IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.432/2004 C/W R.F.A.Nos.433/2004, 434/2004, 627/2004, 628/2004 AND 629/2004 IN RFA No.432/2004:
BETWEEN:
SRI D N BHOOPALA REDDY S/O LATE NARYANA REDDY HINDU, MAJOR No.375, DOMLUR LAYOUT BANGALORE – 560 071. ...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST BANGALORE – 560 020.
REPRESENTED BY ITS COMMISSIONER …RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.3976/1999 ON THE FILE OF THE XXVII – ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.433/2004:
BETWEEN:
SRI D N GOPALAKRISHNA REDDY S/O LATE NARAYANA REDDY HINDU, MAJOR No.21, THIMMA REDDY COLONY T B NAGAR, BANGALORE – 560 075.
...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST, BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER.
…RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.3978/1999 ON THE FILE OF THE XXVII – ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.434/2004: BETWEEN:
SRI D N VENKATESHA REDDY S/O LATE NARAYANA REDDY HINDU, MAJOR No.377, DOMLUR LAYOUT BANGALORE -560 071. ...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST, BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER.
…RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.3977/1999 ON THE FILE OF THE XXVII – ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.627/2004:
BETWEEN:
M/S. KLASSIC HOLDING PVT. LTD., A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT No.54, LEVELLE ROAD, BANGALORE – 560 001. REPRESENTED BY ITS DIRECTOR SHRI ARUN AGARWAL.
...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST, BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER.
…RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.4367/1999 ON THE FILE OF THE XXVII – ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.628/2004:
BETWEEN:
M/S. KLASSIC HOLDING PVT. LTD., A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT No.54, LEVELLE ROAD, BANGALORE – 560 001. REPRESENTED BY ITS DIRECTOR SHRI ARUN AGARWAL. ...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST, BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER. …RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.4332/1999 ON THE FILE OF THE XXVII – ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
IN RFA No.629/2004:
BETWEEN:
M/S. KLASSIC HOLDING PVT. LTD., A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT No.54, LEVELLE ROAD, BANGALORE – 560 001. REPRESENTED BY ITS DIRECTOR SHRI ARUN AGARWAL. ...APPELLANT (BY SRI ROHAN, ADVOCATE M/S. CREST LAW PARTNERS) AND:
BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD, KUMARA PARK WEST, BANGALORE – 560 020. REPRESENTED BY ITS COMMISSIONER. …RESPONDENT (BY SMT.M R ROOPA, ADVOCATE - ABSENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2003 PASSED IN O.S.No.4366/1999, ON THE FILE OF THE XXVII–ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH-9) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THESE RFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These six Regular First Appeals are filed by the respective plaintiffs. The common respondent in all the appeals is – Bangalore Development Authority, Sankey Road, Kumara Park West, Bengaluru-20, represented by its Commissioner. The matters were disposed off by the trial Court separately. However, considering the claim and contentions between the respective plaintiffs in six original suits and the common defendant, it is just and proper to take up the matters together for common disposal and accordingly, they are taken up for disposal.
2. For the sake of convenience, the parties are addressed with reference to their original ranks and status as stood before the trial Court.
3. In order to avoid confusion, the tabular representation of regular first appeals with reference to original suits is very much necessary. The same is presented as under:
Sl.
No.
RFA No. OS No.
Date of disposal Relief claimed and the result 1. 432/2004 3976/1999 18-12-2003 Permanent injunction Suit dismissed with costs
4. The plaintiffs have sought the relief of permanent injunction in respect of their respective schedule property which came to be dismissed by the learned trial Judge.
5. The suit property in each of the suits are as under:
Sl.
No.
RFA No. OS No.
Date of disposal Suit schedule property and date of sale deed And name of the vendor 1. 432/2004 3976/1999 18-12-
2003 All that piece and parcel of middle portion in HASB Katha No.250/2,situated in Kodihalli Gramathana, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 40 feet and North to South 60 feet, bounded on East by: property sold in favour of D.N.Venkatesha Reddy; West by: property sold in favour of Sri. D. N. Gopalakrishna Reddy, North by: Road and South by: property belonging to Sri. D. Venkatesh and others. There is a construction on the aforesaid property built by plaintiff.
