Karnataka High Court
Sri Ambikapathi vs Mr Ali Khan on 18 May, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 487 OF 2007 (RES)
BETWEEN:
SRI. AMBIKAPATHI
S/O. PAPANNA SHETTI
AGED ABOUT 69 YEARS
NO.740, 13TH B CROSS
IV EAST HUTTING COLONY
TILAKNAGAR
BANGALORE - 560 041
... APPELLANT
(BY SRI: D R P BABU & ASSOCIATES)
AND:
MR. ALI KHAN
S/O LATE MASTAN KHAN
AGED ABOUT 70 YEARS
R/AT ANJENEYA TEMPLE
3RD CROSS, BYRASANDRA
JAYANAGAR EAST BLOCK
BANGALORE - 560 041.
SINCE DEAD BY LRs
1. MRS. AKTHAR
W/O LATE ALI KHAN
AGED ABOUT 65 YEARS
R/AT NO.25, 3RD MAIN
ANJENEYA TEMPLE STREET
BYRASANDRA, JAYANAGAR EAST BLOCK
BANGALORE - 560 011.
2. MRS. NOORJAHAN
D/O LATE ALI KHAN
MAJOR IN AGE
NO: 4, 7TH MAIN ROAD
2
NEW GURRAPPANAPALYA
BANGALORE - 560 029.
3. MRS. FARHATJAN
D/O LATE ALI KHAN
MAJOR IN AGE
NO.652/26-30
1ST CROSS, MASJID ROAD
THILAKNAGAR
BANGALORE - 560 041.
4. MRS. RAHATJAN
D/O LATE ALI KHAN
W/O LATE MUNAWAR AHMED KHAN
NO: 27/30, 1ST CROSS
26TH MAIN ROAD
THILAKNAGAR, MASID ROAD
BANGALORE - 560 041.
5. MR. KHALEEEL
S/O LATE ALI KHAN
AGED ABOUT 40 YEARS
R/AT NO.25, 3RD CROSS
ANJENEYA TEMPLE STREET
BYRASANDRA, JAYANAGAR EAST BLOCK
6. MRS. ASMATHAJN
D/O LATE ALI KHAN
MAJOR IN AGE
NO.21, ANEKAL MAIN ROAD
HOSAHALLI, KANAKAPURA TALUK
BANGALORE - 562 112.
7. MRS. HASEENAJAN
D/O LATE ALI KHAN
MAJOR IN AGE
R/AT NO.25, 3RD MAIN
ANJENEYA TEMPLE STREET
BYRASANDRA, JAYANAGAR EAST BLOCK
BANGALORE - 560 001.
8. MRS. SHAMEEMJAN
D/O LATE ALI KHAN
MAJOR IN AGE
R/AT NO. 25, 3RD MAIN
ANJENEYA TEMPLE STREET
3
BYRASANDRA, JAYANAGAR EAST BLOCK
BANGALROE - 560 011.
9. MRS. SHABEENA
D/O LATE ALI KHAN
MAJOR IN AGE
R/AT NO.25, 3RD MAIN
ANJENEYA TEMPLE STREET
BYRASANDRA, JAYANAGAR EAST BLOCK
BANGALORE - 560 011.
... RESPONDENTS
(BY SRI: LETHIF .B., ADVOCATE FOR R1 TO 9)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 READ WITH
SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
15.12.2006 PASSED IN O.S.NO.4677/1993 ON THE FILE OF THE VII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-27) REJECTING THE SUIT FOR PERMANENT INJUNCTION AND
DECREEING THE SUIT FOR DECLARATION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.03.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in OS No.4677 of 1993 on the file of the learned VII Additional City Civil Sessions Judge, Bengaluru City (CCH-27) (hereinafter referred to as 'Trial Court' for brevity), is impugning the judgment and decree dated 15.12.2006, decreeing the suit of the plaintiff for declaration declaring that the plaintiff is the absolute owner and is entitled for possession of the schedule property and directing the defendant to hand over the vacant possession of the 4 same, within three months and also holding that the plaintiff is entitled for mesne profits.
2. For the sake of convenience, the parties are referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff has filed the suit OS No.4677 of 1993 against the defendant seeking permanent injunction restraining him from interfering with his peaceful possession and enjoyment of the schedule property. The schedule appended to the plaint describes the house property bearing No.740/73 situated at IV, East Hutting Colony, Tilaknagar, Bengaluru-560041, with the boundaries mentioned therein.
