Karnataka High Court
Sri Muniyappa vs Sri R Range Gowda on 15 December, 2023
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R.F.A.No.1018/2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
REGULAR FIRST APPEAL No.1018/2006 (RES)
BETWEEN:
1. SRI MUNIYAPPA
S/O LATE MYLARAPPA
SINCE DECEASED BY LRS
1(A) M.R.RAJAGOPAL
S/O LATE MUNIYAPPA
AGED ABOUT 70 YEARS
1(B) SRI.M.SRINIVAS
S/O LATE MUNIYAPPA
AGED ABOUT 60 YEARS
BOTH ARE R/AT NO.246, 18TH MAIN ROAD
2ND CROSS,SUBRAMANYA NAGAR
BANGALORE - 560 021
2. SRI KRISHNA
S/O LATE MYLARAPPA
AGED ABOUT 71 YEARS
R/AT NO.23/41, 18TH MAIN ROAD
2ND CROSS, SUBRAMANYA NAGAR
BANGALORE - 560 021
3. SRI MANJUNATH
S/O LATE MYLARAPPA
AGED ABOUT 40 YEARS
R/AT NO.21/40, 18TH MAIN ROAD
2ND CROSS, SUBRAMANYA NAGAR
BANGALORE - 560 021 ...APPELLANTS
(BY SRI SHEKAR SHETTY, ADVOCATE)
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R.F.A.No.1018/2006
AND:
1. SRI R RANGA GOWDA
S/O LATE RANGAPPA
AGED ABOUT 48 YEARS
R/AT NO.16, 18TH CROSS
BHUVANESHWARI NAGAR
K.P.AGRAHARA, MAGADI ROAD
BANGALORE-560 023
2. SMT KAMALAMMA
W/O LATE B.K.ANANDARAM
AGED ABOUT 73 YEARS
3. SRI B A GOVINDRAJU
S/O LATE B.K. ANANDARAM
AGED ABOUT 33 YEARS
BOTH ARE R/AT NO.781,
17TH B MAIN ROAD, 60TH CROSS,
5TH BLOCK, RAJAJINAGAR
BANGALORE - 560 010 ...RESPONDENTS
(BY SRI.C.SHANKAR REDDY, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH V/C/O DTD: 09.06.2006;
R3 IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
R/W ORDER XLI RULE 1 OF THE CPC, PRAYING TO SET ASIDE THE
JUDGEMENT AND DECREE DATED 17.04.2006 IN EX.NO.
15242/2004 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE
MAYO HALL, BANGALORE (CCH.NO.29), REJECTING THE
APPLICATION FILED BY THE OBJECTORS 1 TO 3 UNDER ORDER
XXI RULES 97 TO 101 OF CPC.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 13.10.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
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R.F.A.No.1018/2006
JUDGMENT & ORDER ON I.A.NO.2/2011
Challenging dismissal of their application filed under
Order XXI Rules 97 to 101 of CPC the objectors in Execution
Petition No.15242/2004 on the file of XXVIII Additional City
Civil Judge (CCH-29), Bangalore have preferred this appeal.
2. Respondent No.1 was the decree holder,
respondent Nos.2 and 3 were the judgment debtors No.1 and
2 and the appellants were objectors in Execution Petition
No.15242/2004 before the Executing Court. For the purpose
of convenience, the parties are referred to henceforth
according to their ranks before the trial Court.
3. The decree holder filed O.S.No.16586/2004
against the judgment debtor Nos.1 and 2 before the trial
Court seeking specific performance of agreement of sale said
to have been executed by them in respect of properties
bearing Municipal Nos.16/1 and 16/2, Khaneshmari
No.33/51, 41st Main road measuring east to west 95 ft and
north to south 30 ft. In the said suit the decree holder and
judgment debtors entered into a compromise on 12.10.2004.
Recording the compromise petition, the compromise decree
was passed in favour of the decree holder for specific
performance of the agreement of sale. Accordingly, judgment
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R.F.A.No.1018/2006
debtor Nos.1 and 2 executed the registered sale deed in
favour of the decree holder.
4. For possession of the property, the decree holder
filed Ex.P.No.15242/2004. The Executing Court issued the
delivery warrant. Since the same was resisted, the decree
holder filed application under Order XXI Rule 35 of CPC for
Police help to take possession of the property. At that time
the objectors resisted the execution. Then they filed
application under Order XXI Rules 97 to 101 CPC before the
Executing Court claiming that they were the owners and in
possession of the property. They sought to set aside the
judgment and decree and compensation of Rs.5,00,000/-
from the decree holder and judgment debtors.
