Karnataka High Court
Smt Muniyamma W/O Late Sri Thammaiah vs Sri Joseph Thyaraja on 15 December, 2023
1 RFA NO. 7/2011
C/W RFA NO. 1684/2010
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. 7/2011 (INJ)
C/W
REGULAR FIRST APPEAL NO. 1684/2010 (DEC/INJ)
IN R.F.A. NO. 7 OF 2011
BETWEEN:
1 . SMT. MUNIYAMMA,
W/O LATE SRI THAMMAIAH,
AGED ABOUT 31 YEARS.
2 . SRI ABBIGA,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 31 YEARS.
3 . SRI VENKATESH,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 27 YEARS.
ALL ARE R/AT NO.45,
5TH CROSS, RACHAPPA GARDEN,
SHANTHI NAGAR, BANGALORE.
AND REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER,
SRI NAGARAJA SHETTY.
2 RFA NO. 7/2011
C/W RFA NO. 1684/2010
S/O SRI VITTAL SHETTY,
AGED ABOUT 39 YEARS,
R/AT NO.7/7,NEAR PETROL BUNK,
DEVEGOWDA ROAD, R T NAGAR,
BANGALORE- 32.
...APPELLANTS
(BY SRI B N PRAKASH, ADVOCATE)
AND:
1 . SRI JOSEPH THYAGARAJ,
S/O LATE SRI THOMOSAPPA,
AGED ABOUT 58 YEARS,
R/OF EERANAPALYA,
ARABIC COLLEGE POST,
BANGALORE NORTH,
BANGALORE -45.
2 . SRI SAMPATH,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 24 YEARS,
NO.45, 5TH CROSS, RACHAPPA GARDEN,
SHANTHINAGAR, BANGALORE-27.
3 . SMT. SAMPALAKSHMI,
D/O LATE SRI THAMMAIAH,
AGED ABOUT 20 YEARS,
NO.45, 5TH CROSS, RACHAPPA GARDEN,
SHANTHINAGARA, BANGALORE-27.
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI JANARDHANA G, ADVOCATE FOR R1;
SRI K.SUMAN, SENIOR COUNSEL FOR SRI B.SIDDHARTH
SUMAN, ADVOCATE FOR PROPOSED R-4;
R-2 AND R-3 ARE SERVED AND UNREPRESENTED)
3 RFA NO. 7/2011
C/W RFA NO. 1684/2010
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 04.10.2010 PASSED IN
O.S.15433/2004 ON THE FILE OF THE XIII-ADDL. CITY CIVIL
JUDGE, MAYO HALL UNIT, BANGALORE, DECREEING THE SUIT
FOR THE PERMANENT INJUNCTION.
IN R.F.A. NO. 1684 OF 2010
BETWEEN:
JOSEPH THYAGARAJ,
S/O LATE THOMASAPPA,
AGED ABOUT 58 YEARS,
R/AT.NO.4/5, 4TH CROSS, HUTCHINS
ROAD, ST. THOMAS TOWN POST,
BANGALORE-560 084
...APPELLANT
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI JANARDHANA G, ADVOCATE)
AND:
NAGRAJ SHETTY,
S/O.VITTAL SHETTY,
AGED ABOUT 38 YEARS,
SRI NEELARATHI BUSINESS CENTER,
NO.7/7, NEAR PETROL BUNK,
R T NAGAR POST,B
BANGALORE-560 032.
...RESPONDENT
(BY SRI B.N PRAKASH, ADVOCATE FOR R-1,
SRI K. SUMAN, SENIOR COUNSEL FOR SRI SIDDHARTH
SUMAN, ADVOCATE FOR PROPOSED R-2)
THIS RFA IS FILED U/S 96 R/W, XLI R-1 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.09.2010 PASSED IN
O.S.4315/2006 ON THE FILE OF THE XVII-ADDL. CITY CIVIL
JUDGE, (CCH-16), BANGALORE CITY, DISMISSING THE SUIT
FOR DECLARATION AND INJUNCTION.
4 RFA NO. 7/2011
C/W RFA NO. 1684/2010
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 24.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, C.M.JOSHI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
RFA No.7/2011 is preferred by the defendant Nos.1(a)
to (c) (LRs of deceased Thammaiah) in OS No.15433/2004
against the judgment and decree passed by the learned
XIII Additional City Civil Judge, Mayo hall Unit, Bangalore,
dated 04-10-2010, whereby the suit filed by the plaintiff-
Joseph Thyagaraj for permanent injunction in respect of the
suit schedule land bearing Sy.No.50/4 measuring 25 guntas
situated at Nagavara Village, Bangalore North Taluk came
to be decreed.
2. RFA No.1684/2010 is preferred by the plaintiff-
Joseph Thyagaraj in OS No.4315/2006 against the
judgment and decree passed by the learned XVII Additional
City Civil Judge, Bangalore, dated 24-09-2010, whereby the
suit filed by the plaintiff for declaration and permanent
injunction in respect of the land bearing Sy.No.50/4
measuring 25 guntas situated at Nagavara Village,
Bangalore North Taluk came to be dismissed with costs.
3. O.S.No.4315/06 being for declaration and
injunction has the wider scope than the O.S.
No.15433/2004 which is for bare injunction. The
contentions of the plaintiff in both the suits are same.
Therefore the parties would be referred as per their ranks in
the declaration suit -OS No.4315/2006.
4. The brief facts of the case of the plaintiff Joseph
Tyagaraj in OS No.4315/2006 (RFA No.1684/2010) are as
below:
(a) The plaintiff's grandfather Dravidappa
was the absolute owner of the suit schedule
property i.e., survey No.50/4 along with various
other properties. It is averred in the plaint that
probably the said Dravidappa and his brother
Chinnappa entered into an oral partition and the
suit schedule property was allotted to the share
of Chinnappa. The said Chinnappa had no issues
and therefore, he had adopted the father of the
plaintiff Thomasappa, after his marriage with the
daughter of Dravidappa.
(b) It is stated that after the death of
Chinnappa, all the properties in the name of
Chinnappa devolved upon the father of the
plaintiff Thomasappa. In the year 1972, there
was a partition between the plaintiff, his father
and brothers concerning all the properties of the
family including Survey No.50/4.
(c) There were certain errors in the said
partition deed and therefore, there was a
rectification deed in the year 1988. By virtue of
the said rectification deed, property which was
shown as Survey No.50/2 was rectified to be
Survey No.50/4.
