Smt. Navaneethamma vs The Commissioner
2023 Latest Caselaw 5265 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF AUGUST, 2023

                              BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

          REGULAR FIRST APPEAL No.119 OF 2017 (INJ)

BETWEEN:

Smt. Navaneethamma
W/o. Late R.Muniraju
Since deceased
Represented by her L.Rs.

1.        Ashok Kumari, 56 years,
          W/o. Subramani,
          R/o.4171/A, 9th Cross,
          Near Canara Bank,
          Subramanyanagar,
          Bengaluru - 560 021.

2.        M. Venkatesh, 51 years,
          S/o. Late R. Muniraju.

3.        Smt. M. Shantha, 46 years,
          D/o. Late R. Muniraju

L.R.No.2 & 3 are the
Residents of No.3561/65,
7th Cross Road, II 'A' Main Road,
"B" Block, Gayathrinagar,
Bengaluru - 560 021.
                                          ...Appellants
(By Sri. K. Govindaraj, Advocate)

AND:

     1.     The Commissioner
            B.B.M.P.,
            Bengaluru 560 002.
                                               R.F.A.No.119/2017

                              2



2.   The Asst. Revenue Officer (West),
     Rajajinagar Area,
     B.B.M.P., Bhashyam Park,
     Bengaluru 560 003.

3.   The Assistant Executive Engineer,
     Rajajinagar Sub-Division,
     B.B.M.P., Bengaluru.
                                              ...Respondents
(By Sri. G. Chandrashekharaiah, Advocate)

                            ****

      This Regular First Appeal is filed under Section 96 read
with Order XLI Rule 1 of the Code of Civil Procedure, 1908,
praying to:

           a)    call      for    the      records    in
     O.S.No.7842/2009 on the file of the learned XVI
     Additional City Civil and Sessions Judge, Bengaluru
     (CCH-12),


           b)   set aside the judgment and decree
     dated 06.10.2016, passed in O.S.No.7842/2009, by
     the learned XIV Addl. City Civil & Sessions Judge,
     Bengaluru,

           c)    to decree this suit for permanent
     injunction, permanently restraining the defendants,
     their servants, agents, supporters and henchmen
     from anyway interfering with the peaceful
     possession and enjoyment of the suit schedule
     property of the plaintiff and to stop construction
     work and

           d)    Grant such other relief/s as this Hon'ble
     Court deems fit, by considering the facts and
     circumstance of the case, in the interest of justice
     and equity.
                                                     R.F.A.No.119/2017

                                   3



        This Regular First Appeal having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
18-07-2023, coming on for pronouncement of judgment this
day, the Court delivered the following:


                          JUDGMENT

This is a plaintiffs' appeal. The present appellants as

plaintiffs had instituted a suit against the present

respondents, arraigning them as defendants in

O.S.No.7842/2009, in the Court of the learned XVI

Additional City Civil and Sessions Judge, Bengaluru City,

(CCH.No.12), (hereinafter for brevity referred to as "the

Trial Court"), seeking the relief of permanent injunction,

restraining the defendants from interfering with their

peaceful possession and enjoyment over the schedule

property and to stop the construction work and such other

reliefs.

2. The summary of the case of the plaintiff in the

Trial Court was that, the original plaintiff -

Smt. Naveneethamma is the owner of the suit schedule

property having purchased the same under a registered R.F.A.No.119/2017

Sale Deed dated 28-02-1981 from one Smt. Radha

Varadarajan for a valuable consideration. The khata of the

suit schedule property was made in her name and she has

been paying the taxes to the Corporation in respect of the

suit schedule property and enjoying the possession of the

suit schedule property.

It is the further case of the original plaintiff that

though she had obtained an approved plan for putting up

a construction on the suit land, however, due to the sad

demise of her husband and due to the financial

constraints, the same could not be materialised. That

being the case, on the date 05-10-2009, through her

daughter, she came to know that the defendant - Bruhath

Bengaluru Mahanagara Palike (hereinafter for brevity

referred to as "the BBMP") through its workers was

carrying out the construction work. Though she gave a

representation to the defendant No.1 - the Commissioner

of the BBMP requesting the said authority to suspend the

work, however, the same was not materialised. This R.F.A.No.119/2017

constrained the plaintiff to file the present suit for the

relief of permanent injunction against the defendants.

