Karnataka High Court
The Secretary vs Sri Babu on 7 August, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 1101 OF 2006 (INJ)
C/W
REGULAR FIRST APPEAL NO. 1102 OF 2006 (INJ)
REGULAR FIRST APPEAL NO. 1106 OF 2006 (INJ)
REGULAR FIRST APPEAL NO. 1108 OF 2006 (INJ)
REGULAR FIRST APPEAL NO. 1724 OF 2006 (DEC/INJ)
IN RFA No.1101/2006
BETWEEN:
1. THE SECRETARY
STATE OF KARNATAKA
Digitally REVENUE DEPARTMENT
signed by M.S. BUILDING,
BHARATHI S
BANGALORE 560001.
Location:
HIGH
COURT OF 2. THE DEPUTY COMMISSIONER
KARNATAKA BANGALORE DIVISION
BANGALORE 560001.
3. THE TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE 560009.
4. THE REVENUE INSPECTOR
PEENYA DASARAHALLI
BANGALORE NORTH TALUK
BANGALORE 560058.
...APPELLANTS
(BY SMT SARITHA KULKARNI, HCGP)
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
AND:
1. SRI S CHANDRASHEKAR
S/O SHRI SUBBARAJU
R/AT BYRAPPA BUILDING,
CHECKPOST ROAD
T DASARAHALLI,
BANGALORE57
2. SMT KAMALAKSHAMMA
W/O LATE NARASIMHA SHETTY
NO 8384, PUSHKARANI ROAD
YELAHANKA,
BANGALORE 560 064
...RESPONDENTS
(BY SRI. T NARAYANASWAMY., ADVOCATE FOR R1
SRI. VIJAYAKUMAR K, ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.21.9.2005 PASSED IN O.S.NO.5537/96 ON THE
FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR PERMANENT INJUNCTION AND ETC.
IN RFA No.1102/2006
BETWEEN:
1. THE SECRETARY
STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S. BUILDING
BANGALORE 560001
2. THE DEPUTY COMMISSIONER
BANGALORE DIVISION
BANGALORE 560001
3. THE TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE 560009
4. THE REVENUE INSPECTOR
PEENYA DASARAHALLI
BANGALORE NORTH TALUK
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
BANGALORE 560058
...APPELLANTS
(BY SMT SARITHA KULKARNI, HCGP)
AND:
1. SRI ABDUL NABI R
S/O SHRI IBRAHIM SAHEB
R/AT PILLAPPA BUILDING,
M.M ROAD,
T DASARAHALLI
BANGALORE 57
2. SMT KAMALAKSHAMMA
W/O LATE NARASIMHA SHETTY
NO. 8384, PUSHKARANI ROAD
YELAHANKA
BANGALORE 560 064
...RESPONDENTS
(BY SRI. T NARAYANASWAMY.,ADVOCATE FOR R1
SRI. VIJAYAKUMAR K, ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.21.9.2005 PASSED IN O.S.NO.5539/96 ON THE
FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR PERMANENT INJUNCTION AND ETC.
IN RFA No.1106/2006
BETWEEN:
1. THE SECRETARY
STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S. BUILDING, BANGALORE 560001
2. THE DEPUTY COMMISSIONER
BANGALORE DIVISION
BANGALORE 560001
3. THE TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE 560009
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
4. THE REVENUE INSPECTOR
PEENYA DASARAHALLI
BANGALORE NORTH TALUK
BANGALORE 560058
...APPELLANTS
(BY SMT SARITHA KULKARNI, HCGP)
AND:
1. SRI BABU
S/O SHRI HUSSAIN SAB
R/AT PIPE LINE LINK ROAD
T DASARAHALLI
BANGALORE 57
2. SMT KAMALAKSHAMMA
W/O LATE NARASIMHA SHETTY
NO 8384, PUSHKARANI ROAD
YELAHANKA, BANGALORE 560 064
...RESPONDENTS
(BY SRI. T NARAYANA SWAMY.,ADVOCATE FOR R1
SRI. VIJAYAKUMAR K., ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.21.9.2005 PASSED IN O.S.NO.5541/96 ON THE
FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR PERMANENT INJUNCTION AND ETC.
