Karnataka High Court
Sri. K. Lakshminarayana vs Shri. K. Kariyappa on 23 February, 2024
Author: Chief Justice
Bench: Chief Justice
1
RFA 671/2005 C/W
RFA 1508/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
PRESENT
THE HON'B LE MR.P .S. DINES H KUMA R, C HIEF J U ST ICE
AN D
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
RFA NO.671 OF 2005 (DEC) C/W
RFA NO.1508 OF 2015 (DEC/INJ)
1. RAMAIAH
S/O LATE SIDDARAMAIAH
SINCE DEAD BY HIS LRS.
1(a) MUNIYAMMA
W/O LATE S. RAMAIAH
SINCE DEAD BY HER LRS.
1(b) THIMMEGOWDA R.
W/O LATE S. RAMAIAH
SINCE DEAD BY HIS LRS.
1(b)(i) DEVI T GOWDA
W/O LATE THIMMEGOWDA. R
AGED ABOUT 42 YEARS
1(b)(ii) PAVITHRA. T,
D/O LATE THIMMEGOWDA. R
AGED ABOUT 24 YEARS
1(b)(iii) SHASHANK GOWDA. T,
S/O LATE THIMMEGOWDA. R
AGED ABOUT 22 YEARS
ALL ARE RESIDING AT
NO.9, 4TH CROSS, ISEC MAIN ROAD
NAGARABHAVI VILLAGE
BANGALORE-560 072.
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RFA 671/2005 C/W
RFA 1508/2015
1(c) GANGADHAR R.
S/O LATE S. RAMAIAH
AGED ABOUT 45 YEARS
1(d) MANJUNATHA R.
S/O LATE S. RAMAIAH
AGED ABOUT 43 YEARS
1(e) HANUMARAJ R.
S/O LATE S. RAMAIAH
AGED ABOUT 39 YEARS
1(f) PRAKASH R.
S/O LATE S. RAMAIAH
AGED ABOUT 38 YEARS
1(g) NAGARAJ R. NAGARABHAVI
S/O LATE S. RAMAIAH
AGED ABOUT 35 YEARS
ALL ARE R/AT NO.15
ISEC MAIN ROAD
NAGARBHAVI VILLAGE
BANGALORE NORTH TALUK
BANGALORE - 560 072
2. S. SIDDAPPA
S/O LATE SIDDARAMAIAH
SINCE DEAD BY HIS LR'S
2(a) DODDAMMA @ JAYAMMA
W/O LATE SIDDAPPA S.
AGED ABOUT 61 YEARS
2(b) SIDDARAMAIAH
S/O LATE SIDDAPPA.S
AGED ABOUT 44 YEARS
2(c) GANGAMMA
D/O LATE SIDDAPPA S.
AGED ABOUT 40 YEARS
2(d) MANJUNATHA S.
S/O LATE SIDDAPPA S.
AGED ABOUT 36 YEARS
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RFA 671/2005 C/W
RFA 1508/2015
2(e) SUMANGALA S.
D/O LATE SIDDAPPA S.
AGED ABOUT 33 YEARS
2(f) GAJENDRA
S/O LATE SIDDAPPA S.
AGED ABOUT 31 YEARS
ALL ARE R/AT NAGARBHAVI VILLAGE
YESHWANTHPURA HOBLI BANGALORE
NORTH TALUK, BANGALORE
3. S. NANJAPPA
S/O LATE SIDDARAMAIAH
AGED ABOUT 50 YEARS
R/O NAGARBHAVI VILLAGE
YESHWANTHPUR HOBLI
BANGALORE NORTH TALUK
BANGALORE - 560 072
4. KENDRA UPADHYAYARA SANGHA
REP. BY ITS SECRETARY
R/AT NO.24, SUBRAMANYA SETTY
ROAD, BASAVANAGUDI
BANGALORE - 560 004 ... APPELLANTS
(BY SRI.NITHIN RAMESH, ADV. FOR
SRI.SRIDHAR PRABHU, ADV. FOR APPELLANT NO.4;
VIDE ORDER DATED 10.11.2022
APPEALS ON BEHALF OF APPELLANT 1(a TO g);
APPELLANT NO.2(a TO f) AND
APPELLANT NO.3 STAND DISMISSED)
AND:
1. SRI.KARIYANNA
S/O LATE KARIYANNA, MAJOR
R/AT NAGARABHAVI VILLAGE
YESHWANTHPURA HOBLI
BANGALORE
2. BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD, BANGALORE
REP. BY COMMISSIONER
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RFA 671/2005 C/W
RFA 1508/2015
3. THE COMMISSIONER
BRUHATH BENGALURU MAHANAGARA
PALIKE, N.R.SQUARE, BANGALORE - 02
4. EXECUTIVE ENGINEER
GOVINDARAJANAR WARD
BRUHATH BENGALURU MAHANAGARA
PALIKE, BDA COMPLEX, 4TH MAIN ROAD
MC LAYOUT, VIJAYANAGARA
BANGALORE - 40
5. ASSISTANT EXECUTIVE ENGINEER
BRUHATH BENGALURU MAHANAGARA
PALIKE, COTTON PET MAIN ROAD
CHANDRA LAYOUT, WARD NO.39
BANGALORE - 20 ... RESPONDENTS
(BY SRI.G.KRISHNAMURTHY, SR. ADV. A/W
SRI. M.N.UMESH, ADV. FOR R1;
SRI. JAYAKUMAR S.PATIL, SR.ADV. FOR
SRI. ASHWIN S. HALADY, ADV. FOR R2;
VIDE ORDER DATED 06.07.2023;
SMT.SUMANGALA GACHINAMATH, ADV. FOR R3 TO R5;
SRI. C. JAGADEESH, ADV. FOR PROPOSED R5)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.02.2005
PASSED IN O.S.NO.2443/1984 ON THE FILE OF THE 19TH
ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH NO.18,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANANET INJUNCTION.
IN RFA NO.1508 OF 2015
BETWEEN:
SRI. K. LAKSHMINARAYANA
AGED ABOUT 54 YEARS
S/O SRI C. T. KALAIAH
R/AT NO.176/B, 10TH CROSS
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RFA 671/2005 C/W
RFA 1508/2015
BAPUJI NAGAR
BANGALORE-560 026 ... APPELLANT
(BY SRI. SHASHIKIRAN SHETTY, SR. ADV. FOR SRI. M.
SRINIVAS, ADV. FOR SMT. LATHA SHETTY, ADV.)
AND:
SHRI. K. KARIYAPPA
AGED ABOUT 69 YEARS
S/O LATE KARIYANNA
R/AT NAGARABHAVI VILLAGE
YESHWANTHPURA HOBLI
BANGALORE NORTH TALUK
BANGALORE 560 072 ...RESPONDENT
(BY SRI. D. R. RAVISHANKAR, SR.ADV FOR
SRI. SHREEDHARA. S, ADV.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, READ
WITH ORDER XLIII RULE 1 OF CPC., AGAINST THE JUDGMENT
AND DEGREE DATED: 16.09.2015 PASSED IN OS NO.