3. In response to the suit summons served upon

them, the defendants appeared before the Trial Court

through their counsel and filed their Written Statement.

In the Written Statement, the defendants denied the title

and possession of the plaintiffs over the suit schedule

property. They contended that there is a playground area

called as 'Tank area play ground' situated in

Subrahmanya Nagar, measuring an extent of 25,208 sq.ft.

The said entire area is a vacant land belonging to the

defendant - BBMP without any constructions there upon

excluding the construction put up by the BBMP. It is also

contended that in the said playground area, the

defendants are constructing a building on their own land,

in an area measuring 70 ft. x 40 ft. and putting up a

'Public Library' and a 'Bangalore One Centre'. They denied

that the plaintiff had obtained any sanctioned plan to put

up construction on the alleged suit schedule property.

R.F.A.No.119/2017

The defendants further contended that the original

plaintiff was directed to produce some documents after

the defendant BBMP received the representation from her.

However, the plaintiff failed to produce certain information

and the required documents to show her alleged

ownership over the suit schedule property. Even the

plaintiff did not produce any document to show that her

alleged vendor had title over the suit property. The

defendants categorically contended that it is they who are

in possession of the property and putting up a Public

Library and Bangalore-One Centre on their own land,

without encroaching upon any of the property in general

and the alleged suit property of the plaintiffs in particular.

The defendants also contended that since the suit

was filed without issuing statutory notice, though they

were required to be issued under Section 482 (1) of the

Karnataka Municipal Corporations Act 1976, (hereinafter

for brevity referred to as "the KMC Act"), the plaintiff was

not entitled for any relief. With this, the defendants

prayed for dismissal of the suit of the plaintiffs.

R.F.A.No.119/2017

4. Based on the pleadings of the parties, the Trial

Court framed the following issues for its consideration:

1. Whether the plaintiff proves her lawful possession over the suit schedule property on the date of suit?

2. Whether the plaintiff proves the alleged interference and obstructions to such of her possession and enjoyment of the schedule property, by the defendants and their men and also the attempt of putting up of illegal construction in the schedule property by trespass and encroachment?

3. Whether the suit as brought is not maintainable for non-issuance of statutory notice under Section 482 of KMC Act?

4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

5. What order or decree?

During the pendency of the suit before the Trial

Court, the original plaintiff was reported to be dead and

her legal representatives were brought on record.

R.F.A.No.119/2017

5. In support of her case, the plaintiff got examined

one Sri.A.S. Subramani, her General Power of Attorney

holder, as PW-1 and got marked documents from Exs.P-1

to P-22(a). On behalf of the defendants, one Smt.

Chandrakantha, the Assistant Revenue Officer of the

defendant - Corporation was examined as DW-1 and got

produced and marked Exhibits D-1 to D-12.

6. After hearing both side, the Trial Court by its

impugned judgment and decree dated 06-10-2016 while

answering all the issues framed by it in the negative,

dismissed the suit of the plaintiff. Aggrieved by the same,

the plaintiffs, who are the legal representatives of the

deceased original plaintiff have preferred the present

appeal.

7. The Trial Court records were called for and the

same are placed before this Court.

8. The learned counsel for the appellants (plaintiffs)

and learned counsel for respondents (defendants) are

appearing physically before the Court.

R.F.A.No.119/2017

9. Heard the arguments of the learned counsel for

the plaintiffs (appellants herein) and the learned counsel

for the defendants (respondents herein).

10. Perused the material placed before this Court

including the impugned judgment, memorandum of

Regular First Appeal and the Trial Court records.

11. For the sake of convenience, the parties herein

would be henceforth referred to as per their rankings

before the Trial Court.

12. Learned counsel for the plaintiffs (appellants) in

his argument contended that, the Trial Court has not

appreciated the evidence placed before it in its proper

perspective. The Trial Court relied upon Ex.D-7, a letter

by the Bangalore Development Authority, Bangalore

(hereinafter referred to as "the BDA") and disbelieved the

existence of the plaint schedule property without

considering the other documents produced by the plaintiff

including the khata certificate, tax paid receipt and

encumbrance certificates.

R.F.A.No.119/2017

Learned counsel further submitted that though a

Court Commissioner was appointed by the Trial Court,

however, without waiting for the report of the said

Commissioner, the Trial Court proceeded to dispose of the

matter. With this, he prayed that the appeal filed by the

plaintiff deserves to be allowed and the suit of the plaintiff

be decreed with costs.