5. The application was contested by the decree
holder contending that the objectors are in no way connected
to the decree holder's property and to make wrongful gain,
they have filed such application. At the first instance, the trial
Court on hearing the parties by order dated 26.09.2005
rejected the said application. The objectors challenged that
order before this Court in RFA No.1524/2005. This Court by
judgment dated 22.11.2005 allowed the said appeal and
remanded the matter to the Executing Court with the
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R.F.A.No.1018/2006
direction to conduct inquiry on the application by giving
opportunity to both the parties to adduce evidence. The
Executing Court was further directed to take assistance of
Assistant Director of Land Records ('ADLR for short) to
determine the rights of the parties in respect of the property
in dispute on securing the necessary records.
6. On such remand, objector No.2 was examined as
AW.1 and other two witnesses were examined as AWs.2 and
3 and got marked Exs.A1 to A189. The decree holder was
examined as PW.1 and on his behalf Ex.P1 to P40 were
marked. The First Division Surveyor who was appointed as
Commissioner was examined as CW.1.
7. The trial Court on hearing the parties by the
impugned order again dismissed the petition holding that the
decree holder's property and property claimed by the
objectors are different. The Executing Court rejected the
claim of the objectors that the decree holder's property is
unidentifiable, etc. The objectors have challenged the said
order in the above appeal.
8. Since the identity of the property was in question
at the instance of the objectors, this Court issued commission
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R.F.A.No.1018/2006
thrice for identification of the property. The Commissioners
A.C.Rajanna and H.K Nataraja, Assistant Directors of Land
Records were examined on 16.08.2011 and 12.08.2013
respectively. Sri Ravishankar, the Advocate Commissioner
who submitted his report was also examined as CW.1 on
02.03.2020. The objectors/appellants have also filed
I.A.No.2/2011 to adduce additional evidence. The same was
opposed by the decree holder.
Submissions of Sri Shekar Shetty, learned Counsel for
the appellant:
9 (i). The suit and decree were the outcome of
collusion between the decree holder and judgment debtor
Nos.1 and 2 to make wrongful gain for the decree holder. The
subject matter of the decree and the objectors' property are
totally different. Even the decree holder/PW.1 in his
evidence unequivocally admitted the same. The decree
holder and his predecessors claimed to have purchased the
share of Muniyappa/the elder brother of objector No.2. No
property by number 16/1 and 16/2 as contended by the
decree holder is in existence. On Munimallappa's property a
road was formed. Therefore, Munimallappa's property was no
more available. That is evident from the fact of the
purchasers not getting the khatha of those properties in their
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R.F.A.No.1018/2006
name and not paying the taxes till the alleged purchase of
the property by the decree holder. Though the decree holder
claims there existed a building on the suit property, no
sanctioned plan was produced nor made available. AW.3,
Assistant Revenue Officer clearly spoke in that regard. That is
also evident from Ex.A.21 gist of the case issued by the office
of the land records. The objectors have constructed building
on their property with the sanctioned plan and building
license and the tenants are residing in the property. The
decree holder is falsely claiming the same to be his property.
The Executing court without appreciating the evidence of the
parties has erroneously dismissed the application and the
same is liable to be set aside.
(ii) This Court on rejecting two reports of the
technical commissioners, issued commission to the advocate.
Therefore, the earlier two commissioners' reports cannot be
looked into. The Executing Court held that the decree
holder's property and objectors' property are two different
properties, but the decree holder has not challenged that
finding. Therefore he cannot claim in this case that the
property claimed by the objectors itself is the decree holder's
property.
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R.F.A.No.1018/2006
10. In support of his submissions, he relies on the
following judgments:
1. Madhukar and Ors Vs. Sangram and Ors.1
2. Vinod Kumar Vs. Gangadhar2
3. Superintending Engineer and Ors. Vs. B Subba
Reddy3
4. Nahar Singh Vs. Harnak Singh & Ors.4
5. P.Chandrasekharan and Ors. Vs. S.Kanakarajan
and Ors.5
6. Shamanna Setty Vs. B.L.Channegowda6
7. Damodaran Vs. K.Karimba Plantations Co. Ltd. And
Ors.7
8. Sundarjas Kanyalal Bhathija and Ors. Vs. The
Collector, Thane, Maharashtra and Ors.8
9. Indian Oil Corporation Ltd. Vs. Municipal
Corporation and Anr.9
10. M.Venkataramana Hebbar (dead) by Lrs. Vs.
M.Rajagopal Hebbar and Ors.10
11. Nagindas Ramdas Vs. Dalpatram Ichharam Alias
Brijram and Ors.11
12. V.K.Rama Setty Vs. A Gopinath12
13. Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and
anr.13
14. Babulal Vs. Raj Kumar & Ors.14
1
(2001) 4 SCC 756
2
(2015) 1 SCC 391
3
(1999) 4 SCC 423
4
(1996) 6 SCC 699
5
(2007) 5 SCC 669
6
ILR 2006 KAR 3588
7
AIR 1959 Kerala 358
8
AIR 1990 SC 261
9
(1995) 4 SCC 96
10
(2007) 6 SCC 401
11
(1974) 1 SCC 242
12
LAWS(KAR)-1997-8-18
13
AIR 1998 SC 1754(1)
14
JT 1996 (2) S.C. 716
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R.F.A.No.1018/2006
15. Shyam Gopal Bindal and Ors. Vs. Land Acquisition
Officer and Anr.15
Submissions of Sri Shankar Reddy, learned Counsel for the
respondent:
11. The objectors' own records namely the partition
deed of 1956 and the subsequent documents under which
they claim their right show that on the northern side of
Mylarappa's property from whom the objectors claim, the
property fallen to the share of Munimallappa through whom
the purchaser of JDRs and JDRs claim, situated. Beyond that
towards north of the same, the property fallen to the share of
M.Govindraju/another sharer situated. Beyond that A.K.
colony existed. When the objectors claim that on the decree
holder's property, road was formed, the burden was on them
to prove the same. Even otherwise according to the
objectors, road measuring 15'x 20' was formed adjacent to
the A.K.Colony. The property adjacent to A.K.Colony was the
share of Govindaraju. If the road is formed on that, beyond
30 feet from A.K. Colony the site of Munimallappa situated.
That also makes it clear that on the property fallen to the
share of Munimallappa, there is no road. The objectors to
make wrongful gain are unnecessarily objecting the
15
(2010) 2 SCC 316
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R.F.A.No.1018/2006
execution of the decree. The objectors own evidence shows
that they were not residing in the suit property or in the
property allegedly fallen to their father's share. AW.3 clearly
admitted before the Executing Court that they have issued
Ex.A21 on the application of the objectors and without any
notice to the decree holder pending Execution Petition. That
goes to show that the objectors managed to secure Ex.A21
and that has no sanctity. Whereas, two commissioners who
are the technical persons appointed by this Court, confirmed
the existence of the property Nos.16/1 and 16/2. The
objectors' claim their property abuts 15th main road. The
Advocate Commissioner in his cross-examination clearly
admitted that he did not verify any official records and he
arrived at such conclusion based on some inscription in a
board embedded to the wall of the house. Therefore,
Advocate Commissioner's evidence is totally unreliable. This
Court while appointing successive commissioner did not
reject the report of the earlier commissioners. Therefore,
there is no merit in the contention that the report of the
earlier two commissioners (technical persons) cannot be
looked into. Mere non-opening of the khatha register or non-
payment of taxes, do not vanish the title of Munimallappa or
his successors. The documents produced by the objectors are
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R.F.A.No.1018/2006
got up for the purpose of this case. Moreover they have no
nexus with the decree holder's property. The objectors who
have the political power have been coming in the way of
execution of the decree for decades together with
unsustainable claim and they have no locus standi to move
the Executing Court. Neither Munimallappa's heirs were
examined to prove that on their property road was formed
nor any records to that effect were produced. The judgment
relied on by the objectors counsel have no application to the
facts of the present case.
12. In support of his submissions he relies on the
following judgments:
1. Babulal Vs. Raj Kumar and Ors.16
2. Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and
anr.17
3. N.S.S.Narayana Sarma and Ors. Vs.
M/s.Goldstone Exports (P) Ltd. and Ors.18
4. Md. Israils and Ors Vs. State of W.B. and Ors.19
5. Rahul S Shah Vs. Jinendra Kumar Gandhi &
Ors.20
6. Smt.Usha Jain and Ors. Vs. Manmohan Bajaj and
Other21
7. Madanlal Vs. Hansra22
16 AIR 1996 SC 2050
17 AIR 1998 SC 1754
18 AIR 2002 SC 251
19 AIR 2002 SC 511
20 Civil Appeal Nos.1659-1660/2021
21 AIR 1980 MP 146
22 AIR 1985 Rajasthan 19
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R.F.A.No.1018/2006
13. On hearing both side and on examining the
records, the points that arise for determination of this Court
are:
(i) Whether the impugned order of rejection of the
application of the obstructors under Order XXI Rule 97
to 101 CPC is sustainable in law ?