Sale deed dated 31-01-
1989 executed by D. Venkatesh, M. Narasimha Reddy and A. Venkatesh.
2. 433/2004 3978/1999 18-12-
2003 All that piece and parcel of western portion in HASB Katha No.250/2, situated in Kodihalli Gramathana, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 40 feet and North to South 60 feet, bounded on East by: property sold to D.N.Bhoopala Reddy; West by: Road, North by: Road and South by: property belonging to D. Venkatesh and others. There is construction on the aforesaid property built by plaintiff.
Sale deed dated 31-01- 1989 executed by D. Venkatesh, M. Narasimha Reddy, H.M.Devappa and A. Venkatesh.
3. 434/2004 3977/1999 18-12-
2003 All that piece and parcel of eastern portion in HASB, bearing Katha No. 250/2, situated in Kodihalli village, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 40 feet and North to South 60 feet, bounded on East by: property belonging to D.Venkatesh and others West by: Property sold to D.N.Bhoopala Reddy: North by : Road and South by: Property belonging to Sri.D.Venkatesh and others.
There is construction on the aforesaid property built by plaintiff.
Sale deed dated 03-01- 1989 executed by D.Venkatesh, M.Narasimha Reddy, H.M.Devappa and A.Venkatesh.
4. 627/2004 4367/1999 18-12-
2003 All that piece and parcel of immovable property bearing Katha No. 250/2, formed out of Sy.No.216, situated in Kodihalli village, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 60 feet and North to South 30 feet, bounded on East by: property belonging to Mr.
D.L.Nandagopala Reddy; West by: Private property: North by : road and South by Remaining property in khatha No.250/2 belonging to the seller.
There is a old building measuring 18x10 ft on the aforesaid property.
Sale deed dated 29-05- 1990 executed by D. Venkatesh and others.
5. 628/2004 4332/1999 18-12-
2003 All that piece and parcel of immovable property bearing Katha No. 250/1, formed out of Sy.No.216, situated in Kodihalli village, Kodihalli Gramathana, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 140 feet and North to South 50 feet, bounded on East by: property belonging to Mr. D.L.Nandagopala Reddy purchased by the purchasers; West by: BDA Road, North by : Plot No.2, Khatha 257/1, South by : Private Property.
There is a old building measuring 15x20 ft on the aforesaid property.
Sale deed dated 30-05- 1990 executed by D. Venkatesh Reddy and others.
6. 629/2004 4366/1999 18-12-
2003 All that piece and parcel of immovable property bearing Katha No.257/1, formed out of Sy.No.216, situated in Kodihalli Village, Varthur Hobli, H.A. Sanitary Board Area, Bangalore South Taluk, measuring East to West 140 feet and North to South 50 feet, bounded on East by: property belonging to D.N.Nandagopala Reddy purchased by the purchasers; West by: BDA Road, North by: plot No.1, Khatha No.258/1; South by: plot No.3 in khatha No.250/1.
There is a old building measuring 15x10 ft on the aforesaid property.
Sale deed dated 29-05- 1990 executed by D. N.Bhoopala Reddy and others 6. The defunct survey number or the schedule property is stated to be bearing No.216 of Kodihalli village. The measurement of the schedule property in each of the case is as reflected in table II above.
7. Insofar as the claim regarding acquiring of title is concerned, the plaintiff in each of the case claim to have purchased the respective schedule property from Sri. D.Venkatesh, M. Narasimhareddy and A. Venkatesh as mentioned above.
8. In all the schedules, the respective plaintiffs claim that there existed an old building. The plaintiffs also claim that earlier the tax was collected by HAL Sanitary Board Area Committee (hereinafter referred as HALSBAC). The plaintiffs have also claimed that the full fledged buildings have been constructed by them in their respective property, morefully mentioned in the schedule. The plaintiffs claim they have incurred huge expenditure for the construction of the respective buildings. There was an attempt to dispossess the plaintiffs by use of force and threat by the defendant and it was resisted by the plaintiffs. However, as the apprehension continues, the suits are stated to have been instituted.
