IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.1609/2006 C/W R.F.A.No.1610/2006 IN RFA No.1609/2006 BETWEEN:
SHRI PHANINDRA C S/O SHRI.C.RAGHUNATH RAO MAJOR, AT No.5391, POTOMAC DRIVE BRECKSVILLE, OHILO 4414, USA. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHRI.K.C.SATHYA PRAKASH S/O LATE SHRI.K.C.KRISHNAMURTHY RAO 61 YEARS., RESIDING AT 5A CROSS, ITI COLONY, SARAKKI LAYOUT J.P.NAGAR I PHASE BANGALORE – 560 078.
...APPELLANT (BY SMT. T V HONNAMATHI, FOR SRI H S DWARKANATH, ADVOCATE) AND:
BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST EXTENSION, T.CHOWDAIAH ROAD BANGALORE - 560 020.
REPRESENTED BY ITS COMMISSIONER.
…RESPONDENT (BY SRI ASHWIN S HALADY, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.02.2006 PASSED IN O.S.No.15198/2004 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, (CCH-29), DISMISSING THE SUIT FOR DECLARATION.
IN RFA No.1610/2006 BETWEEN:
SMT. SANDHYA PHANINDRA W/O SHRI C PHANINDRA MAJOR AT No.5391, POTOMAC DRIVE, BRECKSVILLE, OHILO, 44141, USA.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHRI K C SATHYA PRAKASH S/O LATE SHRI K C KRISHNAMURTHY RAO, AGED ABOUT 61 YEARS RESIDING AT 5A CROSS, ITI COLONY, SARAKKI LAYOUT, J P NAGAR I PHASE, BANGALORE – 560 078.
...APPELLANT (BY SMT.T V HONNAMATHI, FOR SRI H S DWARAKANATH, ADVOCATE) AND:
BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST EXTENTION T CHOWDAIAH ROAD, BANGALORE – 560 020 REPRESNTED BY ITS COMMISSIONER.
(BY SRI RAVI G SABHAHIT, ADVOCATE) …RESPONDENT THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.02.2006 PASSED IN O.S.No.15199/2004 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, (CCH-29), DISMISSING THE SUIT FOR DECLARATION.
THESE RFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the judgment and decree dated 16.2.2006 passed in O.S.Nos.15198/2004 and 15199/2004 by the learned XXVIII Additional City Civil Judge, Mayohall Unit, Bangalore (CCH 29), wherein, the suit filed by the plaintiff in each of the case came to be dismissed.
2. Plaintiff in O.S.No.15198/2004 is one C. Phanindra, S/o. C. Raghunatha Rao, 45 years, R/at. No.5391, Potomac Drive, Brecksville, Ohilo 44141 USA, represented by his Power of Attorney Holder K.S.Narayana, 43 years, S/o. Late Shivaram Karanth, Hindu, Major at No.61, 35th Main, BTM Layout, Madiwala Post, Bangalore-68.
3. Plaintiff in O.S.No.15199/2004 is one Smt.
Sandhya stated to be the wife of plaintiff C. Phanindra in O.S.NO.15198/2004 residing at No.5391, PotomacDrive, Brecksville, Ohilo 44141 USA, represented by its Power of Attorney holder K.S.Narayana, 43 years, S/o. late Shivaram Karanth, Hindu, Major at No.61, 35th Main, BTM Layout, Madiwala Post, Bangalore-68.
4. In order to avoid confusion and overlapping, the parties are referred with reference to their rankings held by them before the trial Court.
5. The facts that paved way for filing the original suits are:
In O.S.No.15198/2004 plaintiff C. Phanindra claims to be the owner of the property bearing registration No. 542/B, 4th Block, Koramangala, measuring East to West 21.35 meters and North to South 15.25 Meters measuring 325.58 sq.meter. He claims that the property was allotted to him by the Letter of Allotment dated 16.1.1989 on lease- cum- sale agreement executed on 17.3.1989 by the Bangalore Development Authority (hereinafter referred as BDA for brevity). He also claims that he was put in possession under the Possession Certificate dated 29.3.1989. Thereafter, conditional sale deed was executed on 5.10.1989. The property was made over to the plaintiff and he has paid taxes. The property is morefully mentioned in the schedule to the plaint and in possession of original documents. The house that was constructed is accommodated with electricity. The plaintiff is living abroad and has dealt with the defendant through his friends and plaintiff is the bonafide purchaser of the schedule property who was in lawful possession of the same and property was let out to a tenant.
