Karnataka High Court
Sri K Saravanan vs Sri Selvaraj on 17 January, 2025
Author: K Natarajan
Bench: K Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.562 OF 2016
CONNECTED WITH
REGULAR FIRST APPEAL NO.561 OF 2016
IN RFA NO. 562/2016
BETWEEN:
SRI. K. SARAVANAN
S/O T. KUPPUSWAMY,
AGED ABOUT 50 YEARS,
RESIDING AT NO.148,
4TH CROSS,
R. K. MUTT, K. G. NAGAR,
BANGALORE - 560 019.
...APPELLANT
(BY SRI. SHRIDHAR PRABHU, ADVOCATE)
AND:
SRI. SELVARAJ
SINCE DEAD BY HIS LR'S,
1. GAJALAKSHMI
W/O LATE SELVARAJ,
AGED ABOUT 60 YEARS,
2
2. SRI. SRINIVAS
S/O LATE SELVARAJ,
AGED ABOUT 43 YEARS,
3. SMT. LATHA
D/O LATE SELVARAJ,
AGED ABOUT 38 YEARS,
ALL ARE RESIDING IN A
PORTION OF PROPERTY NO.148,
4TH CROSS, R.K.MUTT LAYOUT,
K.G.NAGAR,
BANGALORE - 560 019.
4. BANGALORE DEVELOPMENT AUTHORITY
KUMAR PARK WEST,
T-CHOWDAIAH ROAD,
BENGALURU - 560 020.
(REPRESENTED BY ITS COMMISSIONER)
...RESPONDENTS
(BY SRI. M. S. ASHWIN KUMAR, ADVOCATE FOR R2 & R3;
VIDE ORDER DATED:27/10/23, R2 & R3 ARE THE LR'S OF
DECEASED R1)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 18.01.2016 PASSED IN OS
NO.6541/2005 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, (CCH NO.23), DISMISSING THE
SUIT FOR DECLARATION.
IN RFA NO. 561/2016
BETWEEN:
SRI. K. SARAVANAN
S/O T. KUPPUSWAMY,
3
AGED ABOUT 50 YEARS,
RESIDING AT NO.148,
4TH CROSS,
R.K.MUTT, K.G.NAGAR
BANGALORE - 560 019.
...APPELLANT
(BY SRI. SHRIDHAR PRABHU, ADVOCATE)
AND:
1. SMT. GOWRI
W/O MURUGESH,
MAJOR IN AGE,
RESIDING IN A PORTION OF
PROPERTY NO.148 (DOOR NO.79),
SITUATED AT 4TH CROSS,
R.K.MUTT LAYOUT,
K.G.NAGAR,
BANGALORE - 560 019.
2. BANGALORE DEVELOPMENT AUTHORITY
KUMAR PARK WEST,
T-CHOWDAIAH ROAD,
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI. M.S.ASHWIN KUMAR, ADVOCATE FOR R1;
SRI. K. KRISHNA, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 18.01.2016 PASSED IN OS
NO.6543/2005 ON THE FILE OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR
DECLARATION AND POSSESSION.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 19.11.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
4
RESERVED FOR ORDERS ON : 19.11.2024
PRONOUNCED ON : 17.01.2025
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
CAV JUDGMENT
RFA No.562/2016 is filed by the appellant-plaintiff under
Section 96 of CPC for setting aside the judgment dated
18.01.2016 passed by the Additional City Civil and Sessions
Judge, Bangalore, in O.S. No.6541/2005, for having dismissed
the suit of the plaintiff.
2. Whereas, RFA No.561/2016 is filed by the appellant-
plaintiff for setting aside the judgment passed by the Additional
City Civil and Sessions Judge, Bangalore, in O.S. No.6543/2005
dated 18.01.2016 for having dismissed the suit of the plaintiff.
3. Heard the learned Counsel for the appellant in both
appeals and the learned counsel for the respondent. The rank of
the parties before the trial Court is retained for the sake of
convenience.
4. The case of the plaintiff in O.S. No.6541/2005 is that
he is the absolute owner of the property bearing Site No.148
situated at Ramakrishna Mutt Extension Layout, K.G. Nagar
Bangalore, measuring East to West 20 feet and North to South
36 feet, bounded on East by road, West by property No.147,
North by road and South by property No.123. The property
originally belonged to BDA which formed a layout known as
'Ramakrishna Mutt Extension Layout'. The same was allotted by
BDA in favour of one C. Vishwanath and the plaintiff purchased
the same from the said Vishwanath. On 11.01.1989, the BDA
executed a sale deed in favour of Vishwanath, and Bangalore
Mahanagar Palike also issued khatha certificate on 18.07.2004.
