Karnataka High Court
Sri Nanjundappa vs The Commissioner on 22 October, 2024
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MFA No. 78 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 78 OF 2018 (LAC)
BETWEEN:
1. SRI. NANJUNDAPPA,
S/O LATE NANJAPPA,
SINCE DIED BY HIS LR'S
1(a) SRI. BASAVARAJ@ BASAPPA,
S/O LATE NANJUNDAPPA,
SINCE DIED BY HIS LR'S
1(a)(i) SMT. NANJAMMA,
W/O LATE BASAVARAJA @ BASAPPA,
AGED ABOUT 47 YEARS,
1(a)(ii) SRI.SHIVARAJ,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
S/O LATE BASAVARAJA@BASAPPA
Location: HIGH COURT OF
KARNATAKA AGED ABOUT 32 YEARS,
1(a)(iii) SMT.BHARATHI,
D/O LATE BASAVARAJA@BASAPPA,
AGED ABOUT 35 YEARS,
1(a)(iv) SMT. MALA,
D/O LATE BASAVARAJA@BASAPPA,
AGED ABOUT 30 YEARS,
ALL ARE RESIDING AT GOTTAGERIPALYA,
SOMAPURA DHAKLE, KENGERI HOBLI,
BENGALURU SOUTH TALUK.
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MFA No. 78 of 2018
2. SRI. ARASAPPA,
S/O LATE NANJAPPA,
AGED ABOUT 74 YEARS,
RESIDING AT GOTTAGERIPALYA,
SOMPURA DHAKLE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK.
...APPELLANTS
(BY SRI. N.R. NAIK, ADVOCATE)
AND:
1. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY,
BENGALURU-560 020.
2. THE SPECIAL LAND ACQUISITION
OFFICER, B.D.A,
BENGALURU-560 020.
3. SMT. NAGAMMA,
W/O LATE MALLAIAH,
AGED ABOUT 79 YEARS,
4. SRI. NANJAPPA,
S/O LATE MALLAIAH,
SINCE DIED BY HIS LR'S
5. SMT. MANGALAMMA,
D/O LATE NANJAPPA,
AGED ABOUT 42 YEARS,
6. SRI. SHIVAKUMAR,
S/O LATE NANJAPPA,
AGED 40 YEARS,
7. SMT. AMRUTHA,
D/O LATE NANJAPPA,
AGED ABOUT 38 YEARS,
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MFA No. 78 of 2018
8. SMT. MUNIYAMMA,
W/O NARASAPPA,
D/O LATE MALLAIAH,
AGED ABOUT 49 YEARS,
9. SRI. SRINIVASA,
S/O LATE MALLAIAH,
AGED ABOUT 52 YEARS,
10 . SRI. RAMESH
S/O LATE MALLAIAH
AGED ABOUT 51 YEARS,
11 . SRI. LOKESH
S/O LATE MALLAIAH,
AGED ABOUT 48 YEARS,
RESPONDENT NO.3 TO 11 ARE
RESIDING AT DINNEPALYA,
KAGGALIPURA,
UTTARAHALLI, BENGALURU.
12 . SMT. NANJAMMA,
D/O ARASAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT GOTTAGERIPALYA,
SOMPURA DHAKLE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK.
13 . SMT. NARASAMMA,
W/O LATE MUNIYAPPA,
AGED ABOUT 58 YERS,
14 . SMT.MANJULA,
D/O LATE MUNIYAPPA,
AGED ABOUT 39 YEARS,
15 . SMT. KAVITHA
D/O LATE MUNIYAPPA,
AGED ABOUT 36 YEARS,
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MFA No. 78 of 2018
16 . SRI. GALI SWAMY
S/O LATE MUNIYAPPA
AGED ABOUT 35 YEARS,
RESPONDENT NO.13 TO 16 ARE
RESIDING AT GOTTAGERIPALYA,
SOMPURA DHAKLE,
KENGERI HOBLI,
BENGALURU SOUTH TALUK.
