observed as under:
"Indeed, the wording of Section 4(2) of the Act leads to the same conclusion. It says, "thereupon it shall be lawful for any officer, generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality...." The expressions "thereupon" and "shall be lawful" indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of Sub-section (2), the officer or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under Section 4(2), with the result that if the expression "shall" is construed as "may", the object of the sub-section itself will be defeated. The statutory intention is, therefore clear, namely, that the giving of public notice is mandatory. If so, the notification issued under Section 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void."
In my opinion, the observation made by the Supreme Court in the aforesaid case would apply on all fours to the facts of this case also with reference to the interpretation of Section 17(5) of the B.D.A.Act. I may also point out here that this Court in the Decision in KENCHAWWA v. AMAGONDA, 1988 (1) KLJ 530 has also held that failure to comply with the mandatory requirement of a statute will render the transaction void. In view of the Decision of the Supreme Court referred to immediately hereinabove, it is not necessary to dilate further on this aspect. It will suffice if it is held that the ratio laid down in the said case will have to be applied whenever and wherever there is a failure to comply with the mandatory requirement.
19. If that be so, what is the impact of the above position with reference to the alleged title and possession of the property in question. At this juncture, it is required to be noticed that the lower Court has given a finding that each of the plaintiffs was in possession of the respective property on the basis of presumption that possession follows title. In this connection, para-12 of the judgment of the lower Court is relevant At para-12 the lower Court has held as under:
"Having found that there is no valid acquisition, whatever the title plaintiffs have derived from the lawful owners, remains undisturbed; although the plaintiffs have not produced any material to show their actual physical possession. Since the plaintiffs have established title by a registered document; therefore, the possession is presumed to follow title and the plaintiffs are entitled to permanent injunction, The B.D.A. without any right in the property cannot interfere. Therefore, I hold issues No. 1 and 3 in the affirmative."
20. Sri C.B.Srininvasan, learned Counsel for the appellant relying on the award at Ex. D2 dated 26-5-1988 and the mahazar at Ex.D3 dated 22-6-1988 evidencing the taking over of the possession under Section 16 of the Land Acquisition Act, contended that the possession of the property was taken over and the same is also corroborated by the evidence of D.W.2. It was argued by the learned Counsel for the appellant that the property vested in the Government and thereafter the same was handed over to B.D.A. It was, therefore, argued that it would be futile to contend that plaintiff in each of the suits was in possession of the respective sites. On the other hand, Sri Nagaraja Rao, learned Counsel for the respondents contended that when the acquisition is void, the title does not flow to the appellant at all. It was argued that the award does not exist in the eye of law. It was also argued that if at all possession is taken, the same will have to be evidenced by a Gazette Notification as provided for under Section 16(2) of the Land Acquisition Act. The learned Counsel for the respondent has also made reference to the provisions of Sections 36 and 37 of the B.D.A. Act.
21. I have given my due consideration to the submissions made on either side. Before adverting to the submissions made by the learned Counsels, I would like to point out at the very outset that Section 37 of the B.D.A.Act has no relevance to resolve the question in controversy at all. Section 37 of the B.D.A.Act has got relevance only in the context of the transfer of the land belonging to the Government or to the Corporation. This is not a case where there was any land belonging to the Government, which was sought to be transferred to the B.D.A. Since this is a case where the question of acquisition is there, of course, under the provisions of the B.D.A.Act, it is Section 36 of the B.D.A.Act, that would apply and Section 37 is wholly irrelevant.
22. If that be so, it will have to be seen as to what would be the net result of the legal position with reference to the question of title and question of possession.
23. As pointed out earlier, it is a hard fact that an award as per Ex.D2 dated 26-5-1988 was passed with reference to the land in question. Further Ex.DS discloses that possession was taken under Section 16 of the Land Acquisition Act. In this connection, the provisions of Section 16 of the Land Acquisition Act, (as stood amended by Karnataka Act No. 17/1961) reads as under:
"Power to take possession-
(1) When the Deputy Commissioner has made an award under Section 11. he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.
(2) The fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact."
