Sri Rangappa vs The Bangalore Development Authority
2023 Latest Caselaw 11170 Kant

Karnataka High Court

Sri Rangappa vs The Bangalore Development Authority on 20 December, 2023

Author: V. Srishananda

Bench: V. Srishananda

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 20TH DAY OF DECEMBER, 2023

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 REGULAR FIRST APPEAL No.1755/2012(DEC/INJ)

BETWEEN

    SRI RANGAPPA
    SON OF DOBI RANGAPPA,
    AGED ABOUT 68 YEARS,
    SINCE DEAD REPRESENTED BY HIS,
    LEGAL REPRESENTATIVES OF THE PLAINTIFF

1(a) SRI R KRISHNA MURTHY
     SON OF LATE RANGAPPA,
     AGED ABOUT 49 YEARS

1(b) SMT. R NAGARATHNAMMA
     DAUGHTER OF LATE RANGAPPA,
     AGED ABOUT 47 YEARS,

    RESIDING AT No.75/2,
    TAYAPPANA YELE,
    SARKKI VILLAGE,
    UTTARAHALLI HOBLI,
    BANGALORE SOUTH TALUK,
    JP NAGAR, 7TH PHASE,
    BANGALORE-560078

                                        ...APPELLANTS
(BY SRI S.VASANTH MADHAV, ADVOCATE;
VIDE ORDER DATED 25.09.2003, APPEAL AGAINST A1(a) IS
ABATED)
                               2




AND

1.    THE BANGALORE DEVELOPMENT AUTHORITY
      KUMARA PARK WEST,
      T.CHOWDAIAH ROAD,
      BANGALORE-560020

2.    SRI BANASHANKARI TEMPLE,
      A NOTIFIED MUZARAL INSTITUTION,
      S KARIYAPPA ROAD,
      BANGALORE -560 070
      REP BY ITS EXECUTIVE OFFICER

                                                 ...RESPONDENTS
(BY SMT.POORNIMA M, ADVOCATE FOR R1;
SRI HARIPRASAD.N, ADVOCATE FOR R2)

      THIS   REGULAR   FIRST       APPEAL   IS    FILED   UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT     AND    DECREE   DATED     7.7.2012     PASSED    IN
O.S.No.751/2003 ON THE FILE OF XXVII ADDITIONAL CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FILED
FOR DECLARATION AND INJUNCTION.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT'    THIS    DAY,    THE    COURT    DELIVERED       THE
FOLLOWING:-
                                3




                          JUDGMENT

The present Appeal is directed against the judgment

and decree dated 07.07.2012 passed in O.S.No.751/2003 on

the file of the XXVII Additional City Civil Judge, Bengaluru.

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:

Rangappa (original plaintiff) filed suit against the

defendants seeking declaration that he is the absolute owner

in possession and enjoyment of the property bearing

Sy.No.75/2 situated at Sarakkii village, Uttarahalli Hobli,

Bengaluru South Taluk, now called as J.P.Nagar, 7th Phase,

measuring East to West 200 feet and North to South 120

feet, bounded on the-

East by:     Private Property,

West by:     Road,

North by:    Road,

South by:    CITB land.

hereinafter referred to as 'suit property'.

4. Original Plaintiff contended that he has perfected his

right, title and interest over the suit property by adverse

possession and consequently permanent injunction

restraining the defendants and its officials from interference

with possession and enjoyment of the suit property.

5. During pendency of the suit, Rangappa-original plaintiff

died and his legal representatives were brought on record.

According to plaintiffs, they are the absolute owners of the

suit property. It is further case of the plaintiffs that

Doddarangappa, S/o Dobi Rangappa, purchased the said

property from one Era Rangappa, S/o Banappa and his son

Basappa through a registered sale deed dated 09.12.1920.

It is also contended that Era Rangappa, had purchased the

said land measuring 2 acres 34 guntas from one Sri

M.Kempaiah, S/o Nanjundaiah, through registered sale deed

dated 28.06.1910. Plaintiffs also contended that the original

plaintiff having purchased the same, became absolute owner

and in possession of the said property. The parents of the

original plaintiff by name Rangappa and Ramakka enjoyed

the said property as of their own and after the death of

Rangappa-original plaintiff, Ramakka, mother of the plaintiff

continued in possession of the suit property and revenue

records reflected her name and she used to pay taxes in

respect of the suit property.

