Sheshmal M Jain vs Sri. B.M. Srinivasa
2023 Latest Caselaw 4366 Kant

                                              RFA.No.791 of 2017
                               -1-




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JULY, 2023

                            BEFORE
  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY


   REGULAR FIRST APPEAL NO.791 OF 2017 (INJ)
Between:

Sheshmal M. Jain,
S/o late Miya Chandji,
Present aged about 84 years,
R/o No.2, East Anjaneya
Temple Street,
Basavanagudi,
Bangalore-560 004.                             .. Appellant

 ( By Sri Shanmukhappa, Advocate )

And:

Sri B.M.Srinivasa
S/o late Mulabagalaiah,
Aged about 54 years,
R/o No.116, 5th Main (West),
ITI Layout,
BSK III Stage,
Bangalore-560 085.                             .. Respondent

 ( By Sri Ganapathy Bhat Vajaralli, Advocate for
   caveat/respondent)

       This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, praying to call for the relevant
records and set aside the impugned judgment and decree dated
                                                        RFA.No.791 of 2017
                                      -2-




10.04.2017 passed by the learned 59th Addl.City Civil and
Sessions Judge (CCH-60) Bangalore City, in O.S.No.2963/2016
and dismiss O.S.No.2963/2016 by allowing this appeal and
grant such other relief or reliefs as this Hon'ble Court deems fit
under the facts and circumstances of the case, in the interest of
justice and equity.


      This Regular First Appeal having been heard through
Physical Hearing/Video Conference and reserved on 21.06.2023,
coming on for pronouncement of judgment, this day, the Court
delivered the following:

                               JUDGMENT

This is a defendant's appeal. The present

respondent as a plaintiff had instituted a suit against the

present appellant arraigning him as defendant in

O.S.No.2963/2016, in the Court of the learned

LIX Addl.City Civil and Sessions Judge (CCH-60),

Bangalore City, (hereinafter for brevity referred to as `the

trial Court'), seeking for permanent injunction against the

defendant restraining him from interfering with the

peaceful possession and enjoyment of the plaint schedule

property.

RFA.No.791 of 2017

2. The summary of the plaint of the plaintiff in the

trial Court was that the land bearing Survey No.43 of

Yediyur Village, Uttarahalli Hobli, Bengaluru South Taluk,

was totally measuring 7 acres 25 guntas. The land

measuring 1 acre 26 guntas was owned and possessed by

Sri Narasimhaiah. Sri Narasimhaiah sold 1 acre 26 guntas

of land in Survey No.43 in favour of Sri Rangappa through

registered Sale Deed dated 03.06.1960. Sri Rangappa died

on 15.11.1985 leaving behind his wife Smt.B.N.Lakshmi

and other heirs. Thereafter, Smt.B.N.Lakshmi and other

heirs of Sri Rangappa inherited 1 acre 26 guntas of land in

Survey No.43. Then Smt.B.N.Lakshmi gifted 1 acre 26

guntas of land to her son Mr.Madhusudan R., through

registered Gift Deed dated 27.02.2006. Mr.R.Madhusudan

and his family members have sold the schedule property

in favour of plaintiff through registered Sale Deed dated

09.11.2012. The schedule property is part and parcel of

1 acre 26 guntas of land in Survey No.43 referred above.

On the basis of the Sale Deed, the plaintiff came in RFA.No.791 of 2017

possession of schedule property and he is in possession of

schedule property as an absolute owner.

It is further alleged by the plaintiff that City

Improvement Trust Board (hereinafter for brevity referred

to as `CITB') issued Acquisition Notification for part of

land bearing Survey No.43. The possession was taken by

CITB [later Bengaluru Development Authorty (hereinafter

for brevity referred to as `BDA')] of land bearing Survey

No.43, excluding 1 acre 26 guntas sold in favour of

Sri Rangappa. Therefore, the schedule property is not the

part of acquisition proceedings. The plaintiff has pleaded

that defendant has no right, title and interest in the

schedule property. There was structure in the schedule

property. On 05.04.2016, the defendant tried to demolish

the existing structure in the plaint schedule property and

obstructed the peaceful possession of the plaint schedule

property by the plaintiff. This constrained the plaintiff to

institute a suit against the defendant.

3. In response to the summons served upon him,

the defendant appeared through his counsel and filed his RFA.No.791 of 2017

written statement. In his written statement, the

defendant has denied the right, title and possession of the

plaintiff over the schedule property. The defendant

contended that the property shown in the schedule is not

at all in existence and in order to get the property of the

defendant, the plaintiff has filed the present suit for

injunction. It was also contended by the defendant that

one Sri Narasimhaiah was the absolute owner of the land

bearing Survey No.43, measuring 7 acres 25 guntas and

he sold part of Survey No.43 in favour of

Smt.Munithirumalamma through registered Sale Deed

dated 12.10.1958. She died on 06.04.1972. After her

death, her son Sri Ramaiah inherited the property

purchased under the Sale Deed dated 12.10.1958.