6. It is further stated that the officials of BDA came near the schedule property and started to demolish the building and completed it claiming that property was not allotted in favour of the plaintiff. Plaintiff further claim that he was not concerned with the fraudulent dealings of BDA officials and he cannot be made responsible for the same and the demolition of the schedule house is stated to be conducted in a high handed act.
7. Insofar as the case of the plaintiff in O.S.No.15199/2004 is concerned, it pertains to property bearing No. 542/A, 4th Block, Koramangala, measuring East to West 22 meters and North to South 15.45 Meters measuring 335.28 sq.meter. The same is filed by one Sandhya wife of C. Phanindra through the same Power of Attorney Holder. Thus, the spouses have filed two suits one by each of them claiming that the respective schedule property were allotted /purchased by them from BDA.
8. The defendant- BDA entered appearance and filed its written statement. The substance of the contentions of defendant- BDA, represented by its Commissioner is that, no property is allotted to the plaintiffs in each of the cases. The documents of conveying the said sites were never executed in favour of the plaintiff at any point of time. The documents relied upon by the plaintiff in both the cases are forged and fabricated with the ulterior motive of making wrongful gains. The defendant further claims that it is governed by allotment Rules viz., Bangalore Development Authority (Allotment of sites) Rules 1984 for allotment of sites. There was neither notification for such allotment nor the plaintiffs filed applications for allotment of site. Plaintiffs have not acquired right, title, interest or possession over the schedule property, nor they were put in possession. It is also contended that the plaintiff in both the cases being the husband and wife, in their respective suits played fraud, forgery, fabrication of documents in connivance with Muniraju and others and that the fraudulent acts and deeds of the plaintiff let for knocking away of the property and the defendant Authority was bound to protect the interest of the bonafide owners of the allotment, more particularly, to serve the object of acquisition of land.
9. On the basis of the pleadings of the plaintiff in both the cases and material assertions and denials, the learned trial Judge framed issues regarding purchase of suit schedule property, interference, nature of documents (forged and fabricated) and burden on the respective parties.
10. The learned trial Judge was accommodated with the oral evidence of plaintiff’s General Power of Attorney holder Sri. K.C.Sathyaprakash S/o. K.C.Krishnamurthy in both the suits as PW1 and the oral evidence of DWs 1 and 2 and documentary evidence of Ex.P1 to P16 and Exs.D1 to 6 in O.S.No.15198/2004 and Exs.P1 to P13 and Exs.D1 to D4 in O.S.NO.15199/2004.
11. In the peculiar circumstances of the case, mentioning of issues and documents are necessary, which are as under:
In O.S.No. 15198/2004:
Issues:
1. Whether the plaintiff proves that he is the bonafide purchaser of suit schedule property and is in lawful possession of the schedule property?
2. Whether the plaintiff proves that defendant is interfering with his lawful possession of the suit schedule property?
3. Whether the defendant proves that the documents relied by the plaintiff are concocted, forged and fabricated documents?
4. Whether the defendant proves that plaintiff has no right or title over the suit schedule property and as such demolished the construction put up on the suit schedule property which was un authorized and illegal?
5. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as sought for?
6. What order or decree?
Documents produced on behalf of plaintiff:
Ex.P1 - Power of Attorney Ex.P2 - Allotment Letter Ex.P3 - Possession certificate Ex.P4 - Conditional deed of sale Ex.P5 - Khata endorsement Ex.P6 - Intimation of property tax Ex.P7 - Challan Ex.P8 - Another challan cum receipt Ex.P9 - Notice Ex.P10- Provisional order Ex.P11- Licence Ex.P12- Endorsement Ex.P13- Khata certificate Ex.P14- Notice Ex.P15- Electricity Bill Ex.P15a- Receipt Ex.P16- Water bill Ex.P16a- Receipt Documents produced on behalf of defendant:
Ex.D1 : Copy of power of attorney Ex.D1a : Signature of plaintiff’s wife Ex.D2 : Attested copy of allotment register extract Ex.D3 : Attested copy of list of allotments in Koramangala area Ex.D4 : Copy of the complaint Ex.D5 : Copy of the FIR Ex.D6 : Auction confirmation letter In O.S.No. 15198/2004:
Issues:
1. Whether the plaintiff proves that she is the bonafide purchaser of suit schedule property and is in lawful possession of the schedule property?
