Bangalore District Court
The Mysore Lancer Mosque vs Union Of India on 21 January, 2022
KABC010194532000
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 21 st day of January 2022
PLAINTIFFS: The Mysore Lancer Mosque
situated at Mysore Lancers Line,
Kaval Byrasandra,
Munireddypalya Post,
BANGALORE.
Represented by
(1) Mr. Anwar Khan,
Aged about 46 years,
S/o Yousuff Khan,
The Secretary.
(2) Mr. Syed Ibrahim,
Aged about 45 years,
S/o Abdul Lathif,
The Member
[By Sri PM, Advocate]
/v e r s u s/
DEFENDANTS: 1. Union of India,
Ministry of Defence,
2 O.S.8520/2000
Represented by its
Defence Secretary,
New Delhi.
2. The Station Head Quarters,
Indian Army,
Cubbon Road,
BANGALORE-560 001.
3. The Defence Estate Officer
St. Johns Road,
BANGALORE.
4. Officer Commanding
Parachute Regiment Training
Centre, Indian Army,
Mysore Lancers Line,
Munireddypalya Post,
BANGALORE-560 006.
5. Govindaraju,
s/o Narayanappa.
6. N.Ramamurthy
S/o Narayanapa.
7. N. Jayaprakash
S/o Narayanappa,
Defendants 5 to 7
All residing at No.1,
4th cross, Ganesha Block,
R.T.Nagar Post,
Sultanpalya,
BANGALORE-560 032.
8. The Karnataka State Board of
Wakfs, Cunningham Road,
BANGALORE.
Represented by its Chief Executive
Officer.
3 O.S.8520/2000
9. Sri G. Shravan,
Major by age,
S/o N. Govindaraj,
No.101, Divya Shree residency,
HD Devegowda Road,
R.T.Nagar, Bengaluru-560 032.
10. Sri G.Sheshank,
Major by age,
S/o N. Govindaraj,
No.101, Divya Shree residency,
HD Devegowda Road,
R.T. Nagar,
Bengaluru-560 032.
D1 to D4 - By Sri G.M.Megharaj, Advocate
D6- By Sri H.M.Muralidhar, Advocate
D7 - By Sri NKS, Advocate
D8 - Exparte
D5, D9, D10 - By Sri Kiran V.Ron, Advocate
Date of institution of the : 14/12/2000
suit
Nature of the suit : For declaration and injunction
Date of commencement of : 14/2/2007
recording of the evidence
Date on which the : 21/01/2022
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
22 11 07
(Prashanthi. G)
XXVII ACCJ: B'LORE.
4 O.S.8520/2000
Plaintiff filed this suit against the defendants for
the relief of declaration and injunction for the
following reliefs;
a) To declare that the plaintiff is the absolute
owner in possession of the plaint schedule property
and that the defendants have no manner of right, title
and interest over the same;
b) For a decree of permanent injunction
restraining the defendants 1 to 4, their agents,
officers, servants, henchmen or person claiming under
them from interfering with the peaceful possession
and enjoyment of the plaintiff in respect of the plaint
schedule property;
b(i) In the event the trial Court were to come to
the conclusion that the 1st to 4th defendants are in
possession of the suit schedule property, then to grant
a decree directing the defendants to immediately and
forthwith handover and put the plaintiffs in
possession of the suit schedule property;
5 O.S.8520/2000
c) A decree of permanent injunction
restraining the defendant no.5 to 7, their agents,
officers, servants, henchmen, or persons claiming
under them from interfering with the peaceful
possession and enjoyment of the plaintiff in respect of
the plaint schedule property; and for the cost of the
suit.
2. The brief facts of the plaintiff's case are as
under:
Plaintiff is a registered institution with the
Karnataka State Board of Wakfs and its property are
notified in the Karnataka Gazette notification dated
22/7/1965. The Karnataka Board of Wakf as per the
order dated 24/1/1997 in exercise of the powers
under Section 18 of the Wakf Act and Section 16 of
the Repealed Act has constituted the managing
committee of 13 members of the management of the
plaintiff and its properties. The said managing
committee so constituted has authorised its Secretary
and member in order to institute the present suit.
6 O.S.8520/2000
Plaintiff is the absolute owner of the immovable
property in the lands bearing Sy.No. 70 measuring to
the extent of 3 acres in 14 guntas of Kaval Byrasandra
village. Originally the schedule land was the absolute
property of one Narasingarao who conveyed the
property in favour of Syed Abdul Aziz by sale deed
dated 4/10/1909. The original sale deed is misplaced
and in the custody of the plaintiff.
The said Syed Abdul Aziz made a oral gift which
is permissible under Mohammedan Law in respect of
the schedule property in favour of the plaintiff. The
gift was coupled with delivery of the possession which
was accepted by the mosque. The gift was made in the
year 1920. From that date, the plaintiff is in the
peaceful possession and enjoyment of the property
which is an agricultural land without any interference
from any person. The plaintiff is incidentally the
owner of the adjoining lands in Sy.No. 3/1 and 4/1 of
Kavalabyrasandra village.
The defendant no.8 issued a public notice dated
16/2/2000 regarding the registration of the schedule
7 O.S.8520/2000
property under the provisions of Section 36 of the
Wakf Act. In continuation of the public notice, the
Wakf Board called upon the plaintiff to furnish the
various records such as sale deed, revenue records,
records of the rights, mutation etc., In this regard, on
enquiry from the side of the plaintiff, the revenue
authority furnished the RTC in respect of the
schedule property on 10/8/2000 to the plaintiff. On
the receipt of said RTC, the plaintiff learnt that
certain orders have been passed by the Special
Deputy Commissioner of Kavalabyrasandra range and
in view of that order, the Tahsildar has mutated the
lands standing in the name of plaintiff to the name of
one Narayanappa as per the M.R.No.2/95-96 dated
4/5/1996. It appears that, the said Narayanappa is
expired, subsequently the Tahsildar mutated the
lands in Sy.No. 17 to the name of defendant no.5 to 7
who are the children of said Narayanappa.
In view of the oral gift which is coupled with the
delivery of the possession, the plaintiff is in the
peaceful possession and enjoyment of the property
8 O.S.8520/2000
way back in the year 1920. No body has got any
manner of right, title or interest much less than the
said Narayanappa in respect of the schedule property.
The mutation of the records by the Tahsildar is illegal
in so much as the same was without the notice to the
plaintiff.
The RTCs produced clearly shows that, the
plaintiff is in the possession of the schedule property.
The defendant no.5 to 7 are total strangers to the
plaintiff. The plaintiff after making various enquiries
able to ascertain the address of the defendant no.5 to
7 and got information that, defendant no. 5 to 7 and
their late father managed to mutate the entries in
their name in respect of the schedule property without
having any rights. The conduct of the defendant no. 5
to 7 is highly suspicious and without having any
documents. On the basis of the RTC, the defendant
no. 5 to 7 are trying to alienate the schedule property
in favour of the third parties and create an
encumbrance with the sole intention of depriving the
plaintiff of his property. Therefore, the plaintiff filed
9 O.S.8520/2000
this suit for declaration of the title and for the
permanent injunction.
The defendant no.4 is neighbour to the property
of the plaintiff. The fourth defendant is under the
direct command of second and third defendant who
are entirely answerable to the first defendant. The
foruth defendant at the instigation of other three
defendants is interfering with the peaceful possession
and enjoyment of the plaintiff in respect of the
schedule property. The plaintiff is the owner of the
land bearing Sy.No. 3/1 and 4/1 of the
Kavalbyrasandra village. Over the lands in Sy.No. 4/1,
the plaintiff has constructed a mosque known as
'Mysore Lancer Mosque'. In addition to the mosque,
the plaintiff has constructed a house for
accommodation to Iman and Moulvi. The plaintiff is
very popular in the particular area and almost all the
Mohammedans situated in Kavalbyrasandra are
offering the prayers in that mosque. He also conduct
classes in Arabic to enable the people to read and
understand 'Quran' which is utilised by the people of
10 O.S.8520/2000
their region. In addition to the prayers, it has also
constructed 6 houses which are left for rent and
income of the same is used by the mosque for his
expenditures.
The entire lands of the plaintiff are situated near
the properties of defendant no.1 to 4. The defendant
no.1 to 4 have their training centre over the vast
extent of the land, however have no rights over the
schedule property. They are attempting to interfere
with the plaintiff's peaceful possession and enjoyment
of the schedule property. All the attempts made by the
plaintiff to show that the defendants have no manner
of right, title or interest over the schedule property.
They are very powerful being the government military
authorities. For that reasons, the plaintiff approached
the jurisdictional police to assist the plaintiff in order
to protect his possession. However, the police refused
to assist on the pretext that they could not take any
action against the Military authorities and the same is
beyond their jurisdiction.
11 O.S.8520/2000
The defendants on earlier occasion attempted to
demolish the mosque situated over the lands in Sy.No.
4/1 which is near from the suit schedule property.
For that reason, a suit in O.S.7697/99 has been filed.
On consideration of the entire file, the Court was
pleased to pass an order to status quo in respect of
the said lands. Subsequently the defendants have
undertaken that they will not demolish the mosque
over the lands in Sy.No. 4/1. Even defendant no.1 to
4 knows that the plaintiffs are in possession of the
schedule property.
During the first week of December 2019, some of
the officers of the first to fourth defendants trespassed
to the suit schedule property illegally. The members of
the community rushed to the spot and informed the
officers that they cannot take the law into their lands
and trespass on the schedule property. The military
authorities went away and taking the advantage of the
winter vacation, trespassed once again into the
schedule property and commenced the activities of the
digging pits along the perimeter of the schedule
12 O.S.8520/2000
property. During the first week of January 2020, they
have illegally and in a highhanded manner erected a
high density fencing. Once again, the plaintiff lodged a
complaint to the jurisdictional police who refused to
take action against them.
The plaintiffs continued to be in possession of
the schedule property and mere erection of the fencing
will not amount to taking of the possession from the
plaintiff in the manner recognized by the law. Inspite
of the same, the defendants made an illegal attempt
and claimed that they are in possession. If at all the
Court comes to the conclusion that the plaintiff is not
at all in possession of the property, then plaintiff
seeks for the possessory reliefs also.
The defendant no.8 is a proforma defendant and
no relief has been claimed against him.
The cause of action for the suit arose on
30/11/2000 when the defendant no.1 to 4 interfered
with the peaceful possession and enjoyment of the
plaintiff and on 10/8/2000 when the plaintiff secured
13 O.S.8520/2000
the certified copy of the RTC. The schedule property is
situated within the jurisdiction of the Court.
Accordingly, prayed to decree the suit in the
ends of the justice.
3. After the service of the summons, the
defendant no.1 to 4 appeared through their respective
counsel and filed written statement. Defendant no.5,
6, 7, 9 and 10 appeared and filed written statement.
Defendant no. 8 has been placed exparte.
4. The main contentions of the defendant no.1
to 4 in the written statement are as under:
The suit is not maintainable either in the law or
facts of the case. The Court fee paid on the plaint is
highly insufficient.
These defendants are not aware of the fact that,
the plaintiff is authorised by the Secretary or member
to institute the suit. They were also not aware that
whether the plaintiff is the registered institution with
the defendant no.7. The Constitution of Committee or
otherwise is an internal matter and these defendants
are not concerned with the same. As contended in
14 O.S.8520/2000
para no.4, plaintiff is not the owner of the schedule
property. The first defendant is the absolute owner of
the schedule property and he is in possession and
enjoyment of the third defendant. These defendants
are not aware that the schedule property was
originally owned by one Narasingarao and later on it
was conveyed in favour of the Syed Abdul Aziz.
Further, the said Syed Abdul Aziz made a HIBA is also
totally denied by the defendants. The contention that
the plaintiff is in the peaceful possession and
enjoyment of the property without any interference is
denied. Further the contention that, the plaintiff is the
owner of the adjoining lands in Sy.No. 3/1 and 4/1 is
totally false. The same was upheld in O.S.10542/81
and confirmed by the Hon'ble High Court of
Karnataka in RFA No. 422/87.
The averments in para no. 7 is denied. Public
notice issued does not confer any right, title or
interest over the plaintiff in respect of the schedule
property. As contended in para no. 9, the plaintiff is
not at all in possession and enjoyment of the schedule
15 O.S.8520/2000
property. Without challenging the order dated
29/3/96 passed by the Special Deputy Commissioner
the plaintiff cannot claim any right over the schedule
property. Since the schedule property is in actual
possession and enjoyment of defendant no.1 to 4 mere
suit for declaration without seeking for the
cancellation of the order dated 29/3/96 is not
maintainable. Neither the plaintiff nor the defendant
no. 5 to 7 have got the rights over the schedule
property.
As contended in para no.11, defendant no.4 is
not the neighbour of schedule property. The first
defendant is the owner and same is in possession and
enjoyment of other three defendants. Since the
defendants 2 to 4 are in actual possession of the
schedule property, the question of interfering with the
peaceful possession and enjoyment of the property
does not arise at all. The lands in Sy.No. 3/1 and 4/1
of Kavalbyrasandra village are the absolute property of
the defendants. The entire allegation that the plaintiff
16 O.S.8520/2000
is powerful conducts community prayers etc., are all
false.
The properties of the plaintiff are situated near
the properties of defendant no.1 to 4 is false. The
plaintiff has no manner of the right, title and interest
over the schedule property. Therefore, the question of
interference does not arise. Since these defendants
are in possession and enjoyment of the lands, they
never tried to interfere with the possession and
enjoyment of the lands held by the plaintiff.
The contention of the earlier suit in O.S.7697/99
is partly true. Since these defendants have no
intention to demolish the mosque, they undertook in
that suit. However, plaintiff is not at all in possession
and enjoyment of any portion of the schedule
property.
Defendant no.8 is made as a party in order to
assist the plaintiffs in all its illegal activities. There is
no cause of action to the suit.
The real facts of the case are as under:
17 O.S.8520/2000
The first defendant is the absolute owner of the
schedule property and the defendant no. 2 to 4 are in
the actual possession and enjoyment of the same. The
schedule property earlier belonged to one Syed Abdul
Aziz measuring to the extent of 3 acres 14 guntas. The
said land was acquired by the Government as per the
Gazette Notification No. MILY.966-169-08-45 dated
7/3/1912 published in the Mysore Gazette. The lands
are acquired exclusively for the purpose of camping
ground of Imperial Service Lancers Regiment. The
right from the year 1912, these defendants are in
actual possession and enjoyment of the same. The
mosque in question was also constructed by the
Imperial Service. Mosque is constructed for the
purpose of offering the prayers by its soldiers and
officers belonging to a particular category.
