Karnataka High Court
Smt Jagadamma vs Sri S H Rajappa on 18 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL No.1384/2016(RES)
BETWEEN
SMT JAGADAMMA
W/O LATE KRISHNAPPA,
(SINCE DEAD, REPRESENTED BY LEGAL
REPRESENTATIVES)
(a) SMT.K.ROOPA
D/O R. KRISHNAPPA
AGED ABOUT 46 YEARS
RESIDING AT NO.15, 1ST FLOOR
3RD CROSS, LINGAPPA BLOCK
THIMMAIAH GARDEN,
R.T.NAGARA
BENGALURU.
(b) NAVEENKUMAR.K
S/O R.KRISHNAPPA
AGED ABOUT 42 YEARS
NO.125/1, 1ST FLOOR,
SIDDHARTHA LAYOUT
KAVAL BYRASANDRA
BENGALURU - 560 032.
...APPELLANTS
(BY SMT.SANGEETA.S, ADVOCATE)
2
AND
1. SRI S H RAJAPPA
S/O SIDDALINGAPPA,
AGED ABOUT 40 YEARS,
2. SMT. G H MANJULA
W/O RAJAPPA,
AGED ABOUT 25 YEARS,
RESPONDENT NO.1 AND 2 ARE
RESIDING AT NO.438, 13TH MAIN,
SRINIVASANAGARA, III STAGE,
BANASHANKARI, BENGALURU.
3. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY
T.CHOUDAIAH ROAD, KUMAR PARK WEST,
BENGALURU.
4. SRI GANESH
FATHERS NAME NOT KNOWN
AGED ABOUT
5. SRI BHOOLAL
FATHERS NAME NOT KNOWN
AGED ABOUT
(RESPONDENT NO.4 AND 5 ARE
RESIDING AT NO.438,
GROUND FLOOR
13TH MAIN, SRINIVASANAGARA,
III STAGE, BANASHANKARI,
BENGALURU.
...RESPONDENTS
(BY MISS.ANANYA RAI FOR SRI M.V.CHARATI,
ADVOCATES FOR R3;
R1, R2, R4, R5 APPEAL AGAINST THEM IS DISMISSED)
3
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 14.12.2015 PASSED IN O.S.No.17146/
2005 ON THE FILE OF THE IV ADDL. CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU (CCH-
21), DISMISSING THE SUIT FOR EVICTION AND
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
The present appeal is directed against the judgment
and decree dated 14th December 2015 passed in
O.S.No.17146/2005 on the file of the IV Additional City
Civil and Sessions Judge, Mayo hall Unit, (CCH-21),
Bengaluru, whereby, suit of the plaintiff came to be
dismissed with costs.
2. For the sake of convenience, parties are referred
to as plaintiffs and defendants as per their original ranking
before the Trial Court.
3. The brief facts which are utmost necessary for
disposal of the present appeal are as under:
Plaintiff filed the suit for eviction and permanent
injunction against the defendants in respect of the
following property which is hereinafter referred to as 'suit
property' for convenience.
"All piece and parcel of property bearing site
No.438, in Sy.No.11/1, Gerahalli village, Ward
No.54, 13th Main, Srinivasanagar, III Stage,
Banashankari, Bengaluru, measuring East to West
45 feet and North to South 29 feet, (all the
measurement includes East by: 25½ , West by: 8
feet, North by: 50¾ feet and South by 41 feet),
and bounded on:
East by: 13th Main Road,
West by: Private property Site No.468,
North by: Private property Site No.439,
South by: Private Property Site No.437.
4. Claim of the Plaintiff is that plaintiff is the owner of
the suit property having purchased the same under
registered sale deed dated 12.10.1972 from L.Narasinga
Rao. After purchase, plaintiff has constructed a house with
asbestos roof. However, on account of education of her
children, she stayed at J.C.Nagar, Bengaluru. Defendant
Nos.1 and 2 being the husband and wife, forcibly
dispossessed the plaintiff, demolished the existing building
and illegally entered into possession of the suit property.
