Karnataka High Court

Chikkadurgaiah vs P R Govardhan on 27 November, 2023

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                  NC: 2023:KHC:42755
                                                RFA No. 1337 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                      BEFORE

                   THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

             REGULAR FIRST APPEAL NO. 1337 OF 2016 (DEC/INJ)

            BETWEEN:

            1.    CHIKKADURGAIAH
                  S/O DURGAIAH
                  AGED ABOUT 56 YEARS
                  R/AT NO 144 (NEW NO 166)
                  23RD E CROSS, MARUTHINAGAR
                  ITTAMADU MAIN ROAD,
                  BSK 3RD STAGE,
                  BANGALORE-85

            2.    SMT SHIVALINGAMMA
                  W/O CHIKKADURGAIAQH,
                  AGED ABOUT 48 YEARS,
                  R/AT NO.144, (OLD NO.166)
                  23RD E CROSS, ITTAMADU MAIN ROAD,
Digitally         BSK 3RD STAGE, BANGALORE-560085
signed by
VANDANA S
                                                       ...APPELLANTS
Location:
HIGH        (BY SRI K. CHANDRANATH ARIGA, ADVOCATE)
COURT OF
KARNATAKA   AND:

            1.    P R GOVARDHAN
                  S/O GOVANDASWAMY,
                  (SINCE DEAD BY HIS LRS)

                  1(A) SMT ANITHA S J
                  D/O LATE GOVARDHAN,
                  AGED ABOUT 36 YEARS,
                  R/AT NO.15, JACI ENCLAVE,
                  OLD POST OFFICE ST FLAT G,
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                                       NC: 2023:KHC:42755
                                     RFA No. 1337 of 2016




     BLOCK-1, PLOT-3 KORATTUR,
     KORATTUR CHENNAI (M CORP)
     CHENNAI-600067

2.   NAVEEN
     S/O LATE GOVARDHAN,
     AGED ABOUT 35 YEARS,
     R/AT H.NO.05-53/3,
     MAHANKALI TEMPLE,
     NEAR MALKAJGIRI POLICES,
     MALKARJGIRI,
     RANGA REDDY DISTRICT-500047

3.   SMT PINNAPATI SRIKANTH SHOBHA
     D/O LATE GOVARDHAN,
     AGED ABOUT 33 YEARS,
     R/AT H.NO.15-83,
     NEW MIRZAZLGUDA,
     MALKAAJGIRI,
     HYDERABAD

                                          ...RESPONDENTS

(BY SRI PRASANNA V.R., ADVOCATE FOR R1 TO R3
     SRI MAHANTESH SHETTAR, AGA)

                            ***

      RFA FILED UNDER SEC.96 OF CPC., AGAINST THE

JUDGMENT AND DECREE DATED 30.06.2016 PASSED IN OS

NO.1793/2005 ON THE FILE OF THE XVIII ADDL. CITY CIVIL

JUDGE, BENGALURU CITY (CCH NO.10), PARTLY DECREEING

THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.


      THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:42755
                                           RFA No. 1337 of 2016




                             ORDER

This appeal is directed against the judgment and decree

dated 30.06.2016, passed in OS No.1793/2005 by the XVIII

Addl. City Civil Judge at Bengaluru City (CCH No.10), whereby

the said suit filed by the respondents - plaintiffs for declaration

permanent injunction and possession, etc., in relation to suit

schedule immovable property was decreed in favour of the

respondents - plaintiffs and against the appellants - defendants

by the trial Court.

2. Heard learned counsel for appellant and

respondents.

3. Perusal of the material on record would indicate

that dispute between the parties involves immovable property

bearing Site No.144, carved out of Sy. No.3 of Ittamadu

Village, Uttarahalli Hobali, Bangalore South Taluk, measuring

east to west 30 ft. and north to south 40 ft. as described in the

schedule to the plaint.

4. When the matter was posted on 26.07.2023 this

Court noticed the rival contention and passed the following

interim order:

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"ORDER

Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

The suit is one for declaration of title and possession. The suit is filed in respect of the property bearing site No.144 in Sy.No.3 of Ittamadu village, Uttarahalli Hobli, Bangalore South Taluk, as per the plaint schedule, the property measuring east-west 30 feet and north-south 40 feet. Suit is resisted by the defendant No.2/appellant No.2 on the premise that this property is granted to defendant No.2/appellant No.2 by the Slum Board in the year 2011 i.e., during the pendency of the suit.

This Court has perused Ex.P-10 the grant order in favour of the plaintiff. This Court has also perused Ex.D-6 and Ex.D-7 and D-30 which are endorsements issued by the jurisdictional Tahasildar. Ex.D6 reveals that Ex.P-10 is concocted. However, to substantiate his claim, the plaintiff has produced Ex.P-21 which reveals that Ex.D-6 is concocted. Ex.D-7 is one more document alleged to have been issued by the jurisdictional Tahasildar which reveals that Ex.P-10 is not issued in favour of the plaintiff. At the same time, Ex.D-30 reveals that the records pertaining to the alleged land in favour of the plaintiff is not forthcoming in the records.

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In the light of the rival contentions raised before this Court, this Court is of the view that it would be appropriate to direct the jurisdictional Tahasildar to produce original records pertaining to grant of site No.144 in Sy.No.3 of Ittamadu village, Uttarahalli Hobli, Bangalore South Taluk.

Learned Additional Government Advocate Sri.Shivananda D.S., is directed to secure original records pertaining to the aforementioned properties.

List this matter on 11.08.2023.

Registry to show the name of Sri.Shivananda D.S., Additional Government Advocate in the cause- list.

Registry to furnish the copy of this order to Sri.Shivananda D.S., Additional Government Advocate.

The matter is released from part-heard."