Since mosque is constructed by the defendants,
the plaintiff has got no rights over the same. Neither
the plaintiff nor defendant no.8 have any mabner of
right over the schedule property. The plaintiff in
18 O.S.8520/2000
collusion with the defendant no.8 is trying to grab the
property of the defendant.
For the above said reasons, prays to dismiss the
suit in the ends of the justice.
5. After the amendment, the defendant no.1 to
4 filed additional written statement, contending that
the suit itself is not maintainable under the law and
liable to be dismissed. The defendant no. 1 to 4 are
the sole and absolute owners and in possession of the
schedule property. Earlier the defendant no.1, 3 and 4
filed a suit in O.S.No.8340/2016 for the relief of
declaration and injunction pending before the City
Civil Court, Bengaluru. In that suit, the defendant
no.5, 9 and 10 are the parties. The said defendants
filed the written statement and also sought for the
counterclaim with respect to the 4 acres 20 guntas of
the land. After that, the defendant no. 5 also sought
for temporary injunction restraining the plaintiff in
that case. The said application was rejected by the
Court and after that the same was challenged before
the Hon'ble High Court of Karnataka in MFA No.
19 O.S.8520/2000
3447/2018 and 3450/2018. While passing the orders,
the Hon'ble High Court of Karnataka held that, the
injunction order granted by the trial Court in so far as
4 acres 20 guntas of land in Sy.No. 70/1 and 70/2 of
Kavalabyrasandra village which is in possession of the
plaintiff is hereby confirmed. However, with regard to
the remaining portion of the suit schedule property,
the possession of the plaintiff is not clear. Therefore,
both the parties are directed to maintain status quo
with respect to the remaining extent of the land. Once
again, the said order passed by the Hon'ble High
Court of Karnataka was challenged before Hon'ble
Supreme Court of India by way of Special Leave
Appeal wherein the Hon'ble Supreme Court of India
was pleased to dismiss the said appeal by its order
dated 4/1/2019.
The defendant no.1 to 4 denies all other
allegations in the plaint which are contrary and
inconsistent with the written statement.
6. The main contentions of defendant no.5 in
the written statement are as under:
20 O.S.8520/2000
According to defendant no.5 also specifically
contends that, the suit of the plaintiff is not
maintainable and plaintiff is not at all the absolute
owner of Sy.No. 70 measuring to the extent of 3 acres
14 guntas of Kavalabyrasandra village. The averments
made in para no. 5, 6 and 7 are denied but they were
the false and created story of the plaintiff. In view of
the orders passed by the Special Deputy
Commissioner, Narayanappa and their legal heirs are
the owners of the property. Therefore, the plaintiff has
got no rights over the same. The averments in para
no.9 to 14 of the plaint averments are denied.
There is no cause of action for the suit. The suit
is not properly valued.
The defendant no.5 submits that, he and his
children are in possession and enjoyment of the
property bearing Sy.No. 17 measuring 7 acres 7
guntas of Kavalabyrasandra village which belongs to
the father of this defendant who purchased the same
for the valuable consideration under the registered
sale deed dated 30/8/2020. Thereafter, the katha was
21 O.S.8520/2000
effected in the name of the father of the defendant in
view of the orders passed by the Deputy
Commissioner.
This defendant along with the defendant no.6
and 7 derived title to the property by virtue of the
decree passed in O.S.10582/87 and wherein 3 acres 7
guntas of the land are allotted to the defendant and 2
acres to the defendant no.6 and 2 acres to the 7 th
defendant. Thereafter, on mutual understanding 4
acres of the land are given to the defendant no.6 and
7 was once again given to this defendant, and
therefore this defendant has become the owner of 7
acres 7 guntas.
As per the survey of the entire land, an extent of
4 acres 20 guntas are in unauthorised occupation of
defendant no.1 to 4 and it was requested them to
handover the possession in their favour. However,
even after the several representation, they did not
turn up, and accordingly a writ of mandamus was
filed. The same was disposed with a direction to
consider the representation of the defendant and
22 O.S.8520/2000
dispose of the same in accordance with the law. The
plaintiff has got no manner of interest over Sy.No. 70
of the Kavalbyrasandra village and a false suit has
been filed.
7. After the amendment to the plaint,
additional written statement has been filed by the
defendant no.5.
8. In the additional written statement, the
defendant no.5 contended that, in view of the orders
passed by this Court dated 2/2/2020, this additional
written statement was filed which was also adopted by
the defendant no.9 and 10.
The question of dispossession of the plaintiff
does not arise at any circumstances as the plaintiffs
have never in possession of the same.
After awaring the inherent defect in the manner
in which the suit was conducted, this application was
filed and the relief of possession was added in order to
overcome the aspect of maintainability.
Para no. 14(a) of the plaint with regard to the
trespass of the defendant no.1 to 4 is denied.
23 O.S.8520/2000
Defendant no. 5, 9 and 10 are the absolute owners
and in possession of the suit schedule property
measuring to the extent of 7 acres 7 guntas. The
defendant no.1 to 4 are in illegal possession of the
land to the extent of 4 acres 20 guntas of land in
Sy.No. 70. The remaining extent of the land are still in
possession of the defendants ancestors. Therefore, the
contention of the plaintiff that, he has ever been in
possession of the land is not correct. The defendant
no.1 to 4 are joining together with the plaintiff
deliberately attempting to deprive defendant no.5, 9
and 10 who are the absolute owners of land bearing
Sy.No. 70. The constructions carried out by the
defendant no.1 to 4 are illegal and further the rights of
the defendant no.5, 9 and 10 are also confirmed by
the Hon'ble Supreme Court of India in two MFAs as
well as reaffirmed by the Hon'ble Supreme Court of
India in SLP No.32299-32300/2018.
The averments stated in para no. 14(b) is false.
The plaintiff continued to be in possession of the suit
schedule property is denied. The plaintiff was never in
24 O.S.8520/2000
possession even as on the date of filing of the suit. The
further contention that, in the event if the Court came
to the conclusion that the plaintiff is not at all in
possession, then the plaintiff seeks the relief of
possession is untenable in law. Therefore, suit itself is
to be dismissed as the same is not maintainable.
9. The main contentions of the defendant
no. 9 and 10 in the written statement are as under:
The suit of the plaintiff itself is not maintainable
either in law or facts of the case. The plaintiff has no
locus standi to seek the declaratory relief and on this
ground alone, the suit is liable to be dismissed. The
plaintiff has not produced any documents to show the
manner in which it has acquired the suit schedule
property nor produced any documents to demonstrate
that, alleged HIBA is acted upon. In the absence of
any documents, the question of seeking the relief of
declaration of the title in respect of the suit schedule
property does not arise.
These defendants deny the contention of the
plaintiff with respect to the alleged oral HIBA. The
25 O.S.8520/2000
plaintiffs have concocted and fabricated a story that
they have allegedly become the owners as per the
HIBA. Even mentioning the date and other relevant
particulars, demonstrating the essential conditions
prescribed under the Mohammedan Law in order to
give effect to a valid HIBA, and on this ground alone,
the suit is liable to be dismissed with exemplary costs.
The defendant no.5, 9 and 10 and their family
members have been in possession of the piece of the
land bearing Sy.No. 70 situated in Kavalabyrasandra
village measuring to the extent of 7 acres 7 guntas.
The same came to their possession by virtue of the
registered sale deed dated 9/8/2020. The sale deed is
also reflected in the preliminary records which reflects
that prior to the purchase of the said land, the land
belongs to one Sri Tiglara Gowda. Manjoppa who is
the son of Tiglara Gowda sold the same in favour of
Narayanappa. The preliminary records do not reflect
the name of the plaintiff or its alleged owner Syed
Abdul Aziz as the owner of the portion of the land.
26 O.S.8520/2000
The registered sale deed dated 9/8/2020 is
reflected in the index of the land. The names of
ancestors of this defendant is also reflected in the
revenue records as the owners of the Sy.No. 70
measuring to the extent of 7 acres 7 guntas. The
defendants and their family members have been in
possession of the same for almost 100 years without
any interference.
By virtue of registered partition deed dated
28/12/2001 entered between the defendant no.5, 9
and 10, the property bearing Sy.No. 70 has been
partitioned. In view of the same, the defendant no.9
has been allotted to a portion of land to an extent of 2
acres 4 guntas and defendant no.10 has been allotted
2 acres 3 guntas in Sy.No. 70.
On 10/8/2018, these defendants are impleaded
in O.S.8340/2016. The said suit was also filed by the
defendant no.1 to 4 claiming the title over the
property in Sy.No. 70.
The said Syed Abdul Aziz never acquired any title
in respect of the suit schedule property. Neither Syed
27 O.S.8520/2000
Abdul Aziz nor the plaintiffs have asserted their right
in any manner over the suit schedule property. No
action has been taken by them in order to claim the
possession of the property from the defendants or
their ancestors.
The plaintiffs were never in possession of land in
Sy.No. 70 measuring 7 acres 7 guntas. The defendant
no.1 to 4 have been in illegal possession of the land to
the extent of 4 acres 20 guntas and remaining portion
is still in possession of the defendants ancestors. The
same was admitted by the defendant no.1 to 4 before
the Special Deputy Commissioner. The land was never
acquired and did not belong to the Defence
Department. Acting on the admissions of the defence,
the Special Deputy Commissioner passed an order
deleting the wrong entry in RTC and collecting the
same in favour of the defendant no.5.
In fact, defendant no. 1 to 4 clearly admitted
that the land to an extent of 4 acres 20 guntas are in
unauthorised possession of them and liable to be
handed over to the defendant no.5. Pursuant to that,
28 O.S.8520/2000
the defendant no.5, 9 and 10 preferred a counterclaim
to reclaim the possession of the land in
O.S.8340/2016. The same was accepted by the
Hon'ble Supreme Court of India vide order dated
4/1/2019. In view of the above, it is clear that the
plaintiffs were never in possession of the land and
since no relief of possession is sought, the suit is not
maintainable.
The defendant no.5, 9 and 10 are the absolute
owner. The claim of defendant no. 1 to 4 are not only
time barred but also dismissed. The defendant no.1 to
4 have failed even to aver the facts of passing of order
of acquisition, holding of the enquiry and passing of
the award and also of taking possession of the
property which is mandatory under the law.
The suit itself is a bogus litigation filed in order
to harass the defendants and defendant no.5, 9 and
10. This defendant denied para no. 2 to 12 of the
plaint averments.
The suit is baseless and without cause of action.
The plaintiff has got no locus standi to maintain the
29 O.S.8520/2000
suit. The cause of action is illusionary filed with an
oblique motive to defeat the valuable rights of
defendant no. 5, 9 and 10. The suit is not
maintainable and liable to dismissed with exceptional
cost.
This defendant adopts the additional written
statement filed by the defendant no.5.
10. On the basis of the pleadings of the parties,
my predecessor in office has framed the following
issues and additional issues for consideration:
(1) Whether the plaintiffs prove
their title to the suit schedule
property?
(2) Whether the plaintiffs prove
their lawful possession of the
suit schedule property on the
date of suit?
(3) Whether the plaintiffs further
prove unlawful interference by
the defendants?
(4) Whether the plaintiffs are
entitled to a declaratory decree
as sought for ?
(5) Whether the plaintiffs are
entitled to a decree of
permanent injunction as
sought for?
30 O.S.8520/2000
(6) What decree or order?
ADDITIONAL ISSUES FRAMED ON 17/6/2020:
(1) Whether the defendant no.1 to 4
proves that the suit schedule property
is acquired by virtue of notification
dated 7/3/2012 and same is handed
over by the State Government to the
Ministry of Defence? [Modified as per
order dated 5/1/2021]
(2) Whether the defendant no.5, 9 and 10
proves that suit schedule property is
purchased by their ancestor as per the
sale deed dated 9/8/1920?
ADDITIONAL ISSUES FRAMED ON 5/1/2021:
(1) Whether the defendant no.1 to 4
proves that the suit schedule property
is acquired by virtue of notification
dated 7/3/1912?
(2) Whether the plaintiff proves that, the
defendant no.1 to 4 have
dispossessed/trespassed the plaintiff
forcibly in the 1st week of December
2019 from the suit schedule property?
11. In order to prove the case, the PWs.1 and 2
are examined and got marked Ex.P1 to Ex.P34 and
closed their side of evidence. On behalf of the
defendants, DWs.1 to 5 are examined and got marked
31 O.S.8520/2000
113 documents as per Ex.D1 to Ex.D113 closed their
side of evidence. Further, on behalf of the Court,
Ex.C1 to Ex.C3(a) are got marked.
12. Heard both sides and perused the entire
records of the case.
13. My findings on the above issues are as
under:
ISSUES FRAMED ON 2/8/2002
Issue No.1 : In the negative;
Issue No.2 : In the negative;
Issue No.3 : In the negative;
Issue No.4 : In the
Issue No.5 : In the
Issue No.6 : As per final order; for the
following:
ADDITIONAL ISSUES FRAMED ON 17/6/2020
Addl. Issue No.1 : Modified as per order dated
5/1/2021
Addl. Issue No.2 : In the
ADDITIONAL ISSUES FRAMED ON 5/1/2021
Addl. Issue No.1 : In the negative;
Addl. Issue No.2 : In the affirmative;
14. ISSUE NO.1 AND 2: The present suit
has been filed by the Mysore Lancer Mosque situated
32 O.S.8520/2000
at Mysore Lancers Line which is represented by one
Anwar Khan and Syed Ibrahim. It is pertinent to note
here that, the plaintiff is Mysore Lancers and not
Imperial Lancers. As per the contentions of the
plaintiff, the plaintiff is in possession of suit schedule
property which is Sy.No. 70 measuring to the extent of
3 acres 14 guntas from 1920 itself. Earlier one
Narasingarao was the owner of the schedule property
who sold the same in favour of Syed Abdul Aziz by a
deed of sale dated 4/10/1909. In support of the
contentions of the plaintiff, the plaintiff has produced
the sale deed which is marked as Ex.P2. This
document clearly shows that, originally Narasingarao
was the absolute owner of Sy.No. 3 measuring to the
extent of 2 acres 26 guntas as well as Sy.No. 70
measuring to the extent of 3 acres 14 guntas. As per
the Ex.P2, both these lands are sold in favour of Syed
Abdul Aziz. Later on, this Syed Abdul Aziz executed a
oral gift (HIBA) which is permissible under the
Mohammedan Law conferring the schedule property
in favour of the plaintiff. In order to contend that the
33 O.S.8520/2000
plaintiff is the title holder of the suit schedule
property and in possession of the suit schedule
property, he has produced Ex.P3 to Ex.P7 documents.