It is further contended that defendants 1 and 2 thereafter,
misrepresented to the BDA that the suit property is
belonging to them and obtained fake possession certificate
in the name of Sri K. Narayanan and sold the property to
one Smt.Saroja. Subsequently, a building was constructed
on the suit property illegally and same is let out to the
defendants 4 and 5. Though plaintiff is the owner in
possession of the suit property, taking advantage that she
did not live in the suit property, all these transactions have
taken place by exploiting precarious condition of the
plaintiff and fabricating the documents, and that
defendants 4 and 5 are now residing in the suit property.
5. A suit was filed fin O.S.No.8879/2004 seeking an
order of injunction against defendant Nos.1 and 2
restraining them from putting up construction. The Trial
Court which entertained the said suit and application
seeking temporary injunction, declined to grant interim
order and at that juncture defendant Nos.1 and 2 put up
construction and let it out to defendant Nos.4 and 5 and as
such, the plaintiff is deprived of possession of the suit
property and therefore, sought for decreeing the suit with
mesne profits.
6. Upon receipt of suit summons, defendant Nos.4
and 5 did not choose to appear before the Court and were
placed ex-parte. The suit against the 3rd defendant-BDA
came to be dismissed as per the Memo dated 04.11.2015.
Defendant Nos.1 and 2 appeared before the Court through
their advocate and filed detailed written statement denying
the plaint averments in toto. The defendant Nos.1 and 2
contended that they are the husband and wife. There is
no cause of action to file the suit and suit property is
belonging to them and sought for dismissal of the suit.
7. Defendants maintained that suit is part of
Sy.No.11/1 of Gerahalli which was owned by one Mannaji
Rao, S/o Venkata Rao. The BDA acquired the said land for
forming Banashankari III Stage by issuing notification
dated 28.10.1971 and compensation was paid to the land
owners as per revenue records. The BDA, after forming
the layout, formed various sites and allotted the same to
K.Narayanan and his wife under lease cum sale agreement
dated 22.08.1984 and later on, sale deed was executed on
19.06.1998 in favour of Smt.Vijayamma, W/o
K.Narayanan. She sold the said property through GPA
Holder in favour of Smt. Saroja W/o S.Ganesh, by
registered sale deed dated 22.11.1999. It is Smt.Saroja,
who raised the residential construction over a portion of
the suit property and let out the same to a tenant.
Defendant Nos.1 and 2 purchased the property from
Smt.Saroja through sale deed dated 29.04.2002 for
valuable consideration and therefore, they are in
possession of the suit property and sought for dismissal of
the suit.
8. Based on the rival contentions of the parties, the
learned Trial Judge raised the following issues:
(i) Whether plaintiff proves that defendants are
in unlawful possession of the suit property
on the date of suits?
(ii) Whether the defendants are liable to deliver
vacant possession of suit property?
(iii) Whether plaintiff is entitle for mesne profits?
(iv) Whether suit is valued properly and court fee
paid is sufficient?
(v) What order or decree?
9. In order to prove the case of the plaintiff, plaintiff
got examined herself as P.W.1 and relied on 13
documentary evidence which were produced and marked
as Exs.P.1 to 13 comprising of encumbrance certificates at
Exs.P.1 and 2, rough sketch at Ex.P.3, certified copy of the
application at Ex.P.4, encumbrance certificates at Exs.P.6
and 7, copy of the representation at Ex.P.8, sale deed
executed by Narshima Rao at Ex.P.9, photographs at
Exs.P.10 to 12 and negatives at Ex.P.13.
10. On behalf of the defendants, defendant No.1-S.H.
Rajappa, was examined as D.W.1 and relied on 13
documentary evidence which were produced and marked
as Exs.D.1 to 13 comprising of certified copy of lease cum
sale agreement at Ex.D.1, certified copy of transfer
agreement at Ex.D.2, certified copy of the sale deed at
Ex.D.3, certified copy of sale deed dated 22.11.1999 at
Ex.D.4, certified copy of sale deed dated 29.04.2002 at
Ex.D.5, certified copy of mortgage title deed at Ex.D.6,
encumbrance certificate at Ex.D.7, khatha certificate at
Ex.D.8, khatha Extract at Ex.D.9, plan at Ex.D.10, copy of
layout plan at Ex.D.11, letter at Ex.D.12 and copy of
mortgage deed dated 10.02.2011 at Ex.D.13.