1049/2010 ON THE FILE OF THE XII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH.NO.27) AT BANGALORE. DISMISSING
THE SUIT FOR DECLARATION AND PERMANENT INJUCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.01.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
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RFA 671/2005 C/W
RFA 1508/2015
JUDGMENT
The defendants No.2 to 4 (Ramaiah, Siddapa and
Nanjappa) and 6 (Kendra Upadhayara Sangha1) in
O.S.No.2443/1984 have challenged the judgment and
decree dated 24.02.2005 passed by the XIX Additional
City Civil Judge, Bengaluru, in R.F.A.No.671/2005.
1.1. Plaintiff (Lakshminaryana) in
O.S.No.1049/2010 has challenged the judgment and
decree dated 16.09.2015 passed by the XII Addl. City
Civil and Sessions Judge, Bengaluru (CCH-27), in
R.F.A.No.1508/2015.
2. Brief facts pleaded in O.S.No.2443/1984:
One Kunta Ramaiah's elder brother was
Siddaramaiah. His daughter was Gangamma
(Plaintiff No.1). Sanjeevaiah, Kariyappa,
Chikkamallappa and Ramiah are her sons.
Gangamma and her four children have
brought this suit inter alia for declaration and
for short 'the Sangha'
RFA 671/2005 C/W
injunction that they are the owners of
guntas. Plaintiffs gave up their claim with
regard over Sy. No.1/4 vide order dated
06.02.1995. They amended the area in Sy.
No.1/7 guntas as 28 guntas. In effect, the suit
guntas and Sy.No.1/7 measuring 28 guntas;
defendants No. 1 to 4 are children of one
Siddaramaiah;
RFA 671/2005 C/W
the Genealogical Tree is as follows:
2.1. BDA (Defendant No.5) notified the suit
properties for formation of Nagarbhavi Layout. The
Sangha claims its right over the suit properties on the
RFA 671/2005 C/W
basis of an Agreement to Sell and an irrevocable GPA
executed by Ramaiah, Siddappa and Nanjappa
(defendants No. 2 to 4).
2.2. Plaintiffs' case is, Kunta Ramaiah was the
original owner of Sy.No.1/5 and 1/7. After his death in
1933, the properties devolved upon plaintiff No.1-
Gangamma and her name was entered in the revenue
records. At some point, the names of some of the
defendants appeared in Cultivator's Column in respect
of those Sy. Nos. Plaintiffs learnt that BDA had sought
to acquire the lands for the Sangha to form of layout
named as 'Teachers Colony'. Hence, plaintiffs have
brought the instant suit for declaration of their title and
permanent injunction.
2.3. Defendant No.1 resisted the suit by filing
independent written statement but the same was not
taken into consideration as her name and the claim in
RFA 671/2005 C/W
respect to Sy.No.1/4 was deleted vide order dated
06.02.1995.
2.4. Defendants No.2 to 4 resisted the suit by
filing their common written statement inter alia
admitting the relationship between plaintiffs and
defendants No.1 to 4. They contended that Kunta
Ramaiah was not the owner of Sy. Nos.1/5 or 1/7 and
plaintiff No.1 was not the owner of Sy.No.1/4. The
name of Gangamma that appeared in the revenue
records was not the name of plaintiff No.1, but it was
the name of one Gangamma w/o Dasegowda and sister
of Kunta Ramaiah. Plaintiff No.1 has colluded with the
revenue officials and got her name inserted in some of
the revenue records. Defendants No.2 to 4 are the
absolute owners of the suit properties and they have
sold the suit properties to the Sangha.
with regard to each survey number is as follows:
RFA 671/2005 C/W
i. That Sy.No. 1/7 originally belonged to one
Dasegowda. After his death, Sy. No. 1/7
devolved upon his wife Gangamma. After
Gangamma's death, her daughter
Thimmakka and her sons i.e., defendants 2
to 4 continued in possession. Plaintiff No.1
is taking undue advantage of the common
name of herself and Dasegowda's wife-
Gangamma and making a false claim over
the suit properties. Even otherwise,
defendants No. 2 to 4 have perfected their
title by adverse possession. They have
been continuously in possession for a
period of more than 12 years adverse to
plaintiffs' interest.
ii. That Sy.No.1/5 belonged to Kunta
Ramaiah's brother Siddaramaiah. There
was a partition between the brothers and
the land was equally divided between them.
Kunta Ramaiah sold his share of property in
Sy. No. 1/5 under a registered Sale Deed
dated 13.1.1931 in favour of his
daughter/plaintiff No.1. Plaintiff No.1 sold
it by a Sale deed dated 18.5.1966 in favour
to 4). After Thimmakka's death, defendants
RFA 671/2005 C/W
No.2 to 4 inherited and continued to be in
possession of Sy.No.1/5.
iii. Therefore, plaintiffs are not entitled for any
relief and prayed for dismissal of the suit.
However, defendants No. 2 to 4 withdrew their written
statement by filing a memo dated 14.09.1994. They
also filed a memo dated 06.01.1998 stating that they
were not inclined to lead any evidence.
2.6. Defendant No.5-BDA resisted the suit by
filing separate written statement contending inter alia
that land in Sy.Nos.1/4, 1/5 and 1/7 have been
notified for formation of Nagarabhavi Layout; that final
notification was yet to be issued; that whoever
established his title over the suit properties shall
receive compensation as per the award. That the suit
is not maintainable for non-compliance of Section 64 of
the BDA Act. That BDA was not a proper party and the
suit was liable to be dismissed.
RFA 671/2005 C/W
2.7. Defendant No.6-the Sangha, adopted the
written statement filed by defendants No.2 to 4. It also
filed a separate written statement contending inter alia
that it is registered under the Societies Registration
Act. The Sangha had entered into agreements with
defendants No. 2 to 4 to purchase the suit properties.
Pursuant to the agreements, the Sangha had taken
possession of suit properties. After receiving the total
consideration, defendants No.2 to 4 have executed a
power of attorney in favour of the Sangha. All the
revenue records stood in the name of defendants No. 2
to 4 who had also perfected their title by adverse
possession.
2.8. It is further pleaded by the Sangha that the
BDA had notified to acquire suit properties along with
other lands vide preliminary notification dated
12.02.1982. The Sangha sought denotification of
these lands from the Government. The BDA granted its
'No Objection Certificate' and the lands were dropped
RFA 671/2005 C/W
from acquisition proceedings in the final notification
dated 16.05.1985. Defendants No.2 to 4 and their
predecessors in title were in possession of suit
properties and they were paying the land revenue.
From 30.11.1981, the Sangha came into possession of
the suit properties, developed and formed a layout.
Since 30.11.1981, the Sangha has been paying
assessed tax through defendants No.2 to 4. Plaintiffs
have no right title or interest nor they were in
possession at any point of time.
2.9. The suit was dismissed vide order dated
19.3.2002. On appeal in R.F.A.No.451/2002, this Court
set-aside the order of dismissal and remanded the
matter vide order dated 23.10.2003 for fresh disposal
in accordance with law.