Ex.P3 to Ex.P7 are the RTC extracts pertaining to
Sy.No. 70 measuring to the extent of 7 acres 7 guntas
of Kavalbyrasandra village of Bengaluru north. It is
the contention of the plaintiff that, in column no.9 of
these RTCs the word 'Imperial Lancers' is found.
15. The entire contention of the defendant no. 5
to 9 is that, plaintiff is Mysore Lancers and not
Imperial Lancers. In all the RTC extracts, the word
'Imperial Lancers' is found and not Mysore Lancers
Mosque is found. How the word 'Imperial Lancers' can
be interpreted as 'Mysore Lancers Mosque' is not
explained in the pleadings nor in any of the
depositions of the PWs. 1 and 2.
16. In this regard, the learned counsel who is
appearing for the defendant no.1 to 4 contended with
regard to the etymological meaning of word 'Imperial
Lancers'. The word 'Imperial' stands for connected
34 O.S.8520/2000
with an Empire or its Ruler. On the other hand, the
word 'Lancer' means a soldier of a cavalry regiment
armed with lancers. So, it is the contention of the
defendant no.1 to 4 that, by the etymological meaning
of the word 'Imperial Lancer' itself, it is understood
that originally the land was possessed by the Mysore
Government and later it was acquired for the purpose
of Military. However, only by the verbal meaning of a
word, it cannot be come into conclusion that, whether
Mysore Government was the owner of the suit
schedule property which was acquired by the Military
afterwards as per the Gazette Notification. However,
before discussing with regard to the aspect of the
rights of defendant no.1 to 4 with regard to the suit
schedule land, let we discuss with regard to the title of
the plaintiff over the schedule land.
17. The entire basis for claiming the rights by
the plaintiff to the suit schedule property is based on
oral HIBA. In other words, as per the plaintiff's own
averments in para no.6, Syed Abdul Aziz made HIBA
as permissible under the Mohammedan law in the
35 O.S.8520/2000
respect of the suit schedule property favouring the
plaintiff. Further, in that particular paragraph, the
plaintiff contends that the gift was coupled by the
delivery of physical possession which was accepted by
the mosque. The oral gift coupled by the delivery of
the possession was made in the year 1920. From the
said date, the plaintiff is in possession and enjoyment
of the property being the agricultural lands without
any interference from anybody. This is the pleadings
with respect to the title of the plaintiff over the suit
schedule property.
18. Both the advocates who are appearing for
defendant no.1 to 4 as well as defendant no.5, 9 and
10 vehemently contended that in order to prove the
title of the plaintiff, the plaintiff has to establish the
HIBA. The HIBA under the Mohammedan law is
nothing but the oral gift.
19. Except the sentence that, 'oral gift' coupled
by delivery of possession was made in the year 1920,
there is no pleadings with regard to the date, month
36 O.S.8520/2000
of the alleged execution of the HIBA. How accepted the
gift or on which date, the said gift was offered by said
Syed Abdul Aziz and which was accepted by the
mosque is not explained in the pleadings. The same
statements are re-uttered in the chief examination of
the PW.1 in affidavit. Even in the evidence of the PW.2
also, this aspect is not found. The fundamental
aspects in order to prove the HIBA is not made by the
plaintiff in entire his case.
20. The learned counsel appearing fro the
plaintiff, vehemently contended that, since the oral
HIBA is made in the year 1920, it is not possible to
examine the witnesses of HIBA. Further, the suit is
filed in the year 2000, almost after the lapse of 100
years when the suit is filed, it is practically impossible
to call for the witnesses in order to prove the HIBA.
However, he contends that, on the basis of the HIBA
only, the RTC was entered in the name of Imperial
Lancers. It is pertinent to note here that, of course, it
is practically impossible to call for the witnesses in
order to prove HIBA. Of course, the plaintiff could
37 O.S.8520/2000
have mentioned the exact date and month when such
gift was made by Syed Abdul Aziz in favour of the
mosque. It is pertinent to note here that, in order to
show the plaintiff has got the rights over the suit
schedule property, he is contending that the RTC is
in his name as per Ex.P3 to Ex.P7. On the basis of
the word 'Imperial Lancer' mentioned in Ex.P3 to
Ex.P7, the plaintiff is contending that he is the owner
of the suit schedule property.
21. I have carefully perused the RTC perused
by the plaintiff as per Ex.P3 to Ex.P7. Ex.P3 RTC. In
this RTC, in column no.9, the word 'Imperial Lancer'
was rounded up, and the name of M.Narayanappa s/o
Muninagappa, Govindaraju, Ramamurthy and
Jayaprakash is found. The column no. 10 of the RTC
which deals with the aspect of how the name of the
parties in column no.9 is entered on the RTC. This
shows the order of the DC dated 29/3/1996 as per
order in RRTCR-162/95-96. In Ex.P4, Ex.P5, Ex.P6
and Ex.P7, the name of 'Imperial Lancer' is found in
column no.9.
38 O.S.8520/2000
22. It is pertinent to note here that, as
contended by defendant no. 5 to 9, the word 'Mysore
Lancer Mosque' is not found in the RTC, rather than
the word Imperial Lancer is found. However, the
plaintiff has not given any explanation with regard to
the same.
23. It is further important to note here that,
eventhough PW.1 and 2 specifically contended that
plaintiff mosque is managed by the Managing
Committee and resolution book has been maintained
by the plaintiff - mosque, they have not produced the
same in order to prove the HIBA. In cross-examination
of the PW.2, he stated that, he can produce he
original manging Committee resolution book.
However, he has not produced the same in order to
show that the said HIBA is completed. In the absence
of evidence with regard to the completion of the HIBA,
it cannot be come into conclusion that the plaintiff
has got the right over the suit schedule property.
39 O.S.8520/2000
24. Under the Mohammedan Law, oral gift of a
immovable property is permissible. However, the gift is
complete only after the delivery of the possession.
There are no pleadings in the plaint in order to show
that the said HIBA of the year 1920 is acted upon by
the parties. No particular date is mentioned, who
accepted the said HIBA on behalf of the plaintiff is
also not mentioned in the entire pleadings. Even in
the cross-examination of the parties also no such
aspect is pleaded. Except these RTCs, the plaintiff has
not produce any documents in order to show that he
is in the possession of the suit schedule property. In
the cross-examination of the PW.2, he has clearly
admitted that 'Ex.P6 is the RTC of the year 1984 to
1988. The name mention in column no.9 of the
RTC is Imperial Lancers.'. It is pertinent to note
here that eventhough the plaintiff is completely aware
that the name of the plaintiff is not mentioned in the
RTC, he has not taken any steps to delete the names
of 'Imperial Lancers' from the RTCs. Even this
question is also asked by the advocate for defendant
40 O.S.8520/2000
no.5, 9 and 10 during the cross-examination. The
answer given by the witness is that, he was not aware
of the steps taken as he has joined only on 2010.
25. It is further pertinent to note here that, in
the RTCs produced by the plaintiff, the extent is
mentioned as 7 acres 7 guntas. However, as per the
plaint schedule, the plaintiff is claiming the rights
only upto 3 acres 14 guntas. Then how the RTCs
produced by the plaintiff shows that the plaintiff is
the owner of the suit schedule property measuring to
the extent of 3 acres 14 guntas is not explained by
the plaintiff.
26. In order to prove the earlier title of the suit
schedule property, from the side of the Narasingarao,
the plaintiff has produced Ex.P34. Ex.P34 is the
certified copy of the sale deed dated 29/9/2009. This
Ex.P34 also shows that 3 acres 14 guntas of the land
in Sy.No. 70 is sold in favour of Narasingarao by one
Lakshmibai. In the cross-examination of PW.2 with
respect to that aspect, he has deposed that "I do not
41 O.S.8520/2000
know whether there is no name of Narasingarao in
the RTC. I do not know the exact contents of
Ex.P34. But I know the gist of the same. Sy.No.70
is reflected in Ex.P34." In further cross-
examination, he has deposed that, "It is not correct
to suggest that Sy.No. 70 is not 3 acres 14 guntas
rather than it measures 7 acres 7 guntas.". It is
pertinent to note here that the RTC extracts produced
by the plaintiff as per Ex.P3 to Ex.P7 shows that
Sy.No. 70 is measuring 7 acres 7 guntas and not 3
acres 14 guntas as claimed by the plaintiff. Except the
sale deed and these RTC extracts, the plaintiff has not
produced a piece of paper in order to show the suit
schedule property in Sy.No. 70 is measuring to the
extent of 3 acres 14 guntas. In further cross-
examination of the PW.2, he has deposed that "I do
not recollect whether I have produced any survey
documents to show that Sy.No. 70 is measuring 3
acres 14 guntas." How the measurement of 3 acres
14 guntas as claimed by the plaintiff is obtained is not
explained by the plaintiff. More than that even in the
42 O.S.8520/2000
RTC extract also the name of Imperial Lancers is
found and not plaintiff. This aspect is further clear in
the cross-examination of the PW.2 by saying that, "All
the revenue records are standing in the name of
Imperial Lancer and not on the name of the
plaintiff." Of course, the plaintiff is not Imperial
Lancer, rather than Mysore Lancer Mosque. Why
Mysore Lancer Mosque name is not appearing in the
RTC extract is not explained by the plaintiff.
27. Even if we admit the plaintiff has got the
rights over the suit schedule property on the basis of
HIBA as he contended in para no. 6 of the plaint, that
gift itself is not established by the plaintiff.
28. The learned counsel who is appearing for
the defendant no. 5, 9 and 10 vehemently contended
that, eventhough the HIBA is permissible in
Mohammedan Law, that has to be established by the
party before the Court of law in order to ascertain the
rights over the suit schedule property. In this regard,
he has produced the decision of Hon'ble Supreme
43 O.S.8520/2000
Court of India in (2009) 6 SUPREME COURT
CASES 160 wherein it has been clearly discussed
that, "A gift indisputably becomes complete when
a person transfers with immediate effect, the
ownership of his movable or immovable property
to another person, and that other person himself
or someone else with his consent takes the
possession of the property gifted. Under
Mohammedan law, it is a contract which takes
effect through offer and acceptance."
29. In the above decision, the Hon'ble Apex
Court discussed with regard to the conditions to make
a valid and complete gift under the Mohammedan
Law. They are,
a) The donor should be same and
major and must be the owner of the property
which he is gifting;
b) The thing gifted should be in
existence at the time of HIBA;
44 O.S.8520/2000
c) If the thing gifted is divisible, it
should be separated and make distinct;
d) the thing gifted should be such
property to benefit from which is lawful
under the shariat;
e) The thing gifted should not be
accompanied by the things not gifted i.e.,
should be free from the things which have
not been gifted.
f) The thing gifted should come in
possession of the donee himself, or of his
representative, guardian or executor.
30. So, in order to complete the valid gift, there
should be a delivery of the possession from the donor
in favour of the donee. In other words, in order to
complete the HIBA, it should have three conditions.
i) A manifestation of the wish to give
on the part of the donor;
45 O.S.8520/2000
ii) The acceptance of the donee either
impliedly or constructively;
iii) Taking possession of the subject
matter of the gift by the donee either actually
or constructively.
31. In para no.19 of this Judgment, the Hon'ble
Supreme Court of India has clearly stated that the
transfer of the possession under the Mohammedan
Law is necessary for transferring the complete
ownership.
"The transfer of possession in HIBA is
not merely a matter of form, nor something
merely supplying evidence of the intention to
make a gift. The necessity for the transfer of
possession is expressly insisted upon as the
part of substantive law, since transfer of the
possession effectuates that which the gift is
intended to bring about the transfer of the
ownership of the property from the donor to
the donee. The law does not ask whether the
46 O.S.8520/2000
donor really intend to transfer the ownership
of the subject of the gift to the donee. The
real gift completes only when the ownership
is actually transferred from the donor to the
donee."
32. In the instant case also, there is no
pleadings when the gift is acted upon the date and
particulars of the HIBA and also when the plaintiff
has taken the possession of the same or who took the
possession on behalf of the plaintiff's mosque in order
to complete the gift.
33. In Hafeeza Bibi and other others Vs.
Shaikh Farid (dead) by legal representatives and
others, the Hon'ble Supreme Court of India clearly
discussed with regard to the oral gift under the
Mohammedan Law.
In para no.19 of that Judgment, it has cited
with regard to the decision of the Calcutta High
Court in Nasib Ali Vs. Wajed Aliz wherein it was
observed that:
47 O.S.8520/2000
"The position under the Mohammedan
Law is this, that a gift in order to be valid
must be made in accordance with the forms
stated above; and even if it is evidenced by
writing, unless all the essential forms are
observed, it is not valid according to law.
That being so, a deed of gift executed by a
Mohammedan is not the instrument
effecting, creating or making the gift but a
mere piece of evidence. It may so happen
after a lapse of time that the evidence of the
observance of the above forms might not be
forthcoming, so it is some times thought
prudent; to reduce the fact that a gift has
made into writing, such writing is not a
document of the title but a piece of the
evidence."
34. Although the proposition that an oral gift
made under the Muslim Law would not be effected by
Section 123 of the Transfer of the Property Act and
the gift it has otherwise has all the attributes of the
48 O.S.8520/2000
valid gift under the Muslim Law would not become
invalid because there is no instrument in writing and
registered. That is Section 123 and 129 of the
Transfer of the Property Act do not supersede the
Muslim Law on matters relating to making of oral
gifts. However, the burden of proving the gift is lies
upon the person who relies upon the HIBA. According
to the Mohammedan Law there can be a valid gift if
three essentials of the gift are satisfied. A declaration
of the gift by the donor, the acceptance of the gift
express or implied by or on behalf of the donee,
delivery of the possession of the subject of the gift by
the donor to the donee. If these conditions are
complied, the gift is complete.
35. It is pertinent to note here that, eventhough
PW.2 clearly stated that, there is a recitals with regard
to the execution of the oral gift in the mosque, in the
resolution books, he has not produced the same.
49 O.S.8520/2000
36. A specific question is asked by the advocate
for defendant no.9 and 10 to PW.2 on 9/12/2019. The
same is as follows:
Q. Have you produced any documents to
demonstrate that you have acted upon the
oral gift deed. What do you say?