(d) In the meanwhile, BDA had acquired
the suit schedule property for the purpose of
formation of the layout by Vyalikaval House
Building Cooperative Society. It is stated that,
about 18 guntas of the part of the suit survey
number was owned by the vendor of the
defendant i.e., Thammaiah and he had interfered
in the possession and enjoyment of the property
of the plaintiff and therefore, he(Thammaiah)
filed O.S. No. 15433/2004 for injunction.
(e) It was stated that the property which
was owned by Thammaiah was acquired for the
Vyalikaval House Building Cooperative Society
and it was allotted to others. It was also
contended that the said Thammaiah has also
formed certain sites in the 18 guntas of land in
Survey No.50/4 and has sold the same.
(f) It was stated that the northern portion
of the suit survey number was vacant and he
mislead the defendant and sold another 18
guntas to the defendant on 6-1-2006 under the
registered sale deed. Therefore, he contends
that though Thammaiah was not owner to the
extent of 18 guntas, he has sold the same to the
defendant. Now the defendant is obstructing the
enjoyment and therefore, he was constrained to
file the suit.
(g) By way of insertion of para 3A to the plaint,
it was contended that, the Supreme Court has
confirmed the orders passed by the High Court of
Karnataka in W.A. 2286/97 to 2336/97 and connected
matters on 15.03.2000, wherein the notification
issued by the Government for acquisition of the
property for the purpose of formation of Layout by
Vyalikaval Housing Society has been quashed. It was
also ordered to return the lands acquired, including
the lands of the plaintiff to the respective land owners.
(h) In addition to that, it was stated that the
grandfather of the vendor of the defendant i.e.,
K.Muniswamy, was also the original owner of the land
bearing Sy.No.50/2, new No.50/4 to the extent of 25
guntas. In the year 1923, the said K. Muniswamy had
mortgaged the property to Dravidappa, and later,
brother of K. Muniswamy i.e., Tirumallappa had sold
his share of 25 guntas in Survey No.50/2 to
Dravidappa in the year 1930. It was contended that K.
Muniswamy has not redeemed the mortgaged
property and therefore, he had lost all his right, title
or interest in the property.
5. On these grounds also plaintiff contended that the
defendant who is the purchaser from Thammaiah is not
entitled for any land in the said survey number and the
cause of action for the suit arose when the defendant
alleged to have purchased the land in Sy.No.50/4 from
Thammaiah on 6/1/2006 and on the last week of 2006
when he tried to interfere with the possession of suit
schedule property. On these grounds the plaintiff sought:
a. declaration that the sale deed dated
06.01.2006 executed by Thammaiah, his wife
and children in favour of defendant in respect of
holding plaintiff is absolute owner of the suit
schedule property.
b. Permanent injunction restraining the
defendant from interfering in the plaintiffs
possession and enjoyment of the suit property.
c. permanent injunction restraining the
defendant from alienating any portion of
Sy.No.50/4 including the suit schedule property.
d. To declare lands belonging to
Thammaiah in Sy.No.50/2, New No.50/4
measuring 25 guntas were mortgaged to the
plaintiff's grandfather and he has no title in the
same.
6. It is obvious that prayer 'a' above is couched with
two declarations. It includes declaring the sale deed in
favour of the defendant is null and void and to declare the
title of the plaintiff to suit schedule property.
7. On issuance of summons by the trial Court, the
defendant Nagaraj Shetty, appeared through his counsel
and filed his written statement denying the plaint
averments and contending that he is not aware of
Dravidappa being the absolute owner of several properties
including the suit schedule property and the partition
between Dravidappa and Chinnappa; he is unaware of the
relationship between the plaintiff, his father Thomosappa
and his adopted father, Chinnappa; the partition dated
28-2-1972 and the rectification deed thereof. The
defendant denies that in the said partition survey No.50/4
had come to the share of the plaintiff. He contended that
his vendor Thammaiah had succeeded to suit survey
No.50/4 by succession. He states that survey No.50/4
measuring 1 acre 07 guntas, including 02 guntas of Karab
was owned by Munivenkatappa, the father of Thammaiah.
After death of Munivenkatappa, the name of Thammaiah is
shown in the records till the year 1979-80 and thereafter,
the name of the plaintiff is shown for 25 guntas. He pleads
ignorance as to how the name of the plaintiff is entered in
revenue records in Survey No.50/4 and therefore,
contended that the plaintiff be put to strict proof of his
contentions. It is contended that the partition deed or the
rectification deed do not confer any title of survey No.50/4
on the plaintiff or his ancestors. It is contended that 27
guntas in survey No.50/4 was acquired by the Government
for the benefit of Vyalikaval House Building Society and
therefore, even assuming for the sake of arguments that
the plaintiff was the owner of 25 guntas, it has been
acquired by the society.
8. Defendant further contended that he had
purchased the property measuring 18 guntas in survey
No.50/4 from Thammaiah with specific boundaries in the
registered sale deed dated 6-1-2006 and he is in possession
and enjoyment of the same. It was further contended that
the defendant is a bonafide purchaser of the said property
without notice of any encumbrance and also that the
schedule mentioned in the sale deed in favour of the
defendant is different from the one claimed by the plaintiff
in O.S.No.15433/2004. It is stated that out of 01 acre 07
guntas in survey No.50/4, 27 guntas was acquired for
Vyalikaval House Building Society and out of the remaining
portion, 18 guntas has been purchased by the defendant
from Thammaiah resulting in the claim of the plaintiff futile
and not maintainable. Thus, it was contended that the
plaintiff is neither the owner nor in possession of survey
No.50/4 and the question of the defendant interfering in the
possession of the plaintiff does not arise.
9. Further by way of additional written statement, in
view of amendment of plaint by the plaintiff as per order
dated 26.3.2008, the defendant contended that at no point
of time the survey No.50/2 has been changed as survey
No.50/4. The defendant has contended that he is not aware
of the outcome of the writ petitions, writ appeals and the
order passed by the Apex Court in the Civil Appeal. The
defendant further denied that 25 guntas in the suit
schedule property held by Thirumalappa was mortgaged in
favour of Dravidappa in the year 1923 and later, a portion
of it was sold by Thirumalappa to Dravidappa and rest of
the mortgaged property was not redeemed.
10. Most of the contentions in this suit are similar
contentions taken up by the plaintiff-Joseph Tyagaraj. In
this suit also, he contends that his grandfather Dravidappa
was the absolute owner of various properties including 25
guntas of survey No.50/4 situated at Nagavara Village,
Kasaba Hobli, Bangalore North, Bangalore and the plaintiff
inherited the property from his father Thomasappa under a
Partition in the year 1972 and the rectification deed 1980.