9. Each of the plaintiffs in the said suits claim that the suit schedule property is totally different from BDA property which is stated to have been acquired. On the other hand, all the schedule properties of each of the plaintiff are situated in the property that was given back or reconveyed by the Bangalore Development Authority, under due intimation.
10. The defendant being common in all the suits denied the claim of the plaintiffs and maintainability of the suit is questioned by virtue of absence of notice under Section 64 of the Bangalore Development Act. Plaintiffs’ ownership over the lands in survey No.216 of Kodihalli village coming within the limits of HALSBAC are denied. The competency of HALBAC is denied. Thereafter, details regarding the land in survey No.216 of Kodihalli village is given. Totally, the property is in survey No.216 measuring 2 acres 38 guntas and it was acquired for the purpose of bringing up HAL II Stage Layout and award was passed after taking possession of the acquired property in survey No.216 and was handed over to the Engineering Section. Sites that were formed were allotted to the public. The defendant further claim, the vendors as stated by the plaintiffs had no right to convey the respective properties. Thus, none of the plaintiffs have derived ownership or possession over the schedule property from their vendors. Defendant further denies that the schedule properties in its form were reconveyed to the plaintiffs. The claim of plaintiffs that property was reconveyed as per the resolution 597 dated 5.7.1987 is denied. Thus, according to the defendant there was no right, title, interest and possession of the plaintiffs either jointly or severally over the respective suit schedule properties.
11. Considering the material assertion, proposition and denial, the learned trial Judge considered the aspects of lawful possession, interference, acquisition, entitlement of the plaintiffs for the relief claimed and on the basis of the oral and documentary evidence produced by the respective parties in their suits found the answers in the negative and dismissed the suits on 18.12.2003 by separate judgments which are challenged in the present Regular first Appeals.
12. At this stage, it is necessary to state that the matters are coming up before this court for the second time.
13. In the earlier round, RFA Nos. 433, 432, 434, 627,628 and 629 of 2004 were disposed of on 05-
09-2006 by this Court. The said appeals were allowed and the operative portion is as under:
“8. The alleged interference is also not disputed. In that view, the plaintiffs are entitled to the relief of permanent injunction as sought for. Accordingly, the impugned judgment and decrees are set aside. The appeals and suits are allowed.”
14. The defendant-Bangalore Development Authority being aggrieved of the judgment of this court preferred Civil Appeal Nos. 970 to 975/2009 before the Hon’ble Supreme Court of India, New Delhi. The Hon’ble Apex Court set aside the judgment and ordered for rehearing of the matter. In this connection paragraph Nos.4 to 7 of the judgment passed by the Hon’ble Supreme Court are as under:
“4. In these circumstances, we set aside the impugned judgment and remit the matters to the High Court so that the High Court, after hearing the learned counsel for the parties and after considering the present position of the land in question, can decide the matter afresh in accordance with law.
5. The parties shall appear before the High Court on 14th March 2016, so that the High Court can fix the date on which the matter can be finally disposed of.
6. The parties shall maintain status quo till the High Court passes any further order.
7. In view of the above, the civil appeals are disposed of as allowed. No order as to costs. Pending application, if any, stands disposed of.”
15. Heard learned counsel for appellants.
Learned counsel for respondent-Bangalore Development Authority was present. While the learned counsel for plaintiffs/appellants submitted his arguments, learned counsel for the defendant Smt. M.R.Roopa sought time stating that it is a huge matter and require perusal of several documents. The court reminded of the pendency of the matter for a long time and also reminded the observations by the Hon’ble Supreme Court of India, which is as under:
“The parties shall appear before the High Court on 14-03-2016 so that the High Court can fix the date on which the matter can be finally disposed of.”
16. The learned counsel for plaintiffs Sri Rohan would submit that the learned trial Judge completely ignored the fact of valid right, title and possession, derived by the plaintiffs under the registered sale deeds stated in the plaint.
17. Learned counsel would submit that it has been admitted case of the defendant-Bangalore Development Authority that 30 guntas of land was reconveyed as they consisted of structures. Thus, property of the plaintiffs are relocated in the 30 guntas of land that was reconveyed by the defendant - Bangalore Development Authority.
