Karnataka High Court
Sri N Viswanathaiah vs Sri Anthony Swamy on 4 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 231 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 231 OF 2006 (DEC)
BETWEEN:
1. SRI. N. VISWANATHAIAH,
S/O NANJAPPA,
SINCE DEAD BY LRS,
1(A). SRI. V. BHOGESH,
S/O LATE VISHWANATHAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT AVERAHALLI,
MANCHANABELE POST, MAGADI TALUK,
RAMANAGARA DISTRICT.
1(B). SMT. KAMALAMMA,
W/O GANGADHARA NAIDU,
AGED ABOUT 55 YEARS,
Digitally
signed by R RESIDING AT MEDAHALLI,
MANJUNATHA VIRONAGAR POST,
Location:
HIGH COURT BENGALURU - 560 049.
OF
KARNATAKA
1(C). SMT. INDRAMMA,
W/O PRAKASH NAIDU K,
AGED ABOUT 53 YEARS,
RESIDING AT NO. 173/B,
6TH 'B' CROSS, 1ST MAIN,
BEHIND BIG BAZAR, MARUTHI NAGAR,
BHADRAPPA LAYOUT,
BENGALURU - 560 094.
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RFA No. 231 of 2006
1(D). SRI. V. NANJUNDAIAH,
S/O VISHWANATHAIAH,
AGED ABOUT 50 YEARS,
RESIDING AT AVERAHALLI,
MANCHANABELE POST,
MAGADI TALUK, RAMANAGARA DISTRICT.
1(E). SMT. RAMAMANI,
W/O SUDHAKAR NAIDU,
AGED ABOUT 48 YEARS,
RESIDING AT NO. 46,
1ST MAIN, 1ST CROSS,
SOMESHWARNAGAR,
BENGALURU - 560 022.
1(F). SRI. A.V. RAGHUNATHA,
S/O LATE VISHWANATHAIAH,
AGED ABOUT 45 YEARS,
RESIDING AT AVERAHALLI,
MANCHANABELE POST,
MAGADI TALUK, RAMANAGARA DISTRICT.
...APPELLANTS
(BY SRI. T.N. VISWANATHA, ADVOCATE)
AND:
1. SRI. ANTHONY SWAMY,
S/O MARIYAPPA,
SINCE DEAD BY LRS.
1(A) SMT.LOURADHAMMA,
W/O LATE ANTHONY SWAMY,
SINCE DEAD BY LRS.
1(B) SRI.A.PRAKASH,
SON OF LATE ANTHONY SWAMY
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RFA No. 231 of 2006
MAJOR,
1(C) SRI.A.JOSEPH,
SON OF LATE ANTHONY SWAMY,
MAJOR,
1(D) SRI.BALARAJA,
SON OF LATE ANTHONY SWAMY,
MAJOR,
1(E) SRI SHANTHARAJA,
SON OF LATE ANTHONY SWAMY,
MAJOR,
1(F) SMT.TERESA,
D/O LATE ANTHONY SWAMY,
MAJOR,
RESPONDENT Nos.1(B) TO 1(F) ARE
R/AT NO.163, 7TH 'B' MAIN,
3RD STAGE, 4TH BLOCK,
BASAVESHWARA NAGAR,
BENGALURU - 560 079.
2. SMT. LAKSHAMAMMA,
W/O KEMPANNA,
MAJOR,
3. SRI. CHANDRAPPA,
S/O KEMPANNA
MAJOR.
4. SRI. GOPAL,
S/O KEMPANNA,
MAJOR.
5. SRI. KRISHNA,
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RFA No. 231 of 2006
S/O KEMPANNA,
MAJOR,
RESPONDENTS 2 TO 5 ARE
R/AT NO. 15, JUGANAHALLI,
RAJAJINAGAR II BLOCK,
BENGALURE - 560 010.
6. SRI. APPI REDDY,
S/O MUNIYAPPA,
MAJOR,
R/AT NO. 1432, PIPELINE,
VIJAYANAGAR EXTENSION,
BENGALURU.