IN RFA No.1108/2006
BETWEEN:
1. THE SECRETARY
STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S. BUILDING,
BANGALORE 560001.
2. THE DEPUTY COMMISSIONER
BANGALORE DIVISION
BANGALORE 560001
3. THE TAHSILDAR
BANGALORE NORTH TALUK
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
BANGALORE 560009
4. THE REVENUE INSPECTOR
PEENYA DASARAHALLI
BANGALORE NORTH TALUK
BANGALORE 560058
...APPELLANTS
(BY SMT SARITHA KULKARNI, HCGP)
AND:
1. SRI THOMAS SABSTIAN
S/O SHRI KURIAN DEVASYA
R/AT NO 53, I MAIN ROAD
GANGANAGAR
BANGALORE
2. SMT KAMALAKSHAMMA
W/O LATE NARASIMHA SHETTY
NO 8384, PUSHKARANI ROAD
YELAHANKA
BANGALORE 560 064
...RESPONDENTS
(BY SRI.T NARAYANASWAMY., ADVOCATE FOR R1
SRI. VIJAYAKUMAR K, ADVOCATE FOR R2)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.21.9.2005 PASSED IN O.S.NO.5536/96 ON THE
FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.1724/2006
BETWEEN:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA,
BANGALORE 560001
2. THE SPL DEPUTY COMMISSIONER
(REVENUE) BANGALORE DISTRICT,
KRISHI BHAVAN,
BANGALORE 560009.
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RFA No. 1101 of 2006
C/W RFA No. 1102 of 2006
RFA No. 1106 of 2006
RFA No.1108 of 2006
RFA No. 1742 of 2006
3. THE TAHSILDAR
BANGALORE NORTH TALUK,
BANGALORE 560009.
...APPELLANTS
(BY SMT SARITHA KULKARNI., HCGP)
AND:
SMT KAMALAKSHAMMA
W/O SRI NARASIMHAIAH SETTY
R/O BAGALAKUNTE,
YESHWANTHAPURA HOBLI,
BANGALORE NORTH TALUK,
REP.BY HER POWER OF ATTORNEY HOLDER
SRI B NAGARAJ PIN 560022.
...RESPONDENT
(BY SRI. VIJAYAKUMAR K., ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DT. 21.09.2005 PASSED IN OS.NO.5102/1999 ON THE
FILE OF THE XXVII ADDL.CITY CIVIL JUDGE, BANGALORE, PARTLY
DECREEING THE SUIT FOR DECLARATION AND PERPETUAL
INJUNCTION AND ETC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE C.M. POONACHA)
The above first appeals are filed by the defendant
challenging the judgment and decree passed by the Trial Court.
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All the said appeals are taken up together for consideration and
the details are noticed hereunder for ready reference:
i) RFA No.1101/2006 is filed by the
defendants - State challenging the judgment
and decree passed in O.S. No.5537/1996
whereunder, the trial Court decreed the suit
for injunction. The suit property in the said
in Sy.No.85 of Bagalakunte Village,
Yashavanthapura Hobli, Bengaluru Taluk.
ii) RFA No.1102/2006 is filed by the
defendants- State challenging the judgment
and decree passed in O.S. No.5539/1996,
whereunder the trial Court decreed the suit
for injunction. The suit property in the said
in Sy.No.85 of Bagalakunte Village,
Yashavanthapura Hobli, Bengaluru Taluk.
iii) RFA No.1106/2006 is filed by the
defendants-State challenging the judgment
and decree passed in O.S. No.5541/1996,
whereunder the Trial Court decreed the suit
for injunction. The suit property in the said
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in Sy.No.85 of Bagalakunte Village,
Yashavanthapura Hobli, Bengaluru Taluk.