The plaintiff purchased the suit schedule property No.148 of
Ramakrishna Mutt Extension Layout, on 25.09.2004 by the
registered sale deed from Vishwanath and thereby, he became
the owner of the property. The Bengaluru Mahanagara Palike
transferred khatha in his name and the plaintiff paid taxes. It is
further alleged in the plaint that the plaintiff has availed loan
from the Millennium Credit Co-operative Society Limited,
Bangalore, and created the mortgage by depositing title deeds.
It is also alleged that the said property No.148 is consisting of
four tenements and the plaintiff is residing in one portion and
three portions of the property are in occupation of different
persons. The defendant Selvaraj is in occupation of a portion of
the said property measuring 10 x 10 ft. At the time of purchase
of the property by the plaintiff, the defendant was paying ₹75/-
per month as rent to Vishwanath. The rents were paid till 2004.
Thereafter, the defendant stopped the payment of rent. There is
no rental agreement between them. The suit schedule property
is a temporary shed and is in dilapidated condition having
asbestos sheet roofing with mud wall. Therefore, the plaintiff
intended to demolish and put up new construction for the
purpose of his own occupation. The plaintiff issued legal notice to
the defendant on 01.03.2005 calling upon the defendant to pay
the rent from 01.11.2004 and to vacate the premises. The
defendant instead of vacating the premises, got issued the reply
Notice on 30.03.2005 by disputing the relationship as landlord
and tenant. The defendant also disputed the title of the
predecessor of the plaintiff. Hence, the plaintiff was constrained
to file the suit.
5. It is further contended that the defendant has no right,
title or interest over the property and has no authority over the
property. Hence, the defendant is liable to be dispossessed
from the suit schedule property. The defendant, in the reply
notice, claimed that he has forfeited and estopped from claiming
the right of tenancy. The defendant denied the title of the
property. Therefore, the aforesaid suit was filed for declaration
and possession.
6. The case of the plaintiff in O.S. No.6543/2005 is also
same as the facts stated in O.S. No.6541/2005. It is stated that
the plaintiff has purchased the property bearing No.148 of
Ramakrishna Mutt Extension Layout, K.G. Nagar Bangalore
measuring 20 feet x 36 feet from one Vishwanath under the sale
deed dated 25.09.2004. The said Vishwanath was an allottee
and purchased the same from BDA on 11.01.1989. It is
contended that the property was consisting of four tenements
and in one portion of the property, the plaintiff is residing and in
the remaining three portion, the tenant are occupied. The
defendant Gowri is in occupation of one portion. The defendant
is in possession of 10 feet x 10 feet and she was paying ₹75/-
per month to Vishwanath. Now, the plaintiff is required for his
own occupation and to demolish the old dilapidated building.
Hence, the notice was issued to the defendant, who denied the
title of both the plaintiff and his predecessor. Therefore, the
present suit came to be filed for declaration and possession of
the property.
7. In pursuance of the summons, the defendants
appeared through their counsel and filed written statement
contending that the suit schedule property actually bears house
No.79 originally belonged to one Sarojamma, who had two
daughters namely, Gajalakshmi and Gowri. The defendant
Selvaraj is the husband of Gajalakshmi and the son-in-law of
Sarojamma. It is contended that the property bearing No.79
was measuring East to West 10 feet x North to South 15 feet.
The house, which is existing now, was constructed by
Sarojamma about 35 years back and she was residing in the said
house till her death on 11.04.1993. Earlier to the death of
Sarojamma, about 22 years back, the said Sarojamma divided
the property into two portions and gave northern portion
measuring 10 feet x 10 feet to Gajalakshmi, the wife of
defendant-Selvaraj and, the southern portion of the property
measuring 10 feet x 5 feet was given to another daughter Gowri,
who is the defendant in O.S. No.6543/2005. It is contended that
the northern boundary of the schedule property is the portion of
property NO.148 and it is in the possession of the plaintiff and
the remaining portion of No.79 is in possession of Gowri, another
daughter of Sarojamma. It is also contended that the legal
representatives along with her husband deceased Selvaraj had
been enjoying the portion of the property bearing No.79
measuring 10 feet x 10 feet over a period of 22 years as
absolute owners and only Gajalakshmi should have been made
as a party to the suit, instead of her husband, who is nothing to
do with property and it does not form a part of property No.148.