18. Learned counsel would submit that all the purchasers are the plaintiffs under the separate registered sale deeds as mentioned in Table above.
19. Learned counsel would submit that possession of the plaintiffs as on the date of the suit or as on the date of entering into possession was lawful and it continues to be lawful, unlawful interference is established and the trial Judge erred in dismissing the suits. It was submitted that the trial judge seriously erred in distinguishing between the portion of the land to the extent of 2 acres 02 guntas and 30 guntas separately. The vendors of the plaintiffs had acquired the title through Rukminiyamma and the vendors of the plaintiffs had acquired the title from her. In this connection, learned counsel drew my attention to the document marked as Ex.P27. It is necessary to reproduce the entire document marked as Ex.P27 which is as under:
R6/Sy 216/Kodihalli/87-88 office of the Special Deputy Commissioner, Bangalore Development Authority, Bangalore, dated:3-8-87.
INTIMATION Sub:- Reconveyance of 0-17 guntas Land in sy.No.216 of Kodihalli.
Ref:- Authority Resolution No.597 dt:3-7-87 - - - -
The Bangalore Development Authority in its meeting subject No.597 dt: 3-7-87 has resolved to accept the request of Smt.Rukminiyamma for Reconveyance of 0-17 guntas Land in Sy.No.216 of Kodihalli and Recommended to the Government for approval. This is for your information.
Sd/-
Special Deputy Commissioner, B.D.A., Bangalore.
To Smt.L.Rukminiyamma, C/O Sri.D.L.Nandagopala Reddy No.155, Domlur, Bangalore -560071.
20. On careful reading of the said document, the following points are amply clear:
There was a meeting in the office of the Special Deputy Commissioner, Bangalore Development Authority on 3-8-1987. It was in respect of the matter of reconveyance of 17 guntas of land in survey No.216 of Kodihalli village. The reference is made to Resolution No. 597 dated 3-7- 1987. It is communicated to the addressee Rukminiyamma that in the meeting dated 3.7.1987 vide subject No.597 it was resolved to accept the request of Rukminiyamma for reconveyance of 17 guntas of land in survey No.216 of Kodihalli village and recommended to the Government for approval.
21. In the totality of the circumstances, there is no dispute that there existed the land to the extent of 2 acres 30 guntas in survey No.216 of Kodihalli village and later the said land was acquired by the Government prior to 1964 and necessary legal formalities were complied with. It is the claim of the plaintiffs in all the case that the suit schedule properties purchased by them are totally different and distant from the land which was acquired. On the other hand, the suit schedule properties formed the total land that was delinked from acquisition and even Bangalore Development authority has reconveyed the same to Rukminiyamma who is stated to be source of title to the vendors of the plaintiffs.
22. It is in this connection, as per item No.597 of resolution dated 3.7.1987 intimation was given to the effect that 17 guntas of land was delinked and the matter was sent for approval of the Government and a communication was sent to Rukminiyamma.
23. Similarly, document Ex.P28 is in respect of another piece of land measuring 13 guntas. Thus it appears to be clear that 30 guntas of land was resolved to be reconveyed by the Bangalore Development Authority and handed over to Rukminiyamma and D.L.Nanda Gopala Reddy to the extent of 17 guntas and 13 guntas respectively.
24. The moot question in the circumstances would be, Whether each of the plaintiffs regarding the respective schedule properties in their cases acquired ownership and possession by virtue of the resolution marked as Exs.P27 and 28 and that their particular land never was the part of the acquisition proceedings?
25. It is necessary to place that the gist of the claim of plaintiffs is that portions of land purchased by the respective plaintiffs were excluded from the acquisition proceedings. As such the defendant is not entitled to interfere with their possession and enjoyment.
26. Learned counsel for plaintiffs relied on the following decisions:
(i) In the case of State of Karnataka vs. Gokula Education Foundation, Bangalore and others – 2005 SCC Online Karnataka 281;
(ii) In the case of Delhi Development Authority Vs. Reenasuri land others reported in (2016) 12 Supreme Court Cases 649 and (iii) In the case of Sri. Ashwatha and others Vs. State of Karnataka represented by its Principal Secretary, Revenue Department in Writ Petition Nos. 47524-47527/2015.