5. Subsequently, on 29.08.2023, learned AGA filed a

memo with documents in respect of suit property, pursuant to

the original records already submitted by them. The said

documents were taken on record and on 08.09.2023, this Court

noted the submissions made by the learned AGA and the

Revenue Inspector on behalf of Tahsildar, who is present before

the Court and passed the following order:

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"Learned Additional Government Pleader Sri Spoorthy Hegade submits that the Tahasildar, Bengaluru South was directed to produce the records. The officer of the Tahasildar, Bengaluru South is present and submits no such documents are available and he is ready to file necessary affidavit in that regard.

Re-list this matter on 13.09.2023."

6. In pursuance of the same, the Tahsildar has filed an

affidavit along with four documents on 12.10.2023. The said

affidavit reads as under:

"AFFIDAVIT

I, Sreenivasa H, S/o. Harala Naik, aged about 48 years, working as Tahsildar (Grade-I), Bengaluru South Taluk, Bengaluru City, do hereby solemnly affirm and state on oath as follows:

1. I state that I am working as Tahsildar (Grade-I), Bengaluru South Taluk, Bengaluru City and I am well conversant with the facts of the case and hence, I am swearing to this affidavit on the basis of documents available with our office.

2. I state that as per Akarband, the land bearing Sy.No.3 of Ittamadu Village, Uttarahalli Hobli, Bengaluru South Taluk measuring to an extent of 14 Acres 20 Guntas. Out of which 5 Acres 32

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Guntas, 2 Acres 10 Guntas of land having Khata standing in the name of B. Kempaiah. 1 Acre 13 Guntas of land having khatha standing in the name of Munichowdappa and 2 Acres 09 Guntas of land having khatha standing in the name of G. Ramaiah S/o Giriyappa.

3. I further state that in the said land, 4 Acres 37 Guntas has been granted to the Slum Clearance and Development Board by the Deputy Commissioner vide Notification bearing No.KSA.CR.7/99-2000 dated 26.03.2001. Copy of the Notification 26.03.2001 is produced herewith and marked as DOCUMENT NO.1.

4. I further state that in the said 4 Acres 37 Guntas of land, the concerned Authority has carved out 308 sites for the identified beneficiaries who were resided in the said place and allotted the said land to them. Copy of the Beneficiaries list is produced herewith and marked as DOCUMENT NO.2.

5. I state that the after verification of the records at our office in the record Section, it is found that the Hakku Pathra produced by the Appellant pertaining to grant of Respondent Site No.144 in Sy.No.3 of Ittamadu Village, Uttarahalli Hobli, Bengaluru South Taluk, has not been issued from our Office. The record keeper has submitted the said report through Grade-II Tahsildar. Copy of

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the report dated 22.09.2023 is produced herewith and marked as DOCUMENT NO.3.

6. I state that as per Akarbandh, in the RTC Coumn (3) and (9) extent is more than the Akarbandh extent, which has to be rectified by the Special Tahsildar and the letter dater 03.10.2023 has been issued to rectify the RTC Column (3) and (9) extent. Copy of the letter dated 03.10.2023 same is produced herewith and marked as DOCUMENT NO.4.

7. I state that in the said land, as per Akarbandh, out of total extent of 14 Acres 20 Guntas of land, 04 Acres 37 Guntas has been allotted to the Slum Clearance Development Board and 5 Acres 32 Guntas having khatas in the name of private parties as stated above, as per Deputy Tahasildar, Revenue Inspector and Village Administrative Officers report physically remaining 3 Acres 31 Guntas of land is fully developed by the residential houses and no vacant land has been left out.

What is stated above is true to the best of my knowledge, information and belief."

7. By way of response to the said affidavit and

documents filed by the State, respondent Nos.1 to 3 have filed

a counter affidavit along with one document on 21.11.2023,

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controverting and disputing the affidavit and documents filed

on behalf of State.

8. The learned counsel for appellants on instruction

submits that an appellant does not dispute the affidavit and

documents produced by the State. The said submission of the

learned counsel for appellants is placed on record.

9. The aforesaid facts and circumstances and material

on record will indicate that the documents and pleadings,

referred to supra, filed for the first time before this Court in the

present appeal were not placed / available before the trial

Court before passing of the impugned judgment and decree. It

is also seen that there is serious dispute between the appellant

and State on hand and Respondent Nos.1 to 3 on the other, as

regards their respective rival contentions and documents

produced by both the side.

10. Under these circumstances, though several

contentions are urged by both sides in support of their claim,

without expressing any opinion on the merit / demerits of the

rival contentions and in the light of the aforesaid earlier orders

passed by this Court and subsequent events that have

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transpired / occurred during the pendency of the appeal and

the additional pleadings and the documents produced by the

parties as well as State before this Court during the pendency

of the present appeal, I deem it just and proper to set aside the

impugned judgment and decree and remit the mater back to

the trial Court for re-consideration afresh in accordance with

law after providing sufficient and reasonable opportunity to all

the parties and by impleading the Karnataka Slum Clearance

Board as well as the Tahasildar, State of Karnataka as

additional defendants to the suit.

11. In the result, appeal is hereby allowed with the

following:

(1) The impugned judgment and decree dated

30.06.2016, passed in OS No.1793/2005 by the XVIII

Addl. City Civil Judge at Bengaluru City (CCH No.10),

is hereby set aside.;

(2) The matter is remitted back to the trial Court for re-

consideration afresh in accordance with law.;

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(3) Respondent Nos.1 to 3 - plaintiffs are directed to

implead the State of Karnataka, represented by

Tahasildar as well as Karnataka Slum Clearance Board

as additional defendants to the suit by filing

appropriate application in this regard before the trial

Court.;

(4) On such application being filed by the respondent

Nos.1 to 3 - plaintiffs for impleading, the trial Court