11. Thereafter, the Trial Court heard the parties in detail
and by the impugned judgment and decree, dismissed the
suit of the plaintiff, without costs.
12. Being aggrieved by the judgment and decree passed
by the Trial Court, present Appeal is preferred on the
following grounds:
"The Judgment and Decree passed the Hon'ble Trial
Court is improper and the same is an error apparent
on the face of the records. Hence the Judgment and
Decree dated 14/12/2015 ought to be set-aside.
The Hon'ble Trial Court has failed to consider the fact
that whether the defendant has produced the
sufficient documents in support of his contention
narrated in para 9 of the Written Statement
averments about Notification by the B.D.A. neither
the defendant 1 and 2 nor the defendant 3 have
produced the Notification dated 28/10/1971 and
which was published the Mysore Gazette on
25/11/1971, when the plaintiff denied the
notification by putting the specific question in the
cross examination of Dw-1 stating that the
Acquisition in respect of Sy.No.11/1 is de-notified by
the B.D.A.
The Hon'ble Trial Court has failed to consider the fact
that if any such Notification in respect of Sy.No.11/1
is made as averred by the Defendant No.1 and 2 in
their written statement then it is for the Defendant
No.3 to produce necessary Documents before the
Trail Court instead of that the defendant No.3 choose
to file a Memo dated 04/11/2015 and thereby
mislead the Hon'ble Trial Court. Being Sovereign
State the conduct of the Defendant No.3 is not
tenable on the contrary the plaintiff's title to the suit
schedule property is proved beyond any doubt."
13. Smt. S.Sangeeta, learned counsel for the appellants,
reiterating the grounds urged in the appeal memorandum,
vehemently contended that the impugned judgment is
suffering from legal infirmity inasmuch as the Trial Judge
failed to note that plaintiff is the owner of the suit property
purchased under registered sale deed dated 12.10.1972
from L.Narasinga Rao and as such, she was in possession
of the suit property. She was entitled to evict the
defendants 1 and 2 from the suit property and also she
was entitled for an order of permanent injunction and thus
sought for allowing the appeal.
14. She further pointed out that defence put forth on
behalf of defendants 1 and 2 that they were inducted into
the property by Smt.Saroja is far from truth and
defendants have failed to make out a case by properly
establishing that they were inducted by Smt.Saroja. She
also argued that non examination of Smt.Saroja on behalf
of defendants is fatal aspect which is ignored by learned
Trial Judge in passing the impugned judgment and sought
for allowing the appeal.
15. Per contra, Ms.Ananya Rai, learned counsel for Sri
M.V.Charati, learned counsel for BDA submitted that the
land was acquired and later on residential sites have been
formed. Lease cum sale agreement was executed in
favour of allottee by name K.Narayanan and he was put in
possession of the property by BDA under possession
certificate dated 22.08.1984. Thereafter, BDA has got
nothing to do with the suit property and sought for passing
appropriate order.
16. In view of the rival contentions of the parties, this
court perused the material on record meticulously. On
such meticulous perusal of the material on record, the
following points arise for consideration,
(i) Whether the plaintiff has established that
she is the absolute owner of the suit
property and defendants have occupied
the suit property illegally and thus,
plaintiff is entitled to a decree of
possession with mesne profits and an
order of injunction?
(ii) Whether the impugned judgment is
suffering from any legal infirmity or
perversity and thus calls for interference?
(iii) What Order?
17. In the case on hand, according to plaintiff, she has
purchased the property under registered sale deed dated
12.10.1972 from L.Narasinga Rao. To substantiate the
said aspect of the matter, sale deed executed by L.
Narasinga Rao is marked at Ex.P.9 and also encumbrance
certificates at Exs.P.1 and 2. As against the title of the
plaintiff, defendants have pleaded that the suit property
was acquired by the BDA for formation of Banashankari III
Stage. According to them, acquisition has taken place by
issuing necessary notification and BDA formed the layout
in the entire land in Sy.No.11/1 of Gerahalli village and
other adjacent lands and formed Banashankari III Stage
lay out.