According to the defendant, after the death of

Sri Ramaiah, his sons (1) M.R.Govindaraju,

(2) M.R.Thukaram, (3) R.Lakshminarayana and

(4) R.Prakash, inherited the property. Later, they have

sold part of their property in favour of defendant through

registered Sale Deed dated 16.03.1992. Therefore, the RFA.No.791 of 2017

defendant is in possession of Site No.1, formed in Survey

No.43 of Yediyur Village, measuring East-West 84 ft. on

the Northern side and 88 ft. on the Southern side,

South-North 30 ft. on the Eastern side and 33 ft. on the

Western side and that property is bounded by towards

East-road, towards West-remaining property of sellers,

towards North-road and towards South-remaining property

of sellers which is purchased by Smt.Ramba Bai.

The defendant has contended that the property

referred above is the part and parcel of land purchased by

Smt.Munithirumalamma through registered Sale Deed

dated 12.10.1958 and on the basis of the Sale Deed, he is

in possession of the property. He has filed

O.S.No.8962/2013 against the BDA and that suit is still

pending. Further, the defendant also contended that a

bare suit for injunction is not maintainable and the plaintiff

ought to have claimed the relief of declaration of

ownership. With this, he prayed for dismissal of the suit.

4. Based on the pleadings of the parties, the trial

Court framed the following issues for its consideration:

RFA.No.791 of 2017

"1. Whether the plaintiff proves his possession over the schedule property as on the date of the suit?

2. Whether plaintiff proves the alleged obstruction of defendant?

3. Whether plaintiff is entitled for the relief of permanent injunction against the defendant?

3. What order or decree?"

5. In support of his plaint, the plaintiff got himself

examined as PW-1 and one Sri Ramanna as PW-2 and got

marked documents from Exs.P-1 to P-38. On behalf of the

defendant, the General Power of Attorney Holder of

defendant one Sri Tejpal was examined as DW-1 and got

marked documents from Exs.D-1 to D-47.

6. After hearing both side, the trial Court by its

impugned judgment and decree dated 10.04.2017,

answering issue Nos.1 to 3 in the affirmative, decreed the

suit of the plaintiff and the defendant was restrained

permanently from obstructing the possession of the

plaintiff over the suit schedule property by way of RFA.No.791 of 2017

perpetual injunction. Being aggrieved by the same, the

defendant-appellant has preferred the present appeal.

7. The learned counsel for the appellant (defendant)

and learned counsel for respondent (plaintiff) are

physically appearing before the Court.

8. The trial Court records were called for and the

same are placed before this Court.

9. Heard the arguments of the learned counsels

from both side and perused the material placed before this

Court, including the memorandum of appeal, impugned

judgment and the trial Court records.

10. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

trial Court.

11. Learned counsel for the defendant (appellant)

in his brief argument contended that the entire property of

7 acres 25 guntas of Survey No.43 was acquired by the

BDA. The plaintiff's vendors did not got the suit schedule

property either by getting it de-notified or by RFA.No.791 of 2017

re-conveyance. Therefore, the question of the plaintiff

purchasing the said property under registered Sale Deed

does not arise. He further submitted that the defendant's

vendors got a decree from the Court for allotment of site

by BDA to vendors of the defendant, as such, the

defendant has got a better title. He also submitted that,

till today, written statement property is not allotted to any

third party. It is the defendant who is paying the

electricity bill with respect to electricity connection given

to the shed put up in the schedule property.

12. Per contra, the learned counsel for the plaintiff

(respondent herein) in his argument submitted that,

Ex.P-2 shows that defendant's alleged property is different

from the plaint schedule property. Sri Ramaiah, the father

of alleged vendors of the defendant had instituted a suit in

O.S.No.5171/1980 against the BDA for allotment of the

site. The same came to be allotted. The appeal filed by

the BDA came to be dismissed. In the Civil Revision

Petition filed by BDA, the Court accepted the proposal of

allotment of site No.228 in J.P.Nagar, 9th Phase, 7th Block, RFA.No.791 of 2017

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Bengaluru. Therefore, the defendant has no site in Survey

No.43. He also submitted that in Civil Revision Petition

No.2996/2003, the defendant attempted to get himself

impleaded, however, he could not succeed. The defendant

did not file any independent suit. Therefore, defendant's

Sale Deed has no consequence.

Giving more emphasis to the cross-examination of

DW-1, learned counsel for the respondent/plaintiff

submitted that, DW-1 in his cross-examination at several

places has admitted that the plaintiff has got the katha

with respect to suit schedule property and is paying the

tax on the property, as such, he is in possession of the

plaint schedule property. He also submitted that DW-1

has specifically admitted that he is not in possession of the

suit schedule property and that all the Exhibits in

`D' series does not pertain to plaint schedule property.

This clearly go to show that the defendant is not in

possession either upon the plaint schedule property or

upon the written statement property. As such, the trial RFA.No.791 of 2017

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Court has rightly allowed the suit of the plaintiff. With

this, he prayed for rejection of the appeal.