It is seen that Gazette Notification as such is not produced. However, D.W.2 has spoken as regards the same. The learned Counsel for the appellant has also relied on the document at Ex.DS Mahazar in this behalf. The Revenue' Inspector who purported to have taken possession is not examined in the case. None of the panchas is also examined. However, D.W.2 Venugopala Rao, the then Assistant Engineer, B.D.A. has spoken as regards the possession having been taken over. He has stated as under:
"Sy.No. 8 of Banasawadi comes within my jurisdiction. 2 acres 13 1/2 guntas is acquired by B.D.A. in Sy.No. 80 of Banasawadi Village. On 22-6-1988 the land was handed over to the Engineering Section. At the time when the land was handed over to Engineering Section it was a vacant land. B.D.A. is in possession of Sy.No. 80. We have formed layout in the acquired portion of Sy.No. 80.
BDA has formed sites in Sy.No. 80. No structures are existing on Sy.No. 80 and on the suit sites. The officials of the B.D.A. never attempted to demolish structures on suit sites at any point of time.
We have not received any notice issued by plaintiff under Section 64 of the BDA Act. The sites formed in Sy.No. 80 are allotted to general public. The layout is formed for East of NGEF Layout."
24. As pointed out earlier, the lower Court has not considered the oral evidence adduced in the case. The evidence referred to hereinabove, in my opinion, would indeed assume significance. There is no reason as to why D.W.2, an Assistant Engineer of a Body corporate should depose a falsehood. A close reading of his evidence does not go to show that he is anxious to suppress the truth. Though in the course of his cross-examination, it is suggested that no layout is formed, the same is denied by this witness. This witness is not cross-examined in detail on this aspect. As seen earlier, the witness has even stated that the sites are allotted to general public and the Layout is formed for East of NGEF Layout. Under these circumstances, it becomes indeed difficult to discard the evidence of the witness. Further Ex.D3, the mahazar clearly discloses that possession was taken on 22-6-1988. It is one thing to say as to whether that possession is illegal or not. However, it is quite another thing to say as to whether possession has, in fact, been taken. The fact that possession has been taken as evidenced by Ext.D.3 is spoken to by D.W.1, These aspects which flow from the evidence on record have not been considered at all by the learned City Civil Judge. It may be possible to say that the acquisition is rendered illegal or even void on account of the non-compliance of the mandatory provision of Section 17(5) of the B.D.A.Act. In fact, the Supreme Court in the decision in NUTAKKI SESHARATANAM v. SUB-COLLECTOR, LAND ACQUISITION, VUAYAWADA AND ORS., has pointed out that non-compliance under Section 4(1) of the Land Acquisition Act [as amended by A.P. (Amendment) Act 9 of 1983], would render the acquisition bad in law. However, it is significant to notice that the Supreme Court has directed in the said case that if the possession has been taken, the same must be returned to the appellant. I may point out here that the case dealt with by the Supreme Court, is a case arising under a petition under Article 228 of the Constitution of India, However, the present Appeal has arisen out of a regular suit for permanent injunction simpliciter. Whether this Court if it takes the view that the acquisition is rendered illegal and if at the same time, this Court takes the view that the possession was taken by the Government and/or B.D.A. the possession can be decreed, will be considered a little later. However, on the basis of the evidence, I find it difficult to take a view that plaintiff in each of this case, was in possession of the suit property on the date of the suit. As pointed out earlier, even the finding of the learned City Civil Judge which is reflected in para-12 of his judgment and which is excerpted earlier, is to the effect that the plaintiffs have not produced any material to show their possession of suit property. However, the learned Judge has held that they were in possession of the suit property on the presumption that possession follows title. In my view, the question of presumption would arise for consideration only when there is no evidence at all with reference to the possession of the person who has no title. If, however, there is evidence which would, indicate the possession of a person who can be said to have no title, the aforesaid presumption will not apply and cannot be applied.
25. Sri Nagaraja Rao, learned Counsel for the respondents, as pointed out earlier, contended that whenever possession is taken under Section 16(1) of the Land Acquisition Act, the same is required to be notified in the official gazette as required under Section 16(2) of the Act (as amended by Karnataka Act No. 17/1961). It is contended that no such notification is produced and that therefore, the possession having been taken under Section 16(1) of the L.A.Act cannot be countenanced at all. I am unable to agree with the learned Counsel for the respondents. It is needless to say that Section 16(2) of the L.A. Act is an enabling provision. What it means is that the Gazette Notification shall be evidence of such fact That does not however mean that if Gazette Notification is not published, the factum of having taken possession is rendered otiose. It is certainly permissible to prove the facturn of having taken possession by other evidence. I have pointed out earlier as to how the evidence on record warrants a conclusion that possession has been taken on the date mentioned in Ex.D3. It is not necessary to repeat the same.