7. SMT. NARAYANAMMA,
D/O MUNEERAMMA,
MAJOR.
8. SMT. JAYAMMA,
D/O MUNEERAMMA,
W/O VENKATA REDDY,
MAJOR,
SINCE DEAD BY LR.
9. SMT. SAROJAMMA,
W/O NARAYANA REDDY,
MAJOR,
SINCE DEAD BY LR.
RESPONDENTS 7 TO 9 ARE
R/A NO. 1, 2ND MAIN ROAD,
JUGANAHALLI, RAJAJINAGAR,
BENGALURU - 560 010.
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RFA No. 231 of 2006
10. SMT. SAVITHRAMMA,
W/O VENKATESH,
D/O MUNEERAMMA,
MAJOR,
R/AT "GURUKRUPA", NO. 1432, PIPELINE,
VIJAYANAGAR, BENGALURU - 560 040.
11. SRI. N. NANJUNDAIAH,
S/O NANJAPPA,
MAJOR,
R/AT NO. 3/13, 3RD CROSS, 8TH MAIN ROAD,
GANESHA BLOCK, MAHALAKSHMI LAYOUT,
BENGALURU - 560 080.
12. SRI. N. BHOGAIAH,
S/O NANJAPPA,
MAJOR,
R/A NO. 333, 3RD MAIN ROAD, 1ST PHASE,
RAJAJINAGAR, MANJUNATHANAGAR,
BENGALURU - 560 010.
13. SRI. A. N. RAMACHANDRAIAH,
S/O NANJAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.8, 4TH MAIN ROAD,
S.K. NAGAR, NANDINI LAYOUT,
BENGALURU - 560 096.
14. SMT. MUNIVENKATAMMA,
W/O LATE B. T. RAMAIAH NAIDU,
SINCE DEAD BY LRS
14(A). SRI. R. GANGADHARA NAIDU,
S/O LATE B. T. RAMAIAH NAIDU,
AGED ABOUT 68 YEARS,
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RFA No. 231 of 2006
R/AT MEDAHALLI, VIRGONAGAR POST,
K. R. PURAM, BENGALURU - 560 079.
14(B). SRI. R. ASHWATHAPPA,
S/O LATE B. T. RAMAIAH NAIDU,
AGED ABOUT 65 YEARS,
R/AT BALLALASAMUDRA VILLAGE AND POST,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
14(C). SRI. R. NANJUNDAIAH,
S/O LATE B. T. RAMAIAH NAIDU,
AGED ABOUT 64 YEARS,
R/AT BALLALASAMUDRA VILLAGE AND POST,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
14(D). SRI. R. MANJUNATH,
S/O LATE B. T. RAMAIAH NAIDU,
AGED ABOUT 59 YEARS,
R/AT BALLALASAMUDRA VILLAGE AND POST,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
15. SMT. DEVEERAMMA,
W/O LATE JAYARAMAPPA,
SINCE DEAD BY LRS.
15(A). SRI. H. J. MURULIDHARA,
S/O LATE JAYARAMAPPA,
MAJOR,
R/AT 2ND CROSS, T. G. EXTENSION,
1ST FLOOR, P. L. D. BANK ROAD,
HOSKOTE TOWN, BENGALURU - 562 114.
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RFA No. 231 of 2006
15(B). SMT. H. J. LALITAMBA,
D/O LATE JAYARAMAPPA,
W/O GUNASHEKHAR B,
MAJOR,
R/AT NO. 52/6, 2ND CROSS (RIGHT),
NETRAVATHI EXTENSION, K. R. PURAM,
BENGALURU.
15(C). SMT. ANITAMBA H. J,
D/O LATE JAYARAMAPPA,
W/O LATE VARADARAJU,
MAJOR,
R/AT 2ND CROSS, T. G. EXTENSION,
1ST FLOOR, P. L. D. BANK ROAD,
HOSKOTE TOWN, BENGALURU - 562 114.