Ans: The sale deed itself and the
possession is handover by the Syed Abdul
Aziz itself are the evidences to show that we
have acted upon the oral gift deed.
37. However, the sale deed is of the year 1909
shows that the Syed Abdul Aziz has purchased the
property from one Narasingarao. However, this sale
deed is having the recitals with regard to the sale
executed by Narasingarao with respect to Sy.No. 3
measuring to the extent of 2 acres 26 guntas and
Sy.No. 70 measuring to the extent of 3 acres 14
guntas. Of course, Ex.P2 may show the title of the
Syed Abdul Aziz over Sy.No. 70 measuring to the
extent of 3 acres 14 guntas. However, Ex.P2 does not
50 O.S.8520/2000
shows that, Syed Abdul Aziz handed over the
possession of those properties in favour of the plaintiff
- mosque. In order to show the possession is handed
over to the plaintiff -mosque from Syed Abdul Aziz, no
documents are produced. Though it is a oral gift, the
possession of the schedule property even after the
execution of the alleged Gift Deed is not supported by
any documents. Further, whether there is any recitals
in the resolution books maintained by the plaintiff in
his mosque or any recitals with regard to the said oral
gift in the minutes of the meeting of the plaintiff -
mosque is also not clear in the pleadings, nor any
documents are also produced by the plaintiff to show
that, the possession of the suit schedule property is
handed over to the plaintiff - mosque.
38. The learned counsel for the plaintiff
submitted that, the copy of the mahazar in support of
the Ex.P12 shows that, the plaintiff mosque is in
possession of the suit schedule property. Ex.P12 is
the application form prescribed for the registration of
the Wakfs under the Wakfs Act 1954. Though the
51 O.S.8520/2000
mahazar attached to this document contains the
signatures of many of the witnesses, they were not
called as witnesses to the suit. Of course, the mahazar
is drawn on 14/1/2000. Even this Ex.P12 alone is of
the same date. If at all, as contended by the plaintiff,
as per Ex.P12, if the plaintiff mosque is registered and
having the possession of the suit schedule property as
drawn in the mahazar, then the plaintiff could have
called any of the witnesses to the mahazar in order to
prove atleast the mahazar Ex.P12 itself. More than
that, the cause title of the suit shows that, plaintiff
has made the Karnataka State Board of Wakf as party
in the above suit as defendant no.8. It is pertinent to
note here that, even though the suit summons are
sufficiently served to the defendant no.8, he did not
appear before the Court and placed exparte.
Defendant No.8 intelligently kept quiet without filing
the written statement but issuing the above
documents to show that, the plaintiff- mosque is
coming under them. However, the plaintiff could have
called the Wakf Board in order to prove Ex.P12 itself.
52 O.S.8520/2000
No such attempt is also made by him in order to prove
the possession by calling the defendant no.8 or its
members as atleast as the witnesses in order to prove
the case in support of him.
39. Admittedly on the basis of this HIBA only,
the plaintiff is contending that, the RTC extracts are
standing in the name of 'Imperial Lancers'. However,
the 'Imperial Lancers' is entirely different from Mysore
Lancer Mosque which is clear from the above
discussions. So, eventhough the plaintiff is
contending that he is the title holder of the suit
schedule property on the basis of those RTC extracts
as well as the HIBA, the plaintiff has failed to prove
the same. Thereby I answer Issue No.1 in the
negative.
40. Initially, the suit of the plaintiff is one for to
declare that the plaintiff is the absolute owner in
possession of the plaint schedule property, for a
decree of permanent injunction restraining the
defendant no.1 to 4 from interfering into the suit
53 O.S.8520/2000
schedule property and for a decree of permanent
injunction restraining the defendant no. 5 to 7 from
interfering into the possession and enjoyment of the
schedule property. It is important to note here that,
after the amendment, the plaintiff contended that, he
was dispossessed from the suit schedule property in
the year 2019. Therefore, he also sought for
possession by way of amendment. In the relief claimed
by him after the amendment is as follows:
If at all the Court come into conclusion that
the plaintiff is not at all in possession of the suit
schedule property, then he is seeking the relief of
possession also.
41. It is the contention of the plaintiff that, on
the basis of HIBA as well as on the basis of Ex.P3 to
Ex.P7 documents, he was in the possession of the suit
schedule property. The RTC extracts which are
produced by the plaintiff are not of the year 2000. So,
in order to show that, the plaintiff was in possession
of the suit schedule property based on the RTC
54 O.S.8520/2000
extract is highly impossible. Even the learned counsel
appearing for the plaintiff vehemently contended that
the RTC extracts produced by him are the only
documents in order to show that the plaintiff was in
the possession of the suit schedule property. Since the
suit was filed in the year 2000 and the present suit is
one for declaration and injunction by contending that
he is in the possession of the suit schedule property,
then the plaintiff has to establish that as on the date
of filing of the suit, he is in the possession of the suit
schedule property. However, RTC extracts which are
produced by the plaintiff does not shows that he is in
the possession of the schedule property as on the date
of filing of the suit. Except these RTC extracts, the
plaintiff has not produced any documents to show
that he was in possession of the schedule property as
on the date of filing of the suit. Since he failed to prove
that aspect, I need not discuss with regard to the
aspect of the dispossession as contended by way of
amendment.
55 O.S.8520/2000
42. Admittedly, in the present suit, three
persons are claiming that they are the owners of the
suit schedule property and they are in the possession
of the same. On the one hand, on the basis of HIBA,
the plaintiff is claiming that he is in the possession of
the schedule property. On the other hand, the
defendant no.1 to 4 claiming that on the basis of the
acquisition proceedings, they were in possession of
the schedule property. Defendant no. 5, 9 and 10 are
claiming right over the suit schedule property on the
basis of the alleged sale deed in the year 1920. The
case itself is based on triangular claim.
43. From the above discussions, it is clear that
the plaintiff is not at all in possession of the property.
The learned counsel appearing for the defendant no.
5, 9 and 10 vehemently contended that, since the
plaintiff is not in the exclusive possession of the
property, he cannot claim the possession afterwards.
In this regard, he has produced the decision of the
Hon'ble Supreme Court of India in 1993 SUPP (3)
SUPREME COURT CASES 129, wherein it has been
56 O.S.8520/2000
clearly held that, the plea of permissive possession
cannot be taken by the plaintiff afterwards when he
does not seek the same afterwards.
44. Section 42 of the Specific Relief Act, 1877
reads as under:
"Any person entitled to any legal
character, or to any right as to any property,
may institute a suit against any person
denying or interested to deny his title to such
character or right, and the Court may in its
discretion make therein a declaration that he
is so entitled, and the plaintiff need not in
such suit ask for any further reliefs.
Provided that, no Court shall make any
such declaration where the plaintiff being
able to seek further reliefs, then a mere
declaration of title omits to do so."
45. The plaint averments says that the plaintiff
is in possession of Sy.No. 70 measuring to the extent
57 O.S.8520/2000
of 3 acres 14 guntas. The plaintiff contends that they
were in the exclusive possession of the same. In the
instant case also, the suit is filed for the declaration
as well as permanent injunction. The plaintiff did not
sought for possession in the above case even after the
defendant denies his possession. The plea of
amendment by way of possession is claimed by the
plaintiff only in the year 2019 after the case was
posted for main arguments. Eventhough the
application filed by the plaintiff is allowed, contending
that the possession is a matter of trial, from the above
discussions, it is clear that the plaintiff is not at all in
the possession of the suit schedule property either at
the time of filing of the suit or at any point of time.
Therefore, the question of dispossession or granting
the relief of possession as claimed in the amended
plaint does not arise at all. When the Court come into
conclusion that the plaintiff is not at all in possession
nor he has established his title over the suit schedule
property, the granting of that relief of possession does
58 O.S.8520/2000
not arise. Therefore, I answer Issue No.2 in the
negative.
46. ISSUE NO.3 AND ADDITIONAL ISSUE
NO.2 FRAMED ON 5/1/2021: In the plaint
averments itself, the plaintiff is contending that, since
the defendant no.1 to 4 are the Government Military
authorities are interfering into the possession of the
plaintiff and attempting to encroach upon the lands of
the plaintiff. Even the police complaint to the
jurisdictional police become in vain. After the
amendment, the plaintiff also inserted some of the
paragraphs contending that even in the first week of
December 2019 and in the first week of January
2020, the defendant no.1 to 4 erected a high density
fencing over the suit schedule property by
encroaching the same. Further, on the guise of the
alleged sale deed executed on 1920, the defendant
no.5, 9 and 10 are also attempting to interfere into the
suit schedule property, and trying to alienate the
same in favour of the third party. Therefore, the
59 O.S.8520/2000
plaintiff also sought for permanent injunction against
the defendants.
47. From the discussions in Issue No.1 and 2,
it is clear that the plaintiff is not at all the owner of
the suit schedule property nor he is in possession of
the same. No documents are produced by the plaintiff
in order to show that he is in the possession of the
schedule property at the time of filing of the suit nor
his title is proved before the Court. Therefore, the
question of interference to his property from the side
of the defendants does not arise at all. When the
plaintiff cannot establish his possessory title over the
suit schedule property, the question of interference to
his property or question of further alienation from the
side of defendant no.5 and others does not arise.
Therefore, without much discussions, the Court is of
the opinion that, the plaintiff has failed to prove Issue
No.3 in his favour. Accordingly, I answer Issue No.3
and additional issue no.2 framed on 5/1/2021 in the
negative.
60 O.S.8520/2000
48. ADDITIONAL ISSUE NO.1 FRAMED ON
5/1/2021: As per the contentions of the
defendant no.1 to 4, the defendant no.1 is the
absolute owner of the schedule property and the
defendant no. 2 to 4 are in the actual physical
possession and enjoyment of the same. This
defendant also admits that, the schedule property was
earlier belong to one Syed Abdul Aziz. As per them,
the schedule land was measuring 3 acres 14 guntas of
Kavalbyrasandra village was acquired by then
Government as per the Gazette Notification dated
14/3/1912. Ex.D58 is the notification issued under
Section 6 of the Land Acquisition Act in order to show
the Sy.No. 70 has been acquired by the Bangalore
Development Authority for the camping ground of the
'Imperial Services Lancer Regiment'. This notification
though not incomplete, this shows that as per the
Gazette Notification dated 7/3/1912, these lands in
Kavalbyrasandra village are acquired by the Bangalore
Development Authority for the camping ground of
Imperial Service Lancers. Right from the year 1912,
61 O.S.8520/2000
the defendant no.1 to 4 are in the actual possession
and enjoyment of the same. According to the
defendant no.1 to 4, the mosque in question was also
constructed by the Imperial Services Lancers
Regiment for the purpose of offering the prayers to its
soldiers of the particular community. According to
them, the mosque itself is constructed by them and
the schedule land consists of several building which is
also evident from the photographs produced by them.
So, either the plaintiff or defendant no.5, 9 and 10
have no rights over the suit schedule property. The
same contention was taken by the DW.2 to DW.4 in
their chief examination.
49. Both plaintiff as well as defendant no. 5, 9
and 10 denied the aspect of the acquisition
proceedings They submits that, eventhough the
matter of acquisition was initially published in the
official Gazette of Mysore Government, the acquisition
proceedings were not completed. So, without the
completion of the acquisition proceedings, the
62 O.S.8520/2000
defendant no.1 to 4 cannot obtain the title over the
suit schedule property.
50. In the cross-examination of DW.2 dated
17/1/2012, he clearly deposed that, "I am giving the
evidence on the basis of the documents. The land
measuring to the extent of 3 acres 14 guntas was
taken over by the then Maharaja of Mysore in the
year 1912. They have produced the said Gazette
Notification with regard to the acquisition of the
property by then Maharaja of Mysore. Based on
the records, I say that, when this property was
acquired it was in the name of Abdul Aziz. I am
not aware with regard to the passing of an award
towards the acquisition. I am not aware that
before passing of an award, an enquiry was
conducted. It is true to suggest that the papers
with regard to the passing of an award,
conduction of an enquiry, our office has no
records. I cannot comment that with regard to
the acquisition of the land, no enquiry was
conducted, and no award was passed."
63 O.S.8520/2000
51. DW.2 M.S.Salunke clearly admitted that, he
is deposing on the basis of the documents and he is
having no personal knowledge. The above cross-
examination clearly shows that, he is not aware with
regard to the passing of the award or enquiry with
regard to the acquisition and the completion of the
acquisition proceedings.
52. Even in the cross-examination of the DW.4
also, he clearly admitted that "There is no
documents or Gazette Notification in order to
show that Sy.No. 70 has been taken in possession
by the acquiring authority. There is no documents
to show that an award has been passed for taking
the possession by the acquiring authority."
53. In further cross-examination, DW.4 clearly
admitted that, "Except Gazette Notification, MLR
and document with regard to the handing over
and taking over Mysore State Forces, there is no
other documents to show that Military authority
is in the ownership of the suit schedule property."
64 O.S.8520/2000
54. It is pertinent to note here that, even in the
Gazette Notification, it is not clear that the schedule
property is acquired for the purpose of Military
authorities i.e., defendant no.1 to 4. Both DW.1 and
DW.4 are not aware whether the acquisition
proceedings with regard to the acquisition of the land
for the benefit of defendant no.1 to 4 complete.
55. The learned counsel appearing for the
defendant no.1 to 4 vehemently contended that the
gazette notification itself is the proof to show that the
lands are acquired for the purpose of the Military
authorities. Further, as per the defendant no.1 to 4,
MLR maintained by the defendant no. 1 to 4 clearly
shows that, these properties are in possession of
them. In this regard, the learned counsel for the
defendant no.1 to 4 placed the decision of Hon'ble
High Court of Karnataka in order to show that the
MLR report has its own sanctity and the same cannot
be lightly taken by the trial courts.
65 O.S.8520/2000
56. Both the advocate for the plaintiff and
advocates appearing for defendant no.5, 9 and 10
vehemently contended that, the acquisition
proceedings are not completed and therefore whatever
the possession of the suit schedule property in the
hands of the defendant no.1 to 4 is nothing but the
unauthorised occupation.