4. The plaintiff contended that Bengaluru City Improvement Trust Board (for short 'BCITB') had allotted the schedule property in favour of Susainathan M.Arbutham - vendor of the plaintiff, as per order dated 30.06.1967. He had paid full value of the site. Subsequently, the Bengaluru Development Authority (for short 'BDA') has executed the registered sale deed dated 19.11.1976 and the allottee was put in possession of the property as per possession certificate 5 dated 10.03.1977. The allottee constructed the house over the property after getting sanctioned plan dated 21.01.1980 and he was paying the tax. The khata was also standing in his name. The said Susainathan M.Arbutham - the allottee, agreed to sell the schedule property in favour of one Munawar Ahmed Khan for a consideration of Rs.1,50,000/- under the agreement for sale dated 25.07.1991. The entire sale consideration amount was paid by Munawar Ahmed Khan. Subsequently, Susainathan M.Arbutham has revoked the agreement for sale and sold the schedule property in favour of the plaintiff for a consideration of Rs.2,00,000/-. The plaintiff paid Rs.1,50,000/- to Munawar Ahmed Khan and got the possession of property under the delivery receipt dated 14.07.1993. The plaintiff paid the balance consideration amount of Rs.50,000/- to the allottee Susainathan M.Arbutham who executed the sale deed on 14.07.1993. Thus, the plaintiff being the absolute owner is in actual possession and enjoyment of the schedule property.
5. It is contended that the defendant has no manner of right, title or interest over the property, but on 24.07.1993 he attempted to interfere with the peaceful possession and 6 enjoyment of the plaintiff. The plaintiff lodged the police complaint, who directed him to approach the Civil Court. Therefore, it is stated that the cause of action for the suit arose on 24.07.1993 and the plaintiff approached the Court for grant of permanent injunction against the defendant to protect his possession.
6. The defendant appeared before the Trial Court and filed his written statement denying the contentions taken by the plaintiff and also contending that the suit of the plaintiff is not maintainable. Even the address of the plaintiff as shown in the plaint is denied. It is contended that the plaintiff is not in possession and enjoyment of the schedule property at any point of time. The contentions of the plaintiff with regard to the allotment of the schedule property in favour of Susainathan M.Arbutham and he selling the same in favour of the plaintiff, are all denied.
7. It is contended that the defendant had filed Miscellaneous Petition before the Court of Small Causes in HRC.Mis.No.457 of 1990 seeking to set aside the order of eviction passed against him. He has also filed Mis.No.203 of 7 1993 seeking restoration of the possession of the suit schedule property. The Court of Small Causes passed an order directing the respondent therein i.e., Susainathan M.Arbutham to deliver back the possession of the property to the defendant. Accordingly, the possession was restored to the defendant on 06.08.1993 and he is in possession of the same till today. The plaintiff filed the suit on 29.07.1993 to stall the execution proceedings where the delivery warrant was issued against Susainathan M.Arbutham, in which the plaintiff had entered his appearance as an objector. The Court of Small Causes after considering the materials on record found that the defendant herein was in possession of the property and ordered Susainathan M.Arbutham to deliver the possession of the property.
8. The defendant contended that his wife Smt.Saroja along with her parents was occupying the hut since 1960 in a slum area which was bearing Sy.Nos.59 and 60 of Sampigehalli. She was displaced from the said hut and she was allotted the site bearing No.767 situated at Tilaknagar, Hutting Colony, by BDA as per memo dated 13.02.1960. The wife of the defendant was not able to locate the site that was 8 allotted in her favour with exact boundaries and was put in possession of the site measuring 20 x 30 feet approximately and the said allotment was regularised by the BDA by physically handing over the vacant site bearing No.740, which was bounded on East by: Site No.739, West by: Site No.741, North by: Site No.735, and South by: Road, in lieu of the allotment of Site No.767. Thereafter, the wife of the defendant along with her family members constructed the small hut measuring 15 x 12 x 6 feet and are in physical possession and enjoyment of the same since March 1960.
9. The defendant contended that he married Smt.Saroja, who is the allottee of the site in question, on 18.02.1976 and since from the date of the marriage, he is residing with his wife in the schedule property. However, they were demanding BDA to issue possession certificate and made several correspondences to regularise the allotment.
10. The defendant further contended that during 1982, he had filed the suit OS No.3472 of 1982 against the Commissioner of BDA before the Civil Court seeking an order of permanent injunction and also for a direction to regularise 9 the allotment by issuing the possession certificate. The suit came to be disposed of on 30.09.1985 directing the plaintiff therein to approach BDA for regularisation of the allotment of site. Accordingly, the defendant filed an application with BDA for regularisation of the site and the structure put up on the site.
11. In the meantime, the defendant converted the hut into a house with asbestos sheet roof measuring 24 x 30 feet by spending huge amount of Rs.70,000/-. The BDA has taken the decision to cancel the earlier allotment and to regularise the occupation of the site and construction of the house by Smt.Saroja, wife of the defendant on 14.11.1988. It is stated that the defendant is a journalist, who was running the Kannada paper by name 'Anireekshita' , but now stopped its publication. The BDA has regularised the construction and possession of the site by the wife of the defendant as per its Resolution dated 10.07.1993 by issuing possession certificate. However, the defendant could not get the regularisation of the site by the BDA in view of the pendency of the suit before the Trial Court.