13. In the light of the above, the points that arise

for my consideration in this appeal are:

i] Whether the plaintiff has proved the existence of plaint schedule property and his possession upon it as on the date of the suit?

ii] Whether the plaintiff has proved the alleged interference by the defendant in his possession of plaint schedule property?

iii] Whether the plaintiff is entitled for the relief of permanent injunction against the defendant?

iv] Whether the judgment and decree under consideration warrants any interference at the hands of this Court?

14. In order to prove his case, the plaintiff -

B.M.Srinivas got himself examined as PW-1 and got

examined one Sri Ramanna as PW-2. From the defendant

side, one Sri Tejpal, claiming himself to be the General RFA.No.791 of 2017

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Power of Attorney Holder of the defendant, got himself

examined as DW-1.

15. PW-1 in his examination-in-chief has reiterated

the contentions taken up by him in his plaint. In his

support, he got marked the documents from Exs.P-1 to P-

38, which inter alia includes, a certified copy of the Sale

Deed dated 03.06.1990, which is said to the Sale Deed

executed by one Sri Narasimhaiah in favour of one Sri

Rangappa, the father of vendors of plaint schedule

property to him, at Ex.P-1. He produced the absolute Sale

Deed dated 09.11.2012, under which, he claims to have

purchased the plaint schedule property, at Ex.P-2. Ex.P-3

is the Katha Certificate with respect to plaint schedule

property. Exs.P-4 to P-11 are the Tax paid receipts.

Exs.P-12 and Ex.P-13 are the Encumbrance Certificates

with respect to plaint schedule property. Ex.P-14 is the

order sheet in Civil Revision Petition No.2996/2003.

Ex.P-15 is the copy of the written statement in

O.S.No.8962/2013. Exs.P-16 and P-17 are the copies of

the evidences led in O.S.No.8962/2013. Exs.P-18 to P-21 RFA.No.791 of 2017

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are the photographs said to be of the plaint schedule

property. Ex.P-22 is the Compact Disc (CD). Exs.P-23 is

the certified copy of order sheet shown to have been

maintained by the BDA with respect to request by

Sri M.R.Govindaraju and his brothers for confirmation of

the allotment of a site bearing No.228, at J.P.Nagar, 9th

Phase, 7th Block, Bengaluru, in their favour. Ex.P-24 is the

statement of sites said to have been sold by Sri

Rangappa. Exs.P-25 and P-26 are the two allotment

letters by BDA. Ex.P-27 is the order copy in Review

Petition No.79/2008 connected with CRP.No.2996/2003.

Ex.P-28 is the copy of the notes of BDA. Exs.P-29 and

P-30 are the two letters by M.R.Govindaraju and

R.Prakash respectively. Exs.P-31 and P-32 are also two

more letters. Ex.P-33 is the certified copy of the order in

RFA.No.206/1992. Ex.P-34 is short note of BDA. Ex.P-35

is the copy of objection in CRP.No.2996/2003. Ex.P-36 is

the memorandum of Petition in CRP.No.2996/2003.

Ex.P-37 is the copy of the interim application and Ex.P-38 RFA.No.791 of 2017

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is the copy of order of Joint Director of Land Revenue

(JDLR), Bengaluru.

16. PW-2 in his evidence has stated that he knows

the plaintiff and the plaint schedule property. He has

stated that plaintiff, as a purchaser, is in possession of the

suit schedule property.

17. DW-1 Tejpal in his evidence has reiterated the

contentions taken up by the defendant in his written

statement. In his support, he got produced and marked

the documents from Exs.D-1 to D-47, which inter alia

includes, petition in Rev.Petition No.2/2016, copies of

depositions in O.S.No.5171/1980, copy of the Sale Deed in

favour of the defendant at Ex.D-6, copy of the

Rectification Deed at Ex.D-7, the death certificate of

Sri M.Ramaiah at Ex.D-8. The exhibits also includes, two

Encumbrance Certificates, endorsement by Joint Director

of Land Records, endorsement issued by BESCOM,

plaint in O.S.No.8962/2013, order sheet in

O.S.No.8962/2013, depositions in O.S.No.8962/2013,

copy of the judgment and decree passed in RFA.No.791 of 2017

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O.S.No.2499/2009, certified copy of the order in Writ

Petition Nos.1687-1688/2017 and copy of judgment and

decree passed in O.S.No.5171/1980.

18. It is not in dispute that the land bearing Survey

No.43 of Yediyur Village, Uttarahalli Hobli, Bengaluru

South Taluk, was in total measuring 7 acres 25 guntas.

Both plaintiff and defendant claim their right over some

portion of the said property bearing Survey No.43.

The plaintiff claims his right and title over a property

measuring East to West 80 ft. and North to South 50 ft., in

all 4000 sq. ft. in Survey No.43, which according to him,

the said piece of property was subsequently given Site

No.18/1 and situated at 4th Main, 17th `D' Cross,

Banashankari 2nd Stage, BBMP Ward No.165, Bengaluru,

with old Katha No.43, Yediyur, Uttarahalli Hobli, Bengaluru

South Taluk. He also describes the said plaint schedule

property as bounded East by 4th Main Road, West by

property No.3944-E, North by 17th `D' Cross Road and

South by property No.18/2.