57. In the written statement itself, the
defendant no.1 to 4 specifically contended that the
land in Sy.No. 70 was acquired by the Government
vide Gazette Notification dated 7/3/1912. The same is
marked as Ex.D48. It is important to note here that,
the entire contentions of the defendant no.1 to 4 is
placed on the Gazette Notification dated 7/3/1912. It
is further contended in the written statement that, the
said land was acquired exclusively for the purpose of
camping ground of the 'Imperial Service Lancers
Regiment' and that right from the year 1912, the
defendants have been in actual and peaceful
possession and enjoyment of the same.
66 O.S.8520/2000
58. As already stated both advocate for the
plaintiff as well as defendant no. 5, 9 and 10
categorically denied that, the acquisition proceedings
is not complete although a notification dated
7/3/2012 has been issued.
59. It is pertinent to note here that, the
defendant no.1 to 4 have not produced any
documents in order to show that after passing of the
notification dated 7/3/1912 that they have taken
steps under the relevant acquisition regulations. No
documents are produced pertaining to the passing of
the award and to demonstrate that the possession of
the land was also taken over. Under the Limitation
Act, only after passing of the award and taking of the
possession, the title vest with the State and no
presumption of the acquisition arises in the absence
of the above.
60. I would like to discuss the provisions of the
Land Acquisition Act with regard to the acquisition of
properties.
67 O.S.8520/2000
Section 6 of the Land Acquisition Act
deals with the declaration that the land is
required for the public purpose.
61. Section 6(1) specifically says that, the
appropriate Government after considering the report
satisfies that, any particular land is needed for the
public purpose or for a company, then a declaration
shall be made to that effect under the signature of the
Secretary to such Government or of some officers duly
authorised certify its orders and provided that, no
such declaration shall be made unless the
compensation to be awarded for such property is to be
paid by a company or wholly or partly out of the
public revenues or some fund controlled or managed
by a local authority.
62. Section 6(2) says that, every such
declaration shall be published in the official gazette
and in two daily newspapers circulating in the locality
in which the land situate, of which atleast one shall
be in the regional language and the Collector shall
68 O.S.8520/2000
pass the public notice of the substance of the such
declaration to be given at convenient places in such
locality, and such declaration shall State, District or
other territorial division in which the land is situate,
the purpose for which it is needed, its approximate
area, and where a plan shall have been made of the
land, the place where such plan may be inspected.
The said declaration shall be conclusive evidence that
a land is needed for a public purpose or for a company
as the case may be, and after making such
declaration the appropriate Government may acquire
the land in the manner hereinafter appearing.
63. The Section itself says that the acquisition
proceedings are not completed, rather than
notification with regard to the same has been declared
by the Government. The declaration says that, that
land is needed for the public purpose and the
acquiring of the land is not complete. The same is
discussed in the foregoing sections itself shows that
mere notification is not the completion of the
acquisition proceedings.
69 O.S.8520/2000
64. Section 7 of the Land Acquisition Act deals
with the aspect of Government directing the Collector
in order to take orders for the acquisition of the land.
Either the Government or an appropriate officer on
behalf of the Government has to direct the Collector in
order to take the orders for the acquisition is the
second stage.
65. Afterwards, as per Section 8 of the Act, the
land is to be marked out, measured and planned.
Unless it is already marked out under Section 4, the
Collector shall thereupon cause the land to be
measured and plan to be made of the same. Then as
per Section 9, the Collector shall then cause public
notice at the convenient places or near the land to be
taken stating that, the Government intend to take the
possession of the land and that claims to
compensation for all interest in such land may be
made to him. Such notice shall states the particulars
of the land so needed and shall require all the persons
interested in the land to appear personally or by the
agent before Collector at a time and place mentioned
70 O.S.8520/2000
therein and to state the nature of their respective
interest in the said land, the amount and particulars
of their compensation, objections to the
measurements etc., The Collector can also serve the
notice to the occupier of such land if any and on all
such persons known or believed to be interested
therein or to be entitled to act for the persons
interested as reside or have agents authorised to
receive service on their behalf within the revenue
district in which the land is situated.
66. Section 10 and 11 of the Act deals with the
validity of and power to require and enforce the
making of the statements as to the names and interest
with regard to the acquisition. Section 11 which is
very important in acquisition proceedings is enquiry
and award by the Collector.
On the day so fixed by the Collector, the
Collector shall proceed to enquire into the
objections which any person interested as stated
pursuant to a notice given under Section 9, to the
71 O.S.8520/2000
measurement made under Section 8 and the value
of the land and into the respective interest of the
persons claiming the compensation shall make an
award under his hand of -
i) The true area of the land;
ii) The compensation in which in his
opinion should be allowed for the land; and
iii) The apportionment of the said
compensation among all the persons known or
believed to be interested in the land, of whom, or
of whose claims, he has information, whether or
not they have respectively appeared before him;
[Provided that no award shall be made by the
Collector under this sub-section without the
previous approval of the appropriate Government
or of such officer as the appropriate Government
may authorize in this behalf:
Provided further that it shall be competent
for the appropriate Government to direct that the
Collector may make such award without such
approval in such class of cases as the appropriate
Government may specify in this behalf].
[(2) Notwithstanding anything contained in
sub-section (1), if at any stage of proceedings, the
72 O.S.8520/2000
Collector is satisfied that all the persons
interested in the land who appeared before him
have agreed in writing on the matters to be
included in the award of the Collector in the form
prescribed by Rules made by the appropriate
Government, he may, without making further
enquiry, make an award according to the terms of
such agreement.
(3) The determination of compensation for
any land under sub-section (2) shall not in any
way effect the determination of compensation in
respect of other lands in the same locality or
elsewhere in accordance with the other provisions
of this Act.]
(4) Notwithstanding anything contained in
the Registration Act, 1908 (16 of 1908) no
agreement made under sub-section (2) shall be
liable to registration under this Act.]
67. Section 12 deals with the aspect of award of
the Collector when it is final.
68. Section 13 to 15 deals with the procedural
aspects with regard to the acquisition proceedings.
However, Section 16 of the Act deals with the power of
the Collector to take the possession.
73 O.S.8520/2000
69. The above provisions of the Land
Acquisition Act clearly shows that, a land cannot be
acquired or taken into possession merely by
publishing a notification. There are no documents
produced by the defendant no.1 to 4 with regard to
the subsequent proceedings after the notification
dated 7/3/1912 with regard to the acquisition of the
property and taking of the possession of those
properties to the Government. Even at the time of
taking of the possession also, a mahazar is to be
drawn, which has to be signed by the reputed
members of the locality including the parties. This
contention has been vehemently contended by the
defendant no. 5, 9 and 10 in their arguments.
70. The defendant no.1 to 4 did not produce
any documents pertaining to the passing of the award
as it is required under Section 11 of the Land
Acquisition Act and taking of the possession as
mentioned in Section 16 of the Act. It is the settled
law that, only on passing of the award and taking of
the possession, the title vest with the State or
74 O.S.8520/2000
Government and no presumption of the acquisition
arises in the absence of the above.
71. This aspect has been clearly elucidated
from the mouth of DW.2 in his cross-examination
dated 17/1/2012. One Col. M.S.Salunke is examined
as DW.2 in his cross-examination clearly admitted
that, "Based on the records, I say that when this
property was acquired, it was in the name of
Abdul Aziz. I am not aware with regard to the
passing of an award towards the acquisition. I am
not aware that before passing of an award, any
enquiry was conducted. It is true to suggest that
the papers with regard to the passing of an award
conducted of an enquiry, our office have no
documents. I cannot comment that with regard to
the acquisition of the land, no enquiry was
conducted, no award was passed." In further cross-
examination in page no.9, he has clearly deposed that,
"I am not aware of any notification being issued
by the Maharaja of Mysore, State of Mysore or
Government of Karnataka." Prior to that, he has
75 O.S.8520/2000
clearly deposed that, "I am not able to comment
with regard to the non-taking of the possession of
Sy.No. 70 by the Government as per Ex.D48 if the
same is suggested to me."
72. DW.3 is Ramesh Kumar Gadroo who is the
Defence Estate Officer who also deposed as follows:
"On the basis of the Board proceedings of our
Defence Department and also handing over and
taking over of the suit schedule property, we
claim our title and possession over the suit
schedule property. The said taking over and
handing over possession of the suit schedule
property has taken place in and around the year
1956. Handing over and taking over possession of
the suit schedule property is documented. The
said handing over and taking over possession of
the property power vests with the Defence State
Officer and he is in custodian of the said
documents. I have already produced the said
documents of taking over and handing over
76 O.S.8520/2000
possession of the property in this case. Witness
goes on searching the documents so produced by
them but did not find the said documents."
73. Though DW.3 clearly deposed that, handing
over and taking over of possession of the property is
documented and he has produced the same. However,
no documents are produced by the side of defendant
no.1 to 4 in order to prove that aspect.
74. DW.4 is the Lt. Col. Benyamen Praths Beni
who is the land officer of the Commandant Parachute
Regiment Prathikshna Kendra. He also admitted in his
cross-examination that, "There is no document or
Gazette Notification in order to show that Sy.No.
70 has been taken in possession by the acquiring
authority. There is no documents to show that an
award has been passed for taking of the
possession by the acquiring authority."
75. This admissions from the part of DW.2,
DW.3 and DW.4 clearly shows that, defendant no.1 to
4 have no documents subsequent to the Gazette
77 O.S.8520/2000
Notification dated 7/3/2012 in order to show that
those properties are taken in possession by the
Government or by them. No documents are there in
order to show that, the acquisition proceedings are
completed which is mandatory under the Land
Acquisition Act.
76. DW.4 in his cross-examination has clearly
stated that, except Gazette Notification, MLR and
documents with regard to the handing over and taking
over Mysore State Forces, there is no other documents
to show that Military authority is in ownership of the
suit schedule property.
77. On 1/9/2021, while he was cross-examined
by the advocate for the defendant no.5, 9 and 10, he
has clearly deposed that, I have not produced any
other documents to show that the other
procedures are contemplated under Section 7, 9,
10,11, 12 and 16 of Mysore Land Acquisition Act.
Since I have no such documents, I have not
produced the same before the Court.
78 O.S.8520/2000
78. In further cross-examination, DW.4 clearly
admitted that, "I have not produced any documents
to show that Military is in physical possession of
the land from 1912 itself. I have also not
produced any documents to show that the land
has been handed over to the 'Imperial Lancers'
from the Government of Mysore on the basis of
Ex.D48."
79. From the above admissions of the
witnesses, it is clear that, there is no documents with
regard to the passing of the award or taking of the
possession by the State. The learned counsel for the
plaintiff as well as defendant no.5, 9 and 10
vehemently contended that if at all the award has
been passed and possession was taken over by the
State, and if it is documented, then the defendant
no.1 to 4 could have produced the same before the
Court even though their office does not have the
copies of the same. Since the above documents are the
public documents, it is very easy for them to produce
the same before the Court in order to show that, the
79 O.S.8520/2000
acquisition proceedings are completed and the award
has been passed and possession was handed over to
the Military. This attempt was not made by the
defendant no.1 to 4 in their entire case. Even after
the denial of the acquisition proceedings from the side
of plaintiff as well as defendant no. 5, 9 and 10, the
defendant no.1 to 4 did not produced any such
documents with regard to the completion of the
acquisition proceedings. The mere production of the
notification cannot confer any title to the defendant
no.1 to 4.
80. The learned counsel for the defendant no.5,
9 and 10 vehemently submitted that, even State
cannot forcibly take the possession of any land.
Without the sanction of law, the state cannot took
over the possession of the land, contending that it is
acquired. In Tukaram Kana Joshi Vs. MIDC (2013)
1 SCC 353, the Hon'ble Supreme Court of India held
that, even after right to property ceased to be a
fundamental right taking possession of or acquiring
the property of the citizen can take place only in
80 O.S.8520/2000
accordance with law as per the mandate of Article
300A i.e., such deprivation can be only by resorting to
a procedure prescribed by a statute - the same cannot
be done by way of executing fiat or order or
administrative caprice.
81. In para no. 11 of that decision, this aspect
has been clearly explained that, State must either
comply with the procedure laid down for the
acquisition or requisition or any other permissible
statutory mode.
82. Both the plaintiff as well as advocate for
defendant no.5, 9 and 10 clearly contended that, since
the acquisition proceedings are not complete, no
documents are produced by the defendant no. 1 to 4.
83. In (2020) 4 Supreme Court Cases, 572,
wherein the Hon'ble Supreme Court of India held
that, there cannot be a presumption of the
acquisition without following the due processes as
envisaged under Sections 3 (1), 4 (2), 5(1) and 7(2)
and burden is on the State to prove that, the
81 O.S.8520/2000
process as envisaged under the Act is followed
and the compensation paid.
84. In (2016) 13 Supreme Court Cases 233,
wherein the Hon'ble Supreme Court of India held
that, when there is no roganama to show that,
physical possession had already been taken nor
any pleadings, submission of the State that
possession had already been taken and handed
over to HUDA cannot be accepted - unless the
property is taken possession of, in accordance
with the law, there arises no question of handing
over the property to HUDA - symbolic possession
will not serve purpose.
85. In para no.13, this matter has been clearly
explained by the Hon'ble Supreme Court of India
contending that, even after the acquisition also, the
possession is to be taken by the State in accordance
with the law after drawing the mahazar to that effect.
The symbolic possession does not serve any purpose.
86. Even though the defendant no.1 to 4
specifically contended that, the subsequent purchaser
82 O.S.8520/2000
cannot challenge the acquisition proceedings, that
citation does not apply here. Because, when the
acquisition proceedings is not at all completed, the
question of application of that decision does not arise.
The burden is on the defendant no.1 to 4 to prove
that, the acquisition proceedings are completed, and
the process contemplated under the law for the
acquisition of the land is completed here. In entire
depositions of defendant no.1 to 4, they have clearly
deposed that, they do not know with regard to the
proceedings subsequent to the Gazette Notification of
the year 1912. So, they cannot claim that, the
property is handed over to them on the basis of
acquisition proceedings.
87. One of the interested thing in the above
case is that, even the representatives of the defendant
no.1 to 4 has clearly admitted in the proceedings
before the Special Deputy Commissioner that, they
are having no rights in the suit schedule property.
88. After the purchase of the lands, the
defendant no.5 approached the Special Deputy
83 O.S.8520/2000
Commissioner seeking to incorporate their names in
the RTC of the suit schedule property. In the RTC, the
name of the 'Imperial Lancers' was reflected.
Therefore, seeking the change of the entries by virtue
of the registered sale deed dated 9/8/1920, the
defendant no.5 approached the Special Deputy
Commissioner.