15(D). SRI. RAJESH H. J,
S/O LATE JAYARAMAPPA,
MAJOR,
R/AT 2ND CROSS, T. G. EXTENSION,
1ST FLOOR, P. L. D. BANK ROAD,
HOSKOTE TOWN, BENGALURU - 562 114.
...RESPONDENTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI. AMSHITH HEGDE H.S, ADVOCATE FOR R(A TO E);
SRI. D.P. MAHESH, ADVOCATE FOR R1(F);
SRI. H.S. NAGENDRA, ADVOCATE FOR R12 AND R13;
SRI. B.C. CHETHAN, ADVOCATE FOR R11(A)
R2, R3, R4, R5, R7, R10, R14(A), R14(B), R14(C), R14(D),
R15(A), R15(B), R15(D) - SERVED AND UNREPRESENTED;
VIDE ORDER DATED 30.01.2013 R8 AND R9 ARE DEAD
AND R6, R7 AND R10 ARE TREATED AS LRS OF DECEASED
R8 AND R9;
VIDE ORDER DATED 28.03.2013 SERVIE OF NOTICE TO R6
IS HELD SUFFICIENT;
VIDE ORDER DATED 22.11.2022 R15(C) IS HELD
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RFA No. 231 of 2006
SUFFICIENT BY WAY OF PAPER PUBLICATION;
VIDE ORDERS DATED 24.07.2013 AMENDED CAUSE TITLE
FILED IN RESPECT OF DCEASED R1;
VIDE ORDER DATED 06.02.2023 AND 10.03.2023 R1(A)
DEAD AND R1(B) TO R1(F) ARE TREATED AD LRS OF
DECEASED R1(A);
VIDE ORDER DATED 30.10.2023 R11(B AND C) ARE
CALLED OUT, ABSENT BY WAY OF PAPER)
THIS RFA IS FILED U/S.96 R/W O 41 R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.10.2005
PASSED IN O.S.NO.3388/92 ON THE FILE OF THE III ADDL.
CITY CIVIL AND SESS. JUDGE, BANGALORE (CCH-25),
DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.T.N.Viswanatha, learned counsel for the
appellants, Sri.Udaya Holla, learned Senior Counsel for
Sri.Amshith Hegde, learned counsel and Sri.D.P.Mahesh,
learned counsel for respondent No.1.
2. The present appeal is directed against the
judgment and decree passed in O.S.No.3388/1992 dated
17.10.2005 on the file of III Additional City Civil and
Sessions Judge, Bangalore City (CCH-25).
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3. Brief facts which are utmost necessary for
disposal of the appeal are as under:
Dry land bearing Sy.No.141/2-3-4 of Ketha
Maranahalli village measuring 1 acre 8 guntas, originally
belonged to Gowramma, who sold the same jointly in
favour of Srinivasa Rao, Kempaiah and Kempanna on
11.12.1961. Kempaiah sold his share in favour of
Muneeramma to the extent of 16 guntas and so also
Srinivasa Rao and Kempanna got 16 guntas of land each
when they partitioned the land.
4. It is further stated that each one of the family
members got share in Sy.Nos.141/1, 141/3 and 141/4
jointly and converted the said agricultural land into an
unauthorized layout forming residential sites
5. On 04.07.1968, respondent No.1 - Anthony
Swamy purchased two revenue sites bearing Nos.3 and 12
jointly from Kempanna and Muneeramma, totally
measuring 90 ft. x 40 ft. which was bounded on East by
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150 ft. road, West by site No.14, North by site Nos.4 and
11 and South by 25 ft. road.
6. On 29.11.1971, Kempanna sold site bearing
No.3 measuring East to West 30 ft., North to South 35 ft.,
formed in Sy.No.141/3, in favour of Narayanamma. In the
interregnum, the lands had been acquired by the CITB
(Now BDA) in the entire extent of the land.
7. Applications were filed by the individual site
owners and sought for reconveyance of the property under
the 'reconveyance scheme' existed with the then CITB.
8. Thereafter, to form west of chord road, for
footpaths and other requirements, the lands which were
acquired by the CITB and compensation was paid to the
land owners.