27. Now the material aspects that require to be considered in the case are:
(i) Survey number of the land in question is 216 at Kodihalli Village that was notified to be acquired for the formation of HAL II Stage Layout.
(ii) The total acquisition of land notified was 2 acres 32 guntas. However, plaintiffs claimed that out of said 2 acres 32 guntas of land 30 guntas were not acted upon rather they were reconveyed.
28. In this connection plaintiffs strongly relied on Ex.P.27- intimation under which reconveyance of 17 guntas is stated to have been made in favour of Rukminiyamma. Insofar as other portion of land is concerned it is stated to have been made in favour of D.L.Nandagopala Reddy with reference to 13 guntas of land under Ex.P-28. It is necessary to note that reconveyance was intimated to the owners of the land. However the matter was recommended to the Government for approval. On enquiry it was replied by the learned counsel for appellant that further documents or records or intimation are not forthcoming.
29. As stated above the material point for consideration in the case would be the total extent of land as shown in the notification included 30 guntas of land. The moment 2 acres 32 guntas was acquired it vested with the BDA. The sale deeds of the schedule property in respective cases in favour of each of the plaintiffs are as stated above. Much of the document and address in the case in question is to the entitlement of 30 guntas more over 17 guntas that was claimed to have been reconveyed in favour of Rukminiyamma under Ex.P-27.
30. It is claimed that Rukminiyamma bequeathed 2/3rd share to her sons D.N.Venkatesh Reddy, D.N.Gopalakrishna Reddy plaintiff in O.S.No.3978/99, D.N.Bhoopala Reddy through Will dated 10.03.88. It is very much significant to note that said Rukminiyamma reported dead on 16.10.1988 as such the said Will became enforceable.
31. It is necessary to mark that the sale deeds said to have been executed on 31.01.1989, 29.05.1990 and the date of death of Rukminiyamma is 16.10.88.
32. Normally in a suit for injunction the defendants on appearance in many of the cases deny the title of the plaintiffs over the schedule property. However where the denial is formal and unaccompanied by corroborating materials it may not be that material or a compelling necessity to seek for declaration. But when the denial is substantial depending on material documents and denials wherein crucial aspect relied to check out the status of the schedule property, its nature a full fledged adjudication shall put an end to all the controversies. Thus superficial pleadings or a similar adjudication may not serve the purpose. Whatever may be the extent of Sy.No.216 of Kodihalli Village or the entire HAL Layout the extent which is claimed in totality to have not been considered for acquisition is 30 guntas out of 2 acres 32 guntas of land in the said Sy.No.216. More particularly the right of Rukminiyamma is stated to be 17 guntas. Thus, the extent of the land for the said Rukminiyamma or the persons claiming under her does not exceed an inch beyond 17 guntas. In this connection perusal of Ex.P-27 and Ex.P-28 wherein particularly Ex.P-27 relates to intimation by BDA of reconveyance of 17 guntas of land in favour of Rukminiyamma and in the said connection the matter was sent for approval. Incidentally no further development in the said connection is placed before the court. Insofar as Ex.P-25 is concerned as per Ex.D-3 under which the entire land of 2 acres 32 guntas was taken into possession by BDA. Regard being had to the fact that it is claimed by the plaintiff that 30 guntas of land was bequeathed thereby freed from acquisition. At this juncture it is necessary to place on record that intimation was sent by BDA and not by the Government. However the matter was sent for approval of the Government by BDA. What the said phenomena suggest is that total extent of 2 acres 32 guntas was acquired by the Government for the formation of HAL II stage layout and possession was taken. Under Ex.P-27 Rukminiyamma under whom the vendor of the plaintiffs claim their right was intimated that reconveyance of 17 guntas was effected and the matter is sent for approval. Incidentally no whisper of any kind is made either in writing or orally regarding the status of the matter for approval. This process assumes significance when Ex.D-3 –Mahazar is considered because the possession was taken over by the BDA under said Mahazar and if it was 30 guntas of land and 17 guntas in favour of Rukminiyamma or persons claiming under her was not specifically delivered at any point of time. Thus, when once a statutory body has taken possession of the property then, if a person claims that he is in possession of the same has to explain 10 out of 10 times to the effect that when he got the possession back from such authority with reference two aspects corpus possidendi and animus possidendi.