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12. The defendant also contended that Susainathan M.Arbutham had in fact filed HRC No.3132 of 1989 against the defendant seeking eviction. However, subsequently the petition was withdrawn by filing the memo. Accordingly, it was dismissed on 09.07.1993. During the pendency of the said HRC proceedings, the plaintiff alleged to have purchased the schedule property from Susainathan M.Arbutham, whose allotment was cancelled by BDA. Under such circumstances, the plaintiff cannot claim any right, title or interest over the schedule property. He has no locus standi to file and maintain the suit.
13. It is also contended that the vendor of the plaintiff had filed a suit OS No.10782 of 1990 seeking relief of declaration and title over the property, but the said suit also came to be dismissed on 26.10.1994. Therefore, it is stated that there is no cause of action for the plaintiff to file the suit and prayed for dismissal of the suit.
14. The plaintiff got amended the plaint to contend that subsequent to filing of the suit during the year 1997, the defendant forcibly entered into the possession of the property and started residing there. Since the defendant has no 11 manner of right, title or interest over the property, the plaintiff is entitled for possession of the same. The plaintiff sought for declaration that he is the owner of the schedule property and directed the defendant to hand over the vacant possession of the property along with the mesne profits at Rs.3,000/- per month and future mesne profit at Rs.100/- per month.
15. The defendant has filed the additional written statement and contended that the amendment sought by the plaintiff is barred by limitation and the plaintiff has no manner of right to claim declaration or possession. The contention taken by the plaintiff that the defendant had forcibly entered into the possession of the property during the pendency of the suit was denied.
16. It is contended that the vendor of the plaintiff by name Susainathan M.Arbutham through his General Power of Attorney holder-Munawar Ahmed Khan had filed HRC No.3132 of 1989 against the defendant. By forging the signatures of the defendant, he obtained an exparte order of ejectment. The defendant had filed Miscellaneous Petition No.457 of 1990 12 seeking to set aside the exparte judgement and decree, which came to be allowed as per order dated 20.03.1993. After setting aside the exparte judgement and decree, efforts were made to get a favourable order, which came to light as Munawer Ahmed Khan is the close relative of the plaintiff and they have made all attempts to take possession of the property. The defendant sought for restitution of the possession in his favour and accordingly the defendant was put in possession of the same. Munawar Ahmed Khan has filed Criminal Revision petition before the Court in Crl.RP No.883 of 1998, which came to be dismissed. The defendant was put back in possession of the property on 06.08.1983. The plaintiff filed Writ Petition No.29177 of 1993 claiming the relief against the BDA challenging issuance of possession certificate. As allotment was already cancelled in favour of the vendor of the plaintiff, the writ petition also came to be dismissed. Therefore, the plaintiff had no manner on right, title or interest over the property and he is not entitled for any relief including declaration and possession. 13
17. On the basis of these pleadings, the Trial Court framed the following issues and additional issues for consideration:
«ªÁzÁA±ÀUÀ¼ÀÄ:
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2) ¥ÀæwªÁ¢ ªÁ¢AiÀÄ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀPÉÌ CqÉvÀqÉ ¥Àr¹zÀ£ÉAzÀÄ ªÁ¢ ¹zÀÞ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3) AiÀiÁªÁ DzÉñÀ, AiÀiÁªÀ wÃ¥ÀÄð?"
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"1) ªÁ¢ vÁ£ÀÄ zÁªÁ ¸ÀéwÛ£À ªÀiÁ°ÃPÀ£ÉAzÀÄ
¹zÀÞ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2) ªÁ¢ ¥ÀæwªÁ¢ zÁªÁ ¸ÀéwÛ£À°è CwPÀæªÀÄ
¥ÀæªÉñÀ ªÀiÁr ºÁ° F zÁªÁ ZÁ°ÛAiÀÄ°èzÁÝUÀ 1997 jAzÀ EgÀvÉÆqÀVzÀ£ÉAzÀÄ ¹zÀÞ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3) ªÁ¢ ¸ÀéwÛ£À ¸Áé¢üãÀ ¥ÀæwªÁ¢¬ÄAzÀ ªÀÄgÀ½ ¥ÀqÉAiÀÄ®Ä CºÀð£ÉÃ?
4. ªÁ¢ ªÀÄzsÀåPÁ°Ã£À ¯Á¨sÀªÉAzÀÄ gÀÆ.3,000- 00 ºÁUÀÆ ºÉaÑ£À ªÀÄzsÀåPÁ°Ã£À ¯Á¨sÀ ¥ÀæwwAUÀ¼ÀÄ gÀÆ.100- 00 £ÀAvÉ ¸ÀéwÛ£À ¸Áé£ÀĨsÀªÀ PÀ¼ÉzÀÄPÉÆAqÁV¤AzÀ ¸Áé£ÀĨsÀªÀ ¥ÀqÉAiÀÄĪÀªÀgÉUÉ ªÀÄzsÀåPÁ°Ã£À ¯Á¨sÀ ¥ÀqÉAiÀÄ®Ä CºÀð£ÉÃ?