17 . SMT. GIRIYAMMA,
D/O LATE NANJAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT
SALUHUNSE VILLAGE,
UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK,
...RESPONDENTS
(BY SRI. ASHWIN HALADY, ADVOCATE FOR R1 AND R2,
SRI. M. VENKATAPPA, ADVOCATE FOR
R4 (A&C), R7, R10-13,
SRI. K.S. LOKESH KUMAR, ADVOCATE FOR R6 AND R9,
R4(B), R5, R8, R14 - SERVED AND UNREPRESENTED,
R3 DEAD AND R4(A-C) AND R5-8 ARE LRS OF R3)
THIS MFA IS FILED U/S 54(1) OF THE LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND AWARD
DT.30.11.2017 PASSED ON LAC NO.107/2002 ON THE FILE OF
THE 2ND ADDITIONAL CITY CIVIL SESSIONS JUDGE,
BENGLAURU, (CCH NO.17), PARTLY ALLOWING THE
REFERENCE PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, HAVING BEEN RESERVED FOR
JUDGEMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
UMESH M. ADIGA, J., PRONOUNCED THE FOLLOWING:
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MFA No. 78 of 2018
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE UMESH M ADIGA)
This appeal is by the claimant Nos.1 and 2 of Land
Acquisition Case No.107/2002, on the file of learned II
Addl.City Civil and Sessions judge, Bengaluru (for short
`trial Court'), challenging judgment and order passed by
the said Court dated 30.11.2017.
2. Brief facts of the case for disposal of this appeal
are that; One Nanjappa was the owner of the land
bearing Survey No.26, totally measuring 6 acres 18
guntas, and house property situated in Survey No.27/59
situated at Sompura village, Kengeri Hobli, Bengaluru
South Taluk, including the phot kharab (for short
`acquired property'). Smt. Munihanumakka was wife of
Nanjappa. They had four sons by name Mallaiah,
Muniyappa, Nanjundappa and Arasappa and a daughter by
name Giriyamma. Nanjappa died intestate leaving behind
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him above said legal heirs to succeed to the said property.
Claimant No.1 is son of Nanjappa. He died during pending
of this case and his LR's are brought on record as P1(a)(1)
to (a)(iv). Another son of Nanjappa is claimant No.2.
Claimant No.9 is his daughter. It appears other two sons
of Nanjappa i.e. eldest son Mallaiah and another son
Muniyappa were dead prior to reference petition. Claimant
Nos.3 to 8 are Legal heirs of Mallaiah and Claimnat No.10
to 13 are LR's of Muniyappa. Claimant No.14 is daughter
of Nanjappa.
3. Munihanumakaa - wife of Nanjappa along with
her children sold above said property for Rs.500/- to one
Muddanna, son of Channappa, by executing a registered
sale deed dated 08.03.1950, which was registered on
10.03.1950. Claimant Nos.1 and 2 namely, Nanjudappa
and Arasappa, who are children of late Nanjappa and
Munihanumakka and brothers of Mallaiah and Muniyappa,
purchased said land by registered sale deed dated
22.09.1959, to an extent of 4 acres 28 guntas along with
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house property referred above, from Muddanna by paying
sale consideration of Rs.400/-.
4. The Bengaluru Development Authority (for short
`BDA') acquired some of the lands including Survey
No.26/1 and Survey No.27/59 of Sompura village, Kengeri
Hobli, Bengaluru South Taluk, belonging to claimants for
formation of Banashankari 6th Stage Layout at Benglauru.
Accordingly, preliminary as well as final notifications were
issued and published. The special Land Acquisition Officer
(SLAO) awarded compensation by his award dated
30.11.2001 under the provisions of Land Acquisition Act,
1894 (for short, `L.A.Act'), in LAC.No.223/2001-02. All
the four sons of Nanjappa filed objections to the said
award claiming that they were also entitled for share in
the said compensation amount. In view of the dispute
raised by sons of Nanjappa, the SLAO referred the dispute
to Civil Court under Sections 30 and 31(2) of L.A.Act, that
was registered in LAC.No.107/2002 before the trial Court.
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5. The contentions of claimant Nos.1 and 2 before
the trial Court were that acquired property was their self-
acquired property. They purchased the said property from
Muddanna under registered sale deed dated 22.09.1959
and they had been in possession and enjoyment of the
said land till the date of its acquisition. Therefore, they
alone are entitled for the compensation.