6. Plaintiff further contended that in respect of 2 acres 34

guntas of land in Sy.No.75/2, Banashankari temple

represented by its sole Dharmadarshi-Sri Somanna Setty laid

a false claim alleging that father of the plaintiff viz., Dodda

Rangappa gifted the suit property in favour of the temple. In

this regard, there was a dispute before the Muzarai

Commissioner. The claim of the temple in that regard was

rejected by Muzarai Commissioner in the appeal as per

orders dated 16.10.1933. An endorsement was also issued

to that effect on 24/26-07-1934. Thereafter, the parents of

the original plaintiff continued to be in possession and

enjoyment of the suit property and used to cultivate the land.

The revenue records amply establish the cultivation of lands

by parents of original plaintiff.

7. Plaintiff further contended that during the year 1948,

the erstwhile City Improvement Trust Board ('CITB' for short)

proposed to acquire the said land by issuing preliminary and

final notifications in official gazette. Thereafter, first

defendant never took possession of the suit property in

pursuance of the notification and did not pay any

compensation to the parents of the original plaintiff and the

acquisition proceedings was opposed by the parents and

authorities agreed to drop the acquisition proceedings.

8. It is also contended that Banashankari temple had no

right, title or interest over the said land in acquisition

proceedings. Plaintiff further alleged that the legal notice

dated 16.06.1952 was issued by the original plaintiff through

his counsel Sri B.T.Ramaswamy and the authority of CITB

was questioned through the said legal notice with regard to

possession of the suit property.

9. Yet another letter was also addressed to CITB in that

regard and original plaintiff continued in possession of the

suit property to the extent of 2 acres 34 guntas as the CITB

failed to take possession of the suit property. Plaintiff also

contended that Dodda Rangappa and Ramakka have got a

son and a daughter who are married and doing coolie work

and by discharging menial work, they are eking out livelihood

and original plaintiff was not an educated person to

understand the niceties of law and therefore, he became the

victim in the hands of second defendant.

10. It is also contended by plaintiff that some portion of

the land held by original plaintiff was acquired for formation

of road and possession of remaining property was with the

original plaintiff and he exercised right over suit property as

owner. Notification issued with regard to acquisition was

never served on original plaintiff or any member of the

family. Therefore, CITB noticing the deficiency in the

acquisition proceedings, dropped to acquire the land.

Thereby, portion of the land was left over which is measuring

East to West 20 feet and North to South 120 feet consisting

of a small asbestos sheet roof house.

11. It is also contended by the plaintiff that on 24.11.1999,

some persons claiming to be the officials of BDA (erstwhile

CITB) visited the place and started to measure the land

belonging to original plaintiff. When same was questioned,

they gave a threat to demolish the house and remove the

barbed wire fencing. Therefore, plaintiff consulted his

advocate and gave representation to the BDA on 25.11.1999.

12. Plaintiff further contended that thereafter, no officials

of the BDA came near the property and plaintiff continued in

possession of the suit property. However, on 08.02.2000,

two persons of first defendant claiming to be the officials of

BDA came near the suit property and again gave threat.

13. Plaintiff further contended that though a notification

was issued in the year 1967 by the CITB styled as

preliminary notification for acquiring 'Sarakki Layout', no

possession was taken over and possession of the suit

property remained with the plaintiffs and therefore, sought

for action against BDA.

14. Plaintiff filed a writ petition in W.P.No.5755/2000

wherein, BDA appeared and filed objections. Second

defendant was impleaded as a party. In the said writ

petition, right was reserved to the plaintiff to file a separate

suit before the Civil Court to agitate his right, title and

interest over the suit property. Therefore, necessity arose

for the plaintiff to file the present suit.

15. Initially, suit was filed only against BDA and

subsequently, second defendant was also impleaded in the

suit. First defendant appeared before the Court and filed

separate written statement and denying the plaint averments

in toto and maintained that suit property is acquired by the

BDA and therefore, suit is not maintainable. BDA also

contended that in the absence of any notice issued under

Section 64 of the BDA Act, the very suit is not maintainable

and sought for dismissal of the suit.

16. The second defendant contended that the suit is not

maintainable, bad in law and misconceived. Defendant No.2

maintained that suit property was gifted to Banashankari

temple by the ancestors of the plaintiff. Therefore, plaintiff

cannot maintain the suit and sought for dismissal of the suit.

17. The second defendant also contended that it is the

Banashankari temple which is in possession of the suit

property and plaintiff is not having possession over the same.

18. Based on the rival contentions of the parties, the Trial

Court framed the following issues:

(i) Whether the plaintiff proves that he has perfected his title over the suit schedule property by way of adverse possession?