3. Based on the pleadings, the following issues
were framed before the remand order and the same
have been retained even after the remand:
RFA 671/2005 C/W
1) Whether the plaintiffs prove their title as
owners in possession of the suit schedule
survey numbers?
2) Whether they further prove that
defendants interfered in their possession
and enjoyment of the suit schedule
survey numbers?
3) Whether the first defendant proves her
title as owner of suit survey No. 1/4?
4) Whether she further proves that she has
perfected her title by adverse possession
in respect of the suit survey number ¼?
5) Whether the defendants 2 to 4 prove that
they are in possession and enjoyment of
the suit schedule properties as owners for
the various reasons as pleaded in the
written statement?
6) Whether they further prove that they
have perfected the title to the suit
schedule survey number by way of
adverse possession and thereon, the suit
is barred by time?
7) Whether they further prove that they
have entered into an agreement with 6th
defendant to sell the suit schedule survey
numbers and that they have delivered
possession of the suit schedule properties
to 6th defendant?
8) Whether the 5th defendant proves that the
suit is bad for non-compliance of Section
56 of the BDA Act and therefore, it is
liable to be dismissed?
9) Whether they further prove that the suit
against first defendant is not
maintainable?
RFA 671/2005 C/W
10) Whether the 6th defendant proves that in
order to form a layout to enable its
members to purchase sites, it has
entered into an agreement with
defendants 2 to 4 to purchase be suit
schedule survey numbers?
11) Whether the 6th defendant further
proves hat pursuant to the said
agreement, it has taken possession of the
suit survey numbers from defendants 2
to 4 by paying consideration to them?
12) Whether the 6th defendant further
proves that the 5th defendant BDA has
issued preliminary notification for
acquiring the said suit survey numbers
for formation of the layout of the 6th
defendant?
13) Whether he further proves that the
defendants 2 to 4 are the owners in
possession of the suit schedule property?
14) To what relief the parties are entitled?
4. On behalf of the plaintiffs, five witnesses were
examined as PW.1 to PW.5 and Ex.P1 to P40 were
marked. On behalf of the defendants, five witnesses
were examined as DW.1 to DW5 and Ex.D1 to D147.
After remand, Exs.D5 to D10 were marked. After
hearing both the parties, the Trial Court while
answering issues No. 1 and 2 in the affirmative; issues
RFA 671/2005 C/W
No. 5, 6, 7, 10, 11 and 13 in the negative and holding
that issues No. 3, 4, 8, 9 and 12 did not arise for
consideration has decreed the suit declaring that
plaintiff No. 3 as the owner in possession of Sy.No.1/5
and 1/7. Aggrieved by the same, defendants are
before this court in R.F.A.No.671/2005.
5. Brief facts pleaded in O.S.No.1049/2010:
Defendant No.1, Kariyappa is the owner of
Sy.No.1/5, measuring 2 acres 36 guntas of
Nagarabhavi Village. He entered into an agreement on
21.01.2002 to sell the suit property in favour of
plaintiff, Lakshminarayana for a total consideration of
Rs.30,00,000/-. After execution of the agreement,
plaintiff was informed about the litigation pending
before this Court in RFA No.671/2005. Due to the said
litigation, defendant was unable to execute the sale
deed and hence, executed irrevocable GPA dated
08.08.2005 in favour of the plaintiff, authorizing him to
represent in all his litigation. On 11.01.2010,
RFA 671/2005 C/W
defendant sent a notice to plaintiff asserting that the
GPA was null and void and threatened to revoke the
same. Plaintiff sent a reply to the notice. However,
defendant No.1 revoked the GPA. Hence, plaintiff has
brought this suit seeking declaration and injunction.
5.1. Kariyappa (Defendant No.1) resisted the suit
by filing written statement contending that the suit is
misconceived; that there was no cause of action; that
the GPA was already revoked; that proper court fee
was not paid; and that the GPA was not coupled with
interest and sought for dismissal of the suit.
6. On the basis of the pleadings, the Trial Court
has framed the following issues:
1. Does the plaintiff prove that, he has
purchased the suit schedule property for a
valid sale consideration amount of
Rs.30,00,000/- as contended in the plaint?
2. Does the plaintiff prove that, the General
Power of Attorney Dated:8.8.2005 executed
in his favour is a irrevocable G.P.A as
contended in the plaint?
3. Does the plaintiff prove that, he is in
possession of the suit schedule property as on
the date of filing of the suit?
RFA 671/2005 C/W
4. Does the plaintiff prove that, the
defendants are interfering in his possession
over the suit schedule property?
5. Is the suit property valued and court fee
paid on the same is sufficient?
6. What order or decree?
7. Before the Trial Court, on behalf of plaintiff,
three witnesses were examined as PWs-1 to 3 and
Exs.P1 to P31 marked. On behalf of defendants, one
witness was examined as DW-1 and Exs.D1 to D30
marked. Answering all issues in the negative and the
suit has been dismissed. Feeling aggrieved,
Lakhminarayana is before this Court in RFA No.
1508/2015.
8. Heard the arguments of Sri. Nithin Ramesh,
learned Advocate for the Sangha (appellant
No.4/defendant No.6); Sri.G.Krishnamurthy, learned
Senior Advocate for respondent No.1/plaintiff No.3;
Sri. Jayakumar S. Patil, learned Senior Advocate for
respondent No.2/defendant No.5; Smt. Sumangala
RFA 671/2005 C/W
Gachchinamath, learned Advocate for respondents
No.3 to 5; Sri. C. Jagadeesh, learned Advocate for
proposed respondent No.5 and Ms. Nayana Tara.B.G,
learned Advocate for impleading Applicant in
I.A.No.1/2012 in RFA No.671/2005.
9. Heard the arguments of Sri. K. Shashikiran
Shetty, learned Senior Advocate for Sri. M. Srinivas
and Smt. M. Latha Shetty, learned Advocates for the
plaintiff and Sri. D.R. Ravishankar, learned Senior
Advocate for Sri. S. Shreedhara, learned counsel for
the defendant in RFA No.1508/2015.
10. Sri.Nithin Ramesh, for the Sangha in RFA
No.671/2005, praying to allow the appeal, mainly
submitted that:
plaintiffs have not produced title document
to prove their title;
plaintiffs cannot rely on the weakness of
defendants case to establish their title. In a
suit for declaration, the relief is not only
RFA 671/2005 C/W
against the defendants but the declaration is
in rem;
plaintiffs have conceded during the trial that
they did not have possession of the suit
properties. They have deposed that they
had documents to show that their mother
was in possession of Sy. No.1/5 from 1968-
69 and 1971-72. Further, that they had
documents to show that their mother was in
possession of Sy.No.1/7 between 1966-67
and 1971-72 only. This means that as on
the date of the filing of the suit in 1984,
plaintiffs had no document to prove their
possession over either Sy.No.1/5 or 1/7;
in the connected RFA No.1508/2015, the
sale deeds executed by the Sangha are
marked in evidence as Ex.P12 to Ex.P31.