6. The contention of claimant Nos.3 to 8 and 10 to
13 are that the said property was belonging to Nanjappa.
After his death, his wife Smt.Munihanumakka and their
four sons succeeded to the said property. They had been
in peaceful enjoyment of the said property.
Munihanumakka had obtained a loan of Rs.500/- from
Muddanna, son of Channappa and as security to the said
loan, she executed nominal sale deed dated 08.03.1950,
that was registered on 10.03.1950. At the time of
execution of the sale deed, claimant Nos.1 and 2 were
minors. In spite of execution of the document, possession
of the said land as well as the house property continued
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with Munihanumakka and her sons. Munihanumakka and
her sons were residing in the said house. Munihanumakka
paid the said amount of loan to Muddanna and asked
claimant Nos.1 and 2 to get executed the reconveyance
sale deed in the name of herself and her four sons, since
at that time, her sons Mallaiah and Muniyappa were busy
and were unable to be present before the office of the
Sub-Registrar to get executed the registered sale deed.
Claimant Nos.1 and 2 played fraud on their mother as well
as their elder brothers, got executed the registered sale
deed in their names behind the back of Munihanumakka as
well as Mallaiah and Muniyappa. Said Mallaiah, Muniyappa
and Munihanumakka were unaware about these facts. The
acquired properties were not self-acquired property of
claimant Nos.1 and 2, but co-ownership property of all the
sons of Munihanumakka. Hence, all the claimants are
entitled for share in the said amount of compensation.
7. They have also contended that in the year 1968,
partition was effected in respect of said property and in
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the said oral partition, 1/5th share was allotted to
Munihanumakka and her four sons named above. After
the death of Munihanumakka, the property given to her
share was again shared by all the four sons of
Munihanumakka. Thus each son was having 1/4th share in
the said property. Accordingly, each son is
entitled for 1/4th share in the compensation amount
awarded by SLAO.
8. Claimant No.9 is daughter of claimant No.2
Arasappa and according to her contention, she is entitled
for half share in the share to be allotted to her father
Arasappa. Claimant No.14 is the daughter of late
Nanjappa and she contends that as a legal heir of late
Nanjappa, she is entitled for share in the said
compensation amount.
9. The trial Court held enquiry. The claimants have
examined PWs.1 to 6 and got marked Exs.P-1 to P-28.
The respondent SLAO did not examine any witnesses on
its behalf.
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10. The trial Court after hearing both the parties and
appreciating the pleadings and evidence available on
record, partly allowed the reference application filed under
Sections 30 and 31(2) of L.A.Act. The trial Court awarded
1/4th share in the compensation amount to each sons of
late Nanjappa.
11. The trial Court has not granted relief to claimant
Nos.9 and 14, however, they did not challenge the
impugned judgment.
12. We have heard the arguments of learned
counsel for both the parties and perused the materials
placed on record.
13. The following question arises for our
determination :
Whether the petition property is self-
acquired property of claimant Nos.1 and 2 and
they alone are entitled for compensation?
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14. Our answer to the above question is in the
negative for the following reasons :
Most of the facts stated above are not in dispute.
The dispute of claimant Nos.1 and 2 is that they are the
absolute owners of acquired property and others have no
right and they are not entitled for share in the
compensation.
15. The first question to be considered is whether
sale deed dated 10.03.1950 was nominal sale deed or
genuine sale deed. The recitals of said sale deed do not
indicate that it was nominal sale deed. Therefore, on the
basis of other circumstances and oral evidence, it has to
be determined. Claimants have not examined said
Muddanna, who was the purchaser of the suit property or
the witnesses to the said sale deed. They were the best
witnesses to clarify the same. In the cross-examination of
PW-1, as rightly observed by the learned trial Judge, he
admits that house property was sold to Muddanna, but
they continued in possession of the property till the date of
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his evidence. He also admits that after execution of the
sale deed, revenue records were not mutated in the name
of Muddanna, but it continued in the name of his mother.