(ii) Whether IA No.2/2011 filed by the appellants
to adduce additional evidence deserves to be allowed ?
Analysis
Reg. Point Nos.1 and 2
14. As these two points overlap on each other, they
are taken up together for consideration.
Some of the admitted facts of the case are as follows:
Mylarappa/the father of the objector Nos.1 and 2
constituted Joint Hindu Family with Govindaraju,
Munimallappa and Poojappa. Objector No.3 is the son of
objector No.1. Objector Nos.1 and 2 are the sons of
Mylarappa. AW.2 is the son of Poojappa. Under Ex.P2 the
partition deed dated 20.03.1956 Govindaraju, Munimallappa,
Mylarappa and Poojappa partitioned their family properties.
The only immovable property divided under the said partition
is property bearing old Sy.No.28 of Kethamaranahalli
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R.F.A.No.1018/2006
Village presently bearing Khaneshmari No.33/51 of
Turukarapalya Grama Thana. As per the recitals of the said
partition deed, on the north the said property was bounded
by A.K. Colony and on the southern boundary there was cart
road. In that partition, an extent of 135 feet East to West
and 30 feet North to South was allotted to the share of
Govindaraju and Munimallappa each. On the southern side an
extent of 162 feet East to West and 30 feet North to south
was allotted to the share of Mylarappa and Poojappa each.
The northern boundary of the share of Govindaraju was
showed as A.K. Colony. The southern boundary of share of
Poojappa is shown as cart road and backyard of Devanahalli
Venkatappa. To get better idea, a rough sketch with regard
to the boundaries and dimension of the properties allotted to
each share can be drawn as follows:
N
A.K.Colony
E W
Muneshwara Temple Road
'A' Schedule M.Govindaraju S
135 x 30 ft Poojappa & Hanumaiah
Property
'B' Schedule Munimallappa Poojappa's Property
135 x 30 ft
'C' Schedule Mylarappa
162 x 30 ft Mylarappa &
Poojappa's
'D' Schedule Poojappa Houses
162 x 30 ft
Cart Road
Venkatappa's Backyard
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R.F.A.No.1018/2006
15. As per the said partition deed, as on the date of
the partition there was no road on the northern side of the
property. How the parties dealt with the properties
subsequent to the partition under Ex.P2 is enlisted in the
chart below:
Sl. Document Ex.
Date Nos. Transaction Acquirer
No. Name
Ex. P2 'B' Schedule
Partition &P2(A) Division of holder
1 20.03.1956
Deed property Munimallappa
30 x 135 feet
Exs.P3 & Munimallappa,
2 07.09.1962 Sale Deed P3(A) Thimmaiah
sold 60 x 30 feet
Exs.P4 & Munimallappa,
P4(A) sold an extent of
3 20.09.1965 Sale deed Ramaiah
35 feet by 30
feet
Exs. P5 Ramaiah, sold an
4 20.09.1965 Sale deed and extent of 35 feet Rajagopal
P5(A) by 30 feet
Exs. P6
Rajagopal, sold
and
5 16.02.1966 Sale deed an extent of 35 Thimmaiah
P6(A)
feet by 30 feet
Settlement Ex.A.1 Objector Nos.1
6 22.06.1966 Mylarappa
deed and 2
Exs.P7 Thimmaiah, sold
&P7(A) 2 properties an
7 19.10.1970 Sale deed B.K.Ananda Ram
extent of 95 feet
by 30 feet
Ex.A 182 Muniyappa and
Rectification Krishna
8 30.11.1970 Mylarappa
deed Objector Nos.1
and 2
Ex.A.189 Kamalamma &
Agreement
9 08.08.2003 Govindaraju R.Range gowda
of sale
JDR Nos.1 and 2 DHR
Kamalamma and
B.A.Govindaraju
R.Range Gowda
10 15.10.2004 Sale deed Ex.P8 JDR Nos.1 and 2
DHR
30 feet by 95
feet
Kamalamma and
Ex.P9 B.A.Govindaraju
Rectification R.Range Gowda
11 21.10.2004 JDR Nos.1 and 2
Deed DHR
executed
rectification deed.