33. First one refers to the object of possession and second one mental element of entitlement for the same. It is not mere fact of possession of the property that makes it lawful. More particularly at the stage when he entered possession it should be lawful. Even relaxing the principles to certain extent where entry may not be lawful but subsequent event legally recognizes or circumstances even can make possession lawful.
However it is for the person claiming possessory relief has to satisfy the court that possession is lawful. Again when the matter is in context between statutory body whose duty is to ensure the full proof formation of layout, allotment to beneficiaries in an exceptionally transparent manner. The plaintiffs claim that sale deeds were executed by three brothers. The sale deeds said to have been executed in the manner morefully mentioned above.
34. The date of sale deeds in each of the case is also shown above. All are during the year 1989 and 1990. In this connection important aspect that has to be considered is date of execution of power of attorney by Rukminiyamma in favour of her sons. Rukminiyamma died on 16.08.1988. Copy of the power of attorney is not produced by the plaintiff in any of the case. Even then date of execution of sale deeds is 1989 onwards. In this connection though it appears to be complicated the lapse has to be considered in a cooler manner because of the following:
(1) date of execution of power of attorney under which Rukminiyamma said to have given power to her sons to deal with or to sell the schedule property.
(2) She died on 16.10.88.
(3) Date of sale deeds in favour of the plaintiffs by the power of attorney holders which invariably is after the death of the executant of the power of attorney.
35. Meanwhile it is necessary to mention that she had executed a Will bequeathing the schedule property in favour of three brothers and the said Will is dated 10.03.88 and she died on 16.10.88 i.e., seven months six days subsequent to the Will in which date the Will is stated to have come into force wherein legatees acquired right, title, interest in terms of the Will. But crucial factor is sale deeds are executed by said brothers not as the owners, but they have executed sale deeds as power of attorney holders of Rukminiyamma.
36. It is necessary to make out a serious difference between the title of the schedule and position of the sellers. When a seller executes a sale deed he has do it in a legal capacity. For example when an owner of the property executes the sale deed on behalf of a person who is not in existence that sale deed, is as good as a no document or not in existence. Executants have acquired title and forgotten that they have executed sale deed claiming that they are the power of attorney holders of Rukminiyamma. In this connection Sections 201, 202 and 203 of Indian Contract Act, 1872 are to be taken note. It is to be noted that the principles of agency are as under:
“Whatever a person can do by himself he can do through another. He who does an act by another does it for himself.”
37. Here sale deeds that were executed by vendors in favour of the plaintiffs are not in the capacity of owners but on behalf of earlier owner Rukminiyamma may be their mother but the vendors became owners but the person whom they are representing as owner no doubt not present on the planet.
38. In this connection Ex.P-25-Sketch has to be looked into. The crucial question would be the issuance of plan by an authority or approval of plan for construction of building, possession certificate or other documents issued by an authority or a person does not become perfect by virtue of the very issuance of those documents. On the other hand it is enabling factor of competence. In this connection tax paid receipts the Panchayat or electricity bill or telephone bills would reflect that a particular property is in question and is accommodated with electricity, telephone connection and particular authority or body has issued a plan or demand extract but the very question is or would be who is competent authority and the authority that has issued the documents or another authority which has control over the same. In the circumstances the documents regarding construction of the house or permission to stay or occupy the house in that direction is not issued by competent authority/were exclusively authorized to issue such documents. The documents marked as exhibits in favour of the plaintiffs may show that the respective super structures may be present but no valid possession either at the time of commencement or a subsequent occasion.