9. Muneeramma sold her share in Sy.No.141/2,
141/3 and 141/4 in all measuring 23 guntas in favour of
Nanjappa, who was defendant No.3 in the suit under the
registered sale deed dated 09.02.1970. On purchase of
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the said land by Muneeramma, Nanjappa got the land
surveyed and fixed the boundaries and she could get only
16 guntas of land as against the recitals in sale deed to
the extent of 23 guntas. Respondent No.1 - Anthony
Swamy could not locate his site and therefore, filed a suit
in O.S.No.2930/1972 against Kempanna, Muneeramma
and Nanjappa. Said suit came to be dismissed on
31.01.1975 by recording a finding that the property of
Anthony Swamy was not identifiable. Thereafter, Anthony
Swamy filed O.S.No.1051/1975 on 04.06.1975 seeking a
relief of declaration of title and injunction. The said suit
came to be decreed on 30.09.1978.
10. Being aggrieved by the said judgment and
decree, an appeal came to be filed by defendant No.3 -
Nanjappa in R.A.No.265/1978 which came to be re-
numbered as R.A.No.331/1980 and ultimately, said appeal
came to be dismissed on 03.12.1980 on merits.
11. Being aggrieved by the dismissal of the appeal,
Nanjappa filed second appeal in R.S.A.No.452/1981 and
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said appeal came to be allowed on 03.03.1992 by setting
aside the judgment of both the Courts and an additional
issue came to be framed.
12. Post remand, the suit in O.S.No.1051/1975 was
re-numbered as O.S.No.3388/1992. The same was
contested by the defendants and after due contest, the
learned Trial Judge also appointed a Court Commissioner
to identify the property of Anthony Swamy. Commissioner
gave a report vide Ex.C.1 along with the sketches marked
as Ex.C.2 to Ex.C.5.
13. On cumulative consideration of the material
evidence on record placed by the parties, learned Trial
Judge has taken note of the fact that the CITB has
reconveyed the portion of the suit property in favour of
Anthony Swamy and portion of the suit property in favour
of one of the son of Nanjappa (original defendant No.3) by
name A.N.Ramchandraiah, who is arraigned as defendant
No.3(d) after the death of Nanjappa, decreed the suit in
O.S.No.3388/1992 on 20.11.2004 after contest.
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14. Being aggrieved by the said judgment and
decree, defendant No.3 - Nanjappa filed R.A.No.155/2005.
15. Learned Judge who heard the said appeal on
merits, framed two more additional issues and remanded
the matter to the trial Court for fresh disposal in
accordance with law.
16. Post further remand, O.S.No.3388/1992 was
re-heard and allowing the parties to place additional
evidence on record and additional issues and also
appointed a Court Commissioner. Court Commissioner
relied on 07 documents which were exhibited and marked
as Ex.C.1 to C.7 comprising of report of the commissioner
at Ex.C.1, sketches at Ex.C.2 to Ex.5, notes prepared by
the Commissioner at Ex.C.6 and answers to the memo of
instructions at Ex.C.7 and again decreed the suit on
17.10.2005. Thereafter, one of the legal representatives
of the defendant No.3 namely N.Vishwanath [defendant
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No.3(a)] has preferred the present appeal on the following
grounds.
The impugned Judgment and decree of the Court
below suffers from infirmity, illegality and the
same requires modifications from the hands of
this Hon'ble Court in all probabilities and
circumstances of the case.
It was specifically contended and argued by the
appellant to the effect that the alleged suit
property was acquired by the City Improvement
Trust Board even before the alleged sale in
favour of the 1st Respondent. In view of the
acquisition proceedings, very suit filed by the
1st Respondent for declaration of his alleged
title is not maintainable. The said fact is clear
from Sec. 9 of the Code of Civil Procedure. The
very mandatory provisions, bars the civil suit.
And in view of the said mandatory provision, the
1st Respondent is not entitled for the relief of
declaration and injunction. The said contention
was not considered by the court below while
passing the impugned Judgment and Decree.
The non-consideration of point of law while
molding relief amounts to miscarriage of justice.