5. ¥ÀæwªÁ¢ ªÁ¢AiÀÄ WÉÆõÀuÉ PÁ® ¨ÁºÀåªÉAzÀÄ ¹zÀÞ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?"
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18. The plaintiff examined himself as PW1, examined PWs.2 and 3 and got marked Exs.P1 to P14 in support of his contention. The defendant examined himself as DW1 and got marked Exs.D1 to D19 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered issue No.1 in the Negative, issue No.3 in the Affirmative and held issue No.2 does not arise for consideration and answered additional issue Nos.1, 3 and 5 in the Affirmative and issue No.2 in the Negative and accordingly, decreed the suit of the plaintiff in part holding that the plaintiff is the absolute owner of the suit schedule property and directing the defendant to vacate and hand over the possession to the plaintiff within three months from the date of this order and granted mesne profits as prayed for. However, the Trial Court rejected the prayer of permanent injunction as claimed by the plaintiff.
19. Being aggrieved by the same, the defendant has preferred this appeal.
20. Heard Sri D R P Babu, learned counsel for the appellant and Sri B Lethif, learned counsel for respondent 15 Nos.1 to 9. Perused the materials including the Trial Court records.
21. Learned counsel for the appellant contended that, initially the plaintiff had filed the suit for permanent injunction. He had contended that he is in possession of the schedule property. When the defendant filed the written statement asserting that the defendant and his wife are in possession and enjoyment of the property and also contending that the BDA had already cancelled the allotment in favour of Susainathan M.Arbutham - the vendor of the plaintiff, the plaint came to be amended and the plaintiff has given up his claim for permanent injunction, but on the other hand, sought for declaration and possession. It is contended that the plaintiff was dispossessed in the year 1997 and the defendant is in possession of the portion of schedule property. The plaintiff has never produced the original sale deed, said to have been executed in his favour. He has also not produced any document to prove that his vendor - Susainathan M.Arbutham had purchased the property from BDA. In fact, the defendant is in possession and enjoyment of the property since 1976, as the same was allotted in favour of his wife. 16 The BDA has issued the letter of allotment as per Ex.D1, collected consideration amount of Rs.71,440/- as per Ex.D.2, executed lease-cum-sale deed as per Ex.D3, issued possession certificate as per Ex.D4, the katha was also changed in the name of the wife of the defendant as per Ex.D5. In spite of that, the plaintiff has not thought it fit to implead the wife of the defendant who is the owner of the property and even the BDA is not a party to the proceedings.
22. Learned counsel submitted that the plaintiff in collusion with Susainathan M.Arbutham and others made an attempt to dispossess the defendant and his wife from the schedule property. The General Power of Attorney holders have filed HRC petition and managed to get the exparte decree by forging the signature of the defendant. However, the defendant got the said exparte judgement set aside as per Ex.D19 and possession of the defendant was restored on
06.08.1993. The BDA on consideration of the facts and circumstances cancelled allotment in favour of the vendor of the plaintiff and confirmed the allotment in favour of the wife of the defendant.
17
23. Learned counsel further contended that the Trial Court has ignored all these facts and circumstances and proceeded to decree the suit of the plaintiff for declaration and possession. The finding of the Trial Court that the BDA has not followed the procedure for cancellation of the allotment and that it has not followed the principles of natural justice in cancelling the allotment, was perverse and illegal, as there was no issue to that effect and BDA was never a party in the proceedings. The Trial Court has not taken into consideration the oral and documentary evidence placed before it, which clinchingly proves that the defendant and his wife are in possession and enjoyment of the property since long and they were allotted with the schedule property by BDA. The Trial Court ignored all these material facts and decreed the suit of the plaintiff without any basis. Therefore, he prayed for allowing the appeal and to set aside the impugned judgment and decree passed by the Trial Court, in the interest of justice.
24. Learned counsel further submitted that he has filed Misc.Cvl.No.3672 of 2010 under Order XLI Rule 27 of CPC producing additional documents. Learned counsel 18 submitted that the minutes of meeting held by BDA, the Resolution dated 14.11.1988 passed in the meeting and the show-cause notice that were issued by BDA before cancelling the allotment in favour of the vendor of the plaintiff which are dated 27.01.1988, 06.02.1988 and 16.08.1988 are produced. These documents are necessary to be taken into consideration in view of the findings given by the Trial Court that BDA has not followed the principles of natural justice and it has not followed the procedure for cancellation of the allotment. The additional documents disclose that BDA has followed the procedure in accordance with law and also the principles of natural justice by providing opportunity to the allottee before cancelling the same. In view of the same, the learned counsel for the appellant prays for allowing the application and to admit the additional documents and to allow the appeal, in the interest of justice.