11. The defendants who are the wife and children of
Thammaiah, have no manner of right, title or interest over
the suit schedule property and they tried to interfere with
his possession over the same. Hence, the plaintiff filed the
suit seeking a decree of permanent injunction restraining
them from interfering with his peaceful possession and
enjoyment of the suit schedule property. The suit schedule
property is described to Survey No.50/4 measuring 25
guntas, of Nagavara village. It was alleged that defendant
made efforts to encroach upon the property belonging to
the plaintiff by misrepresenting to the public and tried to
sell the suit schedule property to others and as such, the
defendants need to be restrained by a perpetual injunction
from interfering with the plaintiff's possession over the suit
schedule property.
12. On issuance of summons by the trial Court, the
defendant-Thammaiah appeared through his counsel and
filed written-statement contending that the suit of the
plaintiff is not maintainable either in law or on facts and the
same is liable to be dismissed in limine as the plaintiff is
neither the owner nor in possession of the suit schedule
property; and neither the plaintiff nor his father nor his
grandfather had any right over the suit schedule property
bearing Sy No.50/4 at any point of time. Further, it was
contended that Sy.No.50/4 measuring 1 Acre 5 guntas
situated at Nagavara Village, is the ancestral property of
the defendant and he has succeeded to the said property by
way of succession and the Record of Rights disclose that
Survey No.50/4, measuring 1 Acre 7 guntas including 2
guntas of Kharab land belonged to one Munivenkatappa,
the fatter of the defendant. After the death of
Munivenkatappa, the defendant's name is shown in the
record of rights. The plaintiff has created revenue records
regarding the property belonging to the defendant and
therefore, neither the Partition Deed nor the Rectification
Deed confer any right on the plaintiff in respect of Survey
No.50/4. It was further contended that the Government has
acquired the property bearing Survey No.50/4 measuring
27 guntas for the benefit of Vyalikaval House Building
Co-operative Society and the said Society was put in
possession pursuant to the acquisition proceedings and the
plaintiff has created RTC in collusion with the Revenue
authorities and he has no locus-standi to file the above suit
and at no point of time, the plaintiff was in possession of
Survey No.50/4 and as such, there is no cause of action for
the suit and hence, the suit is liable to be dismissed with
exemplary costs.
13. During the pendency of the suit, the original
defendant Thammaiah died and his LRs have been brought
on record. The LRS of the defendant have also filed written-
statement on the same contentions as taken by the original
defendant.
14. In O.S.No.4315/2006 the following issues are
framed by the trial Court:
"1. Whether the plaintiff proves that he is the absolute
owner of the suit schedule property?
2. Whether the plaintiff further proves that Sale Deed
dated 6.1.2006 under which the defendant said to have
purchased the property measuring 18 guntas in
Sy.No.50/4 is not binding on him?
3. Whether the defendant proves that they purchased the
Schedule property on 6.1.2006 from Muniyamma and
others?
4. Whether the plaintiff proves that defendants are
interfering with the peaceful possession and enjoyment
of the suit schedule property?
5. Whether the plaintiff is entitled for the relief sought
for?
6. What Order or Decree?"
15. In support of his case, plaintiff examined himself
as PW1 and Exs.P1 to P27 were marked in evidence. On
behalf of the defendant, he got himself examined as DW1
and Exs.D1 and 2 were marked in evidence. The trial Court
after hearing both the parties, answering issue Nos.1, 4, 5
and additional issue no. 1 and 2 in negative and issue No.3
in affirmative dismissed the suit of the plaintiff with costs
and directed to draw the decree after payment of Court fee
of Rs.1,50,050/-.
16. In O.S.No.15433/2004 the following issues are
framed by the trial Court:
"1) Whether the plaintiff' prove his lawful
possession and enjoyment over the suit schedule
property, as on the date of the suit?
2) Whether the plaintiff proves the alleged
obstructions from the defendants?
3) Whether the plaintiff is entitled to the relief
claimed?
4) What decree or Order?"
17. In support of his case, the plaintiff Joseph
Thyagaraj examined himself as PW1 and Exs.P1 to P20
were marked in evidence. On behalf of defendants, power
of attorney holder Nagaraj Shetty was examined as DW1
and Exs.D1 to D14 were marked.
18. The trial Court after hearing both the parties,
answering issue Nos. 1 to 3 in the affirmative, decreed the
suit of the plaintiff against the defendants with costs and
defendants were restrained by way of permanent injunction
from interfering with the plaintiff's peaceful possession and
enjoyment of the suit schedule property in any manner.
19. Being aggrieved by the said judgments and
decrees passed by the trial Court in OS No.15433/2004 and
OS No.4315/2006, the defendants and plaintiff have
presented RFA No.7/2011 and 1684/2010 respectively
before this Court as stated supra.
20. O.S.No.4315/2006 being a suit for declaration of
title, has wider scope and as such, we would address the
said appeal in length. O.S.No.15433/2004 being a mere suit
for injunction, would depend on the findings in OS
No.4315/2006 (RFA No.1684/2010).
21. In RFA No.1684/2010, the appellant/plaintiff
contend that when the appellant/plaintiff has produced the
documentary evidence showing the mortgage dated 21-5-
1923 as per Ex.P10 to show that the owner Kashi
Muniswamy had mortgaged the property to grandfather,
Dravidappa, and thereafter, it was never redeemed within
the prescribed period and even thereafter, the mortgagee
had become owner of the same and then in the year 1972
the appellant and other family members had partitioned the
properties, the appellant had shown the flow of title in
respect of the suit schedule property to him by valid and
reliable documents, the trial Court erred in dismissing the
suit. Thereafter, the revenue entries were made within the
knowledge of the vendor of the defendant Thammaiah, who
had not at all raised any objection for such revenue entries.
It is also contended that the documents of the year 1923
and 1930 are more than 30 years old and presumption
should have been drawn by the trial Court. It is contended
that the trial Court failed to note the boundaries that are
depicted in the documents produced by the plaintiff. It is
contended that when the defendant had admitted that the
name of the plaintiff was entered for 25 guntas and the
name of Thammaiah was entered for 20 guntas, out of
which, 18 guntas was sold to the defendant, it clearly
establish that the defendant had not acquired any right in
the same as Thammaiah had sold his 20 guntas much
earlier to the purchase of the defendant. It is contended
that the trial Court erred holding that the Land Acquisition
documents should have been produced by the plaintiff when
the deposition of the appellant/plaintiff and RTC showed
that the land was notified for acquisition. It is contended
that the trial Judge seriously erred in holding that the sale
deed dated 6-1-2006 cannot be questioned by the plaintiff
without making the author of the document i.e.,
Thammaiah as a party to the suit. Thus, the appellant has
contended that the findings of the trial Court are totally
erroneous and not sustainable under law.