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R.F.A.No.1018/2006
16. In para No.1 of the said settlement deed northern
boundary of the property fallen to the share of Objectors'
father is shown as Munimallappa's land. Under Ex.A182, for
the first time after 14 years of the partition deed and after 4
years of their settlement deed, the objectors and their father
made rampant changes in the description of the boundaries,
property numbers etc.
17. Though innumerable documents are produced by
the objectors and lengthy arguments are addressed claiming
that the objectors are in possession of the decree schedule
property and the decree holder in the guise of the decree is
seeking possession of their property, their main contention
can be summarized as follows:
(i) In the property allotted to the share of
Munimallappa, a road is formed by the CITB in 1964.
Therefore, the said property was not available for sale.
(ii) The property bearing Municipal Nos.16/1 and
16/2 does not exist. That is evident from the fact that till the
purchase of the property by the decree holder, there was no
khatha for those properties and Thimmaiah and his
successors have not paid taxes to the same.
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R.F.A.No.1018/2006
(iii) The commissioner lastly appointed by this Court
has held that the property situates on 18th Main road
whereas as per the sale deed, the decree holder's property
situates at 15th main road. Therefore, the property is not
available.
(iv) The decree holder has not filed any cross
objections or appeal challenging the finding that both the
properties are totally distinct. Therefore, in this appeal the
decree holder cannot claim that objectors are laying claim for
his property.
18. As already noted, the objectors themselves under
Ex.P2 dated 20.03.1956 and Ex.A1 dated 22.06.1966
admitted that on the northern side of their property, first
Munimallappa's property is situated and after that
Govindaraju's property is situated. They did not dispute the
existence of such properties. When the objectors themselves
claim the title to the properties under those documents, it is
not open to them to dispute the existence of the property of
Munimallappa.
19. When they came to the Court contending that in
the properties of Munimallappa , CITB formed the road in the
year 1964, the burden to prove the said fact is upon them.
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Except relying on Ex.A21, the evidence of AW.3 the Assistant
Revenue Officer and their own self serving testimony, they
did not produce any other documents to establish such
contention. For acquisition of the properties, there should
have been acquisition proceedings, notification etc. But
nothing was stated nor any material was produced about
that.
20. AW.3 the Assistant Revenue Officer of Bangalore
Mahanagara Palike in the chief examination itself states that
she is not aware in which year Subramanyanagar came
within the jurisdiction of the Corporation. She herself stated
that in respect of Municipal Nos.16/1 and 16/2, 41st Main
Road, there are assessment records. She further states that
as per the assessment records, the property bearing
Municipal Nos.16/1 and 16/2 was vacant land and from
01.04.2004 the same is assessed with building. That falsifies
the contention that the property in Municipal Nos.16/1 and
16/2 does not exist.
21. Much was argued saying that the decree holder
has not produced the sanctioned plan etc, though building is
claimed to be 40 years old. Their own witness AW.3 admits
that, if the owner of the building submitted the application,
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they will inspect the building, obtain sanctioned plan and
assess the property. She further states in the chief
examination itself that she does not know in detail the history
of the properties involved in the proceedings. She states that
as per Ex.A21 'the gist of the case' the authorities have
stated that property Nos.16/1 and 16/2 physically does not
exist in their records. In Ex.A21 the Assistant Revenue
Officer and another signatory to that document have
purportedly stated that Muniyappa son of Munimallappa gave
declaration in the year 1994 that the land of his father
Munimallappa sold to Thimmaiah has been converted as road
during the year 1964 and they had not applied to the
Corporation for compensation in time. On that basis, the said
authorities purportedly concluded that the property fallen to
the share of Munimallappa does not exist. The signatories to
the document do not say what was the cause for them to
issue such "gist of the case" and under what authority they
have issued the same. Under the said document, they have
further purportedly ordered that the khata standing in the
name of decree holder shall be cancelled as the property is
only in the books of Corporation, though it does not
physically exist and the enquiry under Section 114A of the
Karnataka Municipal Corporations Act, 1976 ('the KMC Act'
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R.F.A.No.1018/2006
for short) is being initiated. The Assistant Revenue Officer
has purportedly signed the same on 17.09.2005 and the
names of other signatories to the said document were
illegible and they purportedly signed the same on 19.09.2005
and 19.10.2005.