26. Sri Nagaraja Rao, learned Counsel for the respondents contended that the formalities required under Section 36(3) of the B.D.A.Act are not complied with. In particular it is pointed out that there is no transfer deed to evidence the transfer of property to B.D.A. and that therefore it cannot be held that B.D.A. was in possession of the suit property. It is necessary to point out here that under Section 36(2) of the BDA Act, for the purposes of Section 50(2) of the Land Acquisition Act, the Authority shall be deemed to be the local authority concerned. In this connection, the observation reflected at page-350 of the Commentary on the Land Acquisition Act by Prakash Aggarwala (1992 Edition) which is supported by the authorities referred to in the foot note can be perused with advantage. It reads as under:
"In the case of acquisition for a Company where the provisions of Section 38 to 42 post are applied, Government next transfers the Land by a deed of transfer stipulating the terms on which transfer is made, vide Section 41 post. When land is acquired for a local authority there is ordinarily simply making over, and the terms are governed by the limitations in the Acts relating to the constitution, powers and functions of such authorities."
Even otherwise, assuming that a deed of transfer is necessary to evidence the transfer of land to B.D.A. there is no suggestion to the effect to the witnesses concerned that such a deed is not effected. Further it is a matter between the Government and B.D.A. and it will suffice if it is pointed out that the evidence on record goes to show as pointed out earlier that B.D.A. has been put in possession. Ex.D4 also supports the same.
27. It is true that the Supreme Court in Khub Chand and Ors. v. State of Rajasthan and Ors. had held that notification issued under Section 4 of the L.A.Act (Rajasthan Land Acquisition Act) without complying with the mandatory direction would be void and the Land acquisition proceedings taken pursuant thereto would be equally void. It is also true that the Supreme Court in the Decision in Nutakki Sesharatanam v. Sub Collector, Land Acquisition, Vijayawada and Ors. has held that non-compliance under Section 4(1) of the L.A.Act [as amended by A.P. (Amendment) Act 9/1983] would render the acquisition bad in law. it is also true that Section 17(5) is a mandatory provision. It is held that the said provision is not compiled with. However, though the said Decisions may help the plaintiffs to contend that the acquisition is vitiated and thereby the title is not affected, the same will not help the plaintiff to contend that the acquisition is vitiated and thereby the title is not affected, the same will not help the plaintiff to show that possession has not been taken, if in fact, possession has been taken and the evidence on record warrants such a conclusion. It is also necessary to point out here that in NUTAKKI SESHARATANAM's case which had arisen out of a Petition under Article 226 of the Constitution of India, the Supreme Court has directed that possession if taken should be handed over to the appellant in Writ Appeal.
28. In the light of what is stated hereinabove, it is clear that though the provisions of Section 17(5) of the B.D.A.Act which is held to be mandatory and though the same is not complied with and though on account of the same it may be possible to hold that the entire acquisition proceeding is vitiated, it is equally clear from the evidence on record that plaintiffs in any of these suits was not in possession of the respective suit properties as found on an appreciation of the evidence on record. Point No. 1 is answered accordingly.
29. If that be so, whether the suit in the present form is tenable, is the next point for consideration. The suit is one for permanent injunction. Possession on the date of the suit is a must before a decree for permanent injunction can be passed, If it could have been held that plaintiffs were in possession of the suit land on the date of the suit it would have been possible to hold that the possession was lawful, in the light of the fact that the land acquisition proceeding is vitiated. However, once when it is found that they were not in possession of the property on the date of the suit a decree for injunction cannot be granted. As such the decree for permanent injunction passed by the trial Court is liable to be set aside.