iv) RFA No.1108/2006 is filed by the
defendants-State challenging the judgment
and decree passed in O.S. No.5536/1996
whereunder the Trial Court decreed the suit
for injunction. The suit property in the said
suit is site No.16 measuring 105 x 120 in
Sy.No.85 of Bagalakunte Village,
Yashavanthapura Hobli, Bengaluru Taluk.
iv) RFA No.1724/2006 is filed by the
defendants-State challenging the judgment
and decree passed in O.S. No.5102/1999,
whereunder the suit for declaration and
injunction has been decreed by the Trial
Court. The suit property is Sy.No.85
measuring 3 acres situated at Bagalkunte
Village.
2. It is forthcoming from the aforementioned, that O.S.
No.5102/1999 is a suit for declaration and injunction in respect
of the entire Sy.No.85 measuring 3 acres, in respect of which
the RFA No.1724/2006 is filed. The other suits are suits for
injunction and the declaration made in O.S. No.5102/1999
would also determine the rights of the plaintiffs in the other
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suits since the plaintiffs in the other suits claim to be
agreement holders and GPA holders of the GPAs executed by
the plaintiff in O.S. No.5102/1999. Hence, the facts in RFA
No.1724/2006 which arises out of O.S. No.5102/1999 are
noticed.
3. The parties will be referred to as per their rank
before the Trial Court for the sake of convenience.
4. It is the case of the plaintiff that he was a tenant in
respect of the suit property under an inamdar. He filed an
application in Case Nos.65/1959-60 before the Special Deputy
Commissioner for grant of occupancy rights in respect of the
suit property. Thereafter, vide order dated 23.7.1966 passed
under Section 5 of the Mysore (Personal and Miscellaneous)
Inams Abolition Act, 19541 occupancy rights were granted in
favour of the plaintiff pursuant to which the name of the
plaintiff was mutated in respect of the suit property vide MR
No.3/1988-89 and thereafter the name of the plaintiff has been
entered in the revenue records. That the plaintiff was in lawful
possession and enjoyment of the suit property. That when the
Hereinafter referred to as the 'Inams Act'
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defendants attempted to interfere with the property of the
plaintiff, she filed a suit in O.S. No.668/1992 for injunction
which was decreed.
5. It is the further case of the plaintiff that since the
2nd defendant initiated suo motu proceedings under Section 136
of the Karnataka Land Revenue Act, 19642 that the plaintiff
filed W.P. No.26248/1995 challenging the order passed by the
2nd defendant. The Writ Petition is disposed of vide order dated
09.10.1998, wherein the plaintiff was directed to approach the
civil Court to protect the title. Hence, the suit was filed. The
reliefs claimed as per the amended plaint are extracted
hereunder for ready reference:
a) Declaring that the plaintiff is the absolute owner in
possession and enjoyment of the suit schedule
property;
ai) to declare that the order passed by the Special
Deputy Commissioner, Bangalore Dist, Bangalore in
Revision (b) 18/95-96 dated 15.6.1995 is illegal and
not binding on the plaintiff;
aa) consequently to pass a judgment and decree of
perpetual injunction restraining the defendants, their
Hereinafter referred to as the 'KLR Act'
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employees and their servants from interfering with the
peaceful possession and enjoyment of the plaintiff in
the suit schedule property;
b) Pass such other order or further orders as this
Hon'ble Court deems fit and proper in the facts and
circumstances of the case and in the interest of justice
and equity.
c) Cost of the proceedings.
6. The defendants entered appearance and filed
written Statement contending that the suit property is not an
Inam land but is a Government gomal land. The defendants
have also denied that the plaintiff was a tenant under the
Inamdar. It is the specific contention of the defendant that the
plaintiff in collusion with one Gopalaiah, Village Accountant, got
her name entered in the RTC illegally and pursuant to order
dated 15.06.1995, the entries in the RTC were cancelled.
Further, it is contended that the relief sought for in respect of
the order of Special Deputy Commissioner is barred by
limitation and the said order has become final by virtue of
dismissal in W.P. No.26248/1995.
