IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1179 OF 2003 C/W REGULAR FIRST APPEAL No.1180 OF 2003 In RFA No.1179/2003 BETWEEN 1. Sri. Chickkanna, S/o. Late Doddappa, Since dead represented by LRs, 1(a) Smt. Venkatanarasamma, W/o. Late Chikkanna, Aged about 58 years, 1(b) Smt. Prema, W/o. Dhruva Kumar, D/o. Late Chikkanna, Aged about 35 years, 1(c) Nagaraj C, S/o. Late Chikkanna, Aged about 33 years, All are R/at Sonnenahalli Village, Hesaragatta Village, Bengaluru North Taluk.
(Amended vide court order dated 14.02.2019) 2. Smt. Kempamma, D/o Late Doddappa, Hindu, Major.
(By Sri. M.Shivaprakash, Advocate) AND 1. Smt. C.Jayamma, D/o. Chowdaiah, Since deceased, represented by respondent No.2 who is already on record (amended vide order dated 6.6.2017) 2. Smt. C.Shantha, D/o. Chowdaiah, Hindu, Major, Both are residing at No.140/A, (A Block), Old No.30, 8th Cross, I Main, Jaimaruthinagar, Bengaluru-22.
…Appellants …Respondents (By Sri. Jose Sebastian, Advocate for R2) This RFA is filed under Section 96 of CPC against the judgment and decree dated 02.06.2003 passed in O.S.No.6123/91 on the file of the I Additional City Civil & Sessions Judge, Bengaluru, CCH No.2, decreeing the suit for permanent injunction.
In RFA No.1180/2003 BETWEEN 1. Sri. Chickkanna, S/o. Late Doddappa, Since dead represented by LRs, 1(a) Smt. Venkatanarasamma, W/o. Late Chikkanna, Aged about 58 years, 1(b) Smt. Prema, W/o. Dhruva Kumar, D/o. Late Chikkanna, Aged about 35 years, 1(c) Nagaraj, S/o. Late Chikkanna, Aged about 33 years, All are R/at Sonnenahalli Village, Hesaragatta Village, Bengaluru North Taluk.
(Cause title amended vide court order dated 14.02.2019) 2. Smt. Kempamma, D/o Late Doddappa, Hindu, Major.
(By Sri. M.Shivaprakash, Advocate) AND 1. Smt. Hombalamma, Father’s name not known, Hindu, Major, 2. Sri. Venkatesh, S/o. Hombalamma, …Appellants Both are residing at Jayamaruthinagar, Nandini Layout, Bengaluru-22.
3. Commissioner, Bengaluru Development Authority, Bengaluru.
(By Sri. Ravi N. Chikkaradder, Adv., for R1; Sri. H.N.Manjunath, Adv., for R2;
Sri. U.Abdul Khader, Adv., for R3) …Respondents This RFA is filed under Section 96 of CPC against the judgment and decree dated 02.06.2003 passed in O.S.No.261/90 on the file of the I Additional City Civil & Sessions Judge, Bengaluru, CCH No.2, dismissing the suit for permanent injunction.
These appeals coming on for final hearing, this day, the court delivered the following:
JUDGMENT The I Additional City Civil Judge, Bengaluru by judgment dated 02.06.2003 disposed of two suits, O.S.No.261/1990 and O.S.No.6123/1991 by a common judgment. The appellants in these two appeals were plaintiffs in O.S.No.261/1990 and defendants in O.S.No.6123/1991. For the sake of convenience the parties are referred with respect to their position in the suits.
2. O.S.No.261/1990 is a suit for permanent injunction. The 1st plaintiff claimed to be the absolute owner being in possession of site No.29, measuring East to West 25 ft. and North to South 30 ft. in a land bearing Sy.No.16/6 of Laggere Village, Yeshwantapura Hobli, Bangalore North Taluk. This is described in Schedule ‘A’ to plaint. The 2nd plaintiff claimed to be in possession of site No.28 of the same size in same survey number as described in Schedule ‘B’ of the plaint. Both claimed to have purchased the two sites from M.Ratnamma under two sale deeds dated 02.03.1981 and 12.03.1981 respectively. They stated that the 3rd defendant, i.e., the Bangalore Development Authority, passed an order on 12.10.1987 to regularize constructions in the revenue lands, and coming to know of this order, they sent a notice to the 3rd defendant seeking regularization of their possession. They alleged that when they were making arrangement to raise construction in their sites, the defendants interfered with their possession and hence they sued the defendants.