2. Whether the plaintiff proves that defendant is interfering with his lawful possession of the suit schedule property?
3. Whether the defendant proves that the documents relied by the plaintiff are concocted, forged and fabricated documents?
4. Whether the defendant proves that plaintiff has no right or title over the suit schedule property and as such demolished the construction put up on the suit schedule property which was un authorized and illegal?
5. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as sought for?
6. What order or decree?
Documents produced on behalf of plaintiff:
Ex.P1 - Power of Attorney Ex.P2 - Allotment Letter Ex.P3 - Possession certificate Ex.P4 - Conditional deed of sale Ex.P5 - Khata endorsement Ex.P6 - Intimation of property tax Ex.P7 - Challan Ex.P8 - Provisional order Ex.P9 - Approval of plan Ex.P10- Khata certificate Ex.P11- Paper publication Ex.P12- Paper publication Ex.P13- Paper publication Documents produced on behalf of defendant:
Ex.D1 : Copy of power of attorney Ex.D1a : Signature of plaintiff’s wife Ex.D2 : Attested copy of complaint Ex.D3 : Copy of the FIR Ex.D4 : Attested copy of the auction Confirmation letter.
12. On the basis of the oral and documentary evidence, the learned trial Judge passed the judgment on 16.2.2006 in both the cases and dismissed both the suits. Against which, the plaintiff in both the suits are in appeals before this court.
13. As the common factor in both the suits are claimed by the plaintiff against the defendant, reliance of the documents, opposition on the basis of forgery, fabrication of documents by the defendant, both the matters are taken up for common disposal.
14. Learned counsel for appellant in both the appeals Smt. Honnamathi, for Sri. H.S. Dwarakanath, would submit that the defendant is having the knowledge and notice of the possession of the property by the plaintiff in both the cases for more than 15 years and allotment was made in favour of the plaintiff in each of the cases in irregular manner. Learned counsel would further submit that electricity supply was secured by the plaintiff, katha is in the name of each of the plaintiff in both the cases, sanction has been approved. Learned counsel would further submit that plaintiff in each of the cases was also the owner and acquired ownership by virtue of possession. Learned counsel would further submit that the property were in occupation of the tenants and the defendant-BDA without any legal proceedings or notice has demolished the constructed building in each of the cases in high handed manner. She would further submit that the plaintiff by virtue of the residence in a Foreign Country made necessary correspondence and are full pledged owners having acquired the schedule property from the defendant-BDA. Learned counsel would further submit that plaintiff in both the cases cannot be held responsible for mis-deeds or fraudulent acts of the officials of the defendant-BDA.
15. Learned counsel Sri. Ashwin and Sri. Ravi G. Sabhahit for defendant-BDA would submit that the documents relied upon by the plaintiff in both the cases are totally forged and concocted. They would further submit that the defendant has lodged a criminal case in this connection. It was also contended that there is no occasion for selling the property as stated by the plaintiff. Further, the defendant is bound by rules regarding allotment which is known as Bangalore Development Authority (Allotment of Sites) Rules, as such the procedures for allotment of property to serve the purpose of acquisition and things cannot happen as pleaded by plaintiff.
16. Before proceeding further, it is necessary to place on record that the circumstances and nature of the case, nature of the prayer of plaintiff in both the cases, nature and interest of the defendant, the procedure of allotment of site and the nature of the documents produced there in.
17. The prayers made by the appellant/plaintiff in O.S.No.15198/2004 are as under:
(1) For declaration that the conditional sale deed with respect to the schedule property dated 5.10.1989 and registered as document No.6415 of 1989-90 in Book I Volume 3158 at Pages 139 to 140 is binding on the defendant and for consequential order of injunction restraining it from doing any act inconsistent or contrary to the spiri of the conditional sale deed 5.10.1989 and registered as document No.6415 of 1989-90 in Book I Volume 3158 at Pages 139 to 140;
(2) For permanent injunction restraining the defendant, its officials or any one acting under their instructions from interfering with the plaintiff’s peaceful possession and enjoyment of the schedule property.
(3). For permanent injunction restraining the defendant, its officials or any one acting under their instructions from alienating, encumbering or in any way dealing with the schedule property.