39. Further in the matter there is no representation and authorized sketch showing the properties of the plaintiffs with reference to acquired land and reconveyed land. As I have stated above, it is undisputed that all the plaintiffs are claiming under Rukminiyamma. In the sense, she is the vendor of the property, however, through Power of Attorney Holders. The inconsistency here as already mentioned when Ex.P27 is perused (the contents are extracted above) it is a communication/intimation about the resolution dated 3.7.1987 from the office of the Deputy Commissioner, dated 3.8.1987 and copy of the same is addressed to Rukminiyamma.
40. The Deputy Commissioner writes that in the meeting dated 3.7.1987 the matter relating to her file was placed as item No.597 and a resolution was passed to accept the request of Rukminiyamma for reconveyance of 17 guntas of land in survey No.216 of Kodihalli village and the same is recommended to the Government for approval. This exhibit has to be read in letter and spirit. The said document is a communication from BDA to vendor of the plaintiffs (in other words plaintiffs) that 17 guntas of land in survey No.216 was approved to be reconveyed and the same is sent for approval to the Government. One cannot loose sight of the fact and also the position of law that the lands are acquired by the Government for HAL II Stage to a huge extent and out of which 2 acres 32 guntas in survey No.216 of Kodihalli village by virtue of certain structure being found and at request of certain persons file was processed. But what is conveyed under Ex.P27 is some what not a complete one. Here, the Deputy Commissioner says resolution was passed by BDA it cannot be assumed as it is a complete process and matter was still in process and it was to the Government for approval. However what has happened at the Government level as to whether approval was given or not is not forthcoming. More particularly, so far as there are no documents or material as stated above regarding redelivery of possession by BDA. Because, under Ex.D3 Mahazar, the possession was taken to the entire extent of 2 acres 32 guntas.
41. Learned counsel for plaintiffs would submit that total measurement is East-West 176 feet and North-South 158 feet were covered by structure. The measurement of the said property covered by super structure is 25.54 guntas. 27808 sq.ft. In other words 25.54 guntas. This is referred as Pukka building not as Mangalore tiled house or small house. Thus 30 guntas left over and covered by super structure does not correlate.
42. Next important point is, what was the total extent of land that was bequeathed in favour of Rukminiyamma. It is narrated how sale deeds came to be executed on behalf of a dead person. Secondly, it is stated in Ex.P1 in O.S.No.3976/99 wherein Rukminiyamma acquired the property from her father through testamentary succession under the Will dated 25.06.1956 wherein it is mentioned as 2/3rd share to Rukminiyamma. Incidentally, the extent of total land is missing. Without mentioning the total extent of 2/3rd share is bequeathed to Rukminiyamma it does not make sense. Regard being had to the fact that 2.32 guntas was acquired and the plaintiffs find 30 guntas of left out. They claim small houses existed in all the sites which are six in numbers. On the other hand, in the mahazar, it is stated that no structure existed in the extent of land measuring 176 x 158 = 27808 = 25.54 guntas. Thus, majority of the purchase, neither the title tallies nor the possession nor the measurement.
43. Insofar as the sale deeds in all the six cases in favour of the plaintiffs are as stated above.
44. Rukminiyamma claims that 17 guntas was reconveyed subject to major discrepancy as stated above.
45. The measurement of each of the sites is:40x60, 40x60, 140x50, 60x30, 140x50, 40x60 totally 23,000 sq.ft. at HAL II Stage which is called now, the erstwhile Kodihalli. 17 guntas of land subject to discrepancy stated above. It is necessary to mention One gunta – 1089 sq.ft. and 17 guntas = 17 x 1089=18,513.
46. Out of 23,000 if 18,513 is deducted, the remaining would be 4,487. Thus the total amount of sales made by the vendor of the plaintiffs is 23000 sq.ft. as stated above and the entitlement claimed by the plaintiffs are 17 guntas. It is a natural phenomena that 17 guntas of land would not give the utility of entire measurement when the houses are constructed. It is a question of common sense. Thus, it should be substantially deducted from the total extent of 18513. Even if it is taken in a whole figure at 18513 sq.ft. and compared to total measurement which are sold and the sale deeds produced by the plaintiffs as stated above, the additional works out to 4487 sq. ft. This is not a decimal difference. It is massive abuse of limited right where the abuse is beyond the absolute right.