25. Per contra, learned counsel for the respondents submitted that the vendor of the plaintiff- Susainathan M.Arbutham was allotted site No.740, IV, East Hutting Colony, Tilaknagar, Bengaluru, measuring 20 x 30 by BCITB on 30.06.1967. The document is produced by the plaintiff as per 19 Ex.P.1. The allottee remitted the fee to BCITB as per Ex.P2 and thereafter, BDA executed the registered sale deed in respect of the schedule property on 19.11.1976. The possession certificate was also issued in his favour as per Ex.P4 on 10.03.1977. Thus, it is clear that the schedule property was allotted and sold in favour of Susainathan M.Arbutham and he was put in possession of the same. Pursuant to the same, Susainathan M.Arbutham was paying tax as is evident from Ex.P6. The plaintiff purchased the schedule property from the original allottee under the registered sale deed dated 14.07.1993. Therefore, the plaintiff has become the absolute owner of the schedule property under the registered sale deed. On the same day, the plaintiff was put in possession of the same as per Exs.P9 and P11. When the wife of the defendant tried to raise claim over the schedule property, BDA has issued an endorsement as per Ex.P14 on 24.11.1990. The defendant tried to trespass over the schedule property and the plaintiff had filed a police complaint, which is produced as per Ex.P12.
26. Learned counsel further submitted that the defendant had filed the suit OS No.3472 of 1982 in respect of 20 the very same schedule property against BDA seeking permanent injunction. The said suit came to be dismissed vide judgment and decree dated 30.09.1985, produced as per Ex.D16. The said judgment and decree was never challenged by the defendant. The original allottee- Susainathan M.Arbutham had filed HRC No.3132 of 1989 against the defendant for eviction. The defendant had never contested the matter. Accordingly, HRC No.3132 of 1989 came to be allowed. The Execution Case No.5188 of 1990 was filed by Susainathan M.Arbutham and possession of the property was obtained on 16.07.1990. The defendant filed an application seeking to set aside the ex-parte order of eviction passed in HRC No.3132 of 1989 and the same was allowed as per Ex.D9. The defendant filed an application seeking restoration of possession in his favour as per Ex.D19. In the meantime, the plaintiff filed the present suit against the defendant on 29.07.1993, which came to be decreed by the Trial Court.
27. Learned counsel further submitted that the written statement filed by the defendant discloses that the wife of the defendant by name Saroja and her parents were residing in a slum and they were occupying the hut bearing Nos.59 and 60 21 of Sampigehalli. She was displaced and shifted to Hutting Colony at Tilaknagar and she was allotted site bearing No.767 in Hutting Colony. But since she could not locate the said site with the exact boundaries mentioned in the allotment letter and she could not be put in physical possession of the same, the wife of the defendant illegally trespassed into the schedule property and sought for regularization of the same. The same was rejected by BDA. The BDA had never allotted the schedule property in favour of the wife of the defendant. It is only during the pendency of the suit, some documents were concocted to create rights in favour of the defendant. These documents are only after the year 2005. The BDA had cancelled the registered sale deed executed in favour of Susainathan M.Arbutham - the original allottee, without following the principles of natural justice. No such authority is vested with BDA to cancel the sale deed unilaterally.
28. Learned counsel has placed reliance on the decision in the case of Satya Pal Anand Vs. State of 1 Madhya Pradesh and Others in support of his contention that the Sub-Registrar had no authority to cancel the 1 (2016) 10 SCC 767 22 documents once registered, in the absence of express provisions in that behalf. Simply because the wife of the defendant could not locate site No.767 which was allotted in her favour, she cannot be permitted to squat over the schedule property. The Trial Court after taking into consideration the oral and documentary evidence, rightly came to the conclusion that the plaintiff is entitled for the relief of declaration as he is the absolute owner of the schedule property and directed the defendant to hand over the vacant possession with mesne profits. There is absolutely no reason to interfere with the impugned judgment and decree passed by the Trial Court. Hence, he prays for dismissal of the appeal.
29. In view of the rival submissions made by learned counsel for both the parties, the point that would arise for my consideration is:
"1. Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?23
2. Whether Misc.Cvl.No.3672 of 2010 filed by the appellants seeking production of additional documents deserves to be allowed?"
My answer to the above points are in the 'Negative' for the following:
REASONS
30. The specific contention of the plaintiff before the Trial Court is that the schedule property is the house property bearing No.740/73 situated at IV, East Hutting Colony, Tilaknagar, Bengaluru, with the boundaries mentioned in the schedule, measuring 20 x 30 feet was allotted in favour of one Susainathan M.Arbutham. The plaintiff produced Ex.P1 in support of his contention. Ex.P1 is dated 30.06.1969 issued by BCITB in favour of Susainathan M.Arbutham referring to its Resolution dated 12.06.1969 for allotting the site in question with the sital value at Rs.10/- per square yard and total value determined at Rs.667/- and the lease amount fixed at Rs.3/- per annum. Exs.P2 and P3 are the receipts issued by BCITB for having received the sital value fixed under the allotment letter. It is stated that BDA had executed the registered lease-cum-sale deed on 19.11.1976. Even though the sale 24 deed is not produced by the plaintiff, the fact of BDA executing the lease-cum-sale deed is not in dispute. The possession certificate was issued on 10.03.1977 as per Ex.P4. The allottee got the sanction plan dated 21.01.1980 for construction of the house over the site allotted and sold in his favour. As could be seen from Exs.P5 and P6, he was paying the tax. It is also the contention of the plaintiff that he purchased the schedule property from Susainathan M.Arbutham for consideration of Rs.2,00,000/- under the sale deed dated 14.07.1993 and the copy of sale deed is produced as per Ex.P8. These documents fully support the contention of the plaintiff regarding acquisition of title over the schedule property by the vendor and also by him.