(ii) Whether plaintiff is entitled for the declaratory relief to declare his ownership over the suit schedule property as prayed?

(iii) Whether plaintiff proves that he is in lawful possession and enjoyment over the suit schedule property?

(iv) Whether plaintiff proves the alleged interference of officials of defendant in the suit schedule property?

(v) Whether plaintiff is entitled for permanent injunction against defendants 1 and 2?

(vi) Whether suit is bad for want of notice under Section 64 of the BDA Act?

(vii) Whether defendant proves that suit schedule property is vested with it by virtue of acquisition?

(viii) What decree or order?

19. In order to prove the case of the plaintiffs, plaintiff got

examined one Krishna Murthy who is the first legal

representative of the original plaintiff as P.W.1 and placed

reliance on 43 documents which were produced and marked

as Exs.P.1 to 43, comprising of original sale deed executed

by Era Rangappa in favour of Doddarangappa at Ex.P.1, tax

paid receipts at Exs.P.2 to 7, RTC extract at Ex.P.8,

genealogical tree at Ex.P.9, endorsement issued by Muzarai

Commissioner at Ex.P.10, preliminary record at Ex.P.11, copy

of the legal notice to Spl. Land Acquisition Officer at Ex.P.12,

RTC extracts at Exs.P.13 and 14, tax paid receipts at

Exs.P.15 to 17, receipts issued by K.C.General Hospital to

father of P.W.1 at Exs.P.18 and 19, bills issued by KEB at

Exs.P.20 to 22, order passed by the KEB at Ex.P.23, letter

addressed by the President, State Madiwala Sangha to P.W.1

at Ex.P.24, certified copy of the petition in W.P.No.5455/

2000 at Ex.P.25, certified copy of the objections filed by

respondent Nos.2 to 4 in W.P.No.5455/2000 at Ex.P.26,

certified copy of the affidavit filed by Commissioner, BDA, at

Ex.P.27, certified copy of the interim order passed in W.P.No.

5455/2000 at Ex.P.28, notification issued by denotifying land

bearing Sy.No.75/1 at Ex.P.29, certified copy of the

objections filed by 5th respondent in the writ petition at

Ex.P.30, certified copy of akarband extract at Ex.P.31,

certified copy of hissa tippani at Ex.P.32, certified copy of the

order passed by the High Court at Ex.P.33, copy of the

application filed by P.W.1's father to BDA Commissioner at

Ex.P.34, acknowledgment issued by BDA at Ex.P.35, photos

at Exs.P.36 to 38, notifications at Exs.P.39 to 41, original

general power of attorney executed by Rangappa at Ex.P.42

and letter issued by Endowment Commissioner dated

30.12.2009 obtained under RTC Act at Ex.P.43.

20. As against the evidence placed on record by the

plaintiff, one M.A.Jagadish is examined as D.W.1 and he has

produced nine documents which are exhibited and marked as

Exs.D.1 to 9, comprising of nine RTC extracts pertaining to

the suit schedule property for different years at Exs.D.1 to

D.9.

21. On conclusion of recording of evidence, learned Trial

Judge heard the parties in detail and on cumulative

consideration of the evidence placed on record, dismissed the

suit of the plaintiff holding that plaintiff has failed to establish

the legal title over the suit property.

22. Being aggrieved by the same, plaintiff has preferred

the present Appeal on the following grounds:

 "The Trial Court passed the judgement in a very casual manner and without applying its mind to the

evidence and documents on record. The Judgement is erroneous and not sustainable in the eyes of law.

 The BDA contended that the schedule property is acquired for formation of a layout but no documents are produced and on the other hand the Defendant No. 2 Temple contended that they are in possession by virtue of a Gift Deed by the mother of the Appellant, but no documents are produced. the Trial Court merely on the basis of Ex.D1 to Ex.D2 RTC concludes that Temple is in possession of the schedule property - while the letter of the Defendant No. 2 Temple (Ex.P43) establishes schedule property is not a property In possession of the Temple. Therefore the Trial Court did not appreciated the documents produced or the oral evidence.

 It was the specific case of the Appellant that the lands were notified but subsequently de-notified as per Ex.P29 is also not considered.