22. AW.3 in her cross-examination admits that no
enquiry as directed on Ex.A21 was initiated. In the cross-
examination she admits that she has signed Ex.A21. She
admits that on Dalitha Sangha's representation Ex.A21
(Wrongly it is recorded as Ex.D21) was prepared on the basis
of the available records. She further admits that the Deputy
Commissioner, BMP was the authority to enquire under
Section 114A of KMC Act. AW.1 in his cross-examination has
admitted that he is the Secretary of Karnataka Dalithara
Vakkuta Samithi (R). Therefore the above evidence shows
that Ex.A21 was prepared at the instance of the objectors
during pendency of execution proceedings. AW.3 admits in
her cross-examination that when Ex.A21 was prepared the
objectors did not intimate anything about pending
proceedings. She further admits that except the records
furnished by the objectors, she did not have any documents
to show the formation of the road.
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23. Considering the same, the trial Court rightly held
that the objectors got manipulated Ex.A21 for the purpose of
the case, suppressing before the authorities the pendency of
the case before the Executing Court. Much was tried to be
made on the ground that nothing was produced to show that
upto 2004 khata was shown in the name of Munimallappa or
his successors and no tax paid receipts were produced to
show that the property was assessed or tax was paid,
therefore it can be inferred that the properties do not exist.
Once the objectors admit the title of Munimallappa and his
successor Thimmaiah, the property does not vanish due to
absence of khata in their names and non payment of tax. It
is settled proposition of law that khata or RTC are not the
documents of title. When there is document of title it cannot
be assumed that khata was not made, therefore the property
does not exist.
24. In their own Settlement deed Ex.A1 dated
22.06.1966, the objectors and their father referred to the
property of Munimallappa as their northern boundary.
Therefore it does not lie in the mouth of the objectors to say
that the property was lost to the road and does not exist
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R.F.A.No.1018/2006
since 1964 that too when they did not adduce any kind of
evidence to prove the same. If the person does not pay tax,
it is for the concerned authorities to take action to recover
the tax. That itself is not a ground to claim that the property
does not exist. Much was sought to be made relying on
Ex.A21 that Munimallappa's son himself gave affidavit before
Bangalore Mahanagar Palike Authorities that the properties
are acquired. Neither the objectors produced any such
affidavit nor examined the son of Munimallappa or any other
heirs of Munimallappa. No such affidavit was produced even
by AW.3.
25. As per the objectors and the evidence of AW.3
the width of the said road was 15-20 feet. As per Ex.P2
admitted partition deed, on northern side abutting
A.K.Colony share of Govindaraju situated. On the southern
side of Govindaraju's share, Munimallappa's share situated
and to the southern side of that property Mylarappa's share
situated. As per the said document, the dimension of the
shares of Govindaraju and Munimallappa from North to South
was 30 feet each. Therefore the total dimension from
A.K.Colony would be 60 feet. If abutting A.K.Colony 15 or 20
feet road is formed, still 10 feet North to South property in
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R.F.A.No.1018/2006
the share of Govindaraju remains. Under such circumstances,
the question of road being in Munimallappa's share becomes
improbable, unless the objectors prove the same. Neither
they examined Govindaraju nor his heirs to prove that road
existed beyond the property of Govindaraju. It is not the case
of the objectors that alleged road is formed by way of usage
like easementary right etc. The Executing Court considering
all such circumstances rightly rejected Ex.A21 and the
evidence of AW.3 in that regard.
26. The objectors further contended that the decree
holder is falsely claiming under the sale deed and rectification
deed that the building aged about 40 years existed in the
decreetal property without producing any sanctioned plan.
The schedule of sale deed Ex.P8 states that the property
consists of 40 years old residential RCC building constructed
about 10 squares and 6 squares temporary sheds. Column
No.6 of the objectors own documents Exs.A19 and A20 show
that there was building measuring 15 square in Municipal
No.16/2 and there was building measuring 8 square in
Municipal No.16/1 respectively.
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27. Even assuming that if a person constructs a
building without licence required if any, that itself does not
disprove the existence of the property or his title. At the
most, it is for the concerned authorities to take action against
the owner if there is any violation of the laws relating to the
construction of the building. Therefore the said contention
was also rightly rejected by the trial Court.