RFA.No.791 of 2017

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19. According to the plaintiff and the evidence of

PW-1, said Sri N.Narasimhaiah had sold 1 acre 26 guntas

of land in Survey No.43 to one Sri Rangappa under a

registered Sale Deed dated 03.06.1960. The certified

copy of the said document, the plaintiff has got produced

and marked at Ex.P-1. It is the further case of the plaintiff

that, even though the CITB had issued a Notification in

respect of Survey No.43 for its acquisition, however, Sri

Rangappa was in peaceful possession and enjoyment of

1 acre 26 guntas of land in Survey No.43, which neither

CITB nor BDA has taken possession of at any point of

time. Since the said land was not taken possession by

CITB or BDA, no compensation was paid towards the said

portion of the land.

It is also the case of the plaintiff, as well the

evidence of PW-1 that, after the death of said

Sri Rangappa on 15.11.1985, his wife Smt.B.N.Lakshmi

succeeded to the estate of her deceased husband late

Sri Rangappa. Said Smt.B.N.Lakshmi gifted a portion of

the property in 1 acre 26 guntas to her son R.Madhusudan RFA.No.791 of 2017

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under registered Gift Deed dated 27.02.2006. The said

gifted property is the plaint schedule property. It is also

the case of the plaintiff that said R.Madhusudan, joined by

his three sisters, who were the daughters of his parents,

executed a Sale Deed of the suit schedule property in

favour of the plaintiff on the date 09.11.2012. The

Encumbrance Certificates also stand in the name of the

plaintiff and the same could be seen in Exs.P-12 and P-13.

20. On the other hand, the contention of the

defendant in his written statement, as well in his evidence

as DW-1 is that, Sri Narasimhaiah being the owner of

entire land in Survey No.43, sold a portion of it on

12.10.1958 under registered Sale Deed in favour of one

Smt.Munithirumalamma. After the death of

Smt.Munithirumalamma, the property was inherited by her

son by name Sri Ramaiah. The said Sri Ramaiah died

leaving behind his sons M.R.Govindaraju, R.Thukaram,

R.Lakshminarayana and R.Prakash. They being the legal

heirs of late Sri Ramaiah, have sold the written statement

property to the defendant (DW-1) under registered Sale RFA.No.791 of 2017

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Deed dated 16.03.1992. Since then, he has been in

peaceful possession and enjoyment of the property. The

defendant has described the property in his written

statement as Site No.1, formed in Survey No.43 of Yadiyur

village, now known as Bengaluru South Taluk, Bengaluru

and measuring East to West on the Northern side 84 ft.

and on the Southern side 88 ft. and on North to South on

the Eastern side 36 ft. and on the Western side 33 ft. and

bounded East by road, West by remaining property of the

sellers, North by Road and South by remaining property of

sellers, now belonging to Rambha Bai.

In his support, he has produced a copy of the Sale

Deed at Ex.D-6 and a Rectification Deed at Ex.D-7, Death

Certificate of Sri Ramaiah at Ex.D-8, Record of Rights and

Index of lands at Exs.D-9 and D-10 respectively. He has

produced the certified copy of the Sale Deed dated

16.03.1992 and standing in his favour and shown to have

been executed by the children of Sri Ramaiah at Ex.D-11

and the Encumbrance Certificates at Exs.D-12 and D-13.

RFA.No.791 of 2017

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21. From the above evidence of PW-1 and DW-1 and

the documents mentioned above, it becomes clear that,

both the plaintiff and the defendant have shown one

Sri Narasimhaiah as the original owner of the entire extent

of land bearing Survey No.43. It is also their case that a

portion of the said property was sold by Sri Narasimhaiah

to one Sri Rangappa and to one Smt.Munithirumalamma

respectively. It is through the legal heirs of said Rangappa

and said Smt.Munithirumalamma, the plaintiff and

defendant respectively, claim to have purchased their

alleged properties respectively. Thus, in the description of

the property, in the plaint, as well in the written

statement, there is variation both in the measurement and

in the boundary. However, the property is shown to be a

corner site, having roads on the Eastern and Northern

direction. Since it is the plaintiff who has approached the

Court for the relief of permanent injunction, it is for him to

prove the identity of the property, as well his alleged

possession over the said property as on the date of filing

of the suit. If he fails to establish the identity of the RFA.No.791 of 2017

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property, then, as observed by a Co-ordinate Bench of this

Court in K.Gopal Reddy (deceased), by LRs. -vs-

Suryanarayana and others, reported in 2004 (1) KCCR

662, the question of granting injunction in his favour does

not arise at all.

22. The Sale Deed at Ex.P-1 executed by Sri

Narasimhaiah in favour of Sri Rangappa on 03.06.1960

has not been denied or disputed from the defendant,

however, the defendant contended that the entire property

of 7 acres 25 guntas in Survey No.43 since has stood

acquired by BDA, there was no land for Sri Narasimhaiah

to sell it to Rangappa.