47. Under such circumstances, it is a simple phenomena “Nemo Dat Quod Non Habet” which means `No one can convey better than what he has.’ It is strange and surprising that the vendors have played a very clever act in executing the sale deeds.
48. It also has to be considered that sale deeds produced by the plaintiffs as stated above are hit and infected by two aspects. One is, vendor is represented by Power of Attorney Holders. More particularly, the vendor was dead on the date of execution of sale deeds.
Another one is, executants personally had the ownership but sale deeds were not personally executed. Then the majority discrepancy and illegality is in mentioning the measurement and the extent. As I have stated above, in a suit for injunction, there are views that when the right is denied, mere suit for permanent injunction would not be sufficient but declaration of title is also necessary.
49. It is to be noted that just for the reasons the defendants filed written statement and denied the title, plaintiffs cannot be driven for filing a suit for declaration of title. Denial must be substantively supported by documents and corroborative circumstances. Here the denial is substantially supported by documents on both law and fact. In this connection, the possession of the property is not established that it was in lawful manner. The claim regarding the extent as a whole measurement of super structure/pukka building measuring 176 x 158 does not convey meaning.
50. Bifurcation of 17 guntas and 13 guntas again is discrepancy in addition to inconsistency and substantial difference when the state of affairs are considered. Again, the representation of the vendor is clouded by the very fact of her death. In a legal assumption this cannot be apt and it could be observed that a Power of Attorney Holder has represented the owner of the property and on the date of sale deed if the principal is dead, the agency automatically gets revoked. In this connection, learned counsel submitted that it would be irrevokable agency. But when once the principal dies agency comes to an end.
51. Another circumstance is, the present cases are the one considering the pleadings of the plaintiffs, contentions of the defendant, documents produced, the manner of claim, the nature of relationship, attendant circumstances and the related mandates the suits invariably should have been for declaration of title.
52. It could be seen that the land once acquired, mahazar drawn, compensation was awarded, it vested with the government.
53. The suits for permanent injunction fell under embargo. Suit for permanent injuction thus was not maintainable. Insofar as the plaintiffs claim that reconveyance is made, it is necessary to observe, reconveyance is a process which is proposed by BDA and approval is necessary from the Government.
54. Thus, all the file is to be put up in pursuance of the resolution as reflected in Ex.P27. It is also necessary to note that reconveyance deed is not effected after the approval by the Government. It is as good as no reconveyance. Here it is six sale deeds and total extent is 23,000 Sq. ft. and claim of reconveyance by owner is 17 guntas (18,513) and additional claim is 4,487. It is a clear case of intentional misrepresentation by the vendor of the plaintiffs.
55. Thus, in the over all context and circumstances, I find learned trial Judge has assigned sound and valid reasons and has come to a right finding in dismissing all the six suits.
56. All the appeals were allowed by this court earlier on 05-09-2006. However, as the matters were remanded by Hon’ble Apex Court as per order dated 9.2.2016 passed in Civil Appeal Nos. 970-975/2009 wherein, the following observations were made:
“4. In these circumstances, we set aside the impugned judgment and remit the matters to the High Court so that the High Court, after hearing the learned counsel for the parties and after considering the present position of the land in question, can decide the matter afresh in accordance with law.
5. The parties shall appear before the High Court on 14th March 2016 so that the High Court can fix the date on which the matters can be finally disposed of.
6. The parties shall maintain status quo till the High court passes any further order.
57. I find on reconsideration of the facts involved, attendant circumstances, pleadings, contentions, documents, judgment and decree passed by the learned trial Judge is away from defects, errors, infirmities or irregularities. I have no hesitation in concurring with the said judgments and they deserve to be confirmed.
In the result, all the appeals filed by the appellants in RFA Nos.432, 433, 434, 627, 628 and 629 of 2004 are rejected.
The judgment and decree dated 18.12.2003 passed by the trial Judge in O.S.Nos.3976/1999, 3977/1999, 4366/1999, 4332/1999, 4367/1999, 3978/1999 are confirmed. No costs.
Sd/- JUDGE tsn*/SBN