Plaintiffs' GPA holder has signed the said
sale deeds as consenting witness and has
RFA 671/2005 C/W
admitted that the possession of the Layout
was with the allottees/members of the
Sangha;
P.W.1 in his deposition has stated that he is
not aware of the formation of layout in
Sy.No.1/5 & 1/7 but admitted that the
layout plan approved by the BDA and sites
have been carved out in Sy. No.1/5 & 1/7;
if plaintiffs claim that they were the owners
in possession of the suit properties were to
be genuine, they would not have got deleted
Sy. No. 1/4 deleted on 08.02.1995, after 11
years of filing this suit;
similarly, in the year 1984, Sy.No.1/7 is
shown 1 acre 35 guntas and after 20 years,
in the year 2004, the plaint was amended
restricting the claim to 28 guntas. Thus, the
plaintiffs were not sure about the area of the
land;
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plaintiffs have not sought for possession of
the land, therefore, a suit for only
declaration without seeking for possession is
not maintainable;
though defendants No.2 to 4 have
withdrawn the appeal on 10.11.2022, the
Sangha can maintain this appeal on its own
independent right;
defendants No. 2 to 4 have executed
agreements dated 21.08.1981 & 25.3.1982
by receiving the entire sale consideration
and put the Sangha in the possession of the
lands;
right from the early stages of the suit
proceedings defendants No. 2 to 4 have
been displaying their dubious conduct.
Firstly, they withdrew their written
statement on 14.9.1994; secondly, on
6.1.1998 they filed a memo not to lead their
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evidence; thirdly, they engaged plaintiffs'
Advocate who had appeared in the Revenue
Court to get change of entries in the name
of the plaintiff (Ex.P15); and lastly,
withdrawing this appeal on 10.11.2022;
Exs.P16 and 40 were introduced in the
second round of litigation after the remand.
11. Sri.G.Krishnamurthy, for plaintiff
No.3/respondent No.1 in RFA No.671/2005 has
contended that defendants No.2 to 4 have withdrawn
the appeal. The Sangha is claiming title under
agreements and GPA. The Sangha has no independent
title over the suit properties. The suit was filed on
16.07.1984. All the subsequent events after filing of
the suit is subject to lis pendens. The execution of
registered Will dated 15.09.1967 is not in dispute. It is
executed by Thimmakka in favour of defendants No.2
to 4. In the year 1935, Durasth was conducted and in
Sy.No.1/5 in respect of 2 acres 36 guntas, in
RFA 671/2005 C/W
Sy.No.1/7, Gangamma's name was entered in respect
of 28 guntas. Sy.Nos.1/5 and 1/7 were not sold to
Thimmakka. Thimmakka has no right in the suit
schedule property as defendants No.2 to 4 claiming
right under Ex.P20/Will as the schedule refers to
Sy.No.1/2 and 2/3, not Sy.No.1/5 and 1/7. No title
will flow to Thimmakka under Ex.D8. BDA has notified
acquisition of Sy.No.1/5 and 1/7. Defendants No.2 to
4 have filed their written statements and the same has
been adopted by the Sangha. Since, defendants No. 2
to 4 have withdrawn their written statement, the
Sangha shall not get any title.
12. Sri. Patil, for the BDA in RFA No.671/2005
has contended that BDA is a statutory authority; that
no notice has been issued to the BDA before filling the
suit.
13. Ms. Nayana Tara, for impleading applicant in
I.A.No.1/2012 in RFA No.671/2005 contended that
after acquisition of the property by the Sangha, layouts
RFA 671/2005 C/W
have been formed and lease-cum-sale deeds have
been executed. Plaintiffs were never in possession of
suit property. In Sy.No.1/5, 61 sites were formed,
allotment was made in the year 1989. In respect of 34
sites, sale deeds have been executed. Plaintiffs and
other defendants are consenting witness to the said
sale deeds. Suit properties are no more agriculture
lands and the suit is not maintainable.
14. It is the contention of Sri. Shashi Kiran
Shetty, for the appellant/plaintiff in RFA No.1508/2015
is that defendant is the owner of 2 acres 35 guntas
land in Sy.No.1/5. Defendant had executed a
registered irrevocable GPA dated 08.08.2005 in favour
of plaintiff. The cancellation of GPA on 11.01.2010 is
illegal. Plaintiff's suit was dismissed on the ground
that the GPA was not acted upon and court fee was not
paid. During the pendency of this appeal, parties have
entered into a compromise in RFA No.671/2005 with
regard to 34 sites. Plaintiff is the consenting party to
RFA 671/2005 C/W
the sale deeds in respect of 34 sites, thereby plaintiff's
right under the agreement as well as the GPA is
recognized.
15. Sri. D.R. Ravishankar, for the respondent/
defendant in RFA No.1058/2015 contended that
plaintiff has entered into an agreement in respect of
Sy.No.1/5 on 21.01.2002 and later obtained
Ex.P2/GPA from defendant. The said property
originally belonged to Gangamma, the daughter of
Kunta Ramaiah. Defendant No.1 is Gangamma's son
and defendants No.2 to 6 are the wife and children of
Sanjeevaiah, the other son of Gangamma. They have
succeeded the property as heirs of Gangamma. Since
they are the title holders, plaintiff has paid
consideration of Rs.30,00,000/-. On 08.08.2005, an
irrevocable GPA was executed. On the said GPA,
plaintiff has made improvements in the land and
fought the litigation throughout. From the date and
agreement, he is enjoying and dealing with the suit
RFA 671/2005 C/W
properties. Defendants without any cause got issued a
notice dated 11.01.2010 cancelling the irrevocable
GPA. In 34 sale deeds, there is specific reference
recognizing plaintiff's right. The Trial Court without
considering these aspects has erred in dismissing the
suit.
16. We have given our anxious consideration to
the arguments addressed on behalf of the parties in
both appeals and perused the records.
17. In the light of the rival contentions urged on
both parties, the points that arise for our consideration
are:
(i) Whether plaintiffs in
O.S. No.2443/1984 prove their title and
possession over the suit properties?
(ii) Whether defendants No.2 to 4 have entered
into an agreement to sell the suit properties
in favour of the Sangha?
(iii) Whether the Sangha proves that it has
formed the layout in the suit properties,
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allotted the sites to its members, released
the roads, civic amenities sites and park in
favour of BDA?
(iv) Whether Lakshminarayan (plaintiff in
O.S.No.1049/2010) has acquired 2 acres 36
guntas in Sy.No.1/5 for a consideration of
Rs.30 Lakhs from defendants through an
Agreement dated 21.01.2002 and
irrevocable GPA dated 08.08.2005?
(v) Whether Lakshminarayan (plaintiff in
O.S.No.1049/2010) proves that he is in
possession of the suit property?
(vi) Whether plaintiffs in both suits are entitled
for the reliefs claimed?
(vii) Whether the impugned judgments and
decree call for any interference?