It is further contended that no property bearing No.148 in this
area was allotted to Vishwanath, the vendor of the plaintiff, by
the BDA at any point of time. The documents produced by the
plaintiff do not in any way relate to the property of the
defendant. The documents produced by the plaintiff
are of recent origin and created for the purpose of filing of the
suit. The plaintiff's vendor Vishwanath had no right to sell the
property bearing house No.79 which is in possession of the
defendants in both suits. The defendants were never the
tenants under Vishwanath and not paid any rent to him as stated
by the plaintiff in the suit.
8. The defendants never paid any rent to the plaintiff's
vendor at any point of time. It is also contended that the
plaintiff's vendor C.Vishwanath had previously filed a suit in
OS.No.4376/1980 against one Ammakannamma, on the file of
CCH-12, claiming another portion which was in occupation of one
Lakshmi and her children for permanent injunction and other
relief, although Ammakannamma was not in possession. The suit
was dismissed on 23.06.1992. After the dismissal of the said suit
in the year 1992, nobody interfered. It is further contended that
Vishwanath did not take any further steps to set aside the order
and it was revealed the case filed pertaining to the said suit has
been destroyed. The plaintiff or his vendor Vishwanath claiming
title from BDA, they should approach the BDA for necessary
relief, the BDA is not party in the suit. The legal representative
of the deceased defendant are in possession and enjoyment of
the suit schedule property from 1978, continuously for more
than 22 years. And alternatively pleaded that if the plaintiff and
his vendor had any title over the suit schedule property, then
same is extinguished, as the defendants have perfected their
title to the property by adverse possession, as they are enjoying
the property more than 12 years earlier to the filing of suit.
9. The defendant in connected matter 6543/2005 hence
for dismissing of the suit.
10. Based upon the pleadings the Trial Court framed the
issues and additional issues in both cases as under;
1) Whether the plaintiff proves that he is the
absolute owner of the suit schedule property?
2) Whether the plaintiff proves that the
defendant is a tenant under him in respect of
the suit schedule property on a monthly rental
basis?
3) Whether the plaintiff proves the valid
termination of the tenancy of the defendant by
issuing legal notice dated 01.03.2005?
4) Whether the subject matter of the suit is not
properly valued and the court fee paid is
insufficient?
5) Whether the plaintiff is entitled for the
decree of possession as prayed for?
6) What order or decree?
Additional issues:
1) Whether the suit is bad for non-joinder of
necessary parties?
2) Whether the defendant has perfected her
title by way of adverse possession?
1) Whether the plaintiff proves that he is the
absolute owner of suit schedule property?
2) Whether the plaintiff proves that the
defendant is tenant under him in respect of the
suit schedule property on a monthly rental
basis?
3) Whether the plaintiff proves the valid
termination of tenancy of the defendant by
issuing a legal notice dated 01.03.2005?
4) Whether the subject matter of the suit is not
properly valued and the court fee paid is
insufficient?
5) Whether the plaintiff is entitled for decree of
possession as prayed for?
6) What order or decree?
Additional issues:
1) Whether the suit is bad for non-joinder of
necessary parties?
2) Whether the defendant has perfected her
title by way of adverse possession?
11. On behalf of the plaintiff he himself examined as
P.W.1 and got marked Ex.P.1 to 23 documents and also
examined 2 witnesses as P.W.2 and P.W.3. And on behalf of the
defendant in OS.No.6541/2005 examined as DW.1 in both cases
and got marked Ex.D.1 to 19 documents. After hearing the
arguments the Trial Court answered the entire issues in the
negative and both the suit of the plaintiff came to be dismissed
vide impugned judgment dated 18.01.2016. Being aggrieved by
the same the plaintiffs have filed this appeal before the court.