18. The prayers made by the appellant/plaintiff in O.S.No.15199/2004 are as under:
(1) For declaration that the conditional sale deed with respect to the schedule property dated 8.5.1989 and registered as document No.4709 of 1989-90 in Book I Volume 3158 at Pages 77 to 78 before the Sub-Registrar, Bangalore South Taluk is binding on the defendant and for consequential order of injunction restraining the defendant, its officials or any one acting under its instructions from doing any act inconsistent or contrary to the spirit of the conditional sale deed dated 8.5.1989 registered as document No.4709/1989-90 in Book I Volume 3158 at Pages 77 to 78;
(2) For permanent injunction restraining the defendant, its officials or any one acting under their instructions from interfering with the plaintiff’s peaceful possession and enjoyment of the schedule property.
(3). For permanent injunction restraining the defendant, its officials or any one acting under their instructions from alienating, encumbering or in any way dealing with the schedule property.
19. In the circumstances of the case, the suit are valued at Rs.14,700/- in O.S.No.15198/2004 and Rs.16,800/- in O.S.NO.15199/2004 relying upon the conditional sale deed said to have been executed by the defendant-BDA as per Ex.P4.
20. It is significant to note that the measurement and date of sale deeds of the schedule property in both the suits are as under:
In O.S.No. 15198/2004: East-West: 21.35 M and North to South: 15.25 M in all measuring 325.58 sq.mt.. However, in terms of feet, the measurement of the schedule property is about 50 x 70 feet. The date of sale deed is 5.10.1989.
In O.S.No. 15199/2004: East-West: 22 M and North to South: 15.24 M in all measuring 335.28 sq.mt. The date of sale deed is 8.5.1989.
Nearly, 3,000/- sq.ft. of a vacant site in the city of Bengaluru is sold to plaintiff in each case for a cash consideration of Rs.14,700/- and Rs.16,800/- respectively being the full value. The plaintiffs claim that no notice was issued to the defendant before filing the suit under Section 64 of BDA Act and the explanation given is, suits are for permanent injunction that the said notice may be exempted. However, it cannot be forgotten for a while that the relief sought is, for declaration to the effect that sale deed dated 5.10.1984 and 8.5.1989 to be binding on the defendant. The prayer might have been stated in the said fashion and the cumulative effect would be, declaration of title and permanent injunction.
21. Defendant admits that it has demolished the structures that were existing on the schedule property. Moreover, the schedule site in each of the cases were sold in public auction for Rs.74,04,354 on 19.2.2004 (in O.S.No.15198/2004) and for Rs.81,82,512/- on 19.2.2004 in O.S.NO.15199/2004) 22. Thus, the plaintiff claims in their suits that the defendant demolished the structure and the same is quietly accepted by defendant and also auctioning of properties on the date of public auction as evidenced through Ex.D4.
23. Further it is claimed that the allotment letter was issued to the plaintiff in both the suits. The BDA is again on record by saying, it has not authorized to execute the sale deed in a manner of executing such a deed by a proper person. It is a body constituted by statute called as ‘Bangalore Development Authority’. It is its duty to develop layouts after the acquisition of land at the instance of the Government and after notifying the purpose of acquisition. Thereafter, sites are to be formed, before which applications are called for, the intending buyers get registered themselves as applicants and thereafter the provisional allotment will be made on the basis of the criterion, fulfillment of requirements and thereafter the allottees would be informed to remit the necessary fee and subject to further conditions the lease cum sale deed would be executed in due course of time imposing conditions, such as, prohibiting alienation for a period of 10 years. Thus, defendant contends that it is not in a playfull in a manner as claimed by the plaintiffs. In this connection, it is seen that either of the suits, available documents regarding registration certificate, copy of the application are stated to be forged documents and perused the same.
24. Ex.P9 and Ex.P7 are the documents stated to have been issued by the Assistant Executive Engineer, No.4, Sub-Dvn. (East), BDA Commercial Complex, Koramangala, Bangalore, as claimed by the counsel for the appellants. This may be the proceedings initiated by the said authority.
25. The sale consideration in both the cases are stated to be sum of Rs.14,700/- in OS No.15198/2004 and Rs.16,800/- in O.S.No.15199/2004. It is necessary to place on record that a vacant site measuring 50 ft. x 70 ft. during the year 1989 within BDA limits and BBMP limits of the City of Bengaluru which came to be sold for Rs.14,700/- and Rs.16,800/- respectively.