13. Per contra, learned counsel for the defendants

(respondents herein) in his argument submitted that, the

defendants have, throughout, taken a contention that the

suit schedule property was not at all in existence. The

original plaintiff has utterly failed to establish the

existence and identity of the suit schedule property. When

the very existence of the suit schedule property is

doubtful, the alleged possession of the suit schedule

property by the plaintiff falls to the ground. Merely

because the plaintiff is shown to have produced an

endorsement and tax paid receipt, the same would not

establish the existence of the suit schedule property.

R.F.A.No.119/2017

Learned counsel further submitted that the original

plaintiff has failed to show that the suit schedule property

was carved out of Sy.No.30 and that she had purchased

the said property carved out in Sy.No.30. In the said

background, a suit for bare injunction was not

maintainable, as such, the Trial Court, by giving a detailed

reasoning, has rightly dismissed the suit of the plaintiff.

As such, the impugned judgment of the Trial Court does

not warrant any interference at the hands of this Court.

14. In the light of the argument addressed by the

learned counsels from both side and other materials

placed before this Court, the points that arise for my

consideration in this appeal are :

i] Whether the original plaintiff has proved her lawful possession over the suit schedule property as on the date of the institution of the suit?

ii] Whether the original plaintiff has proved the alleged interference in her alleged lawful possession and enjoyment of the suit schedule property by the defendants?

R.F.A.No.119/2017

iii] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?

15. One Sri.A.S. Subramani, S/o. Late A.S.

Srinivasalu, as the General Power of Attorney (GPA) of the

original plaintiff - Smt. Navaneethamma was examined

prior to the death of said Smt. Navaneethamma, as PW-1.

The said witness, in his examination-in-chief, has

reiterated the summary of the plaint averments even in

his examination-in-chief also, filed in the form of affidavit

evidence. He got produced and marked the General Power

of Attorney shown to have been executed in his favour by

the original plaintiff, at Ex.P-1. He produced the original

registered Sale Deed dated 28-02-1981, shown to have

been executed by one Smt. Radha Varadarajan as vendor

in favour of the original plaintiff - Smt. Navaneethamma.

According to PW-1, the suit schedule property was sold by

the said Smt. Radha Varadarajan in favour of the original

plaintiff - Smt. Navaneethamma. In the said Sale Deed,

the vendor is shown to have stated that the suit schedule R.F.A.No.119/2017

property came to her from one Sri. Narayanappa, under a

registered Sale Deed dated 14-12-1971. However, the

said Mother Deed has not been produced by the plaintiffs.

He produced an endorsement shown to have been issued

by the then Bangalore City Corporation (BCC) stating

about the transfer of khata with respect to the suit

schedule property in favour of the original plaintiff, at

Ex.P-3. However, the witness has called the said

document as 'Khata Certificate'. Ex.P-4 is the property tax

receipt with respect to the suit schedule property shown to

be for the years 1982 to 2008 and paid on the date

19-11-2009. Ex.P-5, though called by the witness as an

endorsement issued by the Bangalore City Corporation,

but it appears to be a calculation sheet with a rubber

stamp of the defendant - BBMP. Ex.P-6 and Ex.P-7 are the

two Encumbrance Certificates covering a period from

01-05-1971 to 08-10-2009. The said Encumbrance

Certificates reflects the sale transaction said to be of suit

schedule property between Smt. Radha Varadarajan and

the original plaintiff - Smt. Navaneethamma on the date R.F.A.No.119/2017

28-02-1981. Ex.P-8 is a copy of the complaint shown to

have been given by the original complainant -

Smt. Navaneethamma to the first defendant -

Commissioner of BBMP, bringing to his notice the alleged

interference in the suit schedule property by the BBMP

officials. However, in the very same complaint, the

original plaintiff has stated that the authorities of the

defendant -BBMP had not collected tax with respect to the

said property stating that in relation to the said property,

there is a playground and there is opposition by the

general public and hence they would collect the tax after

some time. This clearly goes to show that from the date of

her alleged purchase in the year 1981 till the filing of the

suit in the year 2009, the original plaintiff had not paid the

property tax and the defendant- BBMP had not received

any tax by her stating that there was a dispute with

respect to the suit schedule property and there was also a

playground in relation to the suit schedule property.