28. So far as changed number of the properties, road
particulars etc, the evidence adduced by the objectors shows
that there was revision in the numbers of properties and road
from time to time since 1956. Since the identity of the
property is established, changes in the property or road
numbers do not matter much.
29. So far as the Commissioner's report, first two
Commissioners appointed by this Court who were technical
persons, reported that there existed property bearing
Municipal Nos.16/1 and 16/2 as claimed by the decree
holder. They deposed based on the records and personal
inspection in the presence of the parties. They have prepared
the report and submitted the same. It was contended that
since those reports were rejected, they cannot be looked
into.
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30. As rightly pointed out by learned Counsel for
decree holder, the records show that on 31.08.2009, this
Court first time appointed the Assistant Director of Land
Records to conduct survey and submit the report.
Accordingly, he submitted the report dated 29.10.2009. This
Court further appointed another ADLR as Commissioner to
survey the property. The said order does not say that earlier
report was rejected. There is nothing to show that earlier two
reports were rejected. Therefore there is no merit in the
contention that the earlier two Commissioners' reports were
rejected and they cannot be looked into.
31. Subsequently by order dated 20.02.2019
Sri A.Ravishankar was appointed as the Commissioner. The
third Commissioner was an Advocate. Though in his report,
he stated that the objectors' property situated abutting 15th
Main Road which the decree holder claims to be decreetal
property, his evidence shows that he did not examine any
officers or official records in that regard. In his cross-
examination he clearly states that he has arrived at such
conclusion based on an inscription on a stone embedded in
the wall of the building as shown in the report. The number
inscribed in the wall of the building cannot be the number of
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R.F.A.No.1018/2006
road and it should be based on some official record. The said
Commissioner in his cross-examination stated that there was
no material available for him and there was nobody to assist
him to identify the properties or for drawing sketch. In the
cross-examination he has pleaded his ignorance. Therefore
his evidence that the objectors property situated on 15th
main road carries no sanctity.
32. Order XXI Rules 97 to 106 of CPC provide for the
scheme of adjudication of the application of the obstructers
or decree holders. Order XXI Rule 101 of CPC states that all
questions including questions relating to right, title or interest
in the property arising between the parties shall be
adjudicated and determined by the Court on such application.
That itself makes it clear that to obstruct execution, the
objectors should have some right, title or interest in the
decreetal property.
33. The objectors in this case as rightly pointed out
by the trial Court failed to establish any right, title or interest
over the decreetal property. They themselves claim that the
property acquired by Munimallappa and their father were
different. Indirectly they claim that the decree holder has
tried to execute the decree against their property. For the
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R.F.A.No.1018/2006
above detailed discussions, the contention that the property
of Munimallappa was lost to the road is unacceptable.
Therefore, obstructors are not entitled to obstruct execution
of the decree.
34. Order XXI Rule 98 Sub Rule (2) of CPC states that
upon determination of the questions of the objectors, if the
Court is satisfied that the objection was occasioned without
any just cause, the Court shall direct the applicant to be put
into possession of the property and if the objectors still resist
for obtaining the possession, the Court may also direct that
such objectors shall be detained in the civil prison for a term
which may extend upto 30 days.
35. The records show that the original proceedings
commenced in the year 2004. The objectors in the first
innings succeeded in getting the matter remanded.
Thereafter they challenged second order before this Court in
the year 2006 itself and successfully dragged the matter for
about two decades.
36. This appeal was once dismissed on 09.06.2011
for non-prosecution. That was restored on the objectors'
application on 06.07.2011. Since 2011, they went on seeking
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R.F.A.No.1018/2006
further directions to the Commissioner and have filed
application for additional evidence. After such restoration,
they came up with I.A.No.2/2011 for adducing additional
evidence. Under the said application, they wanted to produce
the Xerox copy of the endorsement dated 07.09.2011 issued
by the Assistant Executive Engineer, Mahalakshmipuram Sub
Division, BBMP stating that there are no records in their
office regarding issuance of building licence for construction
of the building in Municipal Nos.16/1 and 16/2.
37. The objectors' application was dismissed second
time in the year 2006 itself. All along they claim that
Munimallappa's share was lost to the road and there was no
building in that. There was no reason for them to wait for six
to seven years to file such RTI Application before BBMP.