89. Ex.D7 is the notice issued by the Deputy
Commissioner to the Defence Estate Officer in RRTSR
162/95-96 proceedings dated 5/3/1996. Ex.D8 is
the orders passed by the Special Deputy
Commissioner in that proceedings. In that case, the
Special Deputy Commissioner clearly observed that,
"On behalf of the respondents, one Sri
N.S.Siddaraju, Sub-divisional Officer, attended
and submitted that, Sy.No. 70 measuring 7 acres
7 guntas of Kavalbyrasandra village does not
belonging to them and further filed a letter
issued by them to the Tahsildar of Bengaluru
north taluk before the Special Deputy
Commissioner".
84 O.S.8520/2000
90. I have carefully perused Ex.D8 order
passed on 29/3/1996. This clearly shows that the
Defence Estate Officer was present at the time of
surveying of the schedule property and further
Defence Estate Officer clearly stated that, Sy.No. 70
measuring 7.7 acres is not belonging to them and
further held admitted that since the Defence Estate
Officers has not acquired the possession of the lands
as per the law, the entire rents of the said land is to
the N.Govindaraju and two others who are the
appellants in that case.
91. From the statements of Defence Estate
Officer who is the respondent in the above case and
from the observation of the letter issued by the
Defence Estate Officer in favour of Tahsildar of
Bengaluru north. The Special Deputy Commissioner
clearly came into the conclusion that the the names of
Govindaraju and two others has to be incorporated in
the RTCs of Sy.No. 70.
85 O.S.8520/2000
92. Ex.D9 is the statements of N.S.Siddaraju
who is the Sub-divisional officer of Defence
Department in that proceedings. In that statement, he
has clearly admitted that, 4.20 acres of land in Sy.No.
70 measuring to the extent of 7 acres 7 guntas are in
the unauthorized possession of the Military
authorities. This aspect is further reconfirmed from
Ex.D9(a) document which is the letter issued by the
Defence Estate Officer of Karnataka and Goa Circle at
Bangalore in favour of the Tahsildar of Bengaluru
North taluk dated 25/4/1995.
93. I have carefully perused the recitals in
Ex.D9(a). In the second paragraph of that letter, they
have clearly admitted that "However the land
comprising in Sy.No. 70 is not a part of the
Defence land."
94. From the above documents, it is clear that
the Defence Estate Officer themselves have clearly
stated that a portion of the land in Sy.No. 70 is in
86 O.S.8520/2000
their unauthorised occupation and they have not
acquired the same as per the procedure.
95. In the cross-examination of the DW.2, a
question was asked with regard to the Ex.D9 and
Ex.D9(a).
"Now I see a document produced along with
Ex.D9. This document is a letter addressed by the
Defence Estate Officer to the Tahsildar Bengaluru
north taluk dated 25/4/95. It is marked as
Ex.D9(a) for identification purpose. In this letter,
it is stated that, Sy.No. 70 is not a part of Defence
land. The witness volunteers to say that, we have
asked that Sy.No. 70 is our land and already our
superior officer i.e., Defence Estate Officer is
making correspondence to make the rectification
of the records. I cannot say as on today, whether
Ex.D9 is not withdrawn. It is the Defence Estate
Officer who has to explain."
96. The advocate for the defendant no. 5, 9
and 10 vehemently argued that, the proceedings
87 O.S.8520/2000
before the Special Deputy Commissioner and the
orders passed by the Special Deputy Commissioner as
per Ex.D8 has become final and from the admissions
of the Defence Estate Officer himself, it is clear that,
the land comprising Sy.No. 70 is not the part of the
defence land. The orders passed by the Special
Deputy Commissioner as per Ex.D8 has already
reached its finality and the same was not challenged
by any of the parties.
97. One of the contentions taken by the
advocate for the plaintiff is that, Ex.D8 order does not
applies to him because he was not a party to that
proceedings. However, the advocate for the defendant
no.5, 9 and 10 specifically contended that the name of
the plaintiff is not reflected in the RTC of the suit
schedule property at that time. The entire contentions
of the plaintiff is based on the oral Gift Deed, they are
in the possession of the property is not supported by
any documents. No attempts are made by the
plaintiffs in order to incorporate their names in the
RTC of the Sy.No. 70 based on the Gift Deed. The
88 O.S.8520/2000
word 'Imperial Lancers' was reflected in the RTC and
not the Mysore Lancer Mosque. Therefore, since the
word 'Imperial Lancers' was reflected and lands are in
the unauthorized occupation of the Military, it is not
necessary to issue notice to the plaintiff in Ex.D8
proceedings. As per the defendant no.5, 9 and 10, the
real lis is only between the Military authorities as well
as Govindaraju and family and not between the
plaintiffs and themselves in order to make them as
the party in Ex.D8 proceedings.
98. The rights of the plaintiffs with regard to
the HIBA is already discussed in earlier issues. No
dobut, as rightly pointed out by the defendant no. 5, 9
and 10, the plaintiffs have not attempted to
incorporate their names in the RTC extracts of suit
schedule property. Therefore, without the rights over
the same, it is not necessary to make them as the
parties in the RRT proceedings. Therefore, the
contentions taken by the plaintiff that, he is not a
party to the proceedings and therefore Ex.D8 order is
not applicable to them, is of no value.
89 O.S.8520/2000
99. Another contentions taken by the defendant
no.1 to 4 is that, in the MLR maintained by them, the
names of defendant no.1 to 4 are reflected. Based
upon the MLR, they are asserting their title over the
land in Sy.No. 70. In the additional written statement
filed by the defendant no.1 to 4, they have contended
that, the title, interest and possession of the suit
schedule property belong to Union of India and entries
to that effect has been reflected in the MLR records.
So, the contentions taken by them in para no.11 of
the additional written statement is that, based on the
MLR records, they are the owners in possession,
enjoyment and active occupation of the suit schedule
property.
100. Ex.P20 and Ex.P20(a) are the Military Land
Register records produced by the plaintiff himself.
These are the two documents based on which the
defendant no.1 to 4 contending that, they are in the
actual possession, titleholders and occupation of the
suit schedule property.
90 O.S.8520/2000
101. It is pertinent to note here that, after the
cross-examination of the DW.1, an application was
filed by the defendant no.1 to 4 under Order 8 Rule 9
of the CPC permitting them to file the additional
pleadings contending that, by the mistake in the
MLRs maintained by them, the Sy.No. 71 of
Kavalbyrasandra Matadahalli was shown as defence
land having an extent of area of 9 acres 18 guntas. As
a matter of the fact, Sy.No. 71 was the private
property and it was in the possession of the citizens in
their individual capacity. So, the really transferred
land is Sy.No. 70 measuring 7 acres 7 guntas and it is
in the possession of the defendant no.4. Thus, Sy.No.
70 does not measure 9 acre 18 guntas but it
measures 7 acres 7 guntas having been compounded
partially and vacant being in possession of the Mysore
Lancers from 1912.
102. The defendant no.1 to 4 wants to plea that
the Defence Estate Officer to make necessary
arrangement to the MLR register and it is duly
amended now showing Sy.No. 70 measuring 7 acres 7
91 O.S.8520/2000
guntas belonging to the defence land during the
pendency of the suit.
103. Based upon the above pleadings, the
defendant no.1 to 4 seek the permission of the Court
in order to plead the additional pleadings. However,
the above contentions of the defendant no. 1 to 4 was
rejected by this Court on 6/8/2012. The order sheet
dated 6/8/2012 wherein my predecessor has clearly
observed that, whatever the pleadings that want to be
pleaded by the parties is to be set up before framing of
the issues itself but not after recording the evidence.
By the filing of the additional pleadings, the very effect
of the earlier pleadings will be taken away. By the
additional pleadings, the defendant no.1 to 4 want to
reopen the entire case without any reasons. By the
additional pleadings, the defendant no.1 to 4 cannot
improve their defence by taking away the earlier
admissions. My predecessor clearly observed that it
will introduce a new claim over the suit schedule
property.
92 O.S.8520/2000
104. This aspect is highlighted by the advocate
for the defendant no.5, 9 and 10 in his arguments as
well as in the cross-examination of the DW.2 to 4.
105. At this juncture, I would like to discuss
what is MLR. The MLR is the Military Land Register
maintained by the Defence Department in their office.
It is pertinent to note here that, in the first MLR
produced by the plaintiff, Sy.No. 71 is mentioned.
This is correctly reflected in Ex.P20(a) produced by the
plaintiff. In Ex.P20(a) in sl.no.5 which deals with
villages of Kavalbyrasandra, Sy.No. 71 has been
mentioned. In the right side of the extent measuring
to the extent of 9 acres 18 guntas, it has been clearly
mentioned that 'various private land owners not
acquired not defence property'.
106. It is to be noted here that, Sy.No. 71 is
mentioned in the MLR and not Sy.No. 70. The suit
schedule property is not Sy.No. 71, rather than it is
Sy.No. 70 measuring to the extent of 7 acres of 7
guntas. The entire claim of the Defence Department, if
93 O.S.8520/2000
it is based on MLR i.e., Ex.P20 and Ex.P20(a)
absolutely they are having no authority over the suit
schedule property. More than that, by the orders
passed by this Court dated 6/8/2012, this defendant
no.1 to 4 cannot take the stand that they are having
the rights over the suit schedule property on the basis
of the MLR because their pleadings are already
rejected by this Court. Since that order has reached
the finality, or in other words since the defendant no.1
to 4 did not challenged that order, they cannot take
the contention that based on the MLR or based on
Ex.P20 and Ex.P20(a) they are having the rights over
the suit schedule property. It is a settled principles of
law that mere production of the document is not
sufficient without any pleadings in their case. When
the pleadings with regard to the MLR is rejected by
this Court, and which has attained its finality, the
defendant no.1 to 4 cannot take the stand on the
basis of those documents.
107. Even this aspect is elucidated from the
mouth of DW.2 in his cross-examination dated
94 O.S.8520/2000
17/1/2012 has admitted Ex.D9(a). Ex.D9(a) clearly
states Sy.No. 70 is not a party of the defence land.
Ex.D9(a) is the correspondence between the Defence
Estate Officer as well as the Tahsildar of Bengaluru
north taluk wherein they have clearly admitted that
Sy.No. 70 is not a defence land. In this regard, DW.2
also states that the Defence Estate Officer is the
authority to rectify the records but he admits that he
cannot say whether as on today Ex.D9 is withdrawn
or not.
108. One of the interesting thing here in the
deposition of DW.3 is that, "It is true to say that in
Ex.D9 it is stated that Sy.No. 70 the suit schedule
property is not the part of the defence land."
Further he deposed that "We obtained Ex.D58 from
Archives Department. Ex.D59 have been obtained
in MLR register. Witness says that, there was
mistake in mentioning in MLR it ought to have
been Sy.No. 70, but it is written as Sy.No. 71."
95 O.S.8520/2000
109. In the depositions dated 5/6/2012, DW.3
further deposed that "It is true to suggest that
based on the Gazette Notification dated
14/3/1912, we changed the entries in the MLR
register from Sy.No. 71 to Sy.No. 70."
110. Further, he deposed that, "I do not know
pursuant to Ex.D58, there was handing over the
possession of the land so shown in the gazette by
means of either notification or by means of an
official memorandum. It is true to suggest that,
on our own, we have corrected the said survey
number from Sy.No. 71 to Sy.No. 70 without there
being any adjudication. Witness says that said
change or correction as per the directions of the
Ministry of the Defence."
111. It is important to note here that, DW.3
clearly admitted that there is a mistake in the MLR
with regard to the mentioning of the survey number. It
is further important that, that mistake is corrected by
themselves without any adjudication to that effect.
96 O.S.8520/2000
Whether an entry in a particular document can be
corrected by the internal correspondences is not
explained by the defendant no.1 to 4. Actually in
Ex.P20 and Ex.P20(a), there is no mention of Sy.No.
70, rather that Sy.No. 71. On what authority, the
defendant no.1 to 4 by the internal correspondences
changed the survey number in their records, is not
explained.
112. Even these MLR entries are corrected
during the pendency of this case itself. Only after that,
an attempt was made by the defendant no.1 to 4 in
order to plead the additional pleadings by way of filing
an application under Order 8 Rule 1 of the CPC which
was rejected by this Court.
113. Even if the MLR entries are to be altered
that is too during the pendency of the suit, then the
same can be done by the clear adjudication to that
effect. Either the plaintiff or defendant no.5, 9 and 10
are not made as the parties in order to alter the MLR
entries. DW.4 clearly admitted that, it is correct to
97 O.S.8520/2000
suggest that we have suppressed the facts of the
orders passed as per Ex.D8 and the names of
defendant no.5, 9 and 10 and entry of their names in
the revenue records while seeking the amendment as
per Ex.D60. In the cross-examination dated
1/9/2021, this matter was clearly admitted by him
as follows:
"It is correct to suggest that we have
suppressed the fact of the orders passed as per
Ex.D8 and the names of the defendant no.5, 9
and 10 and entry of their names in the revenue
records while seeking the amendment as per
Ex.D60. I am not aware whether no notice has
been issued to the defendant no.5, 9 and 10
before passing order as per Ex.D60."
114. This deposition itself makes it clear that an
alteration in the MLR was done by the defendant no.1
to 4 without notice to the parties to the suit.
Alteration in the MLR is unilateral without issuing
notice to the parties to the case and therefore the
98 O.S.8520/2000
same cannot confer any title to the defendant no.1 to
4. Therefore, the contention of the defendant no.1 to 4
that on the basis of the MLR, they are the title holders
and in possession of the schedule property is also not
correct.
115. Another contention taken by the advocate
for defendant no.1 to 4 is that, the title of the
defendant no.5, 9 and 10 is still under the dispute, a
suit is also filed in O.S.8340/2016 which is pending
before CCH-65. That suit has been filed by the
Union of India, Defence Estate Office and Parachute
Regiment Training Centre against the State of
Karnataka and defendant no.5, 9 and 10. Whatever
may the outcome the that suit, from the admissions of
the defendant no.1 to 4 themselves, it is clear that,
they are having no rights over the suit schedule
property. The admission before the Special Deputy
Commissioner itself shows that they are having no
rights over 7 acres 7 guntas of the land in Sy.No. 70.
99 O.S.8520/2000
116. Even the above order passed by the Special
Deputy Commissioner as per the Ex.D8 was
challenged by the defendant no.1 o 4 before the
Hon'ble High Court of Karnataka in writ petition no.