3. The defendants 1 and 2 denied the ownership and possession of the plaintiffs in respect of sites described in Schedule A and B to the plaint and mainly contended that the plaintiffs vendor Ratnamma did not own land in Survey No.16 of Laggere Village. They stated that the lands in Survey numbers 116 and 117 belonged to Government. Jaimarutinagar Welfare Association acquired the land for allotment of sites to weaker members of the society and in that process, one site was allotted to 2nd defendant and two other sites were allotted to his two sisters. Thus they denied the plaintiffs’ possession and alleged interference by them.
4. The 3rd defendant (the BDA) also field written statement stating that by virtue of preliminary notification dated 16.11.1977 and final notification dated 30.08.1979, about 31 acres 02 guntas of land had been acquired for formation of Mahalakshmi (Nandini) Layout. It also denied that plaintiffs vendor Smt. Ratnamma owned any piece of land in the year 1981 so that she could sell the same to plaintiffs.
5. In O.S.No.6123/1991, the plaintiffs are the sisters of 2nd defendant in O.S.NO.261/1990. They pleaded that they were the members of Jayamaruthi Nagar Welfare Association, a society formed for upliftment of weaker sections of the society. The government acquired lands in Survey numbers 1, 14, 15, 16 and 19 of Jarakabande Kaval, Yeshwantapura Hobli for the purpose of extension of Mahalakshmi (Nandini) Layout. The other lands were gomal lands. In the sites formed in gomal lands, Jayamarutinagar Welfare Association distributed sites to more than 500 persons and they too were allottees of a site no.30 measuring 25’ x 60’ by virtue of allotment letter dated 12.04.1980. Soon after allotment, they constructed a shed, and in the year 1983, they raised a construction in a part of their site and thus they claimed to be in possession of site no.30. they stated further that they had to file a suit for injunction, O.S.No.262/1990, when three persons namely B.N.Lakkappa, A.N.Murthy and Venkatesh tried to interfere with their possession and obtained an order of temporary injunction also. On 03.10.1991, the defendants made an attempt to interfere with their possession. Since the police did not take any action, they brought the suit for injunction against the defendants who were plaintiffs in O.S.No.261/1990.
6. In the written statement, the defendants took almost pleas similar to their plaint in O.S.No.261/1990 and they also specifically pleaded that the measurement of each site formed in that was 25 x 30 ft. only and therefore a site measuring 25 x 60 ft. as claimed by the plaintiffs did not exist.
7. In both the suits, the issues that were framed required the respective plaintiffs to prove their lawful possession over the properties and interference by the defendants. For the purpose of trial, both the suits were clubbed. The 1st plaintiff in O.S.No.6123/1991 was examined as PW.1 who produced 14 documents Ex.P.1 to P.14. Chikkanna, who is the 1st plaintiff in O.S.No..621/1990 and defendant No.1 in O.S.No.6123/1991 adduced evidence as DW.1 besides examining another witness, Hanumantharayappa as DW.2. They got marked 9 documents as Ex.D.1 to D.9.
8. The trial court appreciated the evidence and came to conclusion that the plaintiffs in O.S.No.261/1990 failed to prove their possession over the property that they claimed to be in possession. It appears that these plaintiffs came up with a case that they were dispossessed of the sites bearing numbers 28 and 29 during pendency of the suit and that they failed to prove the same. Since they stated that PW.1 had encroached on their sites, the trial court held that suit for mere injunction was not maintainable. At the same time, with respect to O.S.No.6123/1991, the trial court held that the plaintiffs therein were able to prove their possession over site no.30. The trial court took into consideration the manner in which PW.1was cross examined and the pleas set up in the written statement filed in this suit. The trial court also found evidence being available with regard to interference by the defendants. And therefore, the trial court dismissed the suit O.S.No.261/1990 and decreed the suit O.S.No.6123/1991.