The Court below further failed to consider the
contention of the appellant to the effect that the
alleged suit property has been conveyed by the
Bangalore Development Authority during the
pendency of the suit. The alleged document will
not confer any right, title on the first
Respondent as the said document came into
existence during the pendency of the
proceedings. The court below ought not to have
attached value to the alleged document while
considering the question of title to the alleged
suit property.
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The Trial Court further erred in decreeing the suit
without even noticing that there is no cause of
action for the suit when the alleged suit
property was acquired by the City Improvement
Trust Board. The said contention was completely
ignored by the court below while passing the
impugned Judgment and Decree.
The Court below having noticed that the real
controversy is with regard to the identity of the
suit property. In the instant case, the first
Respondent has categorically admitted in his
deposition to the effect that the suit property
cannot be identified and the said fact is
corroborated from the report submitted by the
Commissioner. When the very existence of the
suit property is not identifiable, the Court below
ought not to have answered additional issue in
favour of the 1st Respondent contrary to the
oral and documentary evidence placed by the
appellant in order to establish the non-
existence of the suit property. The finding of the
Court below with regard to the additional issue
is contrary to the clear admission on the part of
the first Respondent. The Court below further
failed to notice that 4 versions as to location of
first Respondent's site having come on record
i.e., 4 from the lips of the first Respondent and
one from the Commissioner - each being ire-
consicilable. If the court below ought to have
rightly appreciated the said versions, it ought
not to have granted decree for declaration as
well as for permanent injunction.
The Commissioner report being wholly tangential
and she having identified a site as shown by the
1st Respondent and reporting that sites 3 and 2
are not identifiable. When the Commissioner has
submitted her report with regard to non-identity
of the suit property the court below ought not to
have granted decree with respect to non-
existing property.
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The Court below further failed to notice that the
first Respondent having admitted that his site
was running East to West but claimed in the
plaint on running North to South in earlier
proceedings and later amending the plaint, has
clearly proved his inability to locate the suit
properties.
The Court below further failed to notice that the
first Respondent has not verified the revenue
sketch and recording a finding of title in the
absence of very layout map disentitles the first
Respondent for the reliefs claimed in the suit.
The very approach of the Court below to the
volume of evidence in this case is not
participatory, negative elucidation. The Court
below further failed to discuss the oral and
documentary evidence, which clearly establishes
that the first Respondent is not entitled for any
relief of declaration or for permanent injunction.
The Trial Court further erred in holding that the
appellant's father Nanjappa being the
subsequent Purchaser and he has no right to
put the claim over the alleged property of the
first Respondent even though ample number of
documents were placed in order to establish
lawful possession. The said finding of the Court
below is perverse, capricious and contrary to the
oral and documentary evidence placed by the
appellant in order to establish his title. The
registered document supported by revenue
documents and the Commissioner's report
clearly establishes lawful possession and title of
the appellant.
The Court below having noticed that the
appellant's father had purchased 23 guntas of
land in the said Survey Numbers and he got
surveyed by the Survey Authorities and
demarcated his land in the said survey
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numbers, erred in holding that the 1st
Respondent is in possession of the suit property.
The Court below further erred in holding that the
1st Respondent's title has been perfected by the
Bangalore Development Authority by executing
Re-conveyance Deed without even noticing that
the very existence and identity of the suit
property is at stake. The Court below ought not
to have placed reliance on the subsequent
documents alleged to have been executed by
the Bangalore Development Authority.
The Court below further failed to notice that the
1st Respondent laid claim in respect of alleged
site No.3 and 12 at the first instance and
thereafterwards got amended the plaint and at
present the 1" Respondent is laying claim in
respect of site No. 121/A. In order to establish
the alleged site Nos. 3, 12 and 121/A, are one
and the same and the same are identifiable. No
material or any other evidence has been placed
by the 1" Respondent to establish his alleged
title to the suit properties and alleged
possession to the suit properties, the Court
below ought not to have granted not only for
declaration but also for injunction. The Court
below further failed to notice that the alleged
sale deed said to have been executed by B.D.A.
on 01.09.1975, whereas the dispute started in
the year 1972 and a finding was already given
in O.S. No.2930/1972 to the effect that the
identity of the property is not established. In
order to establish the said fact, the appellant
has placed the Judgment and Decree marked as
Ex.D15 and D16. When such being the case the
Court below ought not to have considered the
B.D.A. documents placed by the 1st Respondent
while considering the question of title as well as
identity of the property.