22. In RFA No.7/2011, the appellants/defendants
contend that the plaintiff Joseph Tyagaraj has filed a suit
for declaration and injunction, which is for comprehensive
relief and in the light of the conclusions reached in the said
suit, the present suit for injunction should have been
dismissed. They contend that there are no documents to
establish the title of the plaintiff to the suit schedule
property and the trial Court failed to notice that even the
contention of the possession of the plaintiff over the suit
schedule property was not proved by him. The plaintiff was
claiming the title and tracing the same to the year 1923 on
the basis of the mortgage deed, which was in respect of
survey No.50/2 and therefore, the claim of the plaintiff over
survey No.50/4 was totally misplaced and he had failed to
establish his possession over the suit schedule property. It
is contended that the trial Court having noticed that the
land was acquired by the Government for the benefit of the
Vyalikaval House Building Society, it could not have held
that the property was in possession and enjoyment of the
plaintiff. It is contended that the judgment of the Apex
Court in respect of quashing of the Notification was not
pertaining to the suit schedule property and there is no
evidence to show that the suit schedule property was
restored to the possession of the plaintiff. It is contended
that the reliance on the tax paid receipts by the trail Court
was not proper as it was after filing of the suit. It is also
contended that the revenue records subsequent to the
rectification deed were not at all relevant and the trial Court
has erroneously placed reliance on the same. Therefore, the
appellants/ defendants have sought for dismissal of the
suit.
23. On issuance of notice in both the appeals, the
contesting respondents have appeared through their
counsel.
24. The trial Court records have been secured. The
suit schedule property in both the suits and appeals being
one and the same, these appeals are heard together.
25. We have heard the arguments by Sri Ashok
Harnahalli, learned Senior Counsel appearing for
Sri G. Janardhana, the counsel on record for the
appellant/plaintiff in RFA No.1684/2010 (Respondent No.1
in RFA No.7/2011) and the learned counsel Sri B.N. Prakash
for respondent No.1 ( Appellant in RFA No.7/2011) and Sri
K.Suman, learned Senior Counsel for Sri Siddharth Suman,
the counsel on record for proposed respondent No.2 in RFA
No.1684/2010 (proposed respondent No.4 in RFA
No.7/2011).
26. During the pendency of these appeals, several
interim applications are filed seeking temporary injunction,
stay, production of the documents etc. The appellant filed
IA seeking temporary injunction and even after an order of
status-quo was ordered, the appellant submitted that the
vegetation was being cleared and certain civil works are
being carried out. Therefore, a Receiver was appointed by
this Court to maintain the status-quo over the suit property.
27. During the pendency of these appeals, M/s.
Vyalikaval House Building Co-operative Society Limited,
has approached this Court seeking impleadment as
respondent No.2 in RFA No.1684/2010 by filing application
under order 1 Rule 10 CPC. The affidavit filed by President
of the said Society states that the plaintiff has filed the suit
by urging various baseless and false contentions but
however, the acquisition of the land was admitted by him.
It is submitted that the notification issued pertaining to
survey No.50/4 was not at all quashed by the Apex Court.
It is also stated that the trial Court in para 56 and 58 of the
judgment notes that the Society is also a necessary party to
the suit and therefore, the applicant is a necessary party to
the present proceedings. It is contended that while the
Society was developing the property in pursuance to the
acquisition of the land, a receiver appointed by this Court
came into the scene which shocked the applicant.
Therefore, the rights of the Society involved are also
affected and therefore, it has become necessary for the
Society to implead in the present proceedings as
respondent No.4.
28. The said impleading applicant has also filed IA
No.7/2022 for vacating the interim order to maintain
status-quo saying that it is the society which is in
possession of the property and the interim order affects its
right, title and interest in the same.
29. Similar, applications are also filed in RFA
No.7/2011 under order 41 Rule 27 CPC in IA No. 4/2022
and under order 1 Rule 10 of CPC in IA No.6/2022 for
impleading Vyalikaval House Building Society as respondent
No.4 and under Section 151 of CPC to vacate the stay.
30. We have heard the parties on the above
applications also.
Arguments:
31. The learned Senior Counsel appearing for the
appellant-Joseph Tyagaraj in RFA.No.1684/2010 has
submitted that the defendant is the purchaser of the
property from the erstwhile owner-Thammaiah who
apparently did not have any right, title or interest in the
suit schedule property. It is submitted that Thammaiah had
sold his property to various persons after forming a layout
in the portion of Sy.No.50/4. In order to establish this
aspect, he has taken us through the documents which are
marked in evidence.
a) It is submitted that one Kashi Muniswamappa
had two children i.e., Kashi Muniswamy and Thirumalappa.
It is submitted that son of Muniswamy was Muni
Venkatappa and his son is Thammaiah-the vendor of the
defendant.
b) It is submitted that Kashi Muniswamy had
mortgaged the 25 guntas of the property in Sy.No.50/4 in
favour of grandfather of the plaintiff-Dravidappa. It is
contended that the said mortgage as per Ex.P10, was never
redeemed and therefore, the property remained with
Dravidappa and he became the owner of the property.
c) He further submits that Thirumalappa sold 25
guntas in the property in favour of Dravidappa under the
sale deed at Ex.P11. It is submitted that both these
documents mentioned the survey number as 50/2. In fact,
they were part of Sy.No.50/4.
d) It is contended that in the year 1972, there was
a partition among the plaintiff, his father and brother as per
Ex.P7. In the said partition deed, the item No.6 of the
schedule-D which was allotted to Dravidappa was shown as
Sy.No.50/2 instead of Sy.no.50/4. The extent of the land
allotted to the share of Dravidappa was 25 guntas.
e) The said error was rectified by way of the
rectification deed as per Ex.P8 dated 16.10.1980. It is
contended that the defendant's vendor Thammaiah has sold
the property measuring 18 guntas in Sy.no.50/4, which he
inherited from K.Muniswamy in favour of the defendant
under the sale deed at Ex.P18. It is pointed out that the
boundaries mentioned in Ex.P18 are the same as that of the
plaintiff. It is also submitted that Thammaiah has also sold
the properties showing the boundaries of the property
belonging to Dravidappa under various sale deeds at
Ex.P17, 21 to 26 to third parties. Therefore, he contends
that prior to Ex.P18, the said Thammaiah and his family
members had sold all their properties and as such, had left
with no property with them when Ex.P18 came to be
executed in favour of the defendant. Therefore, he contends
that the sale transaction between Thammaiah and the
defendant is hollow and there was no title that could be
transferred by Thammaiah to the defendant.