If the said contention is accepted, then, the alleged

sale of another portion of land in the very same Survey

Number by the very same Sri Narasimhaiah in favour of

Smt.Munithirumalamma on 12.10.1958 also requires to be

suspected, because, the said portion of the land shown to

have been sold under Ex.D-6 to the vendors of the

defendant, measuring 1 acre 20 guntas, is also a portion RFA.No.791 of 2017

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of the total land said to have been held by

Sri Narasimhaiah.

23. At this juncture, it is also to be noticed that in

Ex.D-6, only Eastern and Western boundaries were shown,

however, Northern and Southern boundaries were not

shown in the said Conveyance Deed. Later, showing to

have been executed a Rectification Deed as per Ex.D-7,

the boundaries in all the four directions were mentioned

with respect to the land said to have been sold to

Smt.Munithirumalamma by Sri Narasimhaiah.

However, according to Ex.D-6, the Sale Deed by

Sri Narasimhaiah in favour of Smt.Munithirumalamma,

mentions that the total extent of land owned by

Sri Narasimhaiah was 6 acres 30 guntas, as such, it does

not mention about the remaining extent of 35 guntas of

land in the said Survey No.43 and about its acquisition by

either CITB or BDA.

24. Thus, the evidence of the plaintiff and the

defendant would go to show that above mentioned

Sri N.Narasimhaiah first sold 1 acre 20 guntas in favour of RFA.No.791 of 2017

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Smt.Munithirumalamma on 12.10.1958 and subsequently

sold another part of the land measuring 1 acre 26 guntas

in favour of Sri Rangappa through Ex.P-1 on 03.06.1960.

It is interesting to notice that in Ex.P-1, the Sale Deed

standing in favour of Sri Rangappa, the Southern side of

the property is shown as bounded by the land purchased

by Smt.Munithirumalamma, which is under Exs.D-6

and D-7. This document, which is not in dispute, clearly

establishes that the property purchased by

Smt.Munithirumalamma and Sri Rangappa from

Sri N.Narasimhaiah were adjacent properties. Therefore,

since the plaintiff claims the property through the said

Sri Rangappa and his successors, similarly, since the

defendant claims his title over the property through

Smt.Munithirumalamma and her successors, it is obviously

clear that both the properties claim to have been owned

and possessed by the plaintiff and defendant are two

different properties.

25. Plaintiff though has taken a contention that after

the death of Sri Rangappa, his wife Smt.B.N.Lakshmi RFA.No.791 of 2017

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succeeded to the property, who in turn, gifted the suit

schedule property in favour of one of her son

Sri.R.Madhusudan, who is the vendor to the plaintiff, has

not denied that deceased Sri Rangappa, apart from

R.Madhusudan, had three more children. However, the

absolute Sale Deed at Ex.P-2 go to show that all the four

children of deceased Sri Rangappa have jointly executed

the Sale Deed along with a confirming party in favour of

the plaintiff.

Further, the very same Sale Deed at Ex.P-2 also

recites in one of its paragraphs that after the death of

Sri.N.Narasimhaiah, his wife Smt.B.N.Lakshmi, as his legal

heir, succeeded to the estate of her husband late

Sri.N.Narasimhaiah and said Smt.B.N.Lakshmi has gifted a

portion of the property under the registered Gift Deed in

favour of her son Sri Madhusudhan, which was registered

as a Gift Deed dated 27.02.2006. Thus, all the children of

Sri Rangappa have sold the property jointly as vendors to

the plaintiff and they have acknowledged the previous gift

of the property by their mother in favour of the RFA.No.791 of 2017

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first vendor among them i.e., Sri.R.Madhusudan.

Therefore, the argument of learned counsel for the

appellant that non-production of the Gift Deed executed by

Smt.B.N.Lakshmi in favour of R.Madhusudan is fatal to the

case of the plaintiff, is not acceptable.

26. After the purchase of the property, the plaintiff

got katha with respect to plaint schedule property in his

name and he claims that he is paying the tax with respect

to plaint schedule property. In that regard, he has got

produced Katha Certificate at Ex.P-3 and Tax paid receipts

from Exs.P-4 to P-11. The defendant as DW-1 in his

cross-examination has admitted that katha with respect to

suit schedule property, which is at Ex.P-3, stands in the

name of the plaintiff and it is the plaintiff who has paid the

tax on the said property.

In addition to these, the defendant as DW-1 in his

cross-examination has admitted a suggestion as true that

BBMP authorities before making katha, would visit the

property. It is after spot inspection, the BBMP would levy

the tax on the property. By making those statements, RFA.No.791 of 2017

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specifically admitting the suggestions made to him, the

defendant has clearly admitted the possession of the plaint

schedule property by the plaintiff.

27. No doubt, PW-2, examined by the plaintiff, also

has supported the case of the plaintiff, however, since the

said witness at one place has stated that there is

electricity supply to the plaint schedule property which was

obtained by the plaintiff, however, in his cross-

examination, has stated that the plaint schedule property

does not enjoy electricity and water connections.