Moreover whatever is produced is only xerox copy. The
production of the document under Order XLI Rule 27 of CPC
is not the matter of right. The indolence on the part of the
objectors to produce such document belatedly is not
satisfactorily explained. If any building is constructed in
violation of any building bye-law, it is for the concerned
authorities to take action in that regard as per the building
bye-law or the law relating to the construction. That itself
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R.F.A.No.1018/2006
does not falsify the existence of the property. Therefore, the
copies of the documents sought to be produced are
irrelevant. Needless to say that such application is filed only
to drag the proceedings.
38. The pleadings and the evidence of the objectors
show that they obstructed execution using their political pull.
They themselves say that at the intervention of the local
MLA, Ameen could not take possession of the property and
deliver the same to the decree holder. When the matter is
subjudice, the objectors resorting to such extra legal
methods is highly deprecable. If at all the objectors had any
objection, their remedy was to approach the Executing Court
seeking urgent relief or if they were dispossessed, to seek
restoration of their possession in accordance with law.
39. The judgments relied on by learned Counsel for
the objectors in cases of Madhukar and Vinod Kumar
referred to supra the Hon'ble Supreme Court held that the
First Appellate Court should consider all the issues raised by
the parties, re-appreciate the evidence and decide. Since this
Court considered all the issues raised and re-appreciated the
evidence, the judgments are of no help to the objectors'
case.
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R.F.A.No.1018/2006
40. The judgments in cases of B.Subba Reddy and
Nahar Singh referred to supra, the Hon'ble Supreme Court
were relied to claim that the decree holder should have filed
his cross-objection or separate appeal as decreetal property
and objectors property were held to be different. Even this
Court finds that obstructors property and decreetal property
are different. That has not affected the decree holder in any
manner. By so holding that the Executing Court has further
held that the objectors cannot lay claim to the decreetal
property in the guise that they were different. Therefore the
said judgments are not applicable.
41. The judgment in case of P.Chandrasekharan
referred to supra related to the identity of the property. As it
is held that the decreetal property is identifiable and was not
lost to the road, the said judgment is of no help to the
objectors.
42. The judgments in Shamanna Setty's case and
Damodaran's case were relied on by learned Counsel for the
objectors to challenge the report of the ADLR and technical
persons on the ground that they could not have delegated
the power. The Commissioners by name A.C.Rajanna and
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R.F.A.No.1018/2006
H.K.Nataraj show that they conducted the commission work
with assistance of their staff. Moreover the Court has not
relied exclusively on the Commissioner's report to arrive at
the aforesaid conclusion. Therefore the said judgments have
no application for the facts and circumstances of the present
case.
43. The judgments in cases of Sundarjas Kanyalal
Bhathija and Indian Oil Corporation Limited referred to
supra was relied on to contend that the Court has to follow
the precedent. In our considered view no precedent is
deviated in arriving at the aforesaid conclusion. Therefore the
said judgments are of no help to the appellants. Suffice to
say that the other judgments relied on by learned Counsel for
the objectors cannot be justifiably applied to the facts of the
present case.
44. The evidence of AWs.1 and 2 shows that they
were not living in different address. AW.2 is the son of
Poojappa. His property does not lie on the northern side of
the property allotted to Mylarappa. AW.2 in his cross-
examination admits that he sold the property and residing in
some other place. He says that he does not know if 39th Main
Road was re-numbered as 18th Main Road. He admits that in
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R.F.A.No.1018/2006
2nd Cross there was A.K.Colony. He pleads ignorance about
existence of A.K.Colony being shown in 1956 partition deed.
He claims that he has original partition deed, but he cannot
produce that before the Court. He admits that he has no
documents to show that road is formed by City Corporation in
the year 1964 in the decreetal property. His evidence shows
that he came to know about the proceedings through
objectors and at their behest he tendered his evidence.
45. Under the above facts and circumstances, the
appeal and IA No.2/2011 are nothing but abuse of the
process of the Court and they are liable to be dismissed with
heavy costs. Hence the following:
ORDER
The appeal and I.A.No.2/2011 are dismissed with costs
of Rs.1,00,000/- payable to the Karnataka Legal Services
Authority within four weeks from the date of this order failing
which the Karnataka Legal Services Authority shall recover
the same in execution of this order.
The executing Court shall deliver possession of the
property to the decree holder forthwith. If the objectors
continue to obstruct, the Executing Court shall take steps to
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detain the objectors in civil prison as contemplated under
Order XXI Rule 97(2) of CPC.
Registry shall return the trial Court records to the trial
Court forthwith.
Communicate copy of this order to the trial Court and
Karnataka Legal Services Authority forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KSR/AKC