23324/2013. Even in the Hon'ble High Court of
Karnataka also, they did not produce any other
documents pertaining to the acquisition of the land in
question, although the same was directed by the
Hon'ble High Court of Karnataka. However, the said
writ petition was withdrawn by the defendant no. 1 to
4 contending that, they have instituted a
comprehensive suit in O.S.8340/2016. So, till today,
the orders passed by the Special Deputy
Commissioner as per Ex.D8 is not challenged by the
parties.
117. Viewed from any angle, this Court is of the
opinion that defendant no.1 to 4 have not succeeded
in proving their issue in their favour. Accordingly, I
answer Additional Issue No.1 framed on 5/1/2021
in the negative.
100 O.S.8520/2000
118. ADDITIONAL ISSUE NO.2 FRAMED ON
17/6/2020: In the initial stage of the suit itself, I
have stated that, the suit is based on the triangular
claims. The defendant no. 5, 9 and 10 also contending
that, they are the titleholders of Sy.No. 70. DW.1 as
well as DW.5 led their evidence in support of their
case and contended that, the schedule properties are
purchased by them as per the registered sale deed
dated 9/8/1920. It is important to note here that, the
said document was produced by the party twice. In
the chief examination of the DW.1, one Govindaraju
has stated that, he and his children are in possession
of Sy.No. 70 measuring to the extent of 7 acres 7
guntas of Kavalbyrasandra village which was
belonging to their ancestors came to their possession
by virtue of the registered sale deed dated 30/8/1920.
From that date, they have applied for the katha and in
the DC proceedings the same was changed to their
name as per the Ex.D8 orders. From the side of the
plaintiff, Ex.P30 is marked and from the side of the
defendant, Ex.D79 is marked. Both are the sale deeds
101 O.S.8520/2000
dated 9/8/1920 produced by the defendant no.5, 9
and 10 in order to prove their title over the suit
schedule property.
119. The contention of the defendant no.5, 9 and
10 is that, the said lands were purchased by one
Manojappa in the year 1902 and afterwards the same
was purchased by one Narayanappa who is the
ancestor of defendant no.5, 9 and 10. In order to show
Manojappa was the vendor of Narayanappa, they have
produced Ex.D1. Ex.D1 is the records of the rights
which shows that, on 22/10/1902 Manojappa
purchased suit schedule property of Sy.No. 70
measuring 7 acres 7 guntas. The same records of
rights also denotes the name of Narayanappa who
purchased the same on 9/8/1920. Ex.D2 is the index
of the land. This also shows that, Sy.No. 70 was
measuring to the extent of 7 acres 7 guntas are
standing in the name of M.Narayanappa. Ex.D3 is the
mutation register. This also shows the name of
Narayanappa. Ex.D4, Ex.D5 are the RTC extracts
from 1965-66 onwards. This also shows the name of
102 O.S.8520/2000
Narayanappa s/o Late Muninagappa is the
'Swadinadhar' of Sy.No. no.70 measuring to the extent
of 7 acres 7 guntas. These documents clearly shows
that the revenue records are standing in the name of
ancestors of the defendants and subsequently it was
changed to the name of these defendants.
120. One of the contentions taken by the
advocate for the plaintiff is that, the RTC entries are
not the conclusive proof of the title over the land. So,
merely because the names of the defendant no.5, 9
and 10 are entered in the RTC, it does not mean that,
they are the titleholders of the suit schedule property.
It is pertinent to note here that, no doubt the revenue
entries are not the conclusive proof of title. However,
Section 133 of the Karnataka Land Revenue Act, deals
with the presumption with regard to the entries in the
revenue record. It says that, entries in the revenue
records are true, until the contrary is proved. In this
case also, the entries of the ancestors of the defendant
no.5, 9 and 10 in the records of the rights, index of
the land, the mutation clearly establishes the fact
103 O.S.8520/2000
that, they are in the possession of the land in Sy.No.
70.
121. A suit for partition was filed in the family of
Govindaraju in O.S.10582/87. The same was decreed
and the suit schedule land came to the possession of
Govindaraju. Originally, in the present suit also,
Govindaraju was only the party. Afterwards, his
children filed an application under Order 1 Rule 10 (2)
of the CPC to implead themselves as parties to the
suit contending that, on the basis of the partition deed
entered in their family, they are also claiming the
rights over the suit schedule property. Therefore, by
virtue of that order, those parties are agitating that,
they are having the rights over the schedule property.
122. The rights of the defendants no. 5, 9 and 10
are further confirmed by the orders passed by the
Special Deputy Commissioner wherein the Defence
Estate Office and a State of Karnataka is also a party.
In view of the appeal filed by Govindaraju against the
Defence Estate Officer before the Deputy
104 O.S.8520/2000
Commissioner in order to remove the entires of
'Imperial Lancers' in the RTC of Sy.No. 70 measuring
to the extent of 7 acres 7 guntas and to incorporate
their names, the Defence Estate Officer appeared
before the Deputy Commissioner and specifically
contended that, they are having no rights over the 7
acres 7 guntas of the land. Ex.D7 is the notice issued
to the Defence Estate Officer by the Deputy
Commissioner in order to appear before the Deputy
Commissioner in RRTSR 162/95-96 proceedings.
Ex.D8 is the orders passed by the Special Deputy
Commissioner dated 29/3/1996, wherein the Deputy
Commissioner observed that Defence Estate Officer by
name one Siddaraju deposed clearly that they have no
rights over Sy.No. 70. Ex.D9 is the depositions of
N.S.Siddaraju who is the sub-divisional office of
defence who clearly admitted that, 4 acres 20 guntas
of land in Sy.No. 70, the defence are in unauthorised
possession. Ex.D9(a) the communication issued by
the Defence Estate Officer to the Tahsildar of the
Bengaluru north taluk which clearly shows that the
105 O.S.8520/2000
land comprising in Sy.No. 70 is not a party of defence
land, rather than it is in the possession of defendant
no.5, 9 and 10. Ex.D11 to Ex.D21 are the RTC
extracts which reflects the name of defendant no.5.
Ex.D22 and Ex.D23 are the documents prepared by
the ADLR which clearly shows that, Sy.No. 70
measuring to the extent of 4 acres 20 guntas are in
the unauthorised possession of defendant no. 1 to 4.
Ex.D25 is the tax paid receipt, Ex.D29 is the family
partition deed dated 26/5/2003, Ex.D30 is the sale
deed dated 9/8/1920, Ex.D78 is the same sale deed,
Ex.D79 is the MR extracts, Ex.D80 onwards the RTC
extracts, Ex.D84 is the partition deed dated
18/1/2001, Ex.D85 is the partition deed dated
28/12/2001, Ex.D86 is the mutation register, Ex.D87
to Ex.D90 are the RTCs, Ex.D110 is the certified copy
of the orders in writ petition no. 23325/2013. From
these documents, the defendant no.5, 9 and 10 are
contending that, they are the owners of the suit
schedule property. It is important to note here that,
even the defendant no.5, 9 and 10 clearly admitted
106 O.S.8520/2000
that some portion of the suit schedule property is still
in the hands of the Military authorities. Even,
defendant no.1 to 4 also produced some photographs
to show that they have made certain developmental
works in that property and contended that they are in
the possession of the suit schedule property. However,
in the depositions of DW.5, he has clearly contended
that the said possession of the land are unauthorised
and not having any rights over the same.
123. One of the contentions taken by the
plaintiff in his argument as well as in cross-
examination to DW.5 is that, Ex.D30 as well as
Ex.D78 which are the sale deeds dated 9/8/1920 are
forged documents and defendant no.5, 9 and 10
cannot claim the rights over the same on the basis of
that sale deed. The learned counsel for the plaintiff in
support of his case, produced Ex.C1 which is the
document of the year 1901 and specifically contended
that, in Ex.D78, though it is executed in the year
1920, the stamp paper is on 1928.
107 O.S.8520/2000
124. I have carefully perused Ex.D78 which
clearly shows that the same is executed in the year
1920. One of the contention taken by the plaintiff
that, the stamp paper of Ex.D78 is of the year 1928
cannot be believable, because the recitals in Ex.D78
shows that, Ex.D78 is the certified copy. In the back
page of Ex.D78, it is mentioned that "Copy applied
on 30/8/1928." "Copy delivered on 30/8/1928."
"Copy applied by M.Narayanappa." This clearly
shows that definitely Ex.D78 is not the original sale
deed dated 9/8/1920. If at all this document is the
original document, then definitely such recitals would
not be there in that document.
125. In Ex.D30 which is also the sale deed dated
9/8/1920. This is also certified copy of the sale deed
and not the original document of that particular sale
deed.
126. Initially, there was practice of giving
certified copies of the documents in the stamp papers.
The stamp papers has to be furnished by the parties
108 O.S.8520/2000
to the Sub Registrar office and later on, the recitals of
the documents are written by the Officers of the Sub
Registrar office in their own handwriting or in a
typewritten form. Afterwards, they are certifying that
by putting their seals and signatures and issuing the
same in favour of the parties. The issuance of the
certified copy after xeroxing the same came into
existence recently. Prior to that, all the certified copies
of a document are issued by the Sub Registrars in the
stamp papers itself. So, by seeing the dates of stamp
paper, one cannot tell the sale deed of 1920 is
executed in the stamp paper of 1928.
127. Another contention taken by the plaintiff in
that particular sale deed is seal in Ex.D78. With
regard to the shape of seal in Ex.D78 which is round
in nature, by comparing the same of contemporary
documents, the plaintiff vehemently argued that, in
the year 1920s, there was no seal of round in nature,
rather than there is a seal of oval shape. However,
merely by creating doubt in the minds of the Court, by
contending that, on the basis of the shape of the seal
109 O.S.8520/2000
found in the document, that document cannot be
considered as forged. The conduct of the parties is to
be taken into consideration while looking into the
genuineness of the document. The suit is filed by the
plaintiff in the year 2000. Even after filing of the
written statement also, the plaintiff has not sought for
the declaration contending that the sale deed dated
9/8/1920 is void and not binding upon them. It is the
plaintiff who has to stand in his own case and not
upon the weakness of the defendant. No doubt, from
last 100 years, either the plaintiff nor the defendant
no.1 to 4 did not attempted to insert their names in
the revenue records of Sy.No. 70 contending that, they
are the owners of that property. Even the plaintiff did
not attempted to include his name based on the oral
gift on which his entire case relies. Therefore, without
making a bonafide attempt to include their names in
the revenue records, they are contending that,
documents produced by the defendants are not
genuine. More than that, even though the issues are
framed with respect to the rights of defendant no.1 to
110 O.S.8520/2000
4 and rights of defendant no.5, 9 and 10, they have
not sought for any counterclaim in the above suit. So,
eventhough the plaintiff contended that, the
documents produced by the defendant no.5, 9 and 10
are not genuine, he cannot take that defence in order
to prove his case. On the contrary, the silence with
regard to these documents without initiating any legal
action against the defendant no.5, 9 and 10 and
further failure on the part of them to include their
names in the revenue records itself shows that they
are not having any rights over Sy.No. 70. From the
discussions in the earlier issues, it is very clear that,
either the plaintiff nor the defendant no.1 to 4 have
succeeded in proving their issues in their favour. On
the other hand, nothing has been elucidated from the
mouth of DW.1 and DW.5 with regard to the
genuineness of the documents produced by the
defendants.
128. One of the contention taken by the advocate
for the plaintiff is with regard to the Ex.D75 which is
the MFA orders which shows that Sy.No. 70 is
111 O.S.8520/2000
bifurcated to Sy.No. 70/1 and 70/2. However, the
witness clearly deposed that, those survey numbers
are not in existence. Even the documents produced by
the defendant which is marked as Ex.D99 clearly
shows that Sy.No. 70 is the whole number and it is
not divided as Sy.No. 70/1 and 70/2. Ex.D99 is the
endorsement issued by the Survey Department which
clearly shows that on perusal of the revision
settlement akarband of Kavalbyrasandra village,
Sy.No. 70 is the whole number and it is not bifurcated
as Sy.No. 70/1 and 70/2. as for the Survey Records
there is no bifurcation of survey No. 70X 70/1 and
70/2 even the notification dated 07.03.1912 which is
produce to by the defendant No. 1 to 4 does not shows
that Survey No. 70/1 to 70/2 However from the
depositions of the DW4 its in its is clear that, during
the pendency of the suit, the defence department have
unilaterally altered millitery land register to include
70/1 and 70/2 in the place of survey No. 71 with out
the concurrence of the revenue department and
without setting aside the orders of the DC in RRTSR
112 O.S.8520/2000
in 162/95-96 proceeding. Therefore the contention of
the defence that Survey no. 70 is bifurcated is cannot
be believable.
129. One of the contentions taken by the
plaintiff is that the sale deed dated 09.08.1920 is
forged document the learned counsel for the plaintiff
attempted to elucidated from the mouth of DW5
contending that the alleged sale deed dated.
09.08.1920 is forged. By comparing the notarized
copy of the sale deed dated 18.03.1927 he attempted
to come to conclusion that the sale deed produced by
the defendant No. 5, 9 and 10 of 1920 is forged.
However mearly by comparing the seals of the
document, one can not come in to conclusion that a
document is a forged. In order to prove a document as
a forged document the plaintiff has to categorically
state on what account that document is forged. Or
what content of that document is forged. Mearly by
showing a seal of a document which is executed in the
same years Court can not coming to conclusion that a
registered instrument in forged.
113 O.S.8520/2000
130. The same aspect has been argued by the
advocate by the defendant No. 5, 9 and 10 in his main
argument. Even at time of arguments from the side of
the defendant No. 1 to 4 he has submitted that the
sub registrar of Bangalore district has bee in existence
right from the year 1905 at seal found on Ex.D 78 is
true and correct. Whatever the doubts the created by
the advocate by the plaintiff with regard to the
genuineness of the document as no value by mearly
by telling the seal found in the document is not ovel in
shape and the office of the sub registrar of Bangalore
district is not in existence.
131. As per Section 101 of Indian Evidence Act
the burden of proof lies upon the person who affirms
that fact in existence. This case also the burden is on
the part of the plaintiff in order to prove that alleged
sale deed dated 09.08.1920 is forged one.