30. However, the next question for consideration is as to whether the suit should be dismissed. At this juncture, it is necessary to point out that multiplicity of proceedings should be avoided. It is well-settled that in a suit for injunction a decree for possession cannot be granted. In this connection, the Decision in PANDIRANATH v. RAMA-CHANDRA AND ORS., ILR (Karnataka) 1974, 664 is on the point. In para-6 therein it is held as under:
"Relief of general character or other reliefs which the Court considers just and proper may, even though they are not expressly asked for, can be granted by the Court under the provisions of Order VII Rule 7. Whatever may foe the width of the power conferred by Order VII Rule 7 in the matter of granting reliefs not expressly asked for by the parties, it is impossible to take the view that any relief which is inconsistent with the plaintiff's case, can be granted. In a suit for permanent injunction, the plaintiff has to establish his possession on the date of suit in order to secure a decree. If the plaintiff fails to establish his possession on the date of suit, he fails to establish the case putforward by him, in which event the normal consequence that follows is the dismissal of the suit. Failure on the part of the plaintiff in such a suit to establish his case, cannot in my opinion, be made the foundation for granting relief in his favour. If the plaintiff seeks a decree for permanent injunction and fails to establish that he was in possession on the date of suit and the Court comes to the conclusion that the defendants were in possession prior to the Institution of the suit, the passing of a decree for possession in favour of the plaintiff would clearly be inconsistent with the plaintiff's case. There is also another reason why it is not possible to make a decree for possession in a suit for permanent injunction when the plaintiff fails to establish his possession on the date of suit, in a suit for permanent injunction the defendant can successfully non-suit the plaintiff by leading satisfactory evidence to establish that the plaintiff was not in possession on the date of suit. The defendant is not called upon in a suit for permanent injunction to establish either that he is in possession of the suit property or that he has perfected his title to it by adverse possession, though of course the defendant can take as one of his defences in a suit for permanent injunction, that, he being the true owner, no injunction should be granted in favour of the plaintiff even if the plaintiff establishes his possession on the date of suit. If, in a suit for permanent injunction, it is held that a decree for possession can be passed even though the plaintiff has failed to prove his possession on the date of suit, it would result in the denial of a valid defence available to the defendant. The power of granting a general or other relief under Order VII Rule 7 of the Code of Civil Procedure cannot be stretched in such a manner as to defeat the ends of justice by denying the valuable defence to which the defendant is, in law, entitled to, 1 have, therefore, no hesitation in holding that in a suit for permanent injunction, if the plaintiff fails to establish his possession on the date of suit, the Court cannot call in aid the provisions of Order VII Rule 7 of the Code of Civil Procedure and make a decree for possession in favour of the plaintiff. It is necessary for me to make a clarification., viz., that if the plaintiff establishes his possession on the date of suit but he gets dispossessed during the pendency of the suit, the Court undoubtedly has the power to mould the relief in an appropriate manner and make a decree for possession in favour of the plaintiff."
I hasten to add here that this Court in RANGAPPA v. JAYAMMA, has held that the provisions of Order VII Rule 7 of the CPC are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the Interest claimed by him in the suit property. It is further pointed out that in such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the shares of the parties established in the suit. On a careful perusal of the said Decision, I find that a question which has arisen at this juncture in these Appeals had not arisen in the said case. Further, in none of the cases referred to by this Court in Rangappa's case, the question as to whether a relief of possession can be granted in a suit for injunction was not considered. Since the Decision in Pandiranath's case is directly on the point the same will have to be followed, since I respectfully agree with the same.
31, However, it is seen in this case that though no declaration is prayed for, it appears from the allegations made in the plaint that the suit is based on title and possession, though it is found earlier, that possession is not proved on the date of the suit. In this connection, the Decision in CORPORATION OF THE CITY OF BANGALORE v. M. PAPAIAH AND ANR., is indeed relevant. In the said case, it is held as under:
"So far the scope of the suit is concerned, a perusal of the plaint clearly indicates that the foundation of the claim of the plaintiffs is the title which they have pleaded in express terms in paragraph 2 of the plaint, it has been stated that after cancelling the acquisition of the suit property for a burial ground the land was transferred to Guttahalli Hanumaiah under G.O.No. 3540 dated 10-6-1929 on payment of upset price. In paragraphs-3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner-in-possessian. It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation. The Court fee payable on the plaint has also to be assessed accordingly, it follows that the appellant's objection that the suit is not maintainable has to be rejected. The Additional Civil Judge, who heard the appeal from the judgment of the trial Court, examined the question of plaintiffs' title and rejected their case. The question of possession was also separately taken up, and it was found that the plaintiffs had failed to prove their possession until 24-8-1973 when they allege that the appellant Corporation trespassed. Accordingly, the appeal was allowed and the suit was dismissed.
