IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST APPEAL NO.303 OF 2007 BETWEEN 1. KAMBAIAH S/O KARITHIMMAIAH AGED ABOUT 50 YEARS 2. KARIYAPPA @ BIKKALAIAH S/O KALLEGOWDANA KARIYAPPA AGED ABOUT 60 YEARS 3. THIMMAIAH S/O KARITHIMMAIAH AGED ABOUT 48 YEARS 4. BANAIAH S/O KAITHIMMAIAH AGED ABOUT 60 YEARS 5. CHITTAIAH S/O KALLEGOWDANA KARIYAPPA AGED ABOUT 48 YEARS 6. GIRIYAPPA S/O KARICHITTY AGED ABOUT 60 YEARS 7. KALBEERAIAH S/O GULLAIAH AGED ABOUT 70 YEARS 8. CHIKKERAIAH S/O KALBEERAIAH AGED ABOUT 70 YEARS 9. DODDAKARIYA S/O KALLEGOWDANA KARIYAPPA AGED ABOUT 60 YEARS 10. KAMBAMMA W/O KARITHIMMAIAH AGED ABOUT 40 YEARS 11. KRISHNAIAH S/O KALLEGOWDANA KARIYAPPA AGED ABOUT 60 YEARS 12. JAVARAIAH S/O KARICHITTA AGED ABOUT 50 YEARS 13. GIRITHIMMAMMA D/O KARICHITTA AGED ABOUT 65 YEARS 14. KARIKAMMA W/O DASANNA AGED ABOUT 25 YEARS 15. KARICHITTAIAH ALIAS BHODHI S/O HOTTAIAH AGED ABOUT 60 YEARS 16. ALAIHA S/O KIVUDANA CHITTAIAH AGED ABOUT 60 YEARS 17. SANNABANAIAH S/O KARITHIMMAIAH AGED ABOUT 70 YEARS 18. NINGAIAH S/O BAJJAIAH AGED ABOUT 60 YEARS 19. CHITTAIAH S/O BEVADANA CHITTAIAH AGED ABOUT 75 YEARS 20. CHIKKAHUDUGA S/O KIVUDANA CHITTAIAH AGED ABOUT 30 YEARS 21. KALLAIAH S/O KALLAIAH AGED ABOUT 70 YEARS (ALL ARE MAJORS R/AT ALEMARADADODDI HAMLET OF VIBHUTHIKERE, KAILANCHA HOBLI RAMANAGARAM TALUK, PIN CODE – 571 501 (BY SRI K HANUMANTHARAYAPPA, ADV.) AND:
1. DAWAT MIYA AGED ABOUT 58 YEARS 2. NAYAZ AHAMED AGED ABOUT 55 YEARS 3. IDRIS PASHA AGED ABOUT 53 YEARS 4. SHAH AHMED PASHA ... APPELLANTS AGED ABOUT 51 YEARS 5. AZEEZ MEHADI AGED ABOUT 48 YEARS 6. ZAHIR SHAH NIZAM AGED ABOUT 45 YEARS (ALL ARE SONS OF LATE DH PEER SAB R/AT NO.522 GHANI MIYA STREET CHANNAPATTANA 571 501 BANGALORE RURAL DIST.
7. THIMMAIAH S/O LATE KAMBAIAH AGED ABOUT 70 YEARS 8. S GIRIYAPPA S/O KARIGOWDA AGED ABOUT 45 YEARS R/AT ALMARADADODDI HAMLET OF VIBHUTHIKERE KAILACHANA HOBLI RAMANAGARA TQ, BANGALORE RURAL DIST- 571 501 (R1 TO R8 ARE SERVED) ... RESPONDENTS THIS RFA IS FILED U/S 96 OF COC AGAINST THE JUDGEMENT AND DECREE DT.14.08.2006 PASSED IN OS.NO.104/2003 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) RAMANAGARAM, DECREEING THE SUIT FOR DECLARATION, POSSESSION AND MESNE PROFITS.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The defendants in Original Suit No.104 OF 2003 on the file of Civil Judge (Jr. Dn.), Ramanagaram had preferred this appeal. Suit filed by the respondent-Plaintiffs for declaration and possession in respect of property measuring 2 acre 19 guntas situated in Survey No.278/1 of Vibhuthikere village, Bannikuppe Mandal Panchayat, Ramanagaran Taluk and District. The suit has been decreed and it has been held by the Court below that the respondent-Plaintiffs are entitled for declaratory relief and directed the defendants to handover the possession to the plaintiffs.
2. The learned counsel appearing for the defendants-the appellants herein, submits that the property in question was acquired by Government of Karnataka for formation of sites under “Ashraya” Scheme and sites were formed and hakkupatras have been issued to the defendants on 10th January 1992 and since then they are in occupation of the property in question. The acquisition of 1992 was challenged by the plaintiffs before this Court in Writ Petition No.1000 of 1992, which petition came to be allowed by its order dated 27th July 1998 and the acquisition proceedings have been quashed. However, liberty was reserved to the Government to issue fresh government order, if they so desire. The Government has not issued fresh notification of acquisition, however, hakkupatras have been issued in favour of the defendant-appellants, and as such they are in possession. It is submitted that they belong to weaker sections of the society and they are in occupation of the sites and, at this juncture, if this appeal is allowed by confirming the order passed, they would be put to hardship and would also be dislodged. It is submitted that the learned judge has committed an error in not noticing the fact that notice has not been issued to the appellant-defendants demanding vacating the property and in the facts and circumstances, unless appropriate and effective notice is issued, the question of eviction does not arise. Further, it is submitted that the plaintiffs have lost title over the property and filed suit after lapse of eleven years; and without taking note the limitation aspect the learned judge has decreed the suit. The defendant-appellants are in possession and enjoyment of the property. Under the circumstance, if the appeal is remanded thereby providing an opportunity, they would produce necessary grant order and hakkupatras.