Therefore, his evidence is not reliable. However, the

evidence of PW-1, coupled with Exs.P-1 to P-13, would go

to show that apart from having a registered title document

in his name, the plaintiff has also got the revenue entries

made in his name and is also paying the taxes towards

plaint schedule property. On the other hand, the

defendant as DW-1 in his cross-examination at Para-10

has specifically admitted as true that they are not in

possession of the property described in schedule of the

plaint. Therefore, with respect to plaint schedule property, RFA.No.791 of 2017

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it is the plaintiff and plaintiff alone who is in actual

possession of the property.

28. The defendant as DW-1 in his cross-examination

in Para-15 has admitted a suggestion as true that the

documents at Exs.D-1 to D-23 are not concerning to the

property shown in the schedule of the plaint. Therefore,

the documents being relied upon by the defendant though

shown to be with respect to some other property, but, it is

not with respect to the plaint schedule property, as such,

the defendant cannot contend that he is in lawful

possession of the plaint schedule property. If at all he is

the alleged owner in possession of some other property,

it is the written statement schedule property, in which

case, it is for the defendant to identify and locate the said

property. For the purpose of said identification of the

property, when a specific question was put to DW-1 in his

cross-examination as to whether he had any objection for

survey of land in Survey No.43, the witness submitted that

he has objection for the survey. He also admitted as true RFA.No.791 of 2017

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a suggestion that he had filed a case shown in Ex.D-45

for the stay of the survey.

29. Therefore, apart from admitting that Exs.D-1 to

D-23 does not pertain to plaint schedule property and

admitting that plaintiff has got katha and is paying the tax

with respect to plaint schedule property, the defendant

also shown that he is opposing any survey of the property.

Thus, he attempted to blow hot and cold simultaneously

by one breath stating that there is no property pertaining

to the plaintiff and at the same time, also objecting for

survey regarding the identification of the property.

on the contrary, he admitted that the katha and tax

documents and receipts standing in the name of the

plaintiff with respect to plaint schedule property.

More importantly, the defendant as DW-1 has stated

that he has not challenged the endorsement given by

BBMP in respect of refusal of katha to be made in the

name of his father. Thus, his attempt to obtain katha with

respect to written statement property also went in futile.

Therefore, he cannot superimpose the description of his RFA.No.791 of 2017

- 28 -

property upon the plaint schedule property and claim that

the said property is the written statement property.

30. The defendant has produced a certified copy of

the judgment in O.S.No.5171/1980 and got it marked at

Ex.D-2 and a copy of judgment and decree in

RFA.No.206/1992 and got it marked at Exs.D-4 and D-5.

The plaintiff also has got produced the records relating to

Civil Revision Petition No.2996/2003 at Ex.P-14 and a copy

of the order passed in said Civil Revision Petition

No.2996/2003 at Ex.P-27 and other three related

documents from Exs.P-35 to P-37.

The judgment at Ex.D-2 shows that legal

representatives of deceased Sri Ramaiah i.e.,

Sri M.R. Govindaraju, Sri M.R. Tukaram, Sri R.

Lakshminarayana and Sri R.Prakash, who are the vendors

to the defendant, had filed a suit in O.S.No.5171/1980

against the BDA for the allotment of site. In the said suit,

those vendors to the defendant have pleaded that their

mother Smt.Munithirumalamma purchased 1 acre 22

guntas of land in Survey No.43, (through registered Sale RFA.No.791 of 2017

- 29 -

Deed at Ex.D-6), and a part of land in Survey No.43 was

acquired by CITB in the year 1967 and the remaining part

of Survey No.43 was acquired by CITB in the year 1976.

It was pleaded in that suit that vendors of the present

defendant were in possession of the site measuring

East to West 126 ft. and North to South 129 ft. They

further pleaded that they were in possession of such site

before the acquisition. Therefore, due to the acquisition,

they are entitled for an alternate site from the BDA.

31. Undisputedly, the said suit came to be decreed

in-part. In the same Ex.D-2, the Court has observed that

already the property which was in possession of the

vendors of the present defendant was acquired, the

vendors are not entitled for the particular site from the

BDA. With this observation, the Court held that plaintiffs

therein, who are the vendors to the defendant herein, are

entitled for an alternate site from the BDA. Accordingly,

the Court directed the BDA to allot an alternate site to the

plaintiffs therein.

RFA.No.791 of 2017

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The said judgment and decree passed in

O.S.No.5171/1980 was challenged by the BDA before this

Court in RFA.No.206/1992. This Court vide its judgment

and decree dated 03.11.1999, dismissed the appeal and

confirmed the judgment and decree passed in

O.S.No.5171/1980. Thus, this Court also has given

direction to the BDA to allot the site to the plaintiffs in

O.S.No.5171/1980 within three months.

32. The documents produced by the plaintiff with

respect to Civil Revision Petition No.2996/2003, which are

at Exs.P-14, P-35 and P-36, would further go to show that,

since the BDA did not comply the directions given to it

in RFA.No.206/1992, the plaintiffs in O.S.No.5171/1980,

filed Civil Revision Petition No.2996/2003 against the BDA

before this Court.