f) It is contended that the evidence on record in
the form of documents is clear and show that the plaintiffs
right in the suit schedule property were usurped by
Thammaiah. He has also contended that DW.1 in the cross-
examination admits that the boundaries of the properties
belonging to the plaintiffs were shown as the boundaries of
the property of the defendant, while executing the sale
deed.
g) Regarding the application filed by the Vyalikaval
House Building Co-operative Society for impleadment, he
submits that the Hon'ble Apex Court has quashed the
notification for acquisition of the land and the said order
categorically mentioned that it applies to the petitioners
who had approached the Court or those who had not
approached. Therefore, the said Society could not have laid
its hands on the suit schedule properties when the
acquisition notifications have become non-est.
h) It is submitted that the defendant has not placed
any document to show the title except the mutation entries
in the revenue records which were subsequent to the sale
transactions.
i) Thus, the learned Senior Counsel submits that
the plaintiff had proved his case on the basis of boundaries
in various documents produced by the plaintiff, on the basis
of the revenue entries which are in favour of the plaintiff,
which was not at all rebutted by the defendants by any
cogent evidence.
j) So far as the injunction suit is concerned, it is
submitted that it squarely depends upon the result of the
suit in O.S.No.4315/2006 and therefore, the judgment and
decree in the said suit do not require any intervention.
32. In this regard, he has placed reliance on following
decisions:
1. Vyalikaval House Building Coop. Society, by
its Secretary Vs. V. Chandrappa and Others.1
2. B. Anjanappa and Others Vs. Vyalikaval House
Building Co-operative Society Limited and
Others.2
33. Per contra, learned counsel appearing for the
respondents in RFA.No.1684/2010 and also the learned
counsel for the appellant in RFA.No.7/2011 submit that the
documents produced by the plaintiff-Joseph Tyagaraj do not
support the case of the plaintiff. It is pointed out that the
boundaries shown in respect of Sy.No.50/2 in Ex.P10 and
the boundaries shown in Ex.P11 are different. He submits
(2007) 9 SCC 304
Civil Appeal No. 1930/2012 DD. 07.02.2012
that the mortgage referred in Ex.P10 is not the property
which is subject matter of the Ex.P11, sold by
Thirumalappa. It is submitted that the mortgage mentioned
in Exs.P10 and P11 are in respect of two different properties
and as such, the plaintiff cannot draw any reliance on these
documents.
b) He has tried to demonstrate that in Ex.P7-
partition deed, schedule-D item No.5 and item No.6 speak
of portions of properties in Sy.No.50/2. The boundaries are
of pivotal importance and submit that the boundaries for
the suit schedule property in the plaint do not tally with the
boundaries mentioned in item No.6 Schedule-D of Ex.P7.
c) He submits that a mere rectification in
Ex.P7-parittion deed would not suffice the claim of the
plaintiff. It is submitted that Ex.p10 and 11 which are of the
year 1923 and 1930 speak of Sy.No.50/2 and therefore, at
no stretch of imagination, I can be said that these
documents reflect any existence of the suit schedule
property.
d) He submits that when Sy.No.50/2 was changed
to Sy.No.50/4 is not forthcoming from the contentions of
the plaintiff. He also points out that there is no proper
pleading as to in what documents Sy.no.50/4 is wrongly
described as Sy.No.50/2. Hence, he submits that the trial
Court has considered all the aspects and has come to the
right, conclusion that the suit for declaration of title and
nullification of the sale deed executed by Thammaiah in
favour of defendant-Nagaraj Shetty and other consequential
reliefs are to be rejected.
34. The learned Senior Counsel appearing for the
impleading applicant Vyalikaval HBCS Limited, submit that
in pursuance to the acquisition notifications, the possession
was taken on 05.05.1988. He submits that the plaintiff-
Joseph Tyagaraj never sought for cancellation of the
acquisition. He submits that the award for acquisition of the
land of Joseph Tyagaraj was a consent award and it was
never the subject matter of the quashment of the
notifications by this Court as well as by the Hon'ble Apex
Court. He points out that the RTC in respect of the suit
schedule property show the name of the society and
therefore, the suit of the plaintiff is not maintainable. He
also submit that the applicability of the quashment of the
notification has been dealt with by this Court in the case of
Smt Jethrutha Vs The State of Karnataka and others in WA
No.4363/2010 dtd 20-09-2011 where, it is clarified that
such quashment ordered in the case reported in AIR 2007
SC 1151 would not apply to the persons who have not
approached the Court on the ground that there was no such
order that it would apply to all similarly placed persons.
Reliance was placed on the order in CA No. 1930 of 2012 in
B. Anjanappa Vs Vyalikaval House Building Co Op Society
by Apex court dated 24-4-2014 also (Anjanappa 2).
35. Lastly, he submits that he only came to know
about the present appeals when the Court Receiver was
appointed by this Court on 14.10.2022 and then, he came
to the spot and put up a sign board saying that the receiver
is appointed by the Court and status-quo has to be
maintained by all the parties. Therefore, he submits that
the order of status-quo passed by this Court be vacated and
necessary applications have been filed by the applicant in
this regard. In support of his contention, he has placed
reliance on the following decisions:
1. Union Of India and Others Vs. Vasavi Co-Operative
Housing Society Limited and Others.3
2. City Municipal Council Bhalki, by its Chief Officer Vs.
Gurappa (Dead) by Legal Representatives and Another.4
3. B Santoshamma and Another Vs. D.Sarala and Another.5
36. In reply, learned Senior Counsel Sri Ashok
Haranahalli, submits that the decision of the Chandrappa's
case [(2007) 9 SCC 304] is final and the subsequent
judgments are not at all applicable to the case on hand. He
submit that two other cases relied by the applicant-society
(2014) 2 SCC 269
(2016) 2 SCC 200
i.e., Anjanappa 1(CA No. 1930 of 2012 in B. Anjanappa Vs
Vyalikaval House Building Co Op Society by Apex court
dated 2-7-2012) and Anjanappa 2 are not relevant as they
pertain to reacquisition.
Points for determination:
37. In the light of these arguments, the points that
arise for our determination in these appeals are:
1. Whether the plaintiff has proved his title over 25 guntas
in Sy No. 50/4 of Nagavara as claimed in plaint?
2. Whether the plaintiff is entitled to claim declaration
regarding the sale deed executed by Thammaiah in
favour of defendant?
3. Whether the impugned judgment of the trial Court in
OS No.4315/2006 is perverse, arbitrary and capricious
and needs to be interfered with?
4. Whether the impugned judgment in OS No. 16433/2011
is sustainable?
5. Whether the impleading applicant is a necessary party
to the lis?