3. Though plaintiff-respondents have been served, they have remained un-represented.
4. I have gone through the judgment and also secured the lower court records. The undisputed fact is the father of plaintiffs No.1 to 6 was the owner of the property. He died and the plaintiffs No.1 to 6 have succeeded to the property and thereafter, the portion of the property has been sold in favour of plaintiffs No.7 and 8. The property in question which belongs to the father of the plaintiffs No.1 to 6 was acquired by Government for formation of sites under Ashraya scheme and the acquisition itself was the subject matter before this Court in Writ Petition No.1000 of 1992. By order dated 27th July 1998, the acquisition proceedings was quashed reserving liberty to the State to initiate fresh proceedings, if it is so advised. Though the defendant-appellants have taken a stand that they are in possession of the land and have been issued with hakkupatras, but they have not substantiated the same either by examining any witness or by producing and marking documents to that effect. Under the circumstance, the plaintiffs have caused legal notice to the defendants on 3rd June 2003 demanding to vacate the property. The copy of the legal notice, postal receipt and acknowledgement have been marked as Exhibits P5, P6 and P8. The relationship of plaintiffs No.1 to 6 is not in dispute. Exhibit P8 is postal acknowledgement receipt which the plaintiffs 1 to 6 handed over to defendant No.7. The learned judge has framed issues on the basis of pleadings of the parties. It is pertinent to note here that the defendant had filed written statement stating that they have not contradicted in any way. The issues framed by the Court are (1) whether the plaintiffs prove their ownership over the suit property as alleged? and issue No.2 is whether the plaintiffs prove that the defendants have put up constructions in the suit property illegally as alleged; and issues No.3 and 4 are in respect of limitation and what should be order. Issues No.1 to 4 have been answered in the affirmative and issue No.5 is as per the order. In respect of issues No.1 and 2, the Court has examined Exhibit P1 and P2 the sale deeds executed in favour of plaintiffs No.7 and 8. On behalf of plaintiffs, PW1 is examined.
In respect of property in question, though it is pleaded by the plaintiff, they have not proved the same and have merely challenged the acquisition proceedings without proving the ownership. When the suit is for declaration and possession is sought for, it is fundamental that the plaintiffs who have filed the suit have to prove their title. The effort made by the plaintiffs is that they do not know Peer Sab, the father of plaintiffs No.1 to 6 who is the owner of the property and as to how he became the owner of the property, what are the documents that are produced and that have not been produced. No evidence is available in this regard. What has been produced is Exhibit P2 and P5 the sale deeds and exhibit P3 the power of attorney, Exhibit P4 RTC extract, Exhibits P5 and P6 the legal notice and unserved postal cover and Exhibit P7 is the postal acknowledgement card and Exhibits P8 and P9 are the postal receipts for having done through certificate of posting; and the certified copies of the writ petition. These are the documents on which reliance has been placed and the same is insufficient to prove the ownership in respect of the property. The declaration sought for declaring that the plaintiffs are the owners in respect of the property is to be on the basis of the valid documents. Unless the plaintiff prove their ownership title, it is not appropriate to declare that the plaintiffs are owners in respect of the property in question. On the other hand appellant- defendants, though have filed written statement, but have not made an effort of placing reliance on the hakkupatras, if it is issued by the Government permitting the authorities to issue hakkupatras probably for the reason that the defendants are unorganized source and that the title deeds have not been placed. The lapses on the part of the appellant-defendants is that they have also not produced any documents to show that they were in possession and only have pleaded that they are in possession of the property since 1982. No documents have been produced. Though issues have been framed by the court below as to whether the plaintiffs prove their ownership, when no proof has been produced by the original owner and PW1 is only a general power of attorney holder of plaintiffs No.1 to 6 cannot claim ownership. Under the circumstance, issues No.1 and 2 have not been answered to the satisfaction of the law. In that view of the matter, in my considered opinion, it is appropriate to remand the matter to the court below, to pass fresh orders. Accordingly, the order dated 14th August 2006 passed in OS No.104 of 2003 by Civil Judge (Sr.Dn.), Ramanagaram is set aside and the matter is remanded to the Trial Court for passing orders afresh. The additional issue that is required to be answered by the court below is, “whether the documents, if proved, whether the government has issued notification or issued hakkupatras?” Unless this additional issue is proved, though the notification is quashed, it is not binding on the parties who have not proved their ownership. With these observations, the appeal is allowed and remanded to the Court below for passing fresh orders and also appropriate order on the additional issue that is framed above.
Sd/- JUDGE lnn