G T Mariyappa vs The Commissioner
2022 Latest Caselaw 7962 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA, BENGALURU

             DATED THIS THE 2ND DAY OF JUNE, 2022

                            BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                  R.F.A.No.1856 OF 2005 (DEC)
BETWEEN

1.     G.T.MARIYAPPA
       DEAD BY HIS LRS

       (A)     SMT.GANGAMMA
               W/O LATE G.T.MARIYAPPA
               AGED ABOUT 68 YEARS
               NO.759/26, PIPELINE ROAD
               YESHWANTHPUR
               BANGALORE

       (B)     SMT.M.SHANTHA
               D/O G.T.MARIYAPPA
               AGED ABOUT 45 YEARS

2.     SMT.GANGAMMA
       W/O G.T.MARIYAPPA
       AGED ABOUT 68 YEARS

       APPELLANTS 1 (B) AND 2 ARE
       R/AT NO.753/26, PIPELINE ROAD
       YESHWANTHPUR
       BANGALORE-560 022
                                                ...APPELLANTS
(BY SRI.A.VENKATAREDDY, ADVOCATE)

AND

1.     THE COMMISSIONER
       BENGALURU CITY CORPORATION
       BENGALURU CITY
                             2



2.   SRI.G.C.RAMAIAH
     DEAD BY HIS LRS.,

     (A)   SMT.ANJANAMMA
           AGED ABOUT 72 YEARS
           W/O LATE G.C.RAMAIAH

     (B)   SRI.G.R.MUNIRAJU
           AGED ABOUT 51 YEARS

     (C)   SRI.G.R.ANANDA KUMAR
           AGED ABOUT 48 YEARS

     SL.NO.2(B) & 2 (C) ARE SONS OF
     LATE G.C.RAMAIAH

     ALL ARE R/AT NO.5
     1ST MAIN, G.C.RAMAIAH BUILDING
     GORAGUNTEPALYA
     BENGALURU-560 022

3.   SMT.ASWATHAMMA
     W/O GOPAL
     AGED ABOUT 55 YEARS
     R/AT NO.850/3, L.N.COLONY
     YESHWANTHPURA
     BENGALURU-560 022
                                          ...RESPONDENTS
(BY SRI H.DEVENDRAPPA AND
    SMT.VEENA JADHAR, ADVOCATES FOR R1
    SRI K.SHIVAJI RAO, ADVOCATE FOR R2 (A-C)
    V/O DT:04.10.2021 APPEAL AS AGAINST R3 IS DISMISSED)


      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 1.8.2005 IN O.S.NO.4335/1986
ON THE FILE OF I ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY (CCH.NO.2) DISMISSING THE SUIT FOR
PERMANENT INJUNCTION AND SPECIFIC PERFORMANCE AND
ETC.

      THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                3



                         JUDGMENT

This appeal by the unsuccessful plaintiffs in

O.S.No.4335/1986 is directed against the impugned judgment

and decree dated 01.08.2005 passed in O.S.No.4335/1986 by

the I Addl. City Civil and Sessions Judge, Bangalore City,

whereby the said suit filed by the appellants - plaintiffs for

declaration of title and permanent injunction restraining the

respondents - defendants from interfering with the appellants -

plaintiffs possession and enjoyment of the suit 'B' schedule

property was dismissed by the trial Court.

2. Heard learned counsel for the appellants and

learned counsel for the respondents and perused the material

on record.

3. In the suit, it was the specific contention of the

appellants / plaintiffs that the suit 'B' schedule property was a

portion of the 'A' schedule property measuring 15 feet East to

West and 60 feet North to South situated on the East of the 'A'

schedule property. It was contended that the respondents /

defendants attempted to illegally and high-handedly interfere

with the plaintiffs' possession and enjoyment of the 'B'

schedule property and consequently, the plaintiffs instituted

the aforesaid suit seeking the aforesaid reliefs.

4. The defendants No.1 to 3 filed their written

statement and contested the suit denying and disputing the

plaint averments and sought for dismissal of the suit.

5. Based on the above pleadings, the trial Court framed

the following issues:

"1. Whether the description of the suit property in the schedule in true and correct?

2. Whether the plaintiff was in juridical possession of the entire extent of the suit property, exclusively, on the date of suit?

3. Whether the Court fee paid by the plaintiff is insufficient?

4. Whether the second defendant is an unnecessary party to this suit?

5. Whether the plaintiff is entitled for the injunction sought?

6. To what relief's are the parties entitled?

Additional Issue Dated: 07.02.1995.