 The Trial Court read the evidence in part and in pieces and thus came to the wrong conclusion. The Trial Court while discussing in the Judgement that the land was de-notified does not pass any final verdict on that point and also does not discuss the document Ex.P43 Issued by the Defendant No. 2 In 2011 which does not show the schedule property as one of the property of the Defendant No. 2 and due to this not referring to the documents and evidence has resulted in the dismissal of the suit by the Trial

Court only on the basis of RTC in which the name of the Defendant No. 2 is referred. Thus the judgement impugned is no sustainable in the eyes of law.

 By looking into any angle the Impugned judgement is not sustainable and the same is in a very causal manner passed only for statistical purpose without referring into the evidence on record and the exhibit marked/produced by the parties. The Appellant has established all Ingridents for getting an order of declaration in their favour due to the admission by all the Defendants that the Appellants is the owner of the schedule property."

23. Sri S.Vasanth Madhav, learned counsel for the

appellants/plaintiffs, reiterating the grounds urged in the

memorandum of the appeal, contended that when defendant

No.2 has failed to establish that there was a gift of suit

property in favour of Banashankari temple by the ancestors

of the plaintiff and in the absence of any cogent and

convincing material on record that suit property has been

acquired by the then CITB and handed over to the

Banashankari temple, the suit of the plaintiff ought not have

been dismissed by the Trial Court.

24. He further contended that the probative value of

relevant documents especially the registered sale deeds have

not been properly appreciated by the learned Trial Judge

while dismissing the suit of the plaintiff resulting in

miscarriage of justice and sought for allowing the appeal.

25. Per contra, learned counsel for the BDA and learned

counsel for Banashankari temple-2nd defendant, supported

the impugned judgment. Learned counsel for the BDA

contended that preliminary notification and final notification

are issued in respect of land in Sy.No.75/2 and thereafter,

land vested with the then CITB, now BDA.

26. He further contended that BDA has formed 'Sarakki

Layout' in the acquired land. He also maintained that no land

is left over by the CITB and alleged possession of the suit

property by the plaintiff is far from truth and sought for

dismissal of the appeal.

27. Learned counsel representing Banashankari temple

contended that the ancestors of the plaintiff have already

gifted the property and the same is established by producing

necessary documents and there is a clear mention in the

revenue records that the property has been gifted in favour

of the Banashankari temple and therefore, suit of the plaintiff

is misconceived which has been rightly appreciated by the

learned Trial Judge in the impugned judgment and sought for

dismissal of the appeal.

28. In view of the rival contentions of the parties and

arguments putforth on behalf of the parties and the material

evidence available on record, the following points would arise

for consideration:

(i) Whether the plaintiff has established that he has been the owner in possession of the suit property even after preliminary and final notification issued by the then CITB and he has perfected his title to the suit property by way of adverse possession as contended?

(ii) Whether the plaintiff has further made out interference caused by the defendants and therefore, entitled for an order of permanent injunction?

(iii) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

(iv) What Order?

29. Regarding Point Nos.1 to 3: In the case on hand, at an

undisputed point of time, original plaintiff-Rangappa being

the owner of the property having purchased the same from

Era Rangappa by registered sale deed dated 09.12.1920 is

not in dispute. The same is marked as Ex.P.1. Exs.P.2 to 7

are the tax paid receipts and Ex.P.8 is the RTC extract.

30. According to the plaintiff, there was a dispute with

regard to the gift of the property by the ancestors of the

plaintiff and in that regard, there was an endorsement issued

by the Muzarai Commissioner. Ex.P.10 is the said

endorsement, which reads as under:

"Dear Sir,

With reference to petition dated 16th October 1933 filed by you on behalf of Mr.B.Somanna Setty, Sole Dharmadarsi of Sri

Banasankari temple in Bangalur Taluk appealing against the orders of the Muzrai Commissioner in the matter of the ownership of S.No.75 of Sarakki village, Bangalore Taluk, I am directed to state that Government see no reason to change the orders of the Muzrai Commissioner. The petition is therefore rejected."

31. But, by careful perusal of the same, it is seen that

same is signed by the Principal Secretary to Government

addressing it to Sri T.Appu Rao, Advocate.

32. Ex.P.11 is the preliminary record wherein it mentioned

in Banashankari Devaru as the possessor of the land and the

same is by way of gift by Rangappa to Banashankari.

33. Ex.P.12 is the legal notice issued to the Special Land

Acquisition Officer, CITB. In the legal notice itself, it has

been mentioned that Rangappa who is the original plaintiff

has appeared before the Land Acquisition Officer and filed a

statement claiming compensation in a sum of Rs.5,000/- per

acre for the acquired land.