(2020) 19 SCC 80
6. Whether the application for adducing of additional
evidence deserves to be allowed?
Analysis and Conclusions:
Re: Point No.1:
38. The case of the plaintiff as can be gathered from
the pleadings is that the grandfather of the plaintiff i.e.,
Dravidappa was a mortgagee of about 25 guntas of land
and he is claiming that the defendants are the descendent
in title of the mortgagor. The said mortgage having not
been redeemed, the plaintiff has become owner of the same
and therefore, the defendant does not have any title. The
second contention of the plaintiff is 25 guntas of land in
Sy.No.50/4 was sold by Thirumalappa in favour of
Dravidappa and therefore, the plaintiff being the
descendent in title, shall be declared as owner of the suit
schedule property. The third contention is that the
defendant being the purchaser of the property from
Thammaiah (who is the defendant in O.S.No.15433/2004)
had not obtained any title as Thammaiah had no title in the
property. As a consequence, he has sought for permanent
injunction restraining the defendants from interfering in the
peaceful possession as well as from alienating the suit
schedule property.
39. Before we enter into the merits of the case, it is
to be borne in mind that the plaintiff has to succeed in his
claim on his own strength and stand on his own legs. In the
case of Union Of India and Others Vs. Vasavi Co-
Operative Housing Society Limited and Others6 it was
held that:
"15. It is trite law that, in a suit for declaration of
title, the burden always lies on the plaintiff to make
out and establish a clear case for granting such a
declaration and the weakness, if any of the case set
up by defendant would not be a ground to grant
relief to the plaintiff"
(2014) 2 SCC 269
The Judgment in City Municipal Council Bhalki, by
its Chief Officer Vs. Gurappa (Dead) by Legal
Representatives and Another7 also lays down same
principle.
40. The claim of title of the plaintiff over the suit
schedule property emanates from the mortgage as well as
the sale deed in favour of his grandfather Dravidappa.
Therefore, it is necessary to look into these contentions of
the plaintiff.
41. The first document relied by the plaintiff is the
mortgage deed produced at Ex.P10. This document shows
that on 04.05.1923, Kashi Muniswamy (grandfather of
Thammaiah) had executed a registered mortgage deed in
favour of Daveerappa (there is no pleading that Daveerappa
and Dravidappa are one and the same) concerning five
properties and the property claimed by the plaintiff is
described as 25 guntas of land in Sy.No.50/2; bounded by
(2016) 2 SCC 200
water channel on the East, Gopalappa's land on the West,
land of Thirumalappa on the North and the land of
Muniramanna on the South. This document is registered as
document No.4566 on 26.05.1923. It is relevant to note
that the boundaries mentioned in this document do not tally
with the boundaries mentioned in the plaint, except that
there is a water channel on the eastern side. Moreover, it
pertains to Sy.No.50/2 but not Sy.No.50/4. Unless the
plaintiff shows that Sy.No.50/2 referred in this document
was renumbered as Sy.No.50/4 and also that the
boundaries are also of the same property, he cannot claim
any derivative interest under Ex.P10.
42. The second document relied by the plaintiff is sale
deed at Ex.P11. It shows that on 13.09.1930,
Thirumalappa, who was the brother of Kashi Muniswamy
had executed the sale deed in respect of two immovable
properties in favour of the grandfather of the plaintiff
Daveerappa for a consideration of Rs.300/-. One of the
property among them is 25 guntas of land in Sy.No.50/2;
bounded by water channel and village on the east, land of
the purchaser(Daveerappa) on the west and north, land of
Kashimuniswamy on the south. It is pertinent to note that
this document refers to a mortgage deed executed earlier,
which was registered at Sl.No.4568 dated 25.05.1923.
Obviously, it is not referring to Ex.P10 (which is registered
as document No.4566 on 26.05.1923). It is relevant to note
that on the southern side of the property sold under
Ex.P11, the land belonging to the mortgagor in Ex.P10 is
situated. Thus, it is evident that Ex.P10 and Ex.P11 both
mention that they are in respect of 25 guntas of land each
in Sy.No.50/2; and on the eastern side of both the lands,
there is a water channel. Obviously, both these lands are
different and were held by two different persons i.e.,
Kashimuniswamy and Thirumalappa. It is also relevant to
note that both these documents are in respect of the
portion of the land in Sy.No.50/2 but not 50/4.
43. The third document the plaintiff relies is Ex.P7-
partition deed. This document evidences the partition
effected between Thomasappa and his sons. Item No.6 of
Schedule-D is stated to be the relevant entry pertaining to
the suit schedule property. It is described as Sy.No.50/2
measuring 25 guntas bounded by water channel on the
east, land of Dravidappa on the west, Sy.No.50/2, 3, 5 and
6 on the North and land of Abbiga on the south. The
plaintiff contends that Sy.No.50/2 in fact should have been
described as Sy.No.50/4 and the said inadvertent error was
rectified by rectification deed at Ex.P8.
44. The plaint describes the suit schedule property as
the land in Sy.No.50/4 measuring 25 guntas bounded by:
water channel on the East; land of Dravidappa on the West;
Sy.Nos.50/2, 3 and 4 on the North and the land of the
defendant on the South.
45. What emanates from these documents is, there is
nothing on record which shows that Ex.P10 and Ex.P11
refer to Sy.No.50/4. Obviously, these two documents relate
to Sy.No.50/2 and both refer to two different lands which
are measuring 25 guntas each. If these two documents are
considered, then the total extent of the land is 01 acre 10
guntas and it does not tally with the total extent of the land
with Sy.No.50/4 which is 01 acre 07 guntas. There is no
averment or a satisfactory explanation in this regard.
Therefore, the property which was mortgaged by
Kashimuniswamy to Dravidappa under Ex.P7 has no
semblance of relationship with the suit schedule property.
46. Ex.P11-sale deed refers to an earlier mortgage
also. Obviously, the said earlier mortgage could not be
redeemed by Thirumalappa and therefore, he sold the
property to Dravidappa. If we see the prayer made by the
plaintiff in the plaint, it is evident that 25 guntas which was
mortgaged to the plaintiff's grandfather, is sought to be
declared to be of his ownership. The subsistence of the
mortgage of the property is not established since the
plaintiff is relying on Ex.P11 sale deed. Ex.P11 refers to
Sy.No.50/2 and the boundaries do not tally. Hence, the
prayer in respect of the title based on the mortgaged
property has to fail.
47. The plaintiff contends that the suit schedule
property was earlier known by Sy.No.50/2 and later, it was
converted to Sy.No.50/4. There is no pleading that
Sy.No.50/2 was later renumbered as Sy.No.50/4.