However, it is not known as to how come the very same

defendant - BBMP has accepted the property tax for all the R.F.A.No.119/2017

years in one stretch for the years 1980 to 2009 i.e. for a

period of 29 years, just before few days to the filing of the

suit by the original plaintiff. Still the fact remains that

from the very first year after her purchase of the property

till the filing of the suit, the original plaintiff was aware

that there was an objection with respect to her title over

the suit schedule property.

16. The original plaintiff through PW-1 has produced

the photographs at Exs.P-9 to P-11 with their negatives at

Exs.P-9(a) to P-11(a) and three more photographs at

Exs.P-20 to P-22 with their negatives at Exs.P-20(a) to

P.22(a), contending that the defendants, through their

workmen were carrying on the construction activity in a

site, which, according to them, was the suit schedule

property.

17. Ex.P-12 is the Encumbrance Certificate shown to

have been issued with respect to the suit schedule

property in favour of Sri. Narayanappa, said to be the

alleged vendor to Smt. Radha Varadarajan, who is stated R.F.A.No.119/2017

to be the vendor to the original plaintiff. Without

explaining what those documents are about and what they

depict, PW-1 has produced two certified copies of the

alleged Sale Deeds dated 03-04-1967 and dated

01-12-1971 which are in the form of a manuscript at

Ex.P-13 and Ex.P-14. He has produced a letter shown to

have been issued by the Chairman, City Improvement

Trust Board, Bengaluru, (hereinafter for brevity referred to

as "the CITB") dated 18-09-1964 at Ex.P-15. The said

document shows that the CITB has asked one Sri.B.N.

Jayasurya and Sri.J. Srinivasa Reddy to pay the layout

charges, for a bit of land. However, the subject in the said

letter is shown as re-conveyance of site No.118/B out of

Survey No.30 of Ketamaranahalli village in Rajajinagar II

Stage. The 'NIL' Certificate of Encumbrance on Property

for the period from 01-10-1966 to 25-03-1967 is marked

at Ex.P-16. The Possession Certificate dated 25-10-1980

shown to have been issued by then CITB (now BDA) in

favour of the above mentioned Smt. Radha Varadarajan

the alleged vendor to the original plaintiff is at Ex.P-17.

R.F.A.No.119/2017

Ex.P-18 is produced as the approved plan for construction

of a building given in the name of said

Smt. Radha Varadarajan. The plaintiff's alleged complaint

dated 24-12-2009 to the Commissioner of Police,

Bangalore, is at Ex.P-19.

18. The above documents produced by the plaintiff,

which inter alia includes Sale Deed, khata endorsement,

tax paid receipt, building plan, complaint to the Police,

though prima facie gives an impression that the plaintiffs

must have been in possession of the suit schedule

property and defendants must have interfered in their

alleged possession, however, the evidence of PW-1, both

oral and documentary, requires a detailed analysis so also

the consideration and analysis of defendants' evidence.

19. At the outset, the original plaintiff in her plaint

has not stated that the suit schedule property was formed

in Sy.No.30 of any place much less Kethamaranahalli

Village. However, in the cross-examination through PW-1,

she has, for the first time, stated that the suit schedule

property was carved out in Sy.No.30 of Kyathamaranahalli R.F.A.No.119/2017

Village and one Jayasuri Srinivasa Reddy has formed the

Layout in Sy.No.30. Though she has stated that she has

produced the Layout Plan, however, no such document

called 'Layout plan' has been produced by her. In fact,

she has admitted in the cross-examination of PW-1 that,

she does not have the approved plan. Therefore, at the

outset, her contention that the suit schedule property was

one among the ten sites carved out in Sy.No.30 by

forming a Layout with a Layout plan stands un-

corroborated and creates a serious doubt in the case of

the plaintiff. Even though the plaintiff has stated that the

Sale Deed at Ex.P-13 shows that the suit schedule

property was in Sy.No.30, however, the said Sale Deed

dated 03-04-1967 does not appear to be establishing the

nexus between the suit schedule property as described in

the plaint schedule to that of the property described

therein. Further, there is no whisper in the pleading about

formation of any sites in Sy.No.30 of Kethamaranahalli

Village by anybody, much less by one Sri. Jayasuri

Srinivasa Reddy and the very same property later being R.F.A.No.119/2017

identified with the description as given in the schedule to

the plaint. Therefore, Ex.P-13 and Ex.P-14 would be of no

much avail to the plaintiff.