34. Another letter dated 19/20.08.1952 marked at Ex.P.12

is produced on behalf of the plaintiff wherein, it has been

mentioned about the acquisition proceedings in respect of

Sy.No.75/2 of Sarakki Village measuring 2 acres 34 guntas.

35. The RTC extract marked at Ex.P.13 mentions the name

of Rangappa for the year 1991-92, 1992-93, 1993-94, 1994-

95, 1995-96. However, in column 9, possession has been

shown as Banashankari temple. Same is the entry in respect

of the year 1996-97 vide Ex.P.14. Ex.P.15 is the receipt for

having paid the land revenue by Rangappa. Except Exs.P.16

and 17 are also similar documents. Ex.P.25 is the writ

petition filed by Rangappa against BDA, State of Karnataka

and Special Land Acquisition Officer in W.P.No.5455/2000

and respondent No.5 has been impleaded subsequently by

adding Banashankari temple. Final order in the writ petition,

objections filed and the affidavit filed by the parties are also

referred and final order is passed on 27.07.1998

whereunder, Rangappa was relegated to the Civil Court if

there is any right, title and interest in respect of suit property

held by Rangappa. These documents would clearly establish

that acquisition proceedings were commenced in respect of

the suit property and original plaintiff had filed necessary

application claiming compensation over suit property.

36. Whenever a plaintiff claims right, title and interest over

a property by adverse possession, necessarily he has to

establish the fact that who is the true owner of the property

and from what date he started enjoying the property

adversely to the interest of the true owner and he has so

enjoyed the land for a period of more than 12 years without

there being any hindrance whatsoever to the possession.

37. In the case on hand, no such pleading is found nor any

evidence is placed on record by the plaintiff. In this regard,

gainfully this Court places reliance on the judgment of the

coordinate Bench of this Court in the case of Baswanthrao

since deceased by his LRs vs. Rajkumar reported in ILR

2009 KAR 1099., wherein, it is held as under:

"14. In so far as proof of adverse possession is concerned, it is a well-settled principle that a party

claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show:

(a) On what date he came into possession,

(b) What was the nature of his possession,

(c) Whether the factum of possession was known to the other party

(d) How long his possession has continued, and

(e) His possession was open and undisturbed.

It is only on proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

38. It is no doubt true that the material available on record

would go to show that Rangappa at an undisputed point of

time was the owner of the property having purchased the

same under registered sale deed. But subsequent thereto,

since acquisition proceedings have taken place and plaintiff

has maintained before the Trial Court that the property was

left over from the acquisition proceedings has not been

established by placing cogent and convincing evidence on

record. Mere pendency of the writ petition or a direction

issued to the plaintiff to approach the Civil Court would ipso

facto not make out a case for plaintiff that the property is left

out from the acquisition proceedings.

39. Even according to the plaintiff, the roads have been

formed by BDA. As such, it is highly unimaginable that

plaintiffs are still cultivating the land when the property has

been urbanized by establishing the bus stand and other

commercial establishments.

40. Further, the revenue records would also go to show

that ancestors of plaintiff have gifted the suit property in

favour of Banashankari temple and Banashankari temple is in

existence. What exactly is the portion that has been lost in

the acquisition and what is the remaining portion that has

been left out by BDA after acquisition and after a portion has

been gifted to Banashankari temple are all not forthcoming

and no convincing evidence is placed on record except the

oral testimony of the plaintiff.

41. If at all the plaintiff is of the opinion that even after

portion of the property being gifted to Banashankari temple

and thereafter the CITB has acquired the land, there

remained a property to the extent of 20 ft x 120 ft is a

question that needs to be established by placing cogent and

convincing evidence on record.

42. The material evidence placed on record in this regard,

on re-appreciation, does not make out a case that the

plaintiff was successful enough in establishing that there

remained a land which was interfered by the officials of BDA.

43. Taking note of these aspects of the matter, learned

Trial Judge has rightly dismissed the suit of the plaintiff.

44. Even after re-appreciation of both facts and material

evidence on record, in view of foregoing discussion, this

Court is unable to accept that the impugned judgment is

suffering from legal infirmity or perversity.

45. Accordingly, there is no hesitation in the mind of this

Court to answer the point Nos.1 to 3 framed above in the

negative against the appellants/plaintiffs. Accordingly, they

are answered.

46. Regarding Point No.4: In view of the finding of this

Court on point Nos.1 to 3 as above, the following:

ORDER

(i) Appeal is meritless and is hereby dismissed.

(ii)No order as to costs.

Sd/-

JUDGE

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