12. The counsel for the appellant has contended that the
judgment of the trial court is erroneous and liable to be set
aside. The trial court has not properly appreciated the evidence
on record and failed to appreciate the facts and circumstances of
the case. The trial court erred in answering the issue No.1 in the
negative. The trial court ought to have decreed the suit of the
plaintiff. The documents produced at Ex.P.1 to 4 and 20 were
not looked into. The BDA executed the sale deed in favour of
vendor of the plaintiff Vishwanath. The trial court also failed to
observe that the reference 78 and 79 are not the property
numbers but only the door numbers. The trial court got confused
regarding the premises in occupation of the respondent is
different. The Ex.P.15 to 17 where the property 147 was allotted
to the father of the respondent. There was a litigation, the
respondent has taken alternative site at HSR Layout. The Ex.D.1
photograph property and other portion have been identified by
the defendant No.1 herself. The respondents have encroached
the property of the plaintiff. The evidence of PW.3 - Prashanth
AE from BDA also examined on behalf of plaintiff. Hence, prayed
for allowing the appeal.
13. During the pendency of the appeal the appellant also
filed interlocutory application under Order 41 Rule 27 of CPC.,
along with the documents. It is contended that the appellant
produced the allotment letter issued by the City Improvement
Board on 17.07.1973 in favour of Vishwanath, the possession
certificate also issued on 31.10.1975. The allotment letter dated
1973 issued in favour of one Kannaiah in respect of site No.147.
The CITB also issued allotment letter in favour of one Thamaiah,
the sketch prepared by the BDA related to the adjacent site
showing the detail of site No.148 adjoining site located at
Ramakrishna Mutt, the modified plan of layout site No.148 and
copy of the written statement filed by the respondent in the suit
filed by the one Manjunath and they have admitted the allotment
of site No.148 in favour of Vishwanath, sketch prepared by the
appellant and photographs of site No.148 and these documents
were not able to produced during the trial, these documents
clinches the issue and the documents in favour of the vendor of
the plaintiff were clearly reveals the property was originally
allotted to the Vishwanath by the CITB on 17.07.1973 and from
whom the plaintiff has purchased the property on 25.09.2004
and hence prayed for allowing the Interlocutory Application
consequently allow the appeals.
14. Per contra learned counsel for the respondent has
supported the judgment and decree passed by the trial court for
having dismissed the suit of the plaintiff contended that the
plaintiff filed the suit by claiming the respondents are tenants
under them, the respondents/defendants denied the relationship
by replying the legal notice and suit is filed as tenancy suit. The
Ex.P.1 is not the sale deed. The case of the defendant is site
Nos.147 and 148 are not the same properties. The defendant is
residing in the said property for more than 40 years. The
defendant in possession of property more than 12 years, they
perfected the title by way of adverse possession. The plaintiff
failed to prove the case in the trial court, therefore rightly
dismissed the suit of the plaintiff. Hence, prayed for dismissing
the appeals.
15. In support of the arguments the learned counsel for
the appellant relied upon the various judgments are as under;
1) AIR 2008 SC 2033
Anathula Sudhakar Vs P.Buchi Reddy (dead) by Lrs and Ors.,
2) AIR 1954 SC 1092
K.K. Verma Vs Union of India
3) AIR 2005 SC 4407
Saroop Singh Vs Banto and others
4) (2024) 1 S.C.R. 60
Brij Narayan Shukla (D) Thr. Lrs Vs Sudesh Kumar
Alias Suresh Kumar (D) Thr.Lrs & Ors.
5) 2024 INSC 769
Neelam Gupta & Ors. Vs Rajendra Kumar Gupta & Anr.
6) (2020) 7 S.C.R. 528
Narasamma & Ors. Vs A.Krishnappa (dead) through Lrs
7) AIR 1998 SC 1297
K.K.Modi Vs K.N.Modi and others
8) AIR 2009 SC 2034
L.N.Aswatham Vs P.Prakash
9) (2014) 2 SCC 269
Union of India and others Vs Vasavi Co-operative Housing
Society Ltd., and others
16. Having heard the arguments and perused the
records, the points that arises for my consideration are;
1) Whether the plaintiff proves in both the suits that
he is the absolute owner and in possession of the suit
schedule property measuring east to west 20 feet
and north to south 36 feet bearing No.148?
2) Whether the plaintiff further proves that the
defendant in both suits were tenant under the
plaintiff and they failed to vacate the premises?
3) Whether the plaintiff entitled for the possession
from the defendant?
4) Whether the defendant has perfected their title by
way of adverse possession?
5) Whether the suit is bad for non-joinder of
necessary parties?
6) Whether the judgment of trial court in both suits
called for interference?
7) What order?