20. The Sale Deed dated 28-02-1981 at Ex.P-2

though shows that the plaint schedule property was sold

by one Smt. Radha Varadarajan in favour of the original

plaintiff - Smt. Navaneethamma, however, the Mother

Deed in favour of Smt. Radha Varadarajan at Ex.P-14 and

the Sale Deed in favour of the vendor to Smt. Radha

Varadarajan which is at Ex.P-13 though mentions about

the formation of a Layout plan, however, no such

documents of any approved Layout plan is produced. As

such, the alleged existence of the suit schedule property is

only based upon a recital in the Sale Deed and the

existence of which property the defendant - BBMP has

seriously disputed.

21. According to the plaintiff, the property was re-

conveyed to Sri.B.N. Jayasuri Srinivasa Reddy, however,

admittedly, no Re-conveyance Deed has been produced by

the plaintiff. Except the intimation shown to be issued by R.F.A.No.119/2017

the CITB on the date 18-09-1964 asking the said Sri.B.N.

Jayasurya and Sri.J. Srinvisa Reddy to pay the layout

charges, however, there is no evidence of any sort

whatsoever to show that such a Layout charge was paid or

that the site was re-conveyed or that any sites were

formed in the alleged Layout and re-conveyed to the

intended purchasers. All these doubts remain un-

answered, both in the plaint and in the evidence of the

plaintiff. The so-called Sale Deeds at Ex.P-13 and Ex.P-14

and the letter at Ex.P-15 including the alleged sanctioned

plan at Ex.P-18 are all with respect to a property described

as site No.118/B, II Stage (Milk Colony), Rajajinagar,

Bangalore, whereas the suit schedule property is described

with site No.118/B/88/2 in 'A' Block, Milk Colony, II Stage,

Rajajinagar, Bangalore. Thus, going by the description of

the property mentioned in the documents mentioned

above to that of the description of the suit property in the

plaint schedule, they are shown to be different properties.

There is no material to show as to how come the

property/Site NO.'118/B' in Ex.P-13, Ex.P-14, Ex.P-15, R.F.A.No.119/2017

Ex.P-16 and Ex.P-17 became property/site No.

'118/B/88/2', with the introduction of '88/2' and a block by

name 'A' Block, in the description of the suit schedule

property in the plaint.

22. In addition to the above, the evidence of DW-1

and the documents produced on behalf of the defendants

as exhibits from Exs.D-1 to D-12 further creates a doubt

about the existence and possession of the suit schedule

property by the plaintiff. The defendants, through DW-1,

throughout, have taken a contention that the suit schedule

property does not exist and is not identifiable, as such, a

specific contention was taken by the defendants at the

earliest point of time and a question was also put to PW-1

in his examination-in-chief and specifically contended by

DW-1 in her evidence. DW-1 in her examination-in-chief

has reiterated the contentions taken up by the defendants

in their Written Statement. Among the twelve documents

produced by them, Ex.D-7 is a letter by the BDA in favour

of the defendant BBMP and dated 04-01-2011, stating that

the site with number '118/B' was not found existing in R.F.A.No.119/2017

Rajajinagar II Stage. Further, the defendant - BBMP also

vide its letter/endorsement dated 08-12-2009 at Ex.D-8

has written to the original plaintiff in response to her

complaint of the alleged interference in the suit schedule

property by the defendants, requesting her to produce any

letter/endorsement by the BBMP calling upon the plaintiff

to pay the property tax in respect of her alleged suit

property, since the said property was falling in Tank Bund,

which has been used as a playground by the general

public and that the said matter was required to be

decided, as such, the collection of property tax was

deferred. Further, in the same letter, the plaintiff was also

requested to produce the document with respect to any

Sale Deed by the BDA in favour of Smt. Radha

Varadarajan who is the alleged vendor to the plaintiff and

the sketch of the property, if any. The said documents

were sought for by the BBMP giving the reason that the

plaintiff has relied upon the Possession Certificate with

respect to site No.118/B shown to have been issued by the

BDA to her vendor Smt. Radha Varadarajan.