31. The plaintiff further contended that the defendant tried to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff and in that regard, a police complaint also came to be lodged. Later, the suit came to be filed seeking permanent injunction against the defendant.
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32. It is pertinent to note that after filing of the written statement by the defendant, the plaintiff got amended the plaint to seek declaration of his title and for possession of the schedule property. The claim of the plaintiff was resisted by the defendant by taking a specific stand that the plaintiff has never acquired any title as even the allottee referred to by the plaintiff was not having any right, title or interest over the schedule property. The specific contention taken by the defendant is that even though a sale deed was executed in favour of Susainathan M.Arbutham - the vendor of the plaintiff, the same was cancelled by BDA by executing the cancellation deed dated 27.07.2001, the copy of which is marked as Ex.D6. Therefore, it is clear that even though the lease-cum-sale deed was executed by BDA in favour of Susainathan M.Arbutham on 19.11.1976, the same came to be cancelled on executing the cancellation deed dated 27.07.2001.
33. Now the question arises as to whether after execution of the registered lease-cum-sale deed dated 19.11.1976 by BDA in favour of Susainathan M.Arbutham, can it be cancelled by executing the cancellation deed on 26 27.07.2001 as per Ex.D6. It is to be considered as to what is the effect of such a cancellation deed executed by BDA.
34. The Registration Act 1908, refers to the registration of various documents and Section 17 of the Act refers to the document which are compulsorily registrable. Section 17(b) refers to execution of non testamentary instrument to extinguish any right, title or interest in the immovable property which is also compulsory registrable. Chapter V of the Specific Relief Act, 1963 deals with cancellation of instruments. Under this Chapter Sections 31 to 33 deals with the circumstances under which a document could be ordered to be cancelled, which are the documents that may be partially cancelled and also regarding the benefit to be restored or compensation to be made when an instrument is cancelled or is successfully resisted as void or voidable. Therefore, it is clear that when once the deed is registered in respect of an immovable property in accordance with law, the same cannot be cancelled unilaterally. Even when such an instrument registered was either void or voidable, the person who intends to avoid the document is required to sue the other party to get the instrument 27 cancelled. The copy of cancellation deed executed by BDA is dated 27.07.2001 and the same is produced by defendant as per Ex.D6. There is reference to the registered lease-cum- sale deed 19.11.1976 under which BCITB sold the schedule site in favour of Susainathan M.Arbutham. The only reason assigned to cancel the deed as mentioned in EX.D6 is as under:
"Now the executant intends to cancel the lease-cum-sale agreement which was executed in favour of Sri A Susainathan, s/o Arputam, residing at No.27, Sadarpatrappa Road, Bangalore- 560 002, as no allotment was made in his favour of the lease-cum-sale agreement dated 19.11.1976 referred to above, entered into between the parties in respect of the schedule site is hereby cancelled."
35. It is pertinent to note at this stage that BCITB not only issued the allotment letter as per Ex.P1 on 30.06.1969, it has collected the sital value as evidenced by Exs.P2 and P3. Even the possession certificate was issued by handing over the possession of the property in favour of the allotee as per Ex.P4 on 10.03.1977. The documents produced by the plaintiff disclose that the khata has transferred in the name of 28 the purchaser and he even paid the tax. He got the sanction plan approved for construction of the building. Ex.P8 dated 14.07.1993 discloses that the plaintiff purchased the schedule property from the original allottee under the registered sale deed. After lapse of about 25 years, BDA unilaterally proceeded to cancel the lease-cum-sale agreement dated 19.11.1976 executed in favour of Susainathan M.Arbutham. When the said cancellation was the unilateral act of BDA, the effect of such a document is to be considered.
36. Learned counsel for the respondents placed reliance on the decision is Satya Pal Anand (supra), wherein, the Hon'ble Apex Court considered the fact that a writ petition was filed under Article 226 of the Constitution of India before the High Court, challenging the order passed by the Inspector General as well as the Sub Registrar and sought for declaration that the extinguishment deed and the subsequent deed were void-ab-inito with a further direction to the Inspector General (Registration) and the Sub-Registrar (Registration) to record the cancellation of those documents. The writ petition was dismissed by the Division Bench of the High Court on the ground that the petitioner had already had 29 recourse to a remedy before the appropriate forum and the same was pending and the declaration sought in the writ petition could be considered in those proceedings, since the alternative remedy is available before the Competent Authority, the writ petition came to be dismissed.