It was repeated suggestion of claimant Nos.3 to 8 that
possession of acquired property remained with
Munihanumakka and her four sons inspite of execution of
registered sale deed dated 10.03.1950. It is admitted by
PW-1. If Munihanumakka and her sons executed genuine
sale deed, then Muddanna should have insisted for
delivery of possession of property. No prudent man would
purchase property by paying consideration without
possession of the same. Claimant Nos.1 and 2 have also
not explained the circumstances under which
Munihanumakka continued possession of the property ,
even after selling the same. The admission of PW-1
regarding continuous possession of the house even after
execution of sale deed clearly shows that it was not a
genuine sale deed, but it was executed as a security
document and contentions of claimant Nos.3 to 8 are
probable.
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16. Claimant Nos.1 and 2 have not produced RTC
from 1950 to 1959 to show that after execution of the sale
deed, name of Muddanna was entered in the revenue
records. On the contrary, PW-1 himself admits that
revenue records were not mutated in the name of
Muddanna.
This circumstance also support the contention of
claimant Nos.3 to 8 that sale deed dated 10.03.1950 was
not genuine document, but nominal sale deed executed as
document of security for the loan obtained by
Munihanumakka. In the year 1950, the said property was
sold to Muddanna for Rs.500/-. The very same property
was resold to claimant Nos.1 and 2 for sale consideration
of Rs.400/-. Normally there would be increase in the price
of the land due to inflation. However in this case, the
very same property was sold to claimant Nos.1 and 2 by
Muddanna after nine years from its purchase for lesser
price than the price for which Muddanna purchased the
said property. This circumstance also shows that sale deed
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dated 10.03.1950 was a nominal sale deed executed in the
name of Muddanna and hence, said Muddanna was not the
absolute owner of the property or in possession of the
acquired property.
17. The next question is whether the sale
consideration paid to Muddanna while repurchasing the
land was paid by claimant Nos.1 and 2 out of their self
earnings is another moot question. To prove the said fact,
it was the duty of claimant Nos.1 and 2 to show that they
had independent source of income at that point of time
and they could save Rs.400/- for payment of the sale
consideration to Muddanna. PW-1 in his evidence stated
that he and his brother were doing coolie work and from
the said income, they purchased the property. He also
stated that he and his brother Nanjudappa were doing
coolie work in the house of Muddanna. His mother asked
them to work as a coolie in the house of Muddanna till
repayment of debt. The wages payable to both of them
were saved with Muddanna and from the said income,
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they could pay the amount of sale consideration. But in
the cross-examination, PW-1 says that he does not know
how much amount he could save with Muddanna prior to
execution of the sale deed. He also stated that his
brothers i.e., Mallaiah and Muniyappa were residing in
their in-laws' house after their marriage. He and
Nanjundappa were doing coolie work. From the year 1952
to 1959 and both worked in the house of Muddanna. To
corroborate his evidence, he should have examined said
Muddanna. He was competent person to corroborate the
evidence of PW-1, however, the said important witness
was not examined by PW-1.
18. It is pertinent to note that as on the date of
execution of the sale deed dated 10.03.1950, both
claimants 1 and 2 were minors and their age was
mentioned as 11 and 8 years respectively. This fact is not
disputed by claimant Nos.1 and 2. They further contend
that at that age, they worked in the house of Muddnna.
The evidence given by PW-1 in this regard is highly
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improbable and not believable. At that age, what kind of
work they were doing in the house of Muddanna is not
explained by them.
have examined PW-5. He stated that both claimant Nos.1
and 2 were working as a coolie in the house of Muddanna.
Rs.100/- was paid to Nanjudappa and Rs.50/- was paid to
Arasappa, per year as wages. Both of them were saving
the said wages with Muddanna. In the year 1959,
Muddanna sold the property in favour of claimant Nos.1
and 2 adjusting the wages saved by them with him. PW-1
himself has not stated regarding the wages paid by
Muddanna to him as well as his brother Nanjundappa.
According to PW-1, from the date of sale deed dated
10.03.1950 till 1959, he worked along with Nanjudappa.
If evidence of PW-5 is taken into consideration, then to
earn Rs.400/- working for three years was sufficient to pay
sale consideration and it was not necessary for them to
work for a period of nine years in the house of Muddanna
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to pay the sale consideration. The contention of the
claimants that out of their self earnings, they paid
consideration is not probable. On the contrary, the
contention of claimant Nos.3 to 8 that Munihanumakka
paid amount of loan to Muddanna is probable.