1. Whether the measurements of suit schedule properties are correct?

Additional Issue Dated: 21.09.2000.

1. Whether the suit property is covered by Sy No. 21/2?

2. Whether the paternal uncle Mare Gowda had purchased the suit property vide sale deed dated: 18.03.1953, as alleged in the plaint?

3. Whether on the suit properties, namely properties under schedules A & B, did the building or construction exist on the date of the suit which plaintiff alleged to have been given No. 753/26 by the Corporation? And

4. Whether the suit property has been reconveyed or left over from acquisition in favour of the plaintiffs appellants if not, its effect?

5. Whether the suit property has been the public Road or public passage as alleged by defendant respondent No.2?

6. Whether defendant No.2 proves that Mare Gowda has sold out the property in favour of 2nd and 3rd person and if yes, whether plaintiffs are entitled to reliefs in the suit?

7. Whether property in suit has been acquired by the Bangalore Development Authority and its possession has been handed over to Bangalore Corporation? "

6. On behalf of the appellants / plaintiffs, plaintiff

1(a) examined herself as PW-1 and two witnesses as PW-2

and PW-3 and Exs.P1 to P41(b) were marked. The defendant

No.2 examined himself as DW-1 and Exs.D1 to D5 were

marked. The defendant Nos.1 and 3 did not adduce oral or

documentary evidence.

7. The trial Court heard the parties and proceeded

to dismiss the suit of the plaintiffs inter alia holding that they

had not established their title, possession or enjoyment as well

as the identity and location of the suit 'B' schedule property.

In this context, it is relevant to state that while considering the

rival contentions, the trial Court dealt with the issue regarding

identity and location of the suit 'B' schedule property, which

were covered under issue No.1, additional issue No.1 dated

07.02.1995 and additional issues framed on 21.09.2000. After

referring to the material on record, the trial Court came to the

conclusion that the identity, location and measurements of the

schedule 'B' property had not been established by the

plaintiffs and consequently, proceeded to reject their claim and

dismiss the suit, aggrieved by which, the appellants are before

this Court by way of the present appeal.

8. During the pendency of the appeal, the appellants

have filed I.A.1/2020 under Order 41 Rule 27 CPC for

permission to adduce additional evidence.

9. The following points arise for consideration in the

present appeal:-

(i) Whether the appellants have made out sufficient

ground to allow I.A.1/2020 and for permission to adduce

additional evidence?

(ii) Whether the impugned judgment and decree

passed by the trial Court warrants interference in the present

appeal.

Re- Point No.(i):

10. As stated supra, the appellants seek to produce

along with I.A.1/2020 additional documents viz., tax paid

receipts, electricity bills and receipts, photographs and other

documents in relation to the 'A' schedule property and 'B'

schedule property. Though the said application is opposed by

the respondents, having regard to the fact that the said

documents pertain to the schedule properties, I am of the view

that the same are relevant and material for adjudication of the

issues in controversy involved in the present appeal and since

the said additional documents have come into existence

during the pendency of the appeal, no prejudice would be

cause to the respondents if the same are received on record.

I.A.1/2020 is hereby allowed and the documents

produced along with the application are received on record.

Re- Point No.(ii):

11. A perusal of the material on record including the

impugned judgment and decree will indicate that it is the

specific contention of the appellants that they are the owners

in possession and enjoyment of the 'A' schedule property, out

of which, the 'B' schedule property is a portion situated on the

eastern side measuring 15 feet x 60 feet. In this context, it is

relevant to note that in their written statement, none of the

defendants have putforth any claim over the 'A' schedule

property or 'B' schedule property claimed by the plaintiffs.

Further, except stating that the property of the plaintiffs had

been acquired by the CITB / BDA and that the plaintiffs have

not established their title or identity of the suit schedule

property, no specific defence with regard to their right, title,

interest or possession over the suit schedule properties have

been set forth in the written statement filed by the respondents

- defendants. In other words, though the plaintiffs had

specifically put forth the claim of title and possession over the

plaint 'A' and 'B' schedule properties, none of the defendants

put forth any claim over the said properties.

11.1 The material on record also discloses that the

oral and documentary evidence adduced by the plaintiffs had

remained unimpeached, uncontroverted and unchallenged in

the cross-examination and no rebuttal evidence had been

adduced by the respondents in support of their defence, so as

to establish that the plaintiffs were not in possession or

enjoyment over the suit schedule properties. It is no doubt

true that there is some discrepancy / ambiguity with regard to

the plaintiffs' title over the suit schedule properties; however,

there is absolutely no discrepancy / ambiguity with regard to

the plaintiffs' possessory title over the suit schedule

properties, particularly when the material on record clearly

establishes that the plaintiffs' were in lawful and peaceful and

possession and enjoyment of the suit schedule properties. In

this context, it is significant to note that the documents

produced by the appellants - plaintiffs along with the

application for additional evidence also clearly establishes that

the appellants were in possession and enjoyment of the suit

schedule property.