Reg. Point No.(i):
18. Originally, the suit properties consisted of
Sy.Nos.1/4, 1/5 and 1/7. By way of amendment,
plaintiffs got deleted Sy.No.1/4. Now the suit is
confined to Sy.Nos.1/5 and 1/7 only.
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18.1. According to the plaint averments, property
belonged to Kunta Ramaiah. Gangamma (plaintiff
no.1) is the daughter to Kunta Ramaiah and succeeded
to his estate as the heir. It is further averred that the
BDA sought to acquire the suit properties. The most
interesting and relevant paragraph (o) in the amended
plaint. In substance, it is sated therein that defendants
have asserted that plaintiff No.1 had sold the suit
properties therefore, it is upto them to prove the sale.
It is settled that in a suit of this nature, it is always for
the plaintiff to aver and prove his case.
18.2. There is no dispute with regard to the fact
that suit properties belonged to Kunta Ramaiah and
plaintiff No.1 succeeded to the same. Defendants'
claim that plaintiff No.1 sold the property to
Thimmakka under Ex. D8.
18.3. The entire evidence placed on record by the
plaintiffs is only the revenue records. Plaintiff No.3
(Kariyappa) is the son of plaintiff No.1. He has
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examined himself as PW-1. Plaintiffs are placing
reliance only on the records of rights (Pahanis) for the
period between 1966-67 till 1973-74. PW-1 has
admitted his cross-examination (held on 19.06.1996)
as follows:
"....It is true my grand father Putta Ramaiah
sold the property he got in the family partition in
favour of my mother by a registered sale deed
dated 13.1.1931. I accept the property purchased
by my mother on 13.1.1931 has been sold in
favour of Thimmakka by my mother. I have also
attested the document as witness so also my
brothers Sanjeevaiah and others. Ex.D8 is the
registered sale deed dated 18.5.1966 execyted by
my mother in favour of Thimmakka. Thimmakka
is the wife of Siddhramaiah. Thimmakka is the
senior aunt of defts. 2 to5..."
18.4. It is relevant to note that Kunta Ramaiah's
sister name is also Gangamma. Her husband's name is
Dasappa @ Dasegowda. Her daughter is Thimmakka.
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18.5. The sale deed dated 18.05.1996 executed
by plaintiff No.1 (Gangamma) in favour of Thimmakka
is at Ex.D8. When the entire property was sold to
Thimmakka, how plaintiff No.1/Gangamma's name was
found in the pahani (record of rights) between 1966-67
and 1973-74 requires consideration. The explanation
comes from the mouth of PW-1 himself in his
examination-in-chief, which reads thus:
"My father's (sic) name is wrongly
mentioned as Dasasppa, husband of Gangamma in
Pahani extracts. . ."
18.6. It is important to note that he has also
admitted that his father's name is Kariyanna. Revenue
entries in the name of Gangamma w/o Dassappa.
Gangamma w/o Dassappa is Thimmakka's mother.
PW-1 has sought to take advantage of Gangamma's
name in the pahani in an attempt to prove that suit
properties belonged to his mother. In view of his
admission that his father's name is Kariyanna, at best,
it can be construed that revenue entries were in the
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name of Thimmakka's mother and not PW-1's mother.
We may record that plaintiffs' claim for title based on
incidental revenue entries subsequent to the sale of
the property on 18.05.1966 as per Ex.D8 is wholly
untenable.
18.7. Thus, it is clear that the original owner
Kunta Ramaiah sold his property as per Ex.P19 to the
plaintiff No.1 (Gangamma w/o Kariyannna). She has in
turn sold the suit properties in favour of Thimmakka as
per Ex. D8 dated 18.05.1966.
18.8. Thus, learned Advocate is right in his
submission that plaintiffs in order to prove their case,
are relying on the weakness in defendants' case. It is
settled that in any suit, plaintiff case shall stand or fall
on its own intrinsic strength and not on the weakness
of defendants' case.
18.9. It is relevant to record that when the plaint
was presented in the year 1984, no schedule was
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mentioned. Only in the year 2004 by way of an
amendment, the schedule has been incorporated. No
explanation is forthcoming in this behalf neither in the
plaint nor in the evidence. Further, when the plaint
guntas. But in the year 2004, by an amendment,
plaintiffs not only introduced the schedule, but also
reduced the extent of said land to 28 guntas. Thus,
according to the plaintiffs, the land measured 1 acre 35
guntas in 1984 and 28 guntas in 2004. No proper
explanation is given to sustain the amendment.
18.10. PW-1 has stated in his evidence that in
the year 1985, plaintiffs got measured the land in
Sy.No.1/5 and 1/7 and learnt that Sy.No.1/7 measured
only 28 guntas, not 1 acre 35 guntas. At the same
time, he has also stated that he had no records to
show that the lands were surveyed. The explanation
offered by PW-1 with regard to Sy.No.1/4 is that
plaintiffs had realized the mistake only in the year
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1992 at the time of survey. At one breath, PW-1 talks
about the survey in the year 1985 and in the other
breath states that they realized the mistake in the year
1992; and they have filed an application for
amendment in the year 2004 after 20 years.
18.11. Another aspect is the incorrect
genealogical tree furnished in the plaint. The evidence
discloses that Kunta Ramaiah had a sister by name
Gangamma, w/o Dasappa @ Dasegowda and his
younger brother is Siddaramaiah. This is fortified by
the evidence of PW-1 wherein he has admitted that
Dasegowda is Gangamma's husband and sister of
Kunta Ramaiah; that during partition, some portion of
the property was also given to said Gangamma, who
gave it to her daughter Thimmakka. Thimmakka
executed a Will/Ex.P20 dated 15.09.1967 bequeathing
the property in Sy.Nos.1/2 and other properties
received in the family partition and also the property
acquired under Ex.D8 from plaintiff No.1 in favour of
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her co-sister Lakkamma and her children i.e.,
Ramaiah, Siddappa and Nanjappa, who are defendants
No.2 to 4. She also bequeathed other property in
favour of her own daughter Puttasiddamma, who is
defendant No.1 (later deleted by plaintiffs).
18.12. We have carefully analyzed the evidence,
particularly with regard the property sold by Kunta
Ramaiah in favour of his daughter i.e., plaintiff No.1
under Ex.P19. It refers to sale of land of 2 acres 35
guntas and 2 acres 27 guntas. The schedule in
Ex.P19/sale deed, shows that Kunta Ramaiah has not
retained any portion of the property for himself and
sold it in favour of his daughter. As per Ex.D8/sale
deed, plaintiff No.1 has sold the entire property in
favour of Thimmakka. This means that the entire
property Gangamma had sold the entire property that
she had acquired. Then plaintiffs have to prove that
they have acquired title over the property in
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Sy.Nos.1/5 and 1/7, which was carved out during
Phodi of Sy.No.1/2.