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The Court below having held that the appellant's
father purchased the suit properties from
Muneeramma under a sale deed dated
09.02.1970, erred in decreeing the suit for
declaration.
The Judgment and decree in appeal are
otherwise opposed to law, facts, circumstances,
evidence on record, unreasonable, does not
confirm to the judicial order and the same are
liable to be set aside.
The Judgment and Decree under challenge are
otherwise opposed to law based on surmise and
conjecture and liable to be set aside.
The appeal arises out of the suit for declaration
of title to Revenue sites No.3 and 12 purchased
for Rs.3,000.00.
17. Reiterating the grounds urged in the appeal
memorandum, Sri.T.N.Vishwanatha, learned counsel for
the appellants vehemently contended that the trial Court
has not taken into consideration that the property that has
been sold by Muneeramma is to the extent of 23 guntas
was the subject matter and after, the land was acquired
by CITB, defendant No.3 got resurveyed the land and fixed
the boundaries to the available extent of 16 guntas in
Sy.No.141/2.
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18. It is his contention that the land of Anthony
Swamy which was originally measuring 90 ft. x 40 ft., by
purchase of two revenue sites, has been lost in the
acquisition proceedings. Therefore, BDA could not have
reconveyed the land in favour of Anthony Swamy and
sought for allowing the appeal.
19. He further pointed that earlier the suit filed by
Anthony Swamy seeking identification of his property in
O.S.No.2930/1972 having been dismissed, there could not
have been relocation of the land by appointment of the
Court Commissioner in O.S.No.3388/1992 and therefore,
sought for allowing the appeal.
20. Further, he pointed out that Anthony Swamy
was bound to identify his land with specific boundaries
after the land has been acquired and said Antony Swamy
was unable to relocate his land and BDA based on the title
deeds produced by Anthony Swamy under the
reconveyance scheme, has wrongly reconveyed the
property in favour of Anthony Swamy. Therefore, Anthony
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Swamy did not become the owner of the suit property as
is claimed in the plaint and sought for allowing the appeal.
21. Per contra, Sri.Udaya Holla, learned Senior
Counsel for the contesting respondents contended that the
right accrued in favour of the plaintiff - Anthony Swamy by
virtue of two sale deeds where under two revenue sites
which were purchased by Anthony Swamy at an
undisputed point of time is not in dispute.
22. Admittedly, the CITB acquired the entire
property in Sy.No.141 for the purpose of forming the west
of chord road and thereby, the individual site owners were
in occupation of the sites were required to apply for
reconveyance to the extent possible. As such, Anthony
Swamy applied to the BDA for reconveyance and he has
been reconveyed with the suit property in lieu of his earlier
two sale deeds and therefore, he has become the owner of
the suit property by virtue of the reconveyance deed
executed by the BDA.
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23. He also points out that similar reconveyance
has been made in favour of one of the legal
representatives of Nanjappa namely A.N.Ramachandraiah
[Defendant No.3(d)] and therefore, it should not lie in the
mouth of the plaintiff that the reconveyance made in
favour of Anthony Swamy is incorrect.
24. He also pointed out that the suit property has
been identified by the Court Commissioner, who has filed
the report vide Ex.C.1 and sketches in respect of
respective portions of the property occupied by different
people in the form of Ex.C.2 to C.5 and same has been
rightly appreciated by learned Trial Judge in the impugned
judgment and sought for dismissal of the appeal.
25. Other respondents adopted arguments that of
the respondent No.1 and sought for dismissal of the
appeal.
26. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
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On such perusal of the material on record, following points
would arise for consideration:
1. Whether the appellant has made out a case
that reconveyance deed executed in favour
of Anthony Swamy is incorrect and thereby,
Anthony Swamy did not get any legal title
over the suit property?
2. Whether the father of appellant namely
Nanjappa is the absolute owner of the
entire property and therefore,
reconveyance made in favour of Anthony
Swamy by the BDA is incorrect?
3. Whether the impugned judgment is
suffering from legal infirmity or legal
perversity and thus calls for interference of
this Court?
4. What order?
REG. POINT Nos.1 TO 3:
27. In the case on hand, property earlier belonged
to the family of Muneeramma and other sharers are not in
dispute. Sy.No.141/1, 141/3 and 141/4 of
Kethamaranahalli, Bangalore Taluk was the subject
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matter. Earlier the same property belonged to one
Gowramma, who sold the same in favour of Srinivasa Rao
Kempaiah and Kempanna. Kempanna sold his share in
favour of Muneeramma and so also in favour of Srinivasa
Rao. Kempanna got 16 guntas of land each when they
partitioned the land. These aspects when are not in
dispute, Nanajappa said to have purchased 23 guntas of
land from Muneeramma by virtue of the sale deed dated
09.02.1970.
28. After the sale, defendant No.3 - Nanjappa got
the land surveyed and measured. He found that though
the sale deed recitals said that he was the owner of 23
guntas of the land, the actual land that was available in
Sy.No.141/2, 141/3 and 141/4 is only to the extent of 16
guntas.
29. Later, the entire land was acquired by CITB for
formation of west of chord road. Since, the property was
acquired by the then CITB (Now BDA), the individual site
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owners approached the BDA for reconveyance of the
property.
30. BDA taking note of the title that existed in
respective site owners under the reconveyance scheme,
recoveyed the suit property in favour of Anthony Swmay.
31. Defendant No.3 - Nanjappa had also applied for
reconveyance and taking note of the right of Nanjappa in
respect of the property in Sy.No.141/2, 141/3 and 141/4,
reconveyed a portion of the property in favour of one of
the legal representatives of Nanjappa namely
A.N.Ramachandaiah [Defendant No.3(d)].
32. These aspects when not in dispute, it is the
case of the defendants that Anthony Swamy could not
locate his property at all and therefore, no property has
fallen to the share of Anthony Swamy and the entire
property of Anthony Swamy under the two sale deeds has
been lost in the acquisition proceedings and therefore,
reconveyance in faovur of Anthony Swamy by the BDA is
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incorrect. Defendants also took a specific contention that
the suit filed by Anthony Swamy against the defendants in
the absence of BDA being a party is bad in law for mis-
joinder of necessary parties and therefore, sought for
dismissal of the suit.
33. It is not in dispute that earlier the suit filed by
Anthony Swamy in O.S.No.2930/1972, no doubt came to
be dismissed. The said suit was filed only for the purpose
of identification of the suit property. However, that did
not debar the Anthony Swamy to file one more suit
seeking relief of declaration of his right in
O.S.No.1051/1975 which ultimately got renumbered as
O.S.No.3388/1992 and has seen several rounds of
litigation as referred to supra.
34. Post remand of the suit for the second time, in
view of the additional issues framed by the Court, the
parties placed additional evidence on record.
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35. While answering the additional issues Nos.1 and
2, in O.S.No.3388/1992 learned Trial Judge in paragraph
No.32 of the impugned judgment has held as under:
"32. Additional Issue No. 1 and 2:- It is the
contention taken by the 3rd defendant that the
execution of the sale deed by B.D.A. in favour of
the plaintiff is invalid and without jurisdiction and
the suit is not maintainable on the original cause
of action. The learned Counsel for defendant No.3
has submitted his arguments that the cause of
action for that suit would arise in 1995 or so 20
years after this suit is filed and it arises after
B.D.A. is notified to the contrary and the new
cause of action wipes out the old one and old and
new causes of action cannot co-exists. He has
further submitted in his arguments that the B.D.A.