37. In an appeal preferred before the Division Bench, a split verdict came to be passed with one view holding that the High Court was right in dismissing the writ petition and raising a question as to whether in the absence of any specific Rule in the State of Madhya Pradesh, the general principle laid down in Thota Ganga Laxmi Vs State of Andhra 2 Pradesh , would still arise for consideration? At the same time, the second view from the Division Bench was that the Sub-Registrar (Registration) had no authority to register the extinguishment deed presented by the respondent and holding that such action of registration of such document was void-ab-initio. As a result, allowed the appeal.
38. Since there was difference of opinion between the two Hon'ble Judges, the appeal was placed before the three 2 (2010) 15 SCC 207 30 Judge Bench of the Hon'ble Apex Court. One of the question raised before the three Judges Bench is:
"(e) Whether the Sub-Registrar (Registration) had no authority to register the extinguishment deed dated 09.08.2001, unilaterally presented by the respondent society for registration?"
39. The three Judge Bench after considering the various decisions on the point in the light of the specific provisions of law, answered the above question along with other connected issues in para 34 as under:
"34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered. Section 17 of the Act of 1908 deals with documents which require compulsory registration. Extinguishment Deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by 31 reference to Government maps and surveys. There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration.
The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered."
(Emphasis supplied)
40. It is also relevant to refer to the decision in Sasikala Vs Revenue Divisional officer-cum-Sub 3 Collector, Devakottai and another , rendered by the three Judge Bench of Madurai, Madras High Court. A writ petition was filed under Article 226 of the Constitution of India for issuance of writ of certiorari. Challenging the order passed by 3 (2010) 15 SCC 207 32 the learned single Judge, a writ appeal was preferred. The Division Bench relying on the decision of the Hon'ble Apex Court is Satya Pal Anand (supra), directed the petitioner to approach the Civil Court. Since the view expressed by the coordinate Bench in P Rukumani and Others Vs 4 Amudhavalli and Others , was contrary to the view expressed by the Full Bench in Latif Estate's case, the Division Bench referred the matter to the larger Bench by raising the question as to "whether the Registrar has the power to accept the deed of cancellation to nullify the deed of conveyance made earlier, when the deed of conveyance has already been acted upon by the transferee."
41. The Full Bench has considered the various decisions including the decision in Satya Pal Anand (supra), in the light of various provisions of law, arrived at a conclusion and answered the reference by holding that the 'Registrar has no power to accept the deed of cancellation to nullify the deed of conveyance made earlier, when the deed of conveyance has already been acted upon by the transferee'. Thus the position of law on the subject is very well settled 4 2020 (1) CTC 241 33 that the Sub Registrar has no authority to accept the deed of cancellation to cancel the lease-cum-sale deed that was executed by BCITB in favour of Susainathan M.Arbutham.
42. Admittedly, the cancellation deed Ex.D6 was executed unilaterally by BDA without assigning any reason except saying that no allotment was made, the lease-cum- sale agreement dated 19.11.1976 came to be cancelled. The document produced before the Trial Court disclose that initially, there was allotment of site in favour of Susainathan M.Arbutham as per Ex.P1 and even after execution of the lease-cum-sale agreement dated 19.11.1976, the possession of the property was handed over in favour of Susainathan M.Arbutham as per Ex.P4 dated 10.03.1977. Ex.P8 discloses that plaintiff has purchased the schedule property under the registered sale deed dated 14.07.1993. Under such circumstances, the BDA could not have unilaterally proceed to cancel the lease-cum-sale agreement dated 19.11.1976 after lapse of about 25 years, when the same was acted upon and third party interest was created.
34
43. The contention taken by the defendant before the Trial Court is that his wife Smt.Saroja along with her parents was occupying a hut in a slum area since 1960 in Sy.Nos.59 and 60 of Sampigehhalli and she was displaced from the said hut and was allotted the site bearing No.767 situated at Tilaknagar, Hutting Colony by BDA. It is relevant to mention that when the wife of the defendant could not locate the said site No.767, she was put in possession of the site measuring 20 x 30 and her occupation was subsequently regularised by BDA.
44. The documents that are relied on by the defendant disclose that the defendant had filed the suit for declaration and injunction against BDA in OS No.3472 of 1982 in respect of site No.740 of Hutting colony i.e., the schedule property, but the same came to be dismissed on 30.09.1985 as per Ex.D16. Susainathan M Arbutham had filed HRC No.3132 of 1989 seeking eviction of the tenant who was in possession of the schedule property and the same came to be allowed and Execution Case No.5188 of 1990 was filed to obtain the possession of the property. In the meantime, the defendant filed an application to set aside the exparte order of 35 eviction passed in HRC No.3132 of 1989 by filing HRC.Mis.No.457 of 1990. The same came to be allowed vide order dated 20.03.1993. Thereby, the possession of the schedule property was restored in favour of the defendant on 06.08.1993. i.e., during the pendency of the suit before the Trial Court, which was filed on 29.07.1993. Under such circumstances, the plaintiff sought for permanent injunction against the defendant to protect the possession of the schedule property. In view of the subsequent developments since the defendant was restored with the possession of the property, the plaintiff sought for declaration of his title and also for possession of the schedule property.