7. Consequent to the pleadings of the parties, the Trial
Court framed the following issues and additional issues:
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ISSUES
1. Whether the plaintiff proves her title to the suit property?
2. Whether the plaintiff is entitled to a declaration as sought
for?
3. What decree or order?
ADDL.ISSUES.
1. Whether the plaintiff proves that order dated 15-8-1985
passed by the 2nd defendant is illegal and arbitrary?
2. Whether the defendants prove that the plaintiff is not
entitled to the relief of declaration regarding the order dated
15-8- 1985 as the same is barred by limitation?
3. Whether the plaintiff proves her possession over the suit
property?
4. Is she entitled for the relief of permanent injunction
restraining the defendants, their servants, etc. from
interfering with her possession?
5. Whether the defendants prove that the suit is not
maintainable for want of notice under Section 80 of CPC?
6. Whether the suit is properly valued ad whether the court
fee paid is sufficient?
8. On behalf of plaintiff, her power of attorney holder
B.Nagaraj examined himself as PW.1. Exs.P1 to P18 have been
marked in evidence. On behalf of defendants, the Tahsildar,
Bengaluru North Taluk has been examined as DW.1. Exs.D1 to
D8 have been marked in evidence. The Trial Court by its
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judgment and decree dated 21.09.2005, partly decreed the suit
and passed the following order:
"Suit of the plaintiff is partly decreed.
It is declared that the plaintiff is the owner
of the suit property. It is further declared
that the order dated 15.06.1995 passed by
the 2nd defendant is illegal and not binding
on the plaintiff.
Suit of the plaintiff for the relief of
permanent injunction is dismissed.
Plaintiff is directed to pay the deficit court
fee as observed in para 21 of the judgment.
Office shall draw up decree after the
payment of deficit court fee by the plaintiff."
9. Being aggrieved, RFA No.1724/2006 is filed.
10. This Court by order dated 18.06.2009 admitted the
above appeals. Thereafter, by order dated 26.10.2010 this
Court passed the following order:
"Having heard the matter, this Court
is of the opinion that the Government
Advocate has to be directed to produce the
original Register maintained in the office of
the Special Dy. Commissioner for Inam
Abolition, Bangalore for the year 1959-60,
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to show the Application filed by different
parties and this order passed thereon by
the respective Dy. Commissioner on such
Application.
Two weeks time is granted."
(emphasis supplied)
11. Subsequently, by order dated 04.11.2010, this
Court ordered as follows:
"The matter was heard in detail.
After hearing, the court had entertained a doubt
about the genuinely of the documents produced by the
Respondent plaintiff. The Respondent is claiming right
over the land in question on the ground that the land
has been regranted to him under sec.5 of the Mysore
(Personal & Miscellaneous) Inams Abolition Act 1954.
According to Government, the land in question
is a gomal land and could not be the subject matter of
regrant by the Special Deputy Commissioner,
Bangalore.
Considering the rival submissions, this court on
26.10.2010 had directed the Government Advocate to
produce the Register maintained in the office of the
Special Deputy Commissioner for Inams Abolition,
Bangalore, for the year 1959-60 in order to ascertain
whether the Respondent -plaintiff had really filed an
application for regrant of the land in question.
The Government Advocate has produced the
original register which discloses that the case relied
upon by the plaintiff is not pertaining to the plaintiff
but it is an application filed by one Chikka Arasappa
S/o Narasimhaiah claiming 3 acres 36 guntas in
Sy.No.44/2 of Bagalkunte village.
From looking into this document, it is clear that
the document relied upon by the plaintiff's are
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concocted. When the documents are concocted and
based on the concocted document if the plaintiff has
filed a suit to knock off the valuable property of the
Gomal land which is now comes within the Corporation
City of Bangalore, it is a case where criminal
prosecution has also to be launched.
In the circumstances, we direct the learned
counsel for the respondent to get the instructions from
his client and make his submission.