In the said proceeding, the present defendant filed

an interlocutory application seeking his impleading in the

petition as one of the petitioners, however, this Court

rejected his application. The same go to show that it was

the plaintiffs in O.S.No.5171/1980, who were entitled for RFA.No.791 of 2017

- 31 -

an alternate site for the land acquired by CITB/BDA, but,

not the present defendant. It also shows that the land

inherited by the plaintiffs in O.S.No.5171/1980 was

acquired by the BDA, as such, they were entitled for an

alternate site.

Therefore, it has to be inferred and held that the land

purchased under Ex.D-6 and the property shown in

Rectification Deed at Ex.D-7 to the extent of 1 acre 22

guntas in Survey No.43, was acquired by CITB, which

includes the defendant's alleged property shown in his

written statement. Thus, the grand-children of

Smt.Munithirumalamma i.e., the plaintiffs in

O.S.No.5171/1980, filed Execution Petition to get an

alternate site from the BDA.

33. Ex.P-25 is the order sheet of the proceedings

that took place before the BDA. In the said document,

there is a reference about the application filed by Sri M.R.

Govindaraju and others, who were the plaintiffs in

O.S.No.5171/1980, for allotment of site bearing No.228,

measuring 50' x 80' in J.P.Nagar, II Phase, 7th Block, RFA.No.791 of 2017

- 32 -

Bengaluru. Thus, as per the direction of this Court in its

judgment and decree passed in RFA.No.206/1992, said

Sri M.R.Govindaraj and others who were entitled for an

alternate site, had approached BDA for allotment of an

alternate site. However, the BDA since came to know that

during the pendency of RFA.No.206/1992 and

CRP.No.2996/2003, the vendors had not disclosed the sale

of property in favour of the present defendant through

Sale Deed dated 16.03.1992, the BDA did not allot the site

to them.

Therefore, it is clear that even though the entire

property shown in Ex.D-6 was taken over and acquired

by BDA, the vendors to the defendant during the pendency

of RFA.No.206/1992 and CRP.No.2996/2003, executed

the Sale Deed in favour of the defendant on 16.03.1992 as

per Ex.D-11, to which site, they had neither the ownership

nor the possession thereof.

34. After set back to the present defendant by virtue

of the judgment and decree passed in O.S.No.5171/1980,

subsequently in RFA.No.206/1992, the present defendant RFA.No.791 of 2017

- 33 -

attempted to establish that he has perfected his title upon

the written statement property through adverse

possession, in which regard, Ex.D-24, which is the copy of

the plaint in O.S.No.8962/2013, Ex.D-25, which is the

order sheet and Ex.D-26, which is an interim application

and Ex.D-27, which is the evidence of one Sri Tejpal, son

of the present defendant, are very relevant. These

documents go to show that the present defendant filed a

suit against the BDA and vendors of written statement

property to him, for declaration that he has perfected his

title over the written statement property, which was the

suit property in O.S.No.8962/2013, by way of adverse

possession and for consequential relief of permanent

injunction. Though at the time of disposal of

O.S.No.2963/2016 (impugned judgment), the said

O.S.No.8962/2013 was pending, however, as submitted

from both side, the fact remains that the said suit also

came to be dismissed as devoid of merits by the trial Court

on 06.06.2020.

RFA.No.791 of 2017

- 34 -

35. Though the learned counsel for the appellant

contends that the appellant has preferred a Regular First

Appeal against the said judgment and decree, however, no

document was produced by him in that regard. Still, the

fact remains that the present appellant (defendant) after

coming to know that the property said to have been sold

to him by the children of Sri Ramaiah was acquired by the

BDA and his vendors had sued BDA and succeeded in

getting an order for allotment of an alternate site to them,

has made a futile attempt to perfect his title upon the

alleged adverse possession of the written statement

schedule property. Thus, the repeated attempts made by

the defendant to dismantle the case of the plaintiff and to

establish his case, have been failed.

36. Apart from the defendant, his wife Smt.Ramba

Bai also claims to have purchased a portion of the

property in the Western side in the same Survey No.43.

She also filed a suit in O.S.No.1741/2014 claiming her

right in the part of Survey No.43 as could be seen in

Ex.D-28, which is the copy of the plaint in RFA.No.791 of 2017

- 35 -

O.S.No.1741/2014. Like her husband, who is the present

defendant, who had filed O.S.No.8962/2013, she too had

claimed her ownership over a portion of Survey No.43

under Sale Deed at Ex.D-29. A perusal of the said

documents would go to show that the said Sale Deed was

also executed during the pendency of RFA.No.206/1992.