17. To prove the case of the plaintiff, the plaintiff himself
was examined as P.W.1 and got marked 23 documents. Exs.P.1
is the certified copy of the sale deed dated 11.01.1989 executed
by one Vishwanath in favour of the plaintiff, Ex.P.2 is the
certified copy of the sale deed dated 25.09.2004, Exs.P.3 and 4
are the khatha extracts and khatha certificate, Ex.P.5 to 7 are
tax paid receipt and encumbrance certificates, Ex.P.8 is the legal
notice issued to the defendant, Ex.P.9 is the postal
acknowledgment, Ex.P.10 is the reply by the defendant.
Exs.P.15 to 18 are the allotment letter, possession certificate,
the certified copy of the sale deed dated 23.01.2012 and the
endorsement respectively. The sale deed executed by BDA in
favour of Vishwanath is Ex.P.20. Ex.P.21 is the sale deed
executed in favour of plaintiff. Ex.P.22 is the tax paid receipt
and Ex.P.23 is encumbrance certificate.
18. To corroborate the evidence of the plaintiff, the
plaintiff also examined P.W.2 who has deposed in support of the
plaintiff's case contending that the suit schedule property No.148
has been purchased from one Vishwanath. The defendants, in
both cases, are in possession of property No.148. The plaintiff
also examined one more witness P.W.3, who is an Assistant
Engineer of BDA. P.W.3 has given evidence that property
No.148 is the BDA property situated at Ramakrishna Mutt and he
has visited the property where the plaintiff and defendants are in
possession of the property. He also submits that the BDA gave
alternate sites to both parties in HSR layout.
19. The case of the defendants is that the both the
defendants are the sisters, they denied the contention of the
plaintiff that they were the tenants under the vendor of the
plaintiff i.e. Vishwanath. They were never the tenants under the
plaintiff. There is no relationship of landlord and tenants
between them and they are not liable to pay any rents. It is also
contended that the plaintiff has not produced any documents to
prove the relationship of landlord and tenant between them. It
is further contended that the defendants are in possession and
enjoyment of the property bearing No.79 situated at Behind
Ramakrishna Mutt belonged to her mother Sarojamma
measuring East to West 10 feet and North to South 15 feet. A
house was constructed by her mother about 40 years back and
they were residing in the house till the death of Sarojamma on
11.04.1993. Earlier to the death of Sarojamma, about 22 years
back, the said Sarojamma divided the property into two portions
and gave one portion to the defendant and another portion of
the property to her sister and they are residing ever since more
than about 30 years. The defendant has stated that she do not
know where the property No.148 is situated. The defendant has
further stated that the property No.79 is not form the part of
property No.148. The property No.148 is situated elsewhere and
not adjoining to their house No.79.
20. The defendant has further stated that they are in
possession and enjoyment of the property for more than 12
years. The documents clearly reveals that the property was
owned by Kannayya Shetty and Sarojamma, residing in house
No.79 for more than 30 years.
21. In support of their case, the defendants produced and
marked 19 documents as per Exs.D.1 to D.19.
22. Ex.D.1 is the photograph showing that the defendants
are in possession of the small portion of the property by putting
up huts. Ex.D.2 is the notice issued by BDA to Gajalakshmi and
Gowramma and the notice was issued for encroaching the
property belonged to site No.148. Ex.D.3 is the reply notice
issued by the defendants to the BDA stating the pendency of the
suit. These documents are not useful to the defendants except
that they are residing in the portion of the property. Ex.D.4 is
the pension receipt in form No.OAPS-IV in the name of the
mother of the defendants showing the house No.79 of
Ramakrishna Ashrama. Ex.D.5 is the death certificate of the
mother of the defendants. Ex.D.6 is the death certificate of one
Selvaraj. Ex.D.7 is the marriage invitation card of the son of
defendant showing the house number as 79, Behind
Ramakrishna Mutt with the address of the defendants showing
as No.79, behind Ramakrishna Mutt and the marriage was held
on 02.02.1996. Ex.D.8 is the receipt given by Sri Krishna
Vadhiraja Kalyana Mandira, Shankarpuram, Bengaluru, for the
marriage purpose, where residential address in the name of one
of the defendants is showing as No.79, Behind Ramakrishna
Mutt. Ex.D.9 is the electricity bill details and Ex.D.10 is the
electricity Bill. Ex.D.11 is inland letter showing the address of
Kannayya Shetty as No.79, behind Ramakrishna Mutt. No.79,
behind Ramakrishna Mutt. Ex.D.12 is the details of vehicle
insurance showing the address as No.79, behind Ramakrishna
Mutt. Ex.D.13 is the Syndicate Bank passbook in the name of
one of the defendants Gowramma with address shown as No.79,
Behind Ramakrishna Mutt. Ex.D.14 is another other bank
passbook showing the same address. Ex.D.15 is the cumulative
record of Lakshamana where the address is shown as No.79,
Behind Ramakrishna Mutt Gavipuram. Ex.D.16 is another
insurance policy premium receipt. Ex.D.17 is the marriage
invitation card of one Rekha held in the year 2000 where the
same address is shown Ex.D.18 is the photograph showing the
huts where the defendants are residing.