26. The judicial notice of the fact of the Rules of Allotment, application, registration of lease- cum- sale deed and other relevant aspects are all seem to be beyond the boundaries for the plaintiff in each of the case. When fraud is played in respect of all the documents, the application for allotment is not produced, registration number is forged, allotment is forged, sale deed has come up in the most undesirable and unjustifiable and highly suspicious circumstances, wherein, the sale deed is stated to have been executed by the BDA officials in favour of the plaintiff in a diagonally opposite manner of regular allotment of the suit property and the most unnatural and mocking price of Rs.14,700/- and Rs.16,800/- for a site measuring 50 ft. x 70 ft at the rate of Rs.4/- per sq.ft., whereas, this only shows the height of arrogance and intention to cheat and play fraud on every body and on every institution. There is neither clarity nor justification. The claim of the plaintiff in both the cases are unnatural, besides unlawful.
27. The extract of the list of Allotment of Sites is produced by the BDA before the Court as Ex.D3 in O.S.No.15198/2004 wherein the names of the plaintiffs in OS No.15198/2004 and 15199/2004 are conspicuously absent. Even to this extent plaintiffs have prepared another list claimed as provisional allotment. The defendant BDA as against the plaintiff in both the cases is not claiming personal interest in the property as the pleadings and evidence of BDA goes to show the property was never allotted to the plaintiff in both the cases and when they started to construct the house in the property without the knowledge of the BDA and in a most unauthorized and irresponsible manner, the unauthorized structures came to be demolished. It is further necessary to mention that plaintiff in OS No.15198/2004 C. Phanindra and the plaintiff in OS No.15199/2004 Smt. Sandhya are the spouses. Each one of them claim that they were allotted the site measuring 50 ft x 70 ft. by the side of each other for the said poultry consideration of Rs.14,700/- and Rs.16,800/- respectively. Search of words are very difficult to define unsustainable acts of the plaintiffs in each of the case.
28. Plaintiff in both the cases claim that they are residents of Ohilo, USA and they say they get eligible for allotment of sites. The truth may be that they were not allotted, but it were sold in a public auction and even still plaintiff claims right to appeal.
29. The power of Attorney holders in each of the case are none other than K.S.Narayana. Ex.D4 is the complaint lodged by one Mr.Venkategowda stated to be Assistant Executive Engineer, Bangalore Development Authority, East Division, wherein, they have sought for criminal action against Phanindra C. plaintiff in OS No.15198/2004 and Sandhya in O.S.No.15199/2004 and B.D.A. officials Muniraju and others and criminal case came to be registered in Crime No.51/2004 for the offences punishable under sections 447, 468, 471, 420 read with Section 34 IPC. Learned counsel appearing for BDA does not know the status of the said case.
30. In the overall context and circumstances of the case, the present two appeals are the best examples for how the public property which is meant to be sold to earn revenue can be knocked off. In this case Bangalore Development Authority has given complaint and kept quite and plaintiff in each of the case who are the accused persons are presently residing in America. Nodoubt, the defendant-BDA claims that it has averted the mishap wherein the property would have been knocked down by the plaintiff in both the suits.
31. The documents are concocted not for the good reasons by them. The fraudulent nature of the same are obvious and self explanatory. In the over all circumstances of the case, the plaintiffs have not only claimed property of the local body for their exclusive purpose though apparently on the basis of the facts and documents, no allotment was made in their favour. The suits are filed for declaration of the suit property in their respective cases and the violation made as could be seen from the valuation slip in each of the case is under Section 7(2) , 28(c) 24 (c) 21 of Karnataka Court Fees and Suit Valuation Act. In this connection the plaintiff in each cases is directed to file fresh valuation slip regarding the valuation made before the trial court and this court as well regarding the market value of the property as applicable as on the date.
32. The learned trial Judge by his well reasoned judgments has rightly dismissed both the suits. I find no infirmity or illegality or irregularity in the impugned judgments. The claim of the plaintiff in both the cases is vexatious and exploitus. Hence, the appeals are dismissed with exemplary costs of Rs.5,000/- in each of the appeal, confirming the judgment and decree passed by the trial court in both the suits.
The appellant in both the appeal shall file fresh valuation slip and to pay the cost within 15 days from the date of receipt of the copy of this judgment and pay court fee as required.
Learned counsel for defendant is directed to file status of the criminal case initiated by it.
tsn* Sd/- JUDGE