is necessary party as source of title flows from it
and irregularity is admittedly committed by it and
the suit is hit by order 2, Rule 2 and Rule 14 of
CP.C. Further, he has submitted in his arguments
that the Court has to recognise the rights of the
defendant owing to misjoinder of causes of action
and absence or proper party to the suit. No
doubt, the B.D.A. has reconveyed and re-allotted
site No.3 and 12 (New No.121/A) to the plaintiff -
Anthony Swamy and issued Possession Certificate
and Khata has been changed to the name of the
plaintiff. At the same time the B.D.A. reconveyed
the property purchased by the defendant No.3
from defendant No.2 by executing a sale deed in
favour of defendant No.3(d) i.e., L.R. of 3rd
defendant and issued possession certificate as per
Ex.P.27(f). Ex.P.27(h) is the sale deed dated
11.10.96 executed by B.D.A in favour of the Legal
Representatives of defendant No.3. Now the 3rd
defendant has questioned the power of jurisdiction
or authority of the B.D.A. The 3rd defendant or
any other person has not challenged the said
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reconveyance deed executed in favour of the
plaintiff and the Legal Representatives of the 3rd
defendant and also possession certificate issued by
the B.D.A. The 3rd defendant has not questioned
the power or jurisdiction or Authority of the B.D.A.
before any competent authority or before the
Court of law immediately. However, the B.D.A.
reconveyed the property-bearing No.121 and
issued delivery certificate in favour of the L.R. of
the 3rd defendant. Therefore, the defendant No.3
is estopped from questioning the authority of
B.D.A."
36. Taking note of the fact that there was a dispute
as to the identification of the property, a Court
Commissioner was also appointed to find out where
exactly the property of Anthony Swamy would lie.
37. After spot inspection, Court Commissioner has
submitted a report vide Ex.C.1 and also sketches vide
Ex.C.2 to C.5. Material on record in the form of
reconveyance deed executed by BDA in favour of Antony
Swamy coupled with commissioner report would clearly
establish that plaintiff has been successful in establishing
his right over the suit property.
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38. As could be seen from the material evidence on
record, BDA after taking note of the title that existed in
Anthony Swamy, in respect of two revenue sites which
were purchased by Anthony Swamy under the registered
sale deeds, recoveyed the suit property in favour of the
plaintiff. Admittedly, the property that has been
purchased by the Anthony Swamy had different
boundaries and after reconveyance, the boundaries are
bound to change in view of the BDA reconveying the
property to the extent that it is in occupation of the
plaintiff.
39. That itself could not be taken advantage by the
defendants in denying the very title of Anthony Swamy in
respect of the suit property. More so, when defendant
No.3 had also sought for reconveyance of the property and
the BDA has reconveyed the property in favour of one of
the legal representatives of defendant No.3 -
A.N.Ramachandraiah.
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40. Therefore, by sheer logic, contention of the
defendants that reconveyance in favour of Anthony
Swamy is bad and reconveyance in favour of
A.N.Ramchandraiah is good cannot be countenanced in
law.
41. As such, Learned Trial Judge has rightly
answered additional issue Nos.1 and 2 as referred to supra
and decreed the suit of the plaintiff.
42. Further, when one of the legal representatives
of Nanjappa got a property reconveyed and in the
possessions of the same it should be for and on behalf of
legal representatives of Nanjappa. Therefore, the
contention of appellant thatr reconveyances in favour of
Antony Swamy is bad in law and cannot be countenanced
in law.
43. In view of the foregoing discussions, point Nos.
1 to 3 as referred to above are answered in negative.
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REGARDING POINT NO.4:
44. In view of the findings of this Court on point
Nos.1 and 2 as above, following:
ORDER
i. Appeal is merit less and hereby dismissed.
ii. No order as to costs.
iii. However, if the appellant has got any right
seeking partition in respect of the property that
has fallen to the share of A.N.Ramachandariah
being one of the son of original defendant No.3
(Nanjappa), he is at liberty to do so and the
observation made by the Court in this
judgment shall not affect the rights of the
appellant in the said suit.
Sd/-
JUDGE
KAV
CT: BHK