22. On perusal of the documents, it goes to show that the
defendants in both cases are the sisters and daughter of
Gajalakshmi and they are in possession of the property
measuring 10×5 feet and 10×10 feet. It reveals that the
defendants are in the possession having put up a small
construction or hut in the portion of property No.148. However,
the plaintiff in the cross-examination has admitted that he and
his vendor is residing in house No.78 and he was allotted a site
bearing No.148 and one Vishwanath is his vendor of the said
property. The very same site has been purchased by the plaintiff
as per the sale deed executed by the BDA, which reveals that
No.148 has been allotted to the vendor of the plaintiff as per
Ex.P.15 to Ex.P.18, and the sale deed has been executed as per
Ex.P.20 by the BDA in favour of Vishwanath.
23. Learned counsel for the appellant-plaintiff has
contended that previously, these areas were all the slum areas
with the various persons occupied in a small portion.
Subsequently, they occupies the said area & requested the BDA
to allot an alternate site and accordingly, the site No.148
measuring 20 x 36 feet has been allotted to one Vishwanath as
per Exs.P.15 to 18 and the sale deed has been executed as per
Ex.P.20. In spite of execution of the sale deed and allotment,
the defendants' contention is that they are in a possession of the
property since 30 years. Their mother was also in possession
and subsequently, it was allotted. It appears they have put up
huts and residing there separately. On careful reading of the
records of the plaintiff and defendants, it appears that the
property measuring 20 x 36 feet has been allotted to
Vishwanath, the vendor of the plaintiff. The sale deed also
clinches the issue that Vishwanath had been allotted the site and
he was in possession of the said property. Subsequently, it was
sold to person the present plaintiff. On careful perusal of the
previous documents and the additional documents produced by
the appellant, it reveals that the said Vishwanath also filed an
application to CITB showing that the house No.77 on the same
area. The CITB issued a letter showing the site No.148
measuring 20 x 36 feet allotted to Vishwanath. The additional
documents and the memo produced goes to show that the
property measuring 20 x 36 feet was allotted to Vishwanath on
lease cum sale for 10 years. The said document is dated
31.10.1975. Kannayya Shetty also said to be requested for the
site and site No.147 had been allotted measuring 20 x 35 feet.
The said Kannayya Shetty was the predecessor of defendants.
Later, the City Improvement Trust Board allotted the site
No.147, measuring 20 x 35 feet as per allotment letter dated
19.07.1973 for the amount of Rs.234/- paid by Kannayya
Shetty. The document dated 19.02.2010 reveals that the
plaintiff requested the CITB to issue a sketch of the property.
The sketch was also produced, which reveals that the property
No.148 site was allotted in the slum area and adjacent to
property No.148. On the western side, a small portion is given
as site No.147, which belongs to Kannayya Shetty who is the
predecessor of the defendants. The sketch of the layout has
been produced which reveals that the extent of site Nos.147 and
148. Site No.148 is situated on the corner side and site No.147
is inside. It reveals that the land allotted to the defendants'
predecessor i.e. Kannayya Shetty is site No.147, and site No.148
is allotted to Vishwanath. Therefore, the defendants are in
possession of the said portion of the property bearing No.148.
After allotment, they have not moved. Even otherwise, they
could have stayed before the proper allotment by the CITB and
the BDA, as it was the alum area. Subsequently, demarcated
portion was allotted by the BDA to the parties. Accordingly,
property No.148 has fallen to the share of Vishwanath, the
vendor of the plaintiff. Previously, a suit was filed by Vishwanath
against one Selvaraj and it was dismissed where existence of the
property was mentioned. The learned counsel for the appellant-
plaintiff also brought to the notice that the allotment of property
No.147 to the defendants' family was not available. Therefore,
requested the BDA for allotment of an alternate site.