18.13. On evaluation of the pleadings as well as
the evidence relied upon by the plaintiffs, in particular
PW-3 P.L. Venkatesh Murthy, ADLR that in the year
1929, Sy.No.1 was made into 4 hissas. In the year
1935, hissa No.5 to 7 were made. Sy.No.1/2 was
divided into Sy.Nos.1/2, 1/5, 1/6 and 1/7. Earlier,
Sy.No.1/2 was measuring 7 acres 16 guntas. After
hissa, Sy.No.1/2 measures 2 acres 8 guntas,
Sy.No.1/5 measures 2 acres 36 guntas, Sy.No.1/6
measures 1 acre 24 guntas and Sy.No.1/7 measures
28 guntas. In this regard, relevant entries were made
in Exs.P17 and 18. Thus it is clear that land in
Sy.No.1/2 during phodi was divided into Sy.Nos.1/2,
1/5, 1/6 and 1/7. Plaintiff No.1 acquires the land in
Sy.No.1/2 from her father and sold it to Thimmakka.
Thimmakka bequeathed the said property in favour of
defendant Nos.2 to 4 and their mother Lakkamma
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under the Will/Ex.P20. Ex.D5 is an endorsement
issued by the Tahsildar on 25.11.1978 informing the
change of khata from the name of Thimmakka in
favour of defendant No.2/Ramaiah indicating that the
Will has been acted upon. Then nothing remains in
favour of plaintiff No.1 with regard to Sy.No.1/2.
Consequently, plaintiffs cannot claim any title in
respect of either Sy.No.1/5 or Sy.No.1/7. Therefore,
plaintiffs' claim that name of Gangamma, w/o Dasappa
@ Dasegowda was wrongly interpreted as Gangamma
w/o Kariyanna fails.
18.14. As recorded hereinabove, plaintiffs have
given up their claim in respect of Sy.No.1/4. For
reasons stated hereinabove, we hold that plaintiffs
have failed to establish their title over Sy. No. 1/5 and
1/7. Hence, we answer point No. (i) in the negative
and against the plaintiffs.
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Reg. Point No.(ii):
19. The Sangha claims the suit properties from
defendants No.2 to 4. Its claim is based on two
agreements dated 21.12.1981 (Ex.D5) and dated
29.08.1986 (Ex.D7). The original documents are
placed before the Court after remand of the suit for
fresh disposal. In order to establish Exs.D5 and D7, on
behalf of the Sangha, its Secretary, Shivarudrappa
(DW-1) has been examined. His testimony shows that
land in Sy.Nos.1/5 and 1/7 belonged to Gangamma
w/o Dasegowda. This aspect is admitted by PW-1. The
same is the version of PW-2/Chikkanna. Neither PW-1
nor PW-2 have asserted that any portion was retained
by Kunta Ramaiah or Gangamma.
19.1. The evidence of DW-1 Sangha's claim
based in Exs.D5, D7 and D8. In the cross-
examination, PW-1 has not denied the said aspects,
but pleaded ignorance. He has also not denied delivery
of possession of suit property by defendant Nos.2 to 4
in favour of Sangha. The testimony of PW-1 is clear
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that he is not aware of the written statement filed by
defendant Nos.2 to 6. He is not aware of the
agreement and GPA executed by defendants No.2 to 4
in favour of the Sangha. He is also not aware of
delivery of possession by defendants No.2 to 4 in
favour of the Sangha.
19.2. It is also relevant to note that the Sangha
has formed the layout after obtaining NOC from the
BDA.
19.3. We have perused the evidence of PWs-1 to
5, DWs-1 to 5 and exhibits relied upon by the parties.
The evidence does not support plaintiffs' case in any
manner.
19.4. The agreements under Exs.D5 and D7 and
irrevocable GPA at Ex.D8 are supported with
consideration. The Exs.D50 to D58 are the
consideration receipts.
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(i) Ex.D50 is executed by defendant No.2 on
21.12.1981 by receiving Rs.10,000/- from the Sangha
through cheque in respect of Sy.No.1/2, 1/3 and 1/5;
(ii) Ex.D51 is executed by defendant No.3 on
21.12.1981 by receiving Rs.10,000/- from the Sangha
through cheque in respect of Sy.No.1/2, 1/3 and 1/5;
(iii) Ex.D52 is executed by defendant No.4 on
21.12.1981 by receiving Rs.10,000/- from the Sangha
through cheque in respect of Sy.No.1/2, 1/3 and 1/5.
Defendants No.2 to 4 also acknowledge receipt of
Rs.90,000/- from the Sangha.
(iv) Ex.D53 is the joint receipt executed by
defendant Nos.2 to 4 on 21.12.1981 receiving
Rs.30,000/- referring to the agreements in respect of
Sy.No.1/7.
(v) Ex.D54 dated 25.11.1982 and Ex.D55 is
dated 19.04.1983 executed together by defendant
Nos.2 to 4 for having received Rs.6,000/- and
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Rs.16,000/- respectively from the Sangha, referring to
Sy.Nos.1/2, 1/3 and 1/5.
(vi) Ex.D56 dated 06.06.1983 is joint receipt
executed by defendant Nos.2 to 4 for having received
Rs.5,000/- from the Sangha referring to Sy.Nos.1/2,
1/3, 1/4, 1/5 and 1/7.
(vii) Ex.D57 dated 26.10.1983 is executed by
defendant No.3 by receiving Rs.2,000/- referring to
land in Sy.Nos.1/2, 1/3, 1/4, 1/5 and 1/7.
(viii) Ex.D58 is joint receipt executed by
defendant Nos.2 to 4 on 26.10.1983 by receiving
Rs.2,500/- referring to Sy.Nos.1/2, 1/3 and 1/5. The
above documents clearly demonstrate that the
agreements and the irrevocable GPA are supported
with consideration.
19.5. Above all, in their written statement,
defendants No.2 to 4 have admitted the execution of
agreements and irrevocable GPA in favour of Sangha.
It is the contention of the learned Advocate for the
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plaintiffs that defendant Nos.2 to 4 have withdrawn
their written statement and the admission made
cannot be made use of. It is pertinent to note that
Sangha has not only filed its independent written
statement but has also adopted the written statement
filed by defendants No.2 to 4, therefore, it becomes
part of the written statement of the Sangha. Therefore,
the contention urged on behalf of plaintiff that
defendants No.2 to 4 have withdrawn the written
statement and the same is fatal to the case of the
Sangha is untenable and liable to be rejected. The
evidence in totality clearly established that defendants
No.2 to 4 are the owners of the suit properties on the
strength on agreements, irrevocable GPA coupled with
the consideration. Accordingly, we answer point No.(ii)
in the affirmative and in favour of the Sangha.
Reg. Point No.(iii):
20. It is the contention of plaintiffs that they are
in possession and enjoyment of the suit properties as
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an agricultural land. According to the plaintiffs,
formation of the roads is the cause of action. They
claim that suit properties is still a cultivable land and in
their possession. Though PW-1 has reiterated plaintiffs'
stand in his evidence.
20.1. It is the specific defence of the Sangha that
the suit properties is no more an agricultural land and
it is a layout called as 'Teachers Layout'. The evidence
placed on record by the Sangha in particular Ex.D20 is
a Gazette Notification dated 26.08.1982 issued by the
BDA notifying lands in Nagarabhavi and Malagala
Villages for formation of 'Nagarabhavi Layout'.
