IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.397 OF 2009 BETWEEN The Bangalore Development Authority, T.Chowdaiah Road, K.P.West, Bengaluru-20, Represent by its Commissioner.
(By Sri. Ravi G. Sabhahit, Advocate) AND 1. Dr. Hari Kakde, S/o. Dr.C.R.Kakde, 2. Smt. Mamatha H. Kakde, W/o. Dr. Hari Kakde, Both R/at No.1034, Churchroad, New Tippasandra, HAL III Stage, Bengaluru-560075.
3. Sri. T.R.Prakash, S/o. Ramakrishnappa, No.1145, HAL III Stage, Bengaluru-560075.
…Appellant …Respondents (By Sri. B.N.Vinod Kumar, Advocate, for R1 & R2, Sri. M.B.Ryakha, Advocate for R3) This RFA is filed under Section 96 CPC against the judgment and decree dated 18.11.2008 passed in O.S.No.6719/2001 on the file of the XXVII Additional City Civil Judge, Bengaluru, decreeing the suit for permanent injunction.
This RFA coming on for final disposal this day, the court delivered the following:
JUDGMENT The Bengaluru Development Authority/defendant no.2 in O.S.6719/2001 has preferred this appeal aggrieved by the judgment of the trial court dated 18.11.2008. For the sake of convenience, the parties are referred to with respect to their rank in the suit for narration of facts.
2. In respect of property bearing BDA site no.1145, HAL III Stage, Bengaluru-75, measuring East-West 45’ and North to South-30’ (hereafter referred to as ‘plaint schedule property’), the plaintiffs instituted a suit for injunction to restrain the second defendant from interfering with their possession of the suit property. They pleaded that on 12.8.1982 the plaint schedule property was allotted to the first defendant. Thereafter, in the family of the first defendant, there took place a partition on 1.4.2000. The plaint schedule property fell to the share of first defendant’s brother T.R.Rajendra. He constructed a house and sold the same to the plaintiffs by executing a sale deed on 15.1.2001. The plaintiffs thus became the absolute owner of the plaint schedule property. The officials of the second defendant came near the plaint schedule property and said that the house would be pulled down. The plaintiffs tried to convince that they were the absolute owners of the plaint schedule property, but they did not stop putting threat to them. They alleged that the officials came near the plaint schedule property and damaged the Eastern side of the compound. Therefore, they instituted the suit.
3. First defendant was placed ex-parte. The second defendant filed written statement contending that the plaint schedule property is situated in a layout called HAL III Stage layout formed by it. The site i.e., plaint schedule property was not allotted to anybody including the first defendant. The property belongs to it and therefore purchase of the said site by the plaintiffs from the first defendant cannot be believed and such a transaction is illegal.
4. The trial court framed five issues. The first plaintiff adduced evidence as PW1 and produced 50 documents as per Exs. P1 to P50. PW1 was not cross-examined by the second defendant. Second defendant did not lead evidence from its side. The trial court, after assessing the evidence of PW1 and the documents produced by him, decreed the suit against second defendant.
5. Assailing the findings of the trial court, the learned counsel for the second defendant/appellant submits that the plaint schedule property is not allotted by BDA to anybody including the first respondent. It is a part of HAL III Stage layout formed by BDA. Trial court did not provide sufficient opportunity to the second respondent to cross-examine PW1 and to lead evidence from its side. Therefore, in view of denial of opportunity to the second defendant, it is necessary that the appeal should be allowed and suit remanded to the trial court.
6. Learned counsel for the respondents/plaintiffs submit that the whole contention of the second defendant that plaint schedule property was not allotted to anybody is false. In the plaint itself it is clearly stated that vacant site was allotted to first defendant on 12.8.1982. There is a reference to allotment letter. Then there took place a partition in the family of the first defendant on 1.4.2000 and in that partition the plaint schedule property fell to the share of first defendant’s brother, T.R.Rajendra. This Rajendra sold the plaint schedule property to the plaintiffs by executing registered sale deed dated 15.1.2001. The plaintiffs have produced documents to show that they are in possession. If it is the case of the BDA that the plaint schedule property had not been allotted to anybody, nothing prevented it from cross-examining PW1 and producing evidence from its side. The plaintiffs filed the suit for injunction only. If at all the property belongs to the BDA, still it can take legal action. There is no scope for remand and therefore appeal has to be dismissed.
7. After perusing the evidence both oral and documentary produced by PW1, it becomes clear that the plaintiffs have produced number of documents to show their possession. They have produced katha certificate, tax paid receipts, registered partition deed, encumbrance certificate, etc., It is true that the plaintiffs have made a reference to the allotment letter in the plaint, but the same was not produced at the time of evidence. Plaintiffs’ clear case is that allotment was made by BDA in favour of first defendant T.R.Prakash. The plaintiffs also clearly say that only after acquisition of land by BDA for formation of HAL III Stage layout, allotment was made in favour of T.R.Prakash. If according to the appellant, the plaint schedule property was not allotted to the first defendant, nothing prevented the appellant from cross-examining PW1 and rebutting his evidence. When the plaintiffs refer to the allotment number by giving its number, it was not impossible for the BDA to place materials before the Court that such a site was not allotted to anybody. It is true that the burden is on the plaintiffs to show that there was allotment and the plaintiffs should have produced allotment letter. Notwithstanding non-production of allotment letter in favour of the first defendant, if the documentary evidence produced by the plaintiffs would establish that they are in possession of the plaint schedule property, the second defendant has to take recourse to legal action in case it has right over the plaint schedule property. The trial court has just granted relief of permanent injunction finding possession of the plaint schedule property being with the plaintiffs. It has not decided the title. Merely because the plaintiffs have produced the sale deed and the partition deed, it cannot be said that the title of the plaintiffs has been proved because the basic documents such as allotment letter, possession certificate, sale deed executed by BDA in favour of T.R.Prakash have not been produced. It is also pertinent to mention here that the plaintiff caused a notice as per Ex.24, issued to second defendant before instituting the suit. The second defendant received the notice, but did not reply to it. Nothing prevented the second defendant from cross- examining PW1 and lead evidence from its side. Therefore, I do not find that the appeal deserves to be allowed. If at all the second defendant possess any interest in the plaint schedule property, still it can take action in accordance with law. With these observations I come to the conclusion that the appeal deserves to be dismissed. Ordered accordingly.
Sd/- JUDGE ckl