20. The property was purchased in the year 1959 by
claimant Nos.1 and 2. But the names of all the four
brothers were continued in the revenue records till 1990-
1991, which is not in dispute. It appears, because of the
same, Munihanumakka and other brothers of claimant
Nos.1 and 2 could not know that sale deed was executed
in the name of claimant Nos.1 and 2. The claimants have
produced the revenue records at Exs.P-13 and P-14 for the
years 1979-82 to 1988-89. The property continuously
stands in the joint name of all the four sons of
Munihanumakka. Claimant Nos.1 and 2 did not explain as
to why they made no attempts to mutate their names in
the revenue records after purchase of the said property.
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21. PWs.2 to 4 were examined on behalf of claimants
Nos.3 to 8, 9 and 14. PW-2 did not offer for cross-
examination. PWs.3 and 4 were not competent to depose
regarding the said sale deeds. At that point of time, PW-3
and PW-4 might not have been born. Therefore, their
evidence or cross-examination will not help the Court to
decide the dispute.
22. From the above said evidence, it is proved that
sale deed 10.03.1950 was a nominal sale deed executed
as security for the loan obtained by late Munihanumakka.
Munihanumakka paid the said outstanding loan amount to
said Muddanna. Thereafter Muddanna executed registered
sale deed dated 22.09.1959 (Ex.P-1) in the name of
claimant Nos.1 and 2. Both claimant Nos.1 and 2 instead
of getting executed sale deed in the name of
Munihanumakka and her two more sons, got executed in
their name. Hence, it was joint family property. On the
contrary, claimant Nos.1 and 2 utterly failed to establish
that out of their self earnings, they paid the sale
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consideration amount and it was their self-acquired
property.
23. Nanjappa had four sons and one daughter. The
acquired property appears to be self-acquired property of
Nanjappa. After his death, all his sons and daughter and
wife would get share in the property, under Section 8 of
Hindu Succession Act. The mutation entry states about
partition. It appears, excluding claimant No.14, they
have partitioned and hence it was not a valid partition.
Claimant No.14 being daughter of Nanjappa had share in
the acquired property, that cannot be taken away by her
brothers. The learned trial Judge failed to award her share
of compensation amount. It is true that claimant No.14
did not challenge the impugned judgment and award.
When the learned trial Judge erroneously not awarded the
legal share of claimant No.14, this Court to do complete
justice, by acting under Order XLI Rule 33 of C.P.C., can
grant the relief.
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24. Further the claimant No.1 succeed to the
property under Section 8 of Hindu Succession Act and
hence during his life time, claimant No.9 is not entitled for
share in the compensation amount payable to claimant
No.1.
25. For above said reasons LR's of deceased Claimant
No.1 i.e. 1(a)(i) to 1(a)(iv) together entitled for 1/5th
share; claimant No.2 entitled for 1/5th share, claimant
Nos.3 to 8 together entitled for 1/5th share and claimant
Nos.10 to 13 together entitled for 1/5th share and claimant
No.14 is entitled for 1/5th share in the amount of
compensation.
26. Though the learned trial Judge has meticulously
considered the oral and documentary evidence produced
by the claimants and arrived at a right conclusion, he
erred in not awarding share to claimant No.14; to that
extent the impugned judgment needs modification. In
respect of other facts, it does not call for interference by
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this Court. The grounds of appeal are not tenable. Appeal
is devoid of merits.
27. For the aforesaid discussion, we pass the
following:
ORDER
The Appeal is disposed of.
Both parties shall bear their own cost.
The judgment and decree dated 30.11.2017, passed
by the learned II Addl. City Civil and Sessions Judge,
Bengaluru, in LAC.No.107/2002, is modified.
Claimant No.1(a)(i) to 1(a)(iv) together is entitled for
1/5th share, claimant No.2 entitled for 1/5th share,
claimant Nos.3 to 8 together entitled for 1/5th share and
claimant Nos.10 to 13 together entitled for 1/5th share and
claimant No.14 is entitled for 1/5th share in the amount of
compensation.
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Registry shall transmit the records along with copy
of this judgment to the concerned trial Court without
delay.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
BK