Obviously, this revision in number has to be reflected in the
records of the revenue authorities. Simply because
Dravidappa and his family members had mentioned that
Sy.No.50/2 was wrongly mentioned in Ex.P7, it cannot be
said that it was given a new number. Therefore, it is
evident that at no point of time, Sy.No.50/2 was
renumbered as Sy.No.50/4 by revenue authorities.
Absolutely, no evidence is placed on record in this regard.
48. The plaintiff is relying on the revenue records also.
The Ex.P1 to P4 are the RTCs of Sy.No.50/4. These
documents show that the property measures 01 acre 07
guntas and 25 guntas is in the name of the plaintiff and 20
guntas is in the name of Thammaiah. It also shows that 18
guntas is acquired by BDA and 27 guntas is acquired by
Vyalikaval House Building Society. In other words, these
documents show that a total of 01 acre 05 guntas has been
acquired by the Government. This acquisition is in dispute
between the plaintiff and the impleading applicant. This
aspect would be dealt by this Court at the latter part of the
judgment while considering the application for impleading.
49. From the above records, it is evident that none of
the RTC showed the name of Dravidappa or his adoptive
father Chinnappa in respect of Sy.No.50/4. Prior to 1990,
there is nothing on record to demonstrate that Sy.No.50/4
stood in the name of the father of the plaintiff Thomasappa
or grandfather Dravidappa. It is also to be noted that the
entry of the name of Dravidappa commences only from the
year 1980 in respect of Sy.No.50/4. Obviously, it is in
pursuance to the correction of the partition deed which had
allegedly taken place in the year 1972. If the correction
deed as per Ex.P8 was in respect of an error which had
occurred in Ex.P7 Partition deed, the records prior to
partition deed should have mentioned the name of
Dravidappa in respect of Sy.No.50/4. Therefore, when there
is no iota of evidence to show that Sy.No.50/4 was standing
in the name of Dravidappa at any time, we are unable to
accede to the submissions made by learned counsel for
appellant.
50. One another aspect which is of significance is that
the plaintiff nowhere states in his pleadings or in the
evidence that the error in respect of Sy.No.50/4 which
occurred in Ex.P7 was an error which was there since the
sale deed produced at Ex.P11 i.e., in the year 1930.
Therefore, in the absence of any material to establish that
the property that is referred in Ex.P11 was in fact, referring
to Sy.No.50/4, it is not possible for this Court to hold that
Sy.No.50/4 was owned by Dravidappa and then it
descended upon Chinnappa and thereafter, Thomasappa.
Under these circumstances, the uninterrupted flow of title in
respect of Sy.No.50/4 has not been established by the
plaintiff. When the plaintiff averred in the plaint that he is
claiming the title over the suit schedule property by virtue
of either Ex.P10 or Ex.P11, which as noted earlier pertain to
two different properties it is not possible for this Court to
hold that there is an uninterrupted flow of title in respect of
the suit schedule property. Hence, we are of the considered
view that the plaintiff has failed to establish that he has the
right, title and interest in respect of the suit property.
Re: Point No.2.
51. The plaintiff seeks to declare that the sale deed
executed by Thammaiah in favour of the Defendant-
Nagaraja Shetty is null and void on the ground that
Thammaiah has no right, title and interest over the suit
property. It is relevant to note that in OS No.4315/2006,
the said Thamamaiah or his legal heirs are not the parties.
Obviously, the plaintiff was not a party to the said sale
deed. So also, he had nothing to do with the sale deed
executed by Thammaiah in favour of defendant-Nagaraja
Shetty. When the plaintiff is seeking to declare that sale
deed is null and void for which he is not a party, obviously,
the parties to the said sale deed should have been arrayed
as defendants in the said suit. Hence, for non impleadment
of the said Thammaiah in the suit for declaration that the
sale deed executed by him is null and void goes to the root
of the case. It is not the grievance of the defendant-
Nagaraja Shetty that Thammaiah has sold the said property
under Ex.P18 to him without any title. The sale deed binds
the parties to it and the plaintiff was not a party to the
same. Therefore, the declaration that the said sale deed is
null and void had nothing to do with respect to the rights of
the plaintiff in suit schedule property, if he had any.
52. The trial Court in its judgment has observed that
when it is not the grievance of the defendant that
Thammaiah had sold the property without any title in him,
it was not open for the plaintiff to seek declaration that the
said sale deed is null and void. This observation of trial
court stretches a little beyond the claim made by the
plaintiff. When there was no such grievance by the
defendant Nagaraja Shetty, the plaintiff could not have
sought for declaration of the said sale deed as null and
void. At the most he could have claimed that the said sale
deed is not binding on him.
53. The said declaration was redundant and of no
relevance, more particularly, when the plaintiff himself
contended that there was an acquisition by the BDA and for
the Vyalikaval Society and later the said notifications for
acquisition were quashed. Hence, the prayer for
cancellation of the sale deed executed by Thammaiah in
favour of the defendant Nagaraja Shetty could not have
been sought by the plaintiff.
Re: Point No.3
54. The third point is in respect of the judgment of the
trial Court. The trial Court in its judgment has observed
several aspects to come to the conclusion that the suit has
to be dismissed, which are as below:
(a) It observes that the location of the suit
schedule property was not pleaded and revenue
sketch of the same was not produced by either of the
parties. When the plaintiff claims title over a portion of
the property, the revenue sketch should have been
produced to show that his property is on northern side
and that of Thammaiah is on the southern side. No
such evidence is available on record.
(b) The trial Court held that plaintiff says that 18
guntas was given to society and again he says that
another 18 guntas were sold to the defendant. The
boundaries in respect of 18 gunthas which was
acquired and 18 gunthas sold to the defendant should
have been demonstrated by the plaintiff No such
evidence is produced.
(c) To ascertain the acquisition of 27 gunthas of
the land of the plaintiff, the details of the land
acquisition and the evidence in respect of restoring
the possession of the said property to the plaintiff
should have been produced. No such material is
available on record.
(d) The vendor of the defendant i.e. Thammaiah
is not a party to the suit and therefore, the declaration
that the sale deed is null and void cannot be granted.
(e) The trial Court holds that the said
Vaiyalikawal House Building Co-operative Society
Limited is also a necessary party.
(f) It observes that no declaration was sought in
respect of the title of the mortgaged property within
the period of 30 + 3 years. The plaintiff is seeking
such title only after 50 years. Obviously this
observation is without ascertaining the contents of
Exs.P10 and 11.
(g) It observes that there are no records to show
that prior to 1972 partition and the rectification deed
in the year 1980 as per Exs.P7 and 8, there is nothing
on record to show that Sy.No.50/4 was belonging to
Thomasappa. Therefore, the flow of title has not been
established by the plaintiff.