18. As such, the right, title and interest, if any, that was
possessed by the vendor of the plaintiff viz., L.Narasinga
Rao has merged with the acquisition and therefore, as on
the date of Ex.P.9, there was no subsisting right, title and
interest in respect of suit property possessed by
L.Narasinga Rao so as to sell it in favour of plaintiff.
19. The material on record, especially, the lease cum
sale agreement executed by BDA after allotment in favour
of K.Narayanan is produced before the Court which
establishes that BDA has acquired the suit property. After
the period fixing lease cum sale deed, regular sale deed is
also executed in favour of the wife of K.Narayanan. The
suit property was also subject matter of mortgage with a
Co-operative Bank. The material document in that regard
would establish that K.Narayanan had every right to
possess the suit property and he has exercised the
ownership right over the suit property.
20. The material on record further discloses that
K.Narayanan had executed power of attorney in favour of
Ganesh. Ganesh has sold the property in favour of
Smt.Saroja under registered Sale Deed dated 22.11.1999.
The material available on record also discloses that
Smt.Saroja built up residential structure over a portion of
the suit property by obtaining necessary plan and licence
from the concerned Authority and also electricity and
water connection. It is Smt.Saroja who let out the
property.
21. Oral evidence of D.W.1 is corroborated by the
document which would also go to show that Smt.Saroja
sold the suit property under registered sale deed on
29.04.2002 in favour of D.W.1 who is in possession of the
property.
22. D.W.1 after purchase, in order to demolish the
dilapidated existing structure, surrendered the electricity
and water connection and evicting the tenants who are in
occupation of the property. Thus defendants have traced
the title to the suit property right from the allotment of
suit property in favour of K.Narayanan till sale deed that
has taken place in the year 2002.
23. When the material documents that have been
produced by the plaintiff compared with the material
documents that have been relied upon by defendants, it is
crystal clear that plaintiff said to have purchased the
revenue site under Ex.P.9 from its erstwhile owner
L.Narasinga Rao. As on the date of sale, entire property
was already notified by the BDA for formation of
Banashankari III Stage layout. When acquisition is
completed, whatever the rights that L.Narasinga Rao had
possessed had been extinguished and it merged with
acquisition. Only right that the erstwhile owner
L.Narasinga Rao possessed was to claim compensation.
24. Therefore, even though Ex.P.9 is original sale deed
produced and relied on by the plaintiff, under Ex.P.9, no
rights have flown to plaintiff seeking an order of eviction of
defendants and seeking possession of suit property and
also for injunction and mesne profits. Other documents
which are produced by the plaintiff are ancillary to Ex.P.9
and they do not advance the case of the plaintiff to further
extent.
25. These aspects of the matter have been rightly
appreciated by the learned Trial Judge in the impugned
judgment and appropriate findings have been recorded by
the learned Trial Judge in the impugned judgment.
26. Even after re-appreciation of the material on record,
in the absence of any right that has been possessed by
L.Narasinga Rao to sell the suit property in favour of
plaintiff under Ex.P.9, this Court is of the considered
opinion that the plaintiff has failed to make out title to the
suit property so as to seek possession of the suit property
from the defendants.
27. As such, the impugned judgment cannot be termed
as perverse or suffering from any legal infirmity.
28. On the contrary, the material evidence on record
clearly establishes the title in favour of defendants having
regard to the fact that the suit property was allotted to
K.Narayanan by the BDA and subsequent sale deeds
ultimately culminated in the sale deed dated 29.04.2002 in
favour of D.W.1 and therefore, the impugned judgment is
based on sound and logical reasons and proper analysis of
the oral and documentary evidence on record.
29. Further, as argued on behalf of Appellant that non
examination of Smt.Saroja is not fatal, inasmuch as the
title is traced based on documents which are registered
sale deeds, would speak for themselves that D.W.1 is
possessing title over suit property.
30. Accordingly, in view of the foregoing reasons, point
Nos.1 and 2 are answered in the negative.
31. Regarding Point No.3: In view of the findings of this
Court on point Nos.1 and 2 as above, the following:
ORDER
(i) Appeal is meritless and is hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE
kcm