Accordingly, the matter is adjourned to
8.11.2010."
(emphasis supplied)
12. Thereafter, this Court by order dated 08.11.2010,
passed the following order:
"This appeal is by the defendant. Suit is filed by
the plaintiff seeking right over the land in question on
the ground that it has been granted to her under
Section 5 of the Mysore (Personal and Miscellaneous)
Inams Abolition Act, 1954.
During the course of hearing this Court passed
an order on 04.11.2010 on the basis of the original
register produced by the defendant indicating that the
plaintiff is not the applicant and the application is filed
by one Chikka Arasappa, S/o.Narasimhaiah claiming 3
acres 36 guntas in Sy.No.44/2 of Bagalkunte village.
Indeed this Court was of the view that the document
on which the plaintiff has relied, is concocted. Indeed it
is to be noticed that the said document is not produced
along with an application.
Smt.Revathy Adinath Narde, learned HCGP
appearing for the defendants submits that she would
make a necessary application under Order 41 Rule 27
of the Code of Civil Procedure to produce the said
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document. She shall do so. Copies shall be served on
the counsel appearing for the respondents.
Objections to the application, if any, in the
meanwhile.
List it for hearing along with the application on
15.11.2010."
(emphasis supplied)
13. Along with the above appeal, the appellants have
filed an application on 12.11.2010 under Order 41 Rule 27, r/w
Section 151 of Code of Civil Procedure3 producing the following
documents:
i) Copy of Form No.VIII - Register of
Bagalagunte Village.
ii) Copy of file in INA case No.65/1959-60 of
Bagalagunte Village regarding application
under Section 5 of the Inams Act.
iii) Copy of RTC extracts from the year 1959-60 and
2010.
14. It is also relevant to note that in
RFA.Nos.1102/2006, 1106/2005 and 1108/2006 applications
Hereinafter referred to as the 'CPC'
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dated 12.11.2010 under Order 41 rule 27 CPC., have been filed
to produce documents along with the said applications.
15. Heard submissions of learned High Court
Government Pleader4 Smt. Saritha Kulkarni for the appellant-
State, Sri Muniyappa, learned counsel for Respondent No.1 and
Sri VijayaKumar K., learned counsel appearing for the
Respondent No.2 in RFA Nos.1101/2006, 1102/2006,
1106/2006, 1108/2006 and Sri VijayaKumar K. for sole
respondent in RFA No.1724/2006.
16. Since copies of the documents were not produced
along with the application, during the course of hearing,
learned HCGP., has filed a memo dated 07.08.2024 placing on
record the following documents:
a) Original register pertaining to Form No.8 of
Bagalakunte Village;
b) Entire original file in INA case No.65/59-60;
17. Having heard the submissions of both the learned
counsels the questions that arise for consideration are:
Hereinafter referred to as the 'HCGP'
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i) Whether the applications filed by the appellants
under Order 41 Rule 27 of the CPC filed by the
appellants is required to be allowed?
ii) Whether the judgment and decree passed by
the trial Court is required to be interfered with?
18. It is forthcoming that, this Court by order dated
26.10.2010, after hearing the above appeal for sometime had
directed the learned Government Advocate to produce the
original Registers maintained in the office of the Special Deputy
Commissioner, Inam Abolition for the year 1959-60.
Consequent to the same, the documents in terms of the order
dated 26.10.2010 having been produced, this Court recorded a
prima-facie finding that the documents relied upon by the
plaintiff is concocted and that the application has been filed by
one Chikka Arasappa, S/o.Narasimhaiah claiming 3 acres 19
guntas in Sy. No.44/1 of Bagalagunte Village. Subsequently,
this Court by order dated 08.11.2010, has noticed that the
order dated 04.11.2010, was passed on the basis of the
original Register produced by the appellant-defendant and that
the said documents have not been produced with an
application, recorded the submission made by the learned
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HCGP that an application would be filed and the documents
would be produced. Accordingly, application has been filed by
the defendant under Order 41 Rule 27 of CPC along with copies
of the documents as noticed above.