R.F.A.No.119/2017

23. Despite the above query by the defendant BBMP

(erstwhile Corporation) and calling upon the plaintiff to

produce those documents, there is nothing on record to

show that the plaintiff has complied the request made to

her by producing the documents she was called for.

Thus, it can be inferred that the plaintiff did not possess

those documents at all to substantiate the alleged flow of

title to her with respect to the suit property.

24. The original plaintiff, through the cross-

examination of PW-1 has made the following statements in

the relevant pages:

At internal page No.7:

"Suit property comprises in Sy.No.30 of kyathamaranahalli village"

At internal page No.8:

" My property is not situated within the tank bund area"

"It is true to suggest that the tank bund is a playground"

"I claim the schedule property in the playground."

R.F.A.No.119/2017

The above statements of the plaintiff through PW-1

are contradictory to each other, inasmuch as, at one

place, he says that the plaintiff's property is not situated in

tank bund and admits that the tank bund is a Playground

area and in the same breath, he says that the plaintiff is

claiming schedule property in the Playground. Thus, it

means that the plaintiff is claiming an area in the tank

bund, where even according to her, her property is not

situated. Further, in page No.8 of the cross-examination

of PW-1, the witness has stated as below:

"Playground might be measuring 25,208 sq. feet. It is true to suggest that the said measurement property belongs to the Defendants. It is true to suggest that we are not claiming any portion in the Playground. The Playground is situated in Sy.No.27. My claim is in respect of Sy.No.30 land."

These statements made by the plaintiff through

PW-1 are again contradictory to each other and supports

the case of the defendants rather than the plaintiff's case, R.F.A.No.119/2017

because, she does not dispute that the measurement of

the Playground was in total 25,208 sq. feet which is also

the case of the defendants both in their pleading as well in

their evidence through DW-1. She clearly admits that the

said measurement property belongs to the defendants.

She also admits that she does not claim any portion in the

Playground. She concedes that the tank bund is a

Playground and has categorically stated that her property

is not situated within the tank bund area. Therefore, her

own contradictory statements made through PW-1 has put

her case more in chaos and rather supports the

contention of the defendants that the defendants' property

is in tank bund, which is being used as a Playground with

25,208 sq. feet situated in Sy.No.27 of Kethamaranahalli

Village. Thus, the plaintiff, who has at different places

stated that her suit schedule property is in Sy.No.30, has

herself conceded through PW-1 that the tank bund and

Playground area are in Sy.No.27 with respect to which

property, she has no claim whatsoever.

R.F.A.No.119/2017

25. In addition to the above, the plaintiff through

PW-1 in his cross-examination at page.8 has admitted a

suggestion as true that the defendants are constructing a

building in Sy.No.27. Though she stated that the

defendants are also putting up a construction in Sy.No.30,

however, she has failed to produce any piece of evidence

to show the existence of the suit schedule property and

the said suit property is a portion of the land bearing

Sy.No.30. She categorically admitted through PW-1 in his

cross-examination at page.9 that the suit schedule

property is not coming in Sy.No.27. A suggestion made to

the witness that the plaintiffs are claiming portion of

Sy.No.27 as Sy.No.30 was denied by PW-1.

26. PW-1 in his further cross-examination admitted

a suggestion as true that, the Sale Deed at Ex.P-2 shown

to have been standing in favour of the original plaintiff

does not reveal the suit schedule property as carved out of

Sy.No.30 and that it does not even reveal as to in which

survey number, the suit property was carved out. Though R.F.A.No.119/2017

PW-1 in his cross-examination has stated that the

property was re-conveyed to Smt. Radha Varadarajan by

the BDA in the year 1980, however, as observed above,

except a Possession Certificate at Ex.P-17, no other piece

of document evidencing the re-conveyance of the suit

property in favour of Smt. Radha Varadarajan has been

produced by the plaintiff.

27. PW-1 in his further cross-examination has

attempted to give the boundary of the playground of the

defendants and that of the suit schedule property. In the

said process, PW-1 has stated that the playground is

bounded on the East by BDA property and the plaintiff's

property and the plaintiff's property is bounded on the

West by a playground. Whereas the plaint schedule shows

that the suit schedule property is bounded on the West by

a Road. Though PW-1, at a later point of time, attempted

to show that the plaintiff's property and the BDA property

is divided by a Road, however, that is clearly an attempt

of a patch-up to overcome the discrepancy. Had really R.F.A.No.119/2017

there was a Road on the Western side of the suit schedule

property, PW-1 should not have stated in his cross-

examination that the defendants' playground was bounded

on the East by the plaintiff's property, rather he would

have stated that it was bounded with a road at its Eastern

side.