In reversing the decision of the first appellate Court the High Court committed several serious errors of law. The High Court appears to have been confused on the question whether the issue of title to the disputed property was involved in the suit or not. The judgment shows that the High Court has made several inconsistent observations. By way of illustration, the following passage at page-13 of the paper book (of this Court) may be seen:
"This Court must accept this argument in view of the circumstance that there was no issue involving the title. The title has been satisfactorily established by the appellants and the respondent has failed to establish its title. Therefore, the first appellant Court is wholly wrong in raising issues which did not arise in the case and reaching the conclusion that the suit was bad since the appellants did not seek the relief of declaration of title and possession."
We do agree that the suit cannot be dismissed on the ground that the relief of declaration of title and possession has not been specifically mentioned in the plaint. But the observations on the question whether the issue of title is involved in the suit or not are clearly discrepant. In some other part of the judgment the High Court has mentioned a portion of the relevant evidence on the question of title and possession and made adverse comments against the findings of fact recorded by the first appellate court without giving any valid reason thereof. So far the revenue records are concerned, the appellate Court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the first appellate Court was erroneous. It is firmly established that the revenue records are not documents of title and the question of interpretation of a document not being a document of title is not a question of law. These errors have seriously vitiated the impugned judgment of the High Court which must be set aside."
32. As pointed out earlier, in this case also the plaint averments would go to show that the plaintiffs are the absolute owners of the sites. The basis of the title is also indicated. It is also stated that there is no notice of acquisition proceedings. Under these circumstances, it is clear that the suit is claimed on title and possession. In that view of the matter, the Decision of the Supreme Court in Corporation of the City of Bangalore's case would apply. Further had there been a prayer for possession, the same would have been in time be it Article 64 or 65 of the Limitation Act that would apply. It is under these circumstances that the Court is required to consider as to whether it is just and proper to dismiss the suit and drive the plaintiffs to another suit, assuming for the time being that Order II Rule 2 would not apply to the second suit. In my opinion, the proper course that will have to be adopted in such a situation is the same that was adopted in Pandiranath's case. I hasten to add here that in Pandiranath's case a request was made by the plaintiff for amendment. In this case, such a situation would not crop up for consideration at the time of argument. However, I am of the view that justice demands that the same course which was adopted in Pandiranath's case should be adopted in this case also. In Pandiranath's case this Court in a second appeal had ordered as under:
"For the reasons stated above, Regular Second Appeal No. 581 of 1970 is allowed and the decree passed by the Civil Judge, Bidar, in Regular Appeal No. 25 of 1967 and that passed by the Munsiff, Aurad in Original Suit No. 23/1 1966 are set aside', and the case is remitted back to the court of first instance with a direction to give the plaintiff one month's time to amend the plaint appropriately. If the plaintiff applies for amendment of the plaint, such application shall be disposed of in accordance with law. If, however, the plaintiff does not apply for amendment within the time to be granted by the court of first instance, that court shall proceed to dismiss the suit. If the application for amendment is allowed, the defendant shall be given an opportunity to file a further written statement ad the suit shall be disposed of after giving an opportunity to both the parties to lead evidence in support of their respective contentions. The appellant is entitled to refund of the Court fee paid on the memorandum of appeal."
In my considered view, the ends of justice will be met if a simitar order is passed in these Appeals also.
33. For the reasons stated hereinabove, I pass the following order:
The Appeals are allowed.
The judgments and decrees passed in the aforesaid suits viz., O.S.Nos. 5391/1989, 5373/1989, 2231/1990, 5372/1989, 5390/1989, 5374/7989, 5375/1989, 6678/1989, 5389/1989 and 5371/1989 by the XllI Additional City Civil Judge, Bangalore are hereby set aside and the matter in each of these cases is remitted back to the trial Court with a direction to give one month's time to each of the plaintiffs in the aforesaid suits to amend their plaints appropriately. If the plaintiffs apply for amendment of the plaints, such applications shall be disposed of in accordance with law. If, however, the plaintiffs do not apply for amendment within the time to be granted by the lower Court, the trial Court shall proceed to dismiss the suits. If the applications for amendment are filed and if they are allowed, defendant in each of the suits should be given an opportunity of filing further written statements and the suits shall be disposed of after giving an opportunity to both the parties to lead evidence in support of their respective contentions. The parties are directed to appear before the lower Court on 15-1-93.
34. In the facts and circumstances of the case, I direct both the parties to bear their own costs.
35. The main Judgment shall form part of the Appeal in M.FANo. 217/1992 and a copy thereof shall be kept in each of the rest of the Appeals.