11.2 To put it differently, in the absence of any claim

made by the defendants as regards the suit schedule

properties coupled with the material on record, which

establishes that the plaintiffs are in possession and enjoyment

of the said properties, in the light of the well settled principle of

law that possessory title is good, valid and sufficient legal title

as against the whole world except against a person with better

title, I am of the considered opinion that the plaintiffs' had

established their possessory title over the suit schedule

properties against the respondents / defendants. Under these

circumstances, the trial Court clearly fell in error in rejecting

the claim of the appellants by improper and erroneous

appreciation of the material on record warranting interference

by this Court in the present appeal.

11.3 The material on record also indicates that a Court

Commissioner was appointed by the trial Court, who

submitted the report indicating the 'A' and 'B' schedule

properties. It is the grievance of the appellants that the said

report of the Court Commissioner has not been correctly and

properly appreciated by the trial Court while passing the

impugned judgment and decree and this has resulted in an

erroneous conclusion. A perusal of the report of the Court

Commissioner, his evidence, sketch, etc., will indicate that the

'B' schedule property is shown to be in excess of the property

claimed and described by the appellants as schedule 'B'

property in the suit. Under these circumstances, with the

consent of all parties, this Court appointed a Court

Commissioner - the learned counsel Sri.Shashi Keerty to

conduct local inspection and submit a report and a sketch in

relation to the 'A' schedule property, 'B' schedule property and

adjacent vacant land, if any, between the 'B' schedule

property and the property belonging to respondent No.2 /

defendant No.2. Pursuant thereto, the Court Commissioner

conducted local inspection in the presence of the parties and

their respective counsel and submitted a report along with the

sketch and photographs. The report, sketch and photographs

are directed to be made part and parcel of this judgment. All

parties accept the legality, validity and correctness of the

report, sketch and photographs submitted by the Court

Commissioner.

11.4 As stated supra, there was not sufficient evidence

before the trial Court to identify and demarcate the suit 'B'

schedule property measuring East to West 15 feet and North

to South 40feet as claimed by the plaintiffs. In this context, a

perusal of the report, sketch and photographs submitted by

the Court Commissioner are sufficient to indicate that the suit

'B' schedule property has been completely, totally, correctly

and properly identified by the Court Commissioner, whose

report, sketch and photographs clearly establish that the 'B'

schedule property is vacant land and there is additional vacant

land situated in between the 'B' schedule property and the

property of the respondent No.2 / defendant No.2 on the

eastern side. Under these circumstances, I am of the view

that the report, sketch and photographs of the court

Commissioner deserve to the accepted.

11.5 The aforesaid facts and circumstances clearly

establish that the plaintiffs have successfully proved their

possessory title over the 'A' and 'B' schedule properties and

the location, identity, measurements, boundaries, etc., of the

properties also stand established by the report, sketch and

photographs of the Court Commissioner which have been

accepted by all the parties. As stated supra, none of the

defendants have put forth any claim over the 'A' and 'B'

schedule properties. In the light of the material on record, in

particular, the report, sketch and photographs of the Court

Commissioner appointed by this Court, I am of the considered

opinion that the impugned judgment and decree passed by the

trial Court deserves to be set aside and the suit of the

appellants / plaintiffs deserves to be decreed in terms of the

report, sketch and photographs submitted by the Court

Commissioner.

Point No.2 is answered accordingly.

12. In the result, I pass the following:-

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree dated

01.08.2005 passed in O.S.NO.4335/1986 by the learned I

Addl. City Civil and Sessions Judge, Bangalore City, is hereby

set aside.

(iii) The suit of the plaintiffs is hereby decreed as prayed

for in respect of the suit 'A' schedule property and suit 'B'

schedule property as delineated, described and demarcated in

the report, sketch and photographs submitted by the Court

Commissioner before this Court on 01.06.2022, which is

directed to be made part and parcel of this judgment and

decree.

(iv) It is made clear that this judgment and decree

and the observation / findings recorded herein shall not be

construed or treated as declaring any right in favour of the

appellants-plaintiff in respect of the remaining extent of land

situated to the East of the suit 'B' schedule property in the

report, sketch and photographs submitted by the Court

Commissioner.

Sd/-

JUDGE

BMC / SV