132. The learned counsel for the defendant No.5,
9 and 10 vehemently contended that the registered
document is presumed to be genuine unless the
114 O.S.8520/2000
contrary is proved. The same aspect has been stated
by the Hon'ble Supreme Court of India in Civil Appeal
No.3681-3682/2020 in Rattan Singh v/s Nirmal Gill
decided on 16.11.2020 wherein the Hon'ble Supreme
Court clearly held that " there is a presumption
that a registered document is validly executed. A
registered document, therefore prima-facie would
be valid in law. The onus of the proof, thus,
would be on a person who leads evidence to rebut
the presumption. In the instant case the plaintiff
has not able to rebut the said presumption" The
initial onus of the plaintiff who challenged the stated
registered document.
133. The same view has been upheld by the
Hon'ble Supreme Court in other cases also.
From the above discussion it is very clear that
merely by showing the seals of the documents one
cannot to coming to conclusion that a particular
document is forged more than the merely by seeing
the shape of the seal as well as stamp paper of
115 O.S.8520/2000
particular document the Court cannot coming to
conclusion that a particular document is forged.
Even as already discussed earlier they habit of
issuance of the certified copy of a particular document
in the stamp paper if the same is supplied by the copy
applicant. Afterwards in the year 1996 as per the
circular issued by the Government No.RGN 12:96-97
dated 12.06.1996 xerox certified copies are issued.
Therefore on perusal of the both the document in
Ex.D28 as well as Ex.D30 it is very clear that both the
documents are not original rather than they were the
certified copies. Even their exist a habit of giving the
certified copies in the handwriting in the stamp paper
which was later on changed on after 1995-96.
Therefore the contention of the advocate for the
plaintiff that on comparing the documents of 1920's
the document produced by the defendant No.5, 9 and
10 are forged cannot be believable.
134. It is settled that the standard of proof
required in the civil dispute is preponderance of the
probabilities and not beyond reasonable doubt. Even
116 O.S.8520/2000
in this case also it is the plaintiff who has to prove his
case in order to claim his rights over the suit schedule
property. From the above discussions it is clear that
though a doubt has been created by the plaintiff with
regard to the title of the defendant No.5, 9 and 10 they
have not succeeded in their attempt. On the other
hand by producing the document such as sale deed,
mutation extracts, RTC extracts, the orders passed by
the Special Deputy Commissioner which was already
attained finality the defendant No.5, 9 and 10
succeeded in proving the issues in issue their favour.
According I answer Additional Issue No.2 in the
affirmative.
135. Issue No.4 and 5:- The entire case of the
plaintiff is based on the oral gift which is not proved
by the plaintiff. The same has been already discussed
in the earlier issues framed by this Court. The plaintiff
has sought for declaration and permanent injunction
and also possessed of the suit. So in order to obtain
relief of declaration he has to prove his title by
117 O.S.8520/2000
himself. The weakness of the defendant cannot be a
ground to grant the relief in favour of the plaintiff.
136. In (2014) 2 Supreme Court Cases 269
Union of India other v/s Vasavi Co-operative
Housing Society and others Hon'ble Supreme
Court clearly held that "in the suit for declaration
of title and possession the burden is on the
plaintiff to establish his case irrespective of the
fact that whether the defendants prove their case
or not-in the absence of establishment of his own
title, the plaintiff must be non-suited even if the
title set up by the defendant is found against to
that.
The legal possession is clear that the plaintiff
in a suit for declaration of the title and
possession could succeeded only on the strength
of its own title and that could be done only by
adducing sufficient evidence to discharge the
onus on it, irrespective of the question whether
the defendants have proved their case or not.
118 O.S.8520/2000
Even if the title set up by the defendant is found
against them, in the absence of establishment of
plaintiffs own title, the plaintiff must be non-
suited."
137. In (2019) 6 SCC 82 The Hon'ble
Supreme Court held that in a suit for declaration
and title over the immovable property. The
plaintiff is to required to discharge his burden
independent of the case of the defendant. Passing
of the declaratory decree where the plaintiff did
not lead evidence to establish his title, reiterated
in permissible.
138. In (2015) 14 SCC 450 Hon'ble Supreme
Court clearly held that the burden of proof is on
the plaintiff in order to establish his title and
possession, if the plaintiff failed to prove the same
then no relief of declaration can be granted.
139. In the present case also the entire case of
the plaintiff rest on the hiba which is not proved by
the plaintiff. Even though the plaintiff specifically
119 O.S.8520/2000
contented that the titles of the defendant are defective
in nature it does not mean that the plaintiff is entitled
to the relief as he claimed in the suit. In other words
the plaintiff has to stand in his own legs. Since from
the above discussion it is clear that the plaintiff has
failed to prove the title over the suit schedule property
the declaratory relief cannot be granted.
140. The plaintiff also sought for permanent
injunction in the above case. In order to claim the
permanent injunction by restraining the defendants
from interfering into the possession of the plaintiff the
plaintiff has to establish his possession over the suit
schedule property. Even in this aspect also the
plaintiff has failed to prove his possession over the
suit schedule property as on the date of filing of the
suit. This aspect is also already discussed in the
earlier issues. Since he has failed to prove his
possession granting of injunctive order against the
defendant does not arise. More than that since he is
not in possession granting of relief of possession
which he has sought by way of amendment also does
120 O.S.8520/2000
not arise. Therefore I answer issue No.4 and 5 in the
Negative.
141. Issue No.6:- In view of the above discussion
I proceed to pass the following;
The suit of plaintiff is dismissed.
Under the facts and circumstances of
the case there is no order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 21 st day of January 2022] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Anwar Khan
PW.2 Muzzammil Sharief
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 N. Govindaraju
DW.2 Col. M.S.Salunke
121 O.S.8520/2000
DW.3 Ramesh Kumar Gadroo DW.4 Lt.Col. Benyamen Praths Beni DW.5 G.Shravan
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Extract of authorization letter issued by the plaintiff Ex.P2 Certified copy of the sale deed dated 4/10/1909 Ex.P3 to Certified copy of RTCs Ex.P7 Ex.P8 Authorisation given by the Managing Committee Ex.P9 2 encumbrance certificates in and respect of the suit schedule Ex.P10 property.
Ex.P11 Certificate of registration of plaintiff -Board Ex.P12 Office copy of the application submitted to the Board of Wakf Ex.P13 Certified copy of the Judgment and and decree in O.S.No.10707/82 Ex.P14 Ex.P15 Certified copy of the survey records issued by the Wakf Board Ex.P16 Certified copy of the order dated 15/9/2010 Ex.P17 Certified copies of grant orders to issued by the Karnataka State Ex.P19 Board of Wakf in favour of the Mosque.122 O.S.8520/2000
Ex.P20 Certified copies of the extract of and Military Land Register Book Ex.P20(a) Ex.P21 Certified copy of the police complaint Ex.P22 Endorsement issued by the police department Ex.P23 The letter dated 2/11/2019 issued by the public information officer along with Tabular statement of matter of routine for March 2012.
Ex.P24 8 photographs with respect to the to suit schedule property. Ex.P32 Ex.P33 Certificate under Section 65 B of Indian Evidence Act.
Ex.P34 Certified copy of the sale deed dated 29/9/1909.
Ex.P34(a) Typed copy of Ex.P34.
4. List of the documents marked for the defendants:
Ex.D1 Certified copy of the record of rights in respect of Sy.No. 70 of Kavalbyrasandra village.
Ex.D2 Certified copy of the index of land.
Ex.D3 Certified copy of the mutation in the name of Sri Narayanappa.
Ex.D4 2 certified copy of the RTC extracts and standing in the name of Ex.D5 Narayanappa 1965-66 to 70-71 and 1984-85 to 1987-88.123 O.S.8520/2000
Ex.D6 Certified copy of the final decree passed in O.S.No.10584/87.
Ex.D7 Notice issued by the Deputy Commissioner dated 5/3/1996.
Ex.D8 Certified copy of the orders passed
by the Special Deputy
Commissioner.
Ex.D9 Certified copy of the statement of
defence authority before Deputy Commissioner.
Ex.D9(a) The letter dated 25/4/1995 issued by the Defence Estate Officer in favour of the Tahsildar of Bengaluru north taluk.
Ex.D10 Certified copy of the mutation in the name of DW.1 and others.
Ex.D11 Certified copy of the RTC extract for the year 1988-89 to 1996-97.
Ex.D12 to 10 Computerized RTC extracts. Ex.D21 Ex.D22 Certified copy of the joint survey and statement and sketch Ex.D23 Ex.D24 Certified copy of the akarband Ex.D25 Two certified copies of Tax pad and receipts.
Ex.D26 Ex.D27 Certified copy of the tippani copy.
Ex.D28 Certified copy of the akarband.124 O.S.8520/2000
Ex.D29 Certified copy of the registered partition deed.
Ex.D30 Certified copy of the sale deed dated 9/8/1920.
Ex.D31 Certified copy of the letter dated 10/11/1898.
Ex.D32 Certified copy of the letter dated 15/11/1898.
Ex.D33 Certified copy of the letter dated 16/3/1898.
Ex.D34 Certified copy of the letter dated 15/12/1900 issued by the Military Assistant Office to the Chief Commandant Mysore State Troops.
Ex.D35 Certified copy of the orders dated 30/11/1900 passed by the Commandant IS Lancers.
Ex.D36 Certified copy of the letter dated 7/10/1902 issued to first Assistant RCH Moss King 1st Assistant Resident in Mysore to the Deewan of Mysore.
Ex.D37 Certified copy of the letter dated 24/10/1902 issued by the Chief Commandant Mysore State Troops addressed to the Controller of Mysore.
Ex.D38 Reply letter dated 31/10/1902.
Ex.D39 Certified copy of the letter dated 2/9/1902 issued by the Military Assistant, Government of Mysore to the Chief Commandant.125 O.S.8520/2000
Ex.D40 Certified copy of the letter dated 9/4/1903.
Ex.D41 Certified copy of the letter dated 3/11/1902 issued by the Military Assistant Government of Mysore to the 1st Assistant in Mysore.
Ex.D42 Certified copy of the letter dated 17/5/1903 by the Military Assistant, Mysore Government to the Chief Commandant State Troops.
Ex.D43 Certified copy of the reply dated 8/2/1905 issued by the Chief Commandant Mysore Troops to the Military Assistant.
Ex.D44 Certified copy of the report dated 25/4/1903 of the Military Assistant.
Ex.D45 Certified copy of the orders dated 15/2/1905 passed by the Military Assistant.
Ex.D46 Certified copy of the report and estimate prepared for construction of Hindu temple.
Ex.D47 Certified copy of the report and estimate prepared for construction of Mosque.
Ex.D48 Gazette notification dated 7/3/1912 published in Mysore Gazette dated 14/3/1912. Ex.D49 Notification relating to local self government, office of the Chairman Bangalore Develpment Authority Bangalore dated 29/5/1978.126 O.S.8520/2000
Ex.D50 Certified copy of designed sketch of the mosque prepared by PWD Officer.
Ex.D51 Certified copy of the Judgment in RFA No.422/1987 dated 11/10/1996.
Ex.D52 Copy of the letters dated to 26/2/2011 and 18/11/2010 and Ex.D56 15/10/2011, 10/10/2011 and 21/10/2011 issued by the DC Office.
Ex.D57 Authorization letter Ex.D58 Copy of the gazette notification dated 7/3/1912.
Ex.D59 Copy of letter dated 27/2/2004 addressed to Prl.Director Government of India, Ministry of Defence.
Ex.D60 Copy of the letter dated 20/5/2009 sent by the Directorate of Defense Estate for correction of MLR.
Ex.D61 Copy of the extract of MLR Ex.D62 Copy of the letter dated 18/11/2010 issued by the Defence Estates office to the Prl.Secretary Government of Karnataka.
Ex.D63 Copy of the letter dated 10/10/2011 issued by the DEO to the Tahasildar, Bangalore North taluk.127 O.S.8520/2000
Ex.D64 Application filed in RFA No. 693/2007.
Ex.D65 The letter of authorization issued by the Deputy Commandant.
Ex.D66 to Photographs Ex.D71 Ex.D72 CD Ex.D73 Certificate issued u/s 65-B of Indian Evidence Act. Ex.D74 Certified copy of amended plaint in O.S.No.8340/2014 Ex.D75 Certified copy of orders passed by
Hon'ble High Court of Karnataka in MFA No.3447/2018 club with MFA No. 3450/2018.
Ex.D76 to Photographs. Ex.D77 Ex.D78 Original sale deed dated 9/8/1920 Ex.D79 Original MR extracts Ex.D80 RTC Ex.D81 RTC Ex.D82 RTC Ex.D83 Certified copy of the settlement
deed dated 3.4.1975 (subject to proof).
Ex.D83(a) Typed copy of Ex.D83.
128 O.S.8520/2000Ex.D84 Certified copy of the partition deed dated 18/1/2001 (subject to proof).
Ex.D85 Certified copy of partition deed dated 28/12/2001 (subject to proof.) Ex.D86 Original Mutation Register.
Ex.D87
to RTC of sy.no. 70
Ex.D98
Ex.D99 Endorsement issued by the ADLR
dated 9/9/2009.
Ex.D100 The receipt dated 16/9/1978. Ex.D101 to Assessment receipts Ex.D103 Ex.D104 The sketch issued by the ADLR.
Ex.D105 Certified copy of the gazette notification dated 22/7/1965 (subject to proof).
Ex.D106 Certified copy of the Intimation letter dated 7/10/2003 (subject to proof).
Ex.D107 Certified copy of the Joint survey dated 16/10/2003.
Ex.D108 Certified copy of the sketch dated 3/11/2003. (subject to proof).
Ex.D109 Certified copy of the FMB (Subject to proof).
Ex.D110 Certified copy of the W.P.No.23324/2013.
129 O.S.8520/2000Ex.D111 Certified copy of the order sheet in WP No. 23324/2013.
Ex.D112 Certified copy of the order which shows the withdrawing of the Writ Petition.
Ex.D113 Copy of the sketch.
5. List of the documents marked by the Court Commissioner:
Ex.C1 Notarised copy of the sale deed dated 18/3/1927 Ex.C1(a) Seal in Ex.C1 Ex.C2 Certified copy of the order sheet in O.S.No.5620/2011 Ex.C3 Certified copy of the Ex.P4 in O.S.5620/2011 Ex.C3(a) Typed copy of Ex.C3 [PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
21/01/2022 P - PM D1 to D4 - GMM D5- TMRC D6-MMR D7-NKS D8-EXP D9 and D10- KVR For Judgment.
Judgement pronounced in the Open Court (Vide separate detailed judgment) The suit of plaintiff is dismissed. Under the facts and circumstances of the case there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.