19. Order 41 Rule 27 of CPC permits production of
additional evidence before the appellate Court. Sub-Rule (1)(b)
enables the appellate Court to allow production of such
additional evidence, if the same is required to pronounce the
judgment or for any other substantial cause.
20. It is forthcoming from the copies of the documents
produced along with the application, as well as a perusal of the
original documents produced today along with the memo that,
the original Register pertaining to Form No.VIII of Bagalkunte
village pertains to proceedings under Section 5 of the Inams
Act. The same discloses that the entry at Sl.No.46 is with
regard to the INA case No.65/59-60 and the said entry
discloses that the order has been passed on 21.7.1959, in
respect of Sy. No.44/2 of an extent of three acres 36 guntas
and the name of the applicant is Chikka Arasappa,
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S/o.Narasimhaiah. The original case file pertaining to INA case
No.65/59-60 in the Court of Special Deputy Commissioner for
Inams Abolition, Bengaluru is also produced and the various
documents produced which are contained in the said original
file are detailed at Sl. No.2(a) to 2(j) in the memo dated
7.8.2024 filed by the learned HCGP.
21. It is forthcoming that the claim of the plaintiff to the
suit property is by virtue of being granted occupancy rights
pursuant to order dated 23.7.1966 passed in INA No.65/59-60
by the Court of the Special Deputy Commissioner for Inams
Abolition, Bangalore. A certified copy of the said order dated
23.7.1966 has been marked as Ex.P5.
22. As noticed hereinabove, the case details in terms
of Ex.P5, if noticed in the original records, pertains to
proceedings consequent to an application made by Chikka
Arasappa, S/o.Narasimhaiah in respect of Sy.No.44/2 of an
extent of 3 acres 36 guntas and the order in respect of the said
case is passed on 21.7.1959 and not 23.7.1966 as per Ex. P5
i.e., the case of the plaintiff. It is clear that as per the original
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record the said INA case No.65/59-60 pertains to Sy.No.44/2
and Ex.P5 pertains to the suit property i.e., Sy.No.85.
23. Having regard to the prima facie finding recorded in
the order dated 04.11.2010, copies of the documents produced
along with the application and the original produced along with
the memo, it is clear that the said documents are required for
the adjudication of the rights of the parties.
24. It is the vehement contention of the learned
counsel for the Respondent-plaintiff that the defendant-State
had given an endorsement that the original documents were
lost and that the said documents were not produced earlier. It
is further contended that the defendants have not stated as to
why the original documents could not be produced earlier.
Learned counsel for Respondent-plaintiff further relies on the
judgment and decree passed in O.S. No.668/1992 (Ex.P2).
25. It is forthcoming that O.S. No.668/1992 was filed
by the present plaintiff was for injunction. In the said case, the
defendants who are the defendants in the present suit did not
enter appearance and contest the suit.
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26. The documents now sought to be produced in the
present case are vital for the purpose of adjudicating the rights
of the parties. In the considered opinion of this Court, the said
documents that are required to be taken on record for the
purpose of adjudicating the issues that arise for consideration
in the present suit.
27. It is further relevant to note that the trial Court has
recorded a finding that no documents have been produced by
the defendants to demonstrate that Ex.P5 is a concocted
document and that adverse inference has been drawn against
the defendants for non production of the relevant Registers.