45. It is also pertinent to note that the wife of the defendant had raised the claim over the schedule property seeking regularization of her occupation over suit No.740. The said claim was rejected by BDA by issuing Ex.P14 dated 24.11.1990. The plaintiff had lodged the complaint with the police as Ex.P12 dated 28.07.1993 alleging that the defendant is attempting to trespass over the schedule property and seeking protection of his possession. It is also pertinent to note that the defendant has filed OS No.3472 of 1982 in 36 respect of the schedule property seeking permanent injunction against the BDA. The said suit came to be dismissed on 30.09.1985 as per Ex.D16.
46. The defendant is relying on the allotment letter dated 24.09.2005 produced as per Ex.D1. Ex.D3 is the lease- cum-sale agreement executed by BDA in favour of Smt.Saroja, the wife of defendant in respect of the schedule property. The sale deed was executed after registering the deed of cancellation on 27.07.2001. The discussions held above discloses that Ex.D6 the cancellation deed registered by BDA cancelling the lease-cum-sale agreement executed in favour of Susainathan M.Arbutham on 19.11.1976 is null and void and it has no effect. Under such circumstances, BDA had no authority to enter into the agreement for lease-cum-sale agreement in favour of Smt.Saroja as per Ex.D3. Exs.D4 and 5 are the possession certificate and khata certificate issued in favour of said Saroja.
47. It is relevant to mention that almost all the document relied on by the defendant to claim right over schedule property came into existence only during 2005 and 37 thereafter, and not earlier to it. The conduct of BDA, the defendant and his wife Smt.Saroja in claiming the right over the schedule property on the basis of the documents that came into existence during or after 2005, after executing Ex.D6 cancelling the lease-cum-sale agreement of the year 1976, speaks volumes. The contention taken by the defendant in the written statement that his wife was displaced from a hut situated in Sy.Nos.59 and 60 of Sampigehalli and thereafter she was allotted site No.767 at Tilkanagar. However, she could not locate the said site and came in possession of site No.20 x 30 and sought for regularisation of her possession by BDA assumes importance in deciding the matter. Simply because the wife of the defendant could not locate her site No.767 at Tilknagar, she cannot be permitted to squat over the schedule property, that too, when the BDA at the initial stage rejected her claim for regularization of her possession as per the endorsement dated 24.11.1990 produced as per Ex.P14.
48. Therefore, I am of the opinion that the defendant has not substantiated his contention that his wife is having any right over the schedule property and she is entitled to be 38 in possession of the same. On the other hand, the plaintiff is successful in proving his contention regarding the ownership over the schedule property and also trespass of the defendant on the schedule property without any right. Hence, the plaintiff is entitled for declaration of his title and also a decree for possession directing the defendant to vacate and hand over the possession of the schedule property.
49. The appellant has filed application Misc.Cvl.No.3672 of 2010 under Order XLI Rule 27 of CPC seeking permission to produce additional documents. The additional documents that are sought to be produced are the minutes of meetings and the Resolution passed in such meetings of BDA to contend that Susainathan M.Arbutham, the original allottee was notified about cancellation of the lease-cum-sale agreement and sufficient opportunity was given to him for following the principle of natural justice. Any amount of evidence or documents will not legalise Ex.D6 - the cancellation deed executed and registered unilaterally by BDA. Even if these documents are taken into consideration, the position of law is that such cancellation deed could not be executed to undo the effect of the registered deed already 39 executed and acted upon. Therefore, the additional documents sought to be produced are not relevant to be considered and even if it is considered, it will not improve the case of the defendant. Under such circumstances, Misc.Cvl.No.3672 of 2010 is liable to be dismissed.
50. I have gone through the impugned judgment and decree passed by the Trial Court. The Trial Court considering all the materials on record has rightly come to the conclusion that the plaintiff is the absolute owner in possession of the schedule property and has decreed the suit of the plaintiff. There is no perversity or illegality in the impugned judgment and decree passed by the Trial Court. Hence, there are no grounds made out to interfere with the well reasoned judgment and decree passed by the Trial Court. Accordingly, I answer the above points in the negative and proceed to pass the following:
ORDER
(i) Misc.Cvl.No.3672 of 2010 is dismissed.
(ii) The appeal is dismissed with costs. 40
(iii) The judgment and decree dated 15.12.2006 passed in OS No.4677 of 1993 on the file of the learned VII Additional City Civil Sessions Judge, Bengaluru City (CCH-27), is hereby confirmed.
Registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE *bgn/-