28. In addition to the above, PW-1 in his cross-

examination at page No.11, has admitted a suggestion as

true that the plaintiff's property is not demarcated.

However, the very same witness in his further cross-

examination, on the next date of hearing, has stated that

the plaintiff's suit schedule property has been demarcated

and taken the report of the Surveyor. Thus, his own

statements are contradictory to each other.

29. Added to that, though PW-1 has stated that the

Surveyor's report is produced before the Court, however,

the Court record does not find any such report.

30. Lastly, PW-1 in his further cross-examination at

page No.13, has categorically stated that, the plaintiffs are R.F.A.No.119/2017

not in possession of any part in Sy.No.27 and the land in

Sy.No.27 might have remained as a playground.

Therefore, when the plaintiff herself through PW-1 has

stated that the tank bund is used as a playground and the

plaintiff's property is not in tank bund and the said

playground is situated in Sy.No.27 and that she has not

claimed any right with respect to property bearing

Sy.No.27 and further when conceded the construction of a

Library building in Sy.No.27, it falsifies the entire case of

the plaintiff that the suit schedule property is in existence

and identifiable and further that it is in possession of the

original plaintiff (later by her legal representatives).

31. DW-1 who deposed on behalf of the defendants

has categorically and specifically stated that the suit

schedule property is not in existence. The entire

construction activity which the plaintiff calls as

interference is the construction of a 'Library building' and

'Bangalore One Center' by the defendant - BBMP in the

land bearing Sy.No.27 of Kethumaranahalli Village, R.F.A.No.119/2017

Yeshwanthapura Hobli, Bangalore North Taluk, which is a

Government Tank, measuring 08 Acres 30 Guntas.

To substantiate the same, the defendants have

produced the copies of the RTCs at Ex.D-1 and Ex.D-2,

which RTCs, though initially shown that the said property

in Sy.No.30 was in possession of Sri. Jayasurya and

Sri. Srinivasa Reddy, later came to be in possession of one

Sri.K. Narayana S/o. Venkataraju, however, the property

throughout has been identified as a Government Tank and

later the said property is shown to have been acquired by

the CITB (now BDA). Thus, as on the date of purchase by

the vendor to the plaintiff, it remained no more as a

property belonging to either the previous vendor of Smt.

Radha Varadarajan, i.e. Sri. Narayanappa or the other

persons, i.e. Sri. Jayasurya and Sri. Srinivasa Reddy. The

revision settlement extract called as Akaarband by the City

Survey Department at Ex.D-3, certified copy of Tippani by

the City Survey Department at Ex.D-4, khata extract of

the playground area/tank area which was later shown to R.F.A.No.119/2017

be given a Municipal number as '19' and measurement of

area as 25,208 sq. ft., shows that they stand in the name

of the defendant - BBMP (earlier called Bangalore City

Corporation-BCC). Thus, it further rules out the existence

of the suit schedule property with the description given by

the plaintiff in her schedule to the plaint as on the date of

the institution of the suit.

32. Even though the plaintiff has not produced the

alleged Re-conveyance Deed between CITB and her

vendor - Smt. Radha Varadarajan, however, the

defendants have produced a certified copy of the

agreement dated 09-02-1976 and its Rectification Deed

dated 16-11-1976 at Ex.D-11 and Ex.D-9 respectively.

The description of the property given there does not tally

with the description of the plaint schedule property. Thus,

the contention of the defendant - BBMP, expressing its

doubt about the existence and identity of the suit schedule

property further stands corroborated by the oral evidence

of DW-1 and stands established by the documentary

evidence produced by the defendants. Therefore, the very R.F.A.No.119/2017

existence and identity of the suit schedule property is in

serious doubt.

33. Our Hon'ble Apex Court in the case of NAHAR

SINGH Vs. HARNAK SINGH AND OTHERS reported in

(1996) 6 Supreme Court Cases 699, which judgment was

relied upon by the learned counsel for the defendants

(respondents herein), was pleased to observe in

paragraph 6 of its judgment that, it is well settled that

unless the property in question for which the relief has

been sought for is identifiable, no decree can be granted in

respect of the same. Thus, the plaintiff is also required to

overcome the contention of the defendants and establish

the identify of the suit schedule property, which in the

instant case, the plaintiffs have failed to do.