37. The document produced by the defendant at

Ex.D-39, which is a certified copy of the Sale Deed dated

30.03.2005, shows that it has been executed by said

Smt.Ramba Bai in favour of one Smt.Kamalamma with

respect to a portion of the property shown in

O.S.No.1714/2014. Ex.D-40, a copy of the judgment

passed in O.S.No.2499/2009, dated 22.03.2013, which

shows that said purchaser Smt.Kamalamma had filed a

suit for declaration of ownership by way of adverse

possession and enjoyment of the property shown to have

been purchased by her from Smt.Ramba Bai and the said

suit came to be decreed. As could be seen in Ex.D-42,

said Smt.Kamalamma, after the decree, approached the

BDA and got executed Re-allotment Deed on 23.01.2015.

RFA.No.791 of 2017

- 36 -

38. Thus, the acquisition of portion of the property in

Survey No.43, which included a portion of the land claimed

to have been purchased by the defendant and his wife

Smt.Ramba Bai, stands further established, otherwise, the

vendors to the defendant and Smt.Kamalamma would not

have ordered to be given or granted with alternate site.

Therefore, these records produced by the defendant by

themselves indicate that the defendant is not in

possession of any piece of land in Survey No.43, more

particularly, any part of the land purchased by

Smt.Munithirumalamma under Exs.D-6 and D-7. In such

an event, when admittedly the land purchased by

Smt.Munithirumalamma are different from the land

purchased by Sri Rangappa and also when the entire

property purchased by Smt.Munithirumalamma were

acquired by BDA and the vendors of the defendant could

able to secure a judgment and decree by this Court

entitling them for an alternate site by BDA, it cannot be

expected that the defendant is in possession of the written

statement property.

RFA.No.791 of 2017

- 37 -

On the other hand, the document produced by the

plaintiff corroborates the evidence led by PW-1 and the

admissions made on the part of defendant as DW-1,

wherein, he has admitted that he is not in possession of

the property described in schedule to the plaint and that

katha and tax receipts with respect to plaint schedule

property stands in the name of the plaintiff, whereas,

no katha is made with respect to the written statement

property, would all clearly go to establish that the plaintiff

is in possession of the suit schedule property and is paying

the tax on that. Even though the defendant contends that

he has got electricity bills at Ex.D-22, however,

admittedly, the said electricity bills does not stand in his

name and the said electricity bills appears to have been

pertaining to the property shown in the Sale Deed at

Ex.D-39, which was sold in favour of Smt.Kamalamma.

The above analysis would clearly go to show that the

property claimed by the defendant has been acquired by

CITB and the possession of the same was taken over by it

in the year 1963 and 1967. The vendors to the defendant RFA.No.791 of 2017

- 38 -

fought rightly for allotment of alternative site. During the

pendency of such proceedings, the vendors to the

defendant, without any right, executed Sale Deed in

favour of the defendant on 16.03.1992. Therefore, no

right has been transferred in favour of the defendant

under the said Sale Deed.

39. In addition to the above, the evidence of PW-1,

DW-1 coupled with Ex.P-38 and Ex.D-45, would also go to

show that the plaintiff had filed a Revision Petition

No.2/2016 before the Joint Director of Land Records, City

Survey, Bengaluru, for survey of site No.18/1 and site

No.18/2 in Survey No.43, including the land measuring

1 acre 26 guntas. The Joint Director of Land Records

though ordered canceling CTS.Nos.37/37, 37/38 and

37/29, which were given to the properties of the

defendant, his wife etc., directed for further enquiry. Such

order was stayed by this Court in Writ Petition Nos.1687-

1688/2017 on 08.02.2017 as could be seen from Ex.D-45.

40. Thus, the plaintiff has made all his sincere efforts

to confirm the holding of plaint schedule property by him.

RFA.No.791 of 2017

- 39 -

Ironically, as stated by DW-1 in his cross-examination, he

opposed appointing any Surveyer for the purpose of

survey of the land and he also admitted that he had filed a

writ petition for the stay of the survey, the copy of which

order is at Ex.D-45. Thus, the identity of the plaint

schedule property and its possession by the plaintiff to the

exclusion of the defendant is fully and clearly established.

41. The evidence of PW-1 further go to show that on

05.04.2016, at about 11.30 p.m., the defendant and his

henchmen approaching the suit schedule property and

claiming that they have got right over the plaint schedule

property, have attempted to dispossess the plaintiff from

the possession of the suit property, which according to the

plaintiff, included the act of the defendant and his

henchmen demolishing the structure existed in the suit

schedule property, which made him to file the present suit.

Thus, the interference by the defendant in the rightful

possession of the plaint schedule property by the plaintiff

also stands established. Thus, the plaintiff is entitled for

the relief of permanent injunction against the defendant.

RFA.No.791 of 2017

- 40 -

42. Since it is considering these aspects and

analysing the materials placed before it in its proper

perspective, the trial Court has given its finding leading it

to decree the suit of the plaintiff, I do not find any reason

to interfere in it.

43. Accordingly, I proceed to pass the following:

ORDER

The Appeal filed by the defendant/appellant stands

dismissed as devoid of merits.

The parties to bear their own costs.

Registry to transmit a copy of this judgment along

with the trial Court records to the concerned trial Court,

immediately.

Sd/-

JUDGE

bk/