Accordingly, they have been allotted an alternative site at HSR
layout and the same has not been denied by the defendants'
counsel. It appears that small extent of property No.147 has
been allotted to Kannayya Shetty. Later, it came to know that
there was no existence or availability of property No.147.
Therefore, an alternate site has been allotted to defendants.
They also obtained possession of the property at HSR layout.
Therefore, it cannot be said that the defendants have established
right over the property. As I have already held above, prior to
acquiring the slum dwellers, they have been in possession.
Subsequently, after allotment, they have to move out.
Accordingly, the defendants have been granted a separate land
or site at the HSR layout. In spite of the same, the vendor of
the plaintiff has filed a suit that the defendants are the tenants
under the plaintiff's vendor and there is no document produced
by the plaintiff to show that Vishwanath, the vendor of the
plaintiff has let out the property to the defendants in both cases
and they have failed to prove that they are the tenants under
the said Vishwanath. Further, there is no letter given by the
Vishwanath, the vendor of the plaintiff, to show that he is said to
be the owner and he has collected the rent. Of course, the
plaintiff has failed to prove the fact that the defendants were the
tenants under his vendor. In view of Exs.P.15 to 18 and P.20,
the plaintiff was allotted and the sale deed has been executed by
the BDA. P.W. 3 has given evidence in support of the plaintiff.
24. Such being the case, the plaintiff proves that he is the
absolute owner of the suit schedule property No.148 measuring
20 x 36 feet. However, he has failed to prove that the
defendants are the tenants under him. Though the defendants
are continuously in possession of the property, they have not
admitted the ownership of the plaintiff or his vendor in order to
claim right over the schedule property as adverse possession.
Therefore, I am of the view that the plaintiff is entitled for
possession of the schedule property as prayed. The trial Court
without proper appreciation of the evidence on record and
additional evidence adduced by the plaintiff, has dismissed the
suit of the plaintiff. In my view, the plaintiff has proved that he
is the absolute owner of the property. The defendants without
any right, title over or interest over the property residing over
the same on lease for so many years and they have not
admitted that the plaintiff or his vendor is the owner of the
property. Once the defendants have not admitted that the
plaintiff or his vendor is the owner of the property, the question
of claiming right of adverse position itself does not arise in order
to perfected their title.
25. In view of the reasoning above, I hold the plaintiff
proves in both the suit that he is the absolute owner of the
schedule property No.148 measuring 20 x 36 feet. However, he
has failed to prove the defendants in both cases, tenants under
him and the defendants also failed to prove that they have
perfected title by way of adverse possession. Hence, answered
the point No.1 in affirmative, in favour of the plaintiff/appellant
and point Nos.2 and 4 in the Negative.
26. The defendant also contended that the suit is bad for
non joinder of the parties, when the suit of the plaintiff is based
upon the sale deed executed by the BDA and his vendor Ex.P.15
to 18 and Ex.P.20, he has proved his title and Therefore the
vendors of the plaintiff is not necessary party in the suit. Even
the relief claimed by the defendant are not necessary parties in
the present suit, since they are in possession, claiming the right
over the portion of the schedule property of the plaintiff.
Therefore, the suit is not bad for any non joinder of necessary
parties. Hence, answered the point No.5 negative against the
defendant.
27. In view of the judgment of this court holding that the
plaintiff proved the title over the property and the defendant are
in possession claiming the right over the property without any
title or source, merely they are staying in the possession since
long when the BDA allotted an alternative site to them in some
other place, but they have taken the alternative site from the
BDA still they continue in possession. Therefore, the plaintiff
once allotted the site and possession is given, the plaintiff
purchased the site from the vendor the original allotted of the
BDA. Such being the case, the plaintiff is entitled for the
possession from the defendant.
28. The Trial Court without appreciating evidence on
record, simply dismissed the suit without proper evidence on
record placed by the defendants. Therefore, the judgment of the
Trial Court requires to be interfered.
Accordingly, I proceed to pass the following order,
Both appeals are allowed.
The suit of the plaintiff in both cases are allowed in part.
The plaintiff is declared as owner of the schedule property
Site No.148 measuring east to west 20 feet and North to South
36 feet.
The defendant are directed to quit and vacate the premises
within 3 months for the date of receipt of the copy of the
judgment, failing which the plaintiff shall take action as per the
due course of law for seeking possession.
Accordingly, both the appeals are disposed of.
No order as to the cost.
Sd/-
(K.NATARAJAN)
JUDGE
CS/AKV
CT:SK