The said notification shows the name of the Khatedars
and Anubhavadars of the lands proposed for
acquisition. In Sy.No.1/2 and 1/3, the name of
Thimmakka W/o Siddaramaiah, Ramaiah, Siddappa,
Nanjappa to an extent of 2 acres 8 guntas and 27
guntas respectively. In Sy.No.1/5, the name of
Ramaiah, Siddappa and Nanjappa is shown to an
extent of 2 acres 36 guntas. In respect of Sy.No.1/7,
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the name of Gangamma W/o Dasappa is shown to an
extent of 28 guntas. Nowhere it refers the name of
plaintiffs or their mother Gangamma W/o Kariyanna.
But, in respect of land in Sy.No.1/4, name of
Gangamma W/o Kariyanna, Puttasiddamma is shown.
This Gangamma is plaintiff No.1 and Puttasiddamma is
defendant No.1. Since the suit claim is withdrawn in
respect of Sy.No.1/4, it is not relevant to discuss the
same.
20.2. By the time Gazette notification was issued,
the Sangha has entered into agreements with
defendants No.2 to 4 and approached the BDA for
deletion the lands from acquisition. The Sangha's
request was considered, the lands were dropped from
the acquisition. The BDA has issued notice as per
Ex.D21 dated 20.05.1988 to the Sangha under
Karnataka Town and Country Planning Act to deposit
conversion fee of Rs.5,73,118/- to change the land
from agriculture to non-agriculture purpose. The
notice also refers the land in Sy.No.1/2, 1/3, 1/4, 1/6,
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1/7, 2, 10, 25/2, 25/3, 50/3, 53, 54/1, 54/2, 55/4A,
55/4B and 55 of Nagarabhavi Village. Ex.D23 and 24
are the receipt issued by BDA on 04.08.1988,
10.08.1988 for having received Rs.2,50,000/- and
Rs.3,23,118/-. Ex.D25 is a plan approved by the BDA.
Ex.D26 is the letter issued by the BDA on 19.05.1988
in favour of the Sangha referring to BDA's resolution
No.955(940), dated 29.03.1988 approving the
recommendation of the Committee for change of land
use and to approve the layout plan in Sy.No.1/2, 3, 4,
5, 6, 7; 2, 5, 10, 25/2, 25/3, 50/3, 54/1, 2; 55/4A, 4B
and 55/5 of Nagarabhavi Village. Ex.D28 is the
payment receipt issued by BDA dated 26.05.1989 for
having received Rs.1,14,900/- in respect of layout
formation and electricity charges as demanded in
Ex.D29/notice. Exs.D30 and 31 are the receipts issued
by BDA dated 20.07.1989 and 07.08.1989 for having
received Rs.4,34,610/- and Rs.5,74,500/- towards
layout charges. Exs.D32 to 38 are the receipts issued
by BDA dated 26.12.1988, 04.12.1989, 05.04.1990,
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07.05.1990, 04.06.1990, 12.10.1992, 12.07.1990 for
having received Rs.1,65,960/-, Rs.3,00,000/-,
Rs.4,00,000/-, Rs.3,00,000/-, Rs.2,50,000/-,
Rs.20,00,000/-, Rs.5,00,000/- towards supervision
charges, water supply charges. In all these receipts,
we can notice the reference of Sy.Nos.1/2, 3, 4, 5, 6,
7; 2, 5, 10, 25/2, 25/3, 50/3, 53, 54/1, 2; 55/4A, 4B
and 55/5 to an extent of 28 acres 29 guntas of
Nagarabhavi Village.
20.3. Exs.D41 to 44 are the letters and estimate
dated 11.10.1994 issued by BWSSB to the Sangha
asking them to countersign the estimate and deposit
the funds for UGD facilities.
20.4. Ex.D47 is the demand notice dated
27.10.1988 issued by BDA to the Sangha to deposit
Rs.78,40,888/- towards developmental charges in the
Layout.
20.5. Ex.D49 is the work order dated 06.02.1989
issued by BDA in favour of the Sangha having
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sanctioned private layout in Sy.No.1/2, 3, 4, 5, 6, 7; 2,
10, 50/1, 53, 54/1, 4A, 4B; 55/5 of Nagarabhavi
Village in favour of the Sangha to an extent of 28
acres. It refers to resolution of BDA dated 29.03.1988
in No.959(940) acknowledging payment of
Rs.78,40,888/- demanded under Ex.D47.
20.6. Ex.D48 is the agreement entered into by
the Sangha with Developer Sri. Lakshman on
07.07.1988 for formation of private layout in
Sy.No.1/2, 3, 4, 5, 6, 7; 2, 10, 50/1, 53, 54/1, 4A, 4B;
55/5 of Nagarabhavi Village. Ex.D138 is the letter
dated 07.07.1988 of Sri. Lakshman to the Sangha
demanding payment of Rs.46,00,000/-. Ex.D140 is
the certificate dated 25.04.1992 issued by the Sangha
certifying that Sri. Lakshman has formed layout in an
extent of 28 acres at an estimated cost of
Rs.46,00,000/-. In this regard, we have also perused
the evidence of DW-3/Lakshman, the Contractor, his
testimony confirms the above aspects.
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20.7. After such conversion, the Special Deputy
Commissioner, Urban Land Ceiling dated 27.05.1989
issued an endorsement in favour of the Sangha 'No
Objection' for transfer of sites held by Sangha in
Sy.No.1/2, 1/3, 1/4, 1/5, 1/6, 1/7, 2, 10, 50/1, 53,
54/1, 54/4A of Nagarabhavi Village. Ex.D39 is the
notice dated 14.02.1992 issued by BDA to the Sangha
for execution of relinquishment of CA sites. Pursuant
to it, Sangha executes Ex.D40/relinquishment deed on
14.12.1995.
20.8. Exs.D64 to 124 are the possession
certificates issued by the Sangha in favour of its
members in the layout formed in Sy.No.1/2, 3, 4, 5, 6,
7; 2, 10, 50/1, 53, 54/1, 4A, 4B; 55/5 of Nagarabhavi
Village between 09.10.1992 and 06.09.1997.
20.9. DW-2/Smt.T.B.Jayalakshmi and
DW-4/S.Rajamma are the allottees of the sites. The
testimony DW-2 shows the allotment of site No.221 by
the Sangha and execution of lease-cum-sale deed on
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30.11.1989. The testimony of DW-4 shows the
allotment of site No.238 in Sy. No.1/5 by the Sangha
in the year 1989. In the year 1991, she has obtained
the plan approval from BDA and put up the
construction in the said site.
20.10. DW-5/Mariswamy has also worked as
Secretary of the Sangha. Apart from DW-1, his
testimony shows 61 sites were carved out in
Sy.No.1/5. Sy.No.1/7 was reserved for park as per
sanctioned plan by Town Planning Authority attached
to BDA. BWSSB laid underground drainage in
Sy.No.1/5. According to him, the allottees in site
No.103, 109, 111, 112, 120, 135, 138, 139, 140, 144,
145, 148, 151, 209, 210, 218, 221, 222, 238 and 244
have put up the construction after the allotment.