34. The learned counsel for the plaintiffs (appellants

herein) contended that the Trial Court proceeded to

dispose of the matter, before the Commissioner appointed

for local inspection could submit his report, as such, the

impugned judgment deserves to be remanded.

R.F.A.No.119/2017

35. During the pendency of this appeal, the

appellants though were required to file additional

documents, if any, through an interlocutory application

under Order XLI Rule 27 of the Code of Civil Procedure,

1908, (hereinafter for brevity referred to as "the CPC"),

however, have filed a memo, along with a document in the

form of a certified copy of the order sheet of the Trial

Court in O.S.No.7892/2009, from which suit the present

appeal has arisen.

A perusal of the said order sheet would go to show

that, at the instance of the defendants in the Trial Court

who had filed an interlocutory application under Order 26

Rule 9 of the CPC, a Court Commissioner came to be

appointed by allowing the said application.

A Surveyor of the City Survey Department,

Bangalore, was appointed as the Court Commissioner. A

warrant of the Court Commissioner for executing the

commission work was also issued. The said process took

nearly nine months. However, vide letter dated

06-07-2013 and as noticed in the order sheet dated R.F.A.No.119/2017

31-07-2013, the Court Commissioner returned the warrant

and also the memo of instructions as he had not received

the Sale Deeds pertaining to Sy.No.27 and Sy.No.30,

khata, tax paid receipts and the memo of instructions of

the plaintiff. As such, the Court Commissioner returned

the warrant un-executed. Thus, due to the

non-co-operation of the plaintiff to execute the

Commissioner's work including the non-production of the

Sale Deed, khata certificates, tax paid receipts, memo of

instructions, the Commissioner had to return the warrant,

without executing the Commissioner's work. The plaintiff,

at whose fault, the Commissioner's work could not

continue and complete has not even filed any application

seeking to recall the Commissioner and for a direction to

the Commissioner to proceed with the Commissioners'

work. As such, when the plaintiff herself has not allowed

the Commissioner to proceed with the Commissioner's

work which has resulted in the Commissioner returning

the warrant to the Court, now the very same plaintiff, by

her legal representatives as the appellants in this appeal R.F.A.No.119/2017

cannot contend that the Trial Court ought not to have

proceeded further without there being any Commissioner's

report. Thus the said point of argument addressed by the

learned counsel for the plaintiffs is also not acceptable.

36. Resultantly, since as analysed above, the

plaintiffs have utterly failed to establish the existence and

identity of the alleged suit schedule property and their

possession over the suit schedule property, the question of

the alleged interference by the defendants in the suit

schedule property does not arise.

37. Even though the photographs at Exs.P-9, P-10,

P-11 and their negatives at Ex.P-9(a), P-10(a) and P-11(a)

and the photographs at Exs.P-20 to P-22 and their

negatives at Exs.P-20(a) to P-22(a) shows the progress of

some construction work, but the defendants have stated

that the said construction work is exclusively within the

land bearing Sy.No.27, which, even according to the

plaintiffs, is the property which does not belong to them

and that the plaintiffs do not dispute that it belongs to the R.F.A.No.119/2017

defendant - BBMP (then Corporation). As such, the

alleged interference also in the alleged suit schedule

property by the defendant - BBMP also has stood not

established/proved by the plaintiffs/appellants.

38. Since it is considering the materials placed

before it in their proper perspective, the Trial Court has

answered the issues framed by it in the negative, resulting

in dismissal of the suit of the plaintiffs, I do not find any

error or irregularity in it, warranting an interference at the

hands of this Court.

As such, I proceed to pass the following:

ORDER

[i] The Regular First Appeal filed by the

plaintiffs (appellants) stands dismissed as

devoid of merit;

[ii] The impugned judgment and decree

dated 06-10-2016 passed by the XVI

Additional City Civil and Sessions Judge, R.F.A.No.119/2017

Bengaluru City (CCH.No.12), in

O.S.No.7842/2009, stands confirmed.

Registry to transmit a copy of this judgment along

with the Trial Court records to the concerned Trial Court,

immediately.

Sd/-

JUDGE

BMV*