(h) It also observes that there is no reference in
respect of Sy.No.50/4 in Ex.P10 or Ex.P11. Entire
records showing Sy.No.50/4 in the name of
Thomasappa or Dravidappa was only after the year
1980 rectification deed. The trial Court also observes
that the RTC are not the documents of title and when
there is no evidence on records to show that
Sy.No.50/4 existed and was standing in the name of
Thomasappa or Dravidappa prior to 1980, it cannot be
said that the revenue records would show the title to
the suit schedule property.
(i) The trial Court observes that there is nothing
on record to show that Sy.No.50/2 was revised as
Sy.No.50/4 by the revenue authorities. There is no
such pleading or the evidence to show that earlier suit
survey number was measuring 1 acre 5 guntas + 2
guntas of pot karab and it was renumbered as
Sy.No.50/4.
(j) The trial Court observes that DW.1 in
O.S.No.15433/2004 admits that 27 guntas was
acquired by the BDA and there was no such evidence
to show that the said 27 guntas was also part of
acquisition and the notification in respect of said land
was also quashed. However, the revenue records
produced by the plaintiff show that there was
acquisition proceedings in respect of 27 and 20 guntas
of the Sy.no.50/4 and no cogent evidence is available
to show that acquisitions for both the parcel of the
land were quashed.
(k) The trial Court holds that the plaintiff should
have paid the Court fee on the market value and the
Court fee paid is insufficient.
55. On these grounds, the trial Court came to the
conclusion that the suit is liable to be dismissed. In our
discussion also, it is demonstrated that there is nothing on
record to show that Dravidappa or Thomasappa were the
owners of Sy.No.50/4 at any point of time. All the
documents produced by the plaintiff pertain to Sy.No.50/2.
It is not known when Sy.No.50/2 was converted to
Sy.No.50/4 with a new number or how and when
Sy.No.50/4 was carved out. We do not find any reason to
hold that the impugned judgment of the trial Court either
arbitrary, capricious or perverse.
Re: Point No. 4.
56. As noted above, this suit was filed by the plaintiff
Joseph Tyagaraj seeking injunction against Thammaiah.
The Trial court held that the plaintiff's name is appearing for
25 gunthas of land in Sy No. 50/4 and such entry was not
challenged by Thammaiah and also that in WP No.
47842/2003, the acquisitions of land bearing Sy No. 50/2
and 50/3 by the Govt for Vyalikaval society were quashed
and as such the possession of the plaintiff was proved.
57. It is significant to note that Ex.D2 to D4 in OS No.
15344/2004, which are the RTC pertaining to Sy No. 50/4
for the year prior to 1979-80 (prior to rectification deed)
show that the name of Thammaiah was mentioned as the
owner. Nowhere the name of Dravidappa or Thomasappa
was appearing prior to 1980.
58. The larger issue regarding the title to the property
is held against the plaintiff. Therefore, the claim on the
basis of a revenue entry cannot be sustained. By no stretch
of imagination, the revenue records can be documents of
title. Therefore, the judgment in OS No. 15344/2004 is not
sustainable. Obviously the trial Court did not go into the
question of title. When the plaintiff is bereft of title to the
property, he is not entitled for any relief of injunction.
Re: Point No.5.
59. In the affidavit filed by the impleading applicant
i.e., Vyalikaval House Building Co-operative Society
Limited, the deponent contends that it came to know about
the present suit only when the Court Receiver came to the
spot and directed the parties to maintain the status-quo
and stopped the civil work to form a layout. It is the
contention of the applicant-Society that the acquisition was
challenged by some of the land owners stating that it is
illegal and that acquisition proceedings in respect of those
applicants was quashed by this Court and later it was
confirmed by the Apex Court in Chandrappa's case. It is
contended that the plaintiff had not approached the Hon'ble
High Court or the Apex Court in respect of the property
belonging to him and therefore, the properties, more
particularly, Sy.No.50/4 was not involved in the quashment
proceedings and therefore, the acquisition holds good. In
this regard, he relies on various decisions. He submits that
in a subsequent decision, this Court has held that the
quashment holds good only for the applicants who had
approached the Court and it is not in respect of the plaintiff
herein and it does not apply in respect of the plaintiff
herein. He also relies on the observations of the trial Court
wherein, it was held that the society was also a necessary
party.
60. It is relevant to note that if the plaintiff had
succeeded in the plaint, that would have resulted in an
injunctory relief in his favour. In view of the discussions
made supra, the appeal fails as the plaintiff has not proved
that he was the title holder of the suit schedule property.
Therefore, the impleading applicant-Society is not a
necessary party. Moreover, there is no prayer sought by the
plaintiff against the applicant-Society in this case. If at all
the plaintiff had succeeded in the suit, the benefit of the
decree would have enured to him against the appearing
defendants. The applicant-society was at liberty to agitate
its rights before the proper forum. The said society was
never in the picture in any form in the present suit. It is
claiming only under the land acquisition proceedings and it
is evident that there are several litigations which have
cropped from the acquisition proceedings. Under such
circumstances, when there is no relief sought against the
applicant herein, it is not necessary for this Court to
venture into the merits of the claim of the impleading
applicant albeit; though there is an observation by the trial
Court that it was a necessary party. Hence, the application
is devoid of any merits and as such, the same deserves to
be dismissed.
Re: Point No.6.
61. The impleading applicant has filed similar
applications seeking to adduce additional evidence
regarding his claim that he is in possession on the bases of
the acquisition proceedings, which are sustained by a series
of litigation. We have come to the conclusion that the suits
filed by the plaintiff Joseph Tyagaraj are not sustainable as
he has failed to establish his title. Therefore, these
applications would be redundant and they would serve no
purpose. Therefore, these applications filed under Order 41
Rule 27 of CPC are liable to be dismissed. Accordingly
dismissed.
Re: Court Receiver and other interim applications
62. As noted supra, a Court Receiver was appointed at
the instance of the plaintiff to prevent the construction
activity in the suit property, which was undertaken despite
there being an order of Status-quo. Now that the appeal
filed by the plaintiff is dismissed, all the interim orders
stand merged with the final order. Hence, the Court
Receiver also stand discharged.
63. For aforesaid reasons, we pass the following
order.
ORDER
(i) RFA No. 7/2011 is allowed. OS No.
15433/2004 stands dismissed.
(ii) RFA No.1684/2010 is dismissed with
costs.
(iii) The judgment passed by the trial
Court in OS No. 4315/2006 dated 24-09-2010
is hereby confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
tsn*