The trial Court has further noticed that DW.1 has stated that
entire extent of Sy.No.85 of Bagalakunte Village was Gomala
land. However, PW.1 has deposed that the suit property was
Inam land and not Gomal Land. The Trial Court noticing the
order dated 22.7.1966 (Ex.P5) has recorded a finding that since
3 acres of land is declared as Inam land, the same negates the
case of the defendants. Further, the trial Court has,
considering the contention of the defendants and upon noticing
Exs.D1 to D3 to D5 - RTC extracts noticed that the extent in
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the said documents is 38 acres 27 guntas and not 43 acres and
28. It is the vehement contention of learned counsel for
Respondent-plaintiff that the case of the defendant that the
entire extent is a Gomal land is not forthcoming from the
material on record. However, learned HCGP has produced the
original preliminary record. The entry at Sl.No.205 pertains to
Survey number 85 and the extent is mentioned as 43 acres 1
guntas and in the column No.9 wherein, the occupant or
superior holder of the land is required mentioned, it is entered
as "¸ÀPÁðj UÉÆêÀiÁ¼À". Learned HCGP has made available a copy of
the preliminary record and submits that the original preliminary
record which has been produced this day before the Court
being a bulky documents would seek leave of this court to
produce the original before the Trial Court if the matter is
remanded by this Court to the Trial Court. The said submissions
made by the learned HCGP regarding the production of the
original preliminary record is placed on record.
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29. The Trial Court has recorded a finding that since
there are no reasons given by the defendants for non
production of the original documents, an adverse inference has
been drawn and hence, the Trial Court has decreed the suit.
30. It is clear from the aforementioned that the
documents now sought to be produced are relevant and
necessary for adjudication of the question that arise for
consideration. However, it is required to be noticed that an
opportunity is required to be afforded to the plaintiffs to contest
the case of the defendants. Hence, the question Nos.1 and 2
framed for consideration are answered in the affirmative.
31. It is just and proper that all the applications filed
under Order 41 Rule 21 of CPC be allowed as well as the
documents produced today along with the memo dated
7.8.2024 by the appellant, be taken on record and the
judgment and decree of the trial Court be set aside and the
matter be remanded to enable parties to adduce further
evidence and to enable the trial Court to adjudicate upon the
issues framed by it after considering the said material.
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32. Since the suit is an old one, it is just and proper
that a date for appearance be fixed, for the parties to be
present before the trial Court. Further, as noticed above, since
O.S No.5102/1999 is the suit for declaration and injunction and
since the other suits i.e., O.S. No.5537/1996 (in RFA
No.1101/2006), O.S. No.5539/1996 (in RFA No.1102/2006),
O.S. No.5541/1996 (in RFA No.1106/2006), O.S.No.5536/2006
(in RFA No.1108/2006) are suits for injunction and since the
plaintiffs in the said suits for injunction claims through the
plaintiff in O.S. No.5102/1999, it just and proper that the Trial
Court treat O.S. No.5102/1999 as the main suit, adjudicate
upon the rights of the parties and decide the matter in
accordance with law.
33. Hence, the following
ORDER
i) The applications filed under Order 41 Rule 27 of
CPC in the aforementioned appeals are allowed
and the documents produced along with the said
applications as well as Memo dated 07.08.2024 in
RFA.No.1724/2006 are taken on record.
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ii) The above appeals are allowed.
iii) The judgment and decree dated 21.09.2005
passed by the XXVII Addl. City Civil Judge, in
O.S. Nos. 5537/1996, 5539/1996, 5541/1996,
5536/1996, 5102/1999 are set aside.
iv) The matter is remanded to the trial Court for
fresh consideration in accordance with law.
v) All the parties shall appear before the Prl. City
Civil and Sessions Judge, Bengaluru on
18.09.2024 without expecting any further notice.
It shall be open to the Prl. City Civil Judge to
assign the suits to an appropriate Court.
vi) All contentions of the parties are left open.
vii) Registry to send the records of the Trial Court
as well as the documents filed along with the
applications under Order 41 rule 27 as also the
original documents filed along with memo dated
07.08.2024 to the Court of Principal City Civil and
Sessions Judge, Bengaluru forthwith.
viii) The original documents filed by the appellant
in RFA No.1724/2006 along with the Memo dated
07.08.2024 are to be sent through safe custody
by the Registrar (Judicial), High Court of
Karnataka to the Registrar of City Civil and
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Sessions Court, Bengaluru to be put up along
with the file of the Trial Court.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
BS