9. I have heard the arguments of the learned counsel for the appellants and the respondents in both the appeals and perused the entire evidence for the purpose of its re- appreciation.
10. If the documents produced by either side are seen, the plaintiffs in O.S.No.261/1990 have produced the two sale deeds marked as Ex.D.1 and Ex.D.2 to prove that they purchased their sites from Ratnamma, and these sale deeds were registered also. The plaintiffs in O.S.No.6123/1991 has produced a letter of allotment as per Ex.P.1 to show allotment of site no.30 to them by Jaimaruti Nagar Welfare Association. These are the main documents that can be considered. If these documents are seen, it can be said that even though Ex.D.1 and Ex.D.2 were registered instruments, the title of Ratnamma, the executor of these two sale deeds being the vendor arises for consideration especially in the background of a specific contention taken by the defendants that lands in certain survey numbers including Sy.No.16 being acquired by the BDA in the year 1979 itself. The BDA which was arraigned as defendant no.3 in O.S.No.261/1990 also very specifically pleaded about acquisition. The plaintiffs in the said suit might have got the suit dismissed against the BDA, but the fact of acquisition remains for consideration. If the tenor of cross examination of PW.1 is seen, suggestions have been given in such a way as admitting very clearly the acquisition proceedings. Added to this, there is another document marked Ex.P.12 which is a certified copy of judgment in O.S.No.262/1990, a suit filed by Jayamma, i.e., PW.1 against Smt. Shashikala, Ratnamma and B.N.Lakkappa. The 2nd defendant in this suit i.e., Ratnamma is non other than the vendors of the plaintiffs in O.S.No.261/1990. In O.S.No.262/1990, Jayamma pleaded about acquisition of land and allotment of a site to her by Jai Maruti Nagar Welfare Association. Ratnamma did not contest the said suit. Therefore the case of the plaintiffs in O.S.No.6123/1990 about acquisition of lands is probable to be accepted. If this was the state of affairs, the validity of sale deeds executed by Ratnamma in favour of plaintiffs in O.S.No.261/1990 becomes doubtful to infer their possession in respect of site no.28 and 29.
11. The plaintiffs in O.S.No.6123/1991, in order to establish their possession depend on a letter of allotment marked Ex.P.1. Though the said letter shows site no. 30, being allotted to them, there is no proof that after acquisition proceedings, certain number of sites were allotted to Jai Maruti Nagar Welfare Association for the purpose of distribution to its members. Therefore from Ex.P.1 alone, the lawful possession of plaintiffs in O.S.No.6123/1991cannot be inferred. But DW.1 i.e., the 1st plaintiff in O.S.No.261/1990, in examination in chief itself has stated that site no.30 belongs to Venkatesh i.e., the 2nd defendant in the said suit and that he is in possession of it. This Venkatesh is none other than the brother of plaintiffs in O.S.No.6123/1991 and has clearly stated that site no.30 measuring 25 x 65 ft. was allotted to him and his two sisters. Therefore mere possession of Venkatesh and sisters can be inferred. Added to him, DW.1 has stated in the examination-in-chief that Jayamma had encroached upon his property to an extent of 10 x 10 ft. Though he has stated that this encroachment was made in the year 1991, there is no proof for that, and nothing prevented DW.1 from proving that the encroachment was made after institution of the suit. DW.2 has very clearly stated in the cross examination that Jayamma put up a shed in the year 1990. Therefore it can be said that the plaintiffs in O.S.No.261/1990 might not have held possession of site bearing numbers 28 and 29, rather possession of the defendants in O.S.No.261/1990 and the plaintiffs in O.S.No.6123/1991 can be inferred and evidence in that regard is probable to be accepted.
12. Apart from this, the evidence given by PW.1 with regard to interference by the defendants in O.S.No.6123/1991is acceptable.
13. The learned counsel for appellants in both the appeals argued that the trial has drawn inferences without any proof. The findings of the trial court with regard to possession of plaintiffs in O.S.No.6123/1991 based on Ex.P.1 is erroneous. The learned counsel for respondents supported the findings of the trial court. The argument of the appellants’ counsel is difficult to be accepted in the light of above discussion. Therefore I conclude that both the appeals fail and they are dismissed. There is no order as to costs.
Sd/- JUDGE Sd/-