20.11. These are the records which have come
into existence at an undisputed point of time when the
Sangha has corresponded with BDA, Special DC, Urban
Land Ceiling, BWSSB. The Sangha has made a request
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to BDA for deletion of lands from acquisition for
formation of private layout. A careful perusal of the
correspondence and the action taken by the BDA and
other statutory authorities clearly demonstrates that
the Sangha has acted in letter and spirit for
furtherance of its cause. the evidence of DW-3/private
contractor Sri.Lakshman indicated the formation of
Layout.
20.12. The evidence on record does not point out
anything to doubt the transaction of the Sangha. The
material on record sufficiently explain that the Sangha
has formed the layouts. The evidence also discloses
that the Sangha has surrendered CA sites and parks in
favour of BDA. The evidence of PW-2/Chikkanna, PW-
4/Ramaiah, PW-5/Narayanappa does not inspire
confidence as the facts discernible from the records are
at an undisputed point of time. Accordingly, we answer
point No. (iii) in the affirmative and in favour of the
Sangha.
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Reg. Points No. (iv) and (v):
21. The suit in O.S.No.1049/2010 is based on the
agreement dated 21.01.2002 and irrevocable GPA
dated 08.08.2005 said to have been executed by Sri.
K. Kariyappa (defendant No.1). While discussing point
No.(i), we have come to the conclusion that the land in
Sy.No.1/5 was sold to Thimmakka by Gangamma
(plaintiff No.1). Defendant No.1 is the son of
Gangamma. Gangamma sold the entire property in
favour of Thimmakka. Gangamma or her father Kunta
Ramaiah have not retained any property in Sy.No.1/5
which was carved out of original Sy.No.1/2.
21.1. The claim of the defendant No.1 is based
on the Will executed by his mother Gangamma. PW-4/
Ramaiah (in O.S.No.2443/1984), the brother of
defendant No.1 has asserted in his evidence with
regard to execution of Will by his mother and he has
attested the said Will. We may record that even if the
Will is accepted to be correct, in the absence of proof
of Gangamma's title, neither Kariyappa nor plaintiff can
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claim any title. Thus, when the plaintiff's vendor
himself did not have any title, he could not have
transferred any title to the plaintiff. Hence, in our view,
plaintiff has no title in Sy.No.1/5.
21.2. It is interesting to note that the agreement
and GPA were executed in the year 2002 and 2005 for
Sy.No.1/5. As discussed hereinabove in points No.(ii)
and (iii), agriculture land in Sy.No.1/5 was not in
existence as it was converted for non-agriculture
purpose and layouts were formed in the year 1988-89.
The Sangha has allotted the sites in the developed
layout between 1990 and 1997. Hence, for the
reasons stated hereinabove, plaintiff's claim is without
any merits. Hence, in our opinion, the alleged
agreement and irrevocable GPA dated 21.01.2002 and
08.08.2005 are sham documents.
21.3. The testimony of PWs-1 to 3 demonstrates
formation of layout, BDA taking over the roads, parks
and CA sites, allottees with approval of public
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authorities, constructed the residential houses and
they are in possession. Accordingly, we answer points
No.(iv) and (v) in the negative and against the
plaintiff.
Reg. Point No.(vi):
22. In view of our findings recorded in points
No.(i) to (v), we do not find any merit in their
respective claims put forth by plaintiffs in both the
suits. Hence, plaintiffs are not entitled to any relief and
their suits are liable to be dismissed. Accordingly, we
answer point No.(vi) in the negative and against the
plaintiffs.
Reg. Point No.(vii):
23. We have carefully perused the impugned
judgments in O.S.No.2443/1984 and
O.S.No.1049/2010.
RFA 671/2005 C/W
23.1. As we have discussed hereinabove, the
entire case of plaintiffs' rest upon the properties
acquired by Kunta Ramaiah. He sold the properties
in favour of plaintiff No.1 and in turn she has sold
the suit properties in favour of Thimmakka. While
answering point No.(i), we have discussed about
description of Kunta Ramaiah's property under the
sale deed/Ex.P19 dated 13.01.1931. We have also
analysed the boundaries of the lands, which were
allotted to Kunta Ramaiah. The boundaries do not
point out that Kunta Ramaiah had retained any
portion of the property in Sy.No.1/2 for himself. The
Trial Court, in our opinion, has incorrectly recorded
that Kunta Ramaiah retained a portion of land in
Sy.No.1/2. This finding is erroneous in view of
evidence of PW-3/ADLR, who had stated that during
the Phodi, an extent of 7 acres 16 guntas in old
Sy.No.1/2 has been divided into various sub-Phodis
such as Sy.Nos.1/2,1/5, 1/6 and 1/7.
RFA 671/2005 C/W
23.2. Similarly, the reason assigned by the
Trial Court that the entries made in the survey
records establish the title and possession of the suit
property is also erroneous.
23.3. The Trial Court has thrown burden on the
defendants to disprove plaintiffs' case. The reason
assigned by the Trial Court that even after the sale
in favour of plaintiff No.1, Kunta Ramaiah has
retained a portion of the property is not supported
by any evidence.
23.4. Therefore, we are of the considered
opinion that the Trial Court has misdirected itsled
that Kunta Ramaiah has retained a portion of the
land in Sy.No.1/2. For the detailed reasons recorded
in points No. (i) to (vi), the judgement and decree in
O.S. No. 2443/1984 requires interference.
Accordingly, we answer point No.(vii) in the
affirmative in respect of R.F.A. No. 671/2005 and
against the plaintiffs.
RFA 671/2005 C/W
24. Insofar as O.S.No.1049/2010 is concerned,
plaintiff's claim is against Kariyappa, who is the son
of Gangamma. When Gangamma has sold the
property to Thimmakka, Kariyappa has no title.
Hence, no detailed discussion is required as plaintiff's
claim is contingent upon the decree in
O.S.No.2443/1984. We have already held that
documents executed by Kariyappa are
unenforceable, the dismissal of O.S.No.1049/2010
does not call for interference. Accordingly, point No.
(vii) is answered in the negative in respect of R.F.A.
No. 1508/2015.
25. In view of our finding on points No.(i) to (vii),
RFA No.671/2005 merits consideration and RFA
No.1508/2015 is devoid of merits. Hence, the
following:
ORDER
(i) RFA No.671/2005 is allowed;
RFA 671/2005 C/W
(ii) The judgment and decree dated 24.02.2005
in O.S.No.2443/1984 passed by the XIX
Additional City Civil Court, Bengaluru, is
hereby set aside;
(iii) Consequently, the suit in
OS No.2443/1984 is dismissed;
(iv) RFA No.1508/2015 is dismissed with
costs;
(v) In view of dismissal of O.S.No.2443/1984,
I.A.No.1/2012 filed by impleading
applicants does not survive for
consideration. Hence, it stands disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KNM / PA
