R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH R.F.A. NO.1006/2007 C/W R.F.A. NO.844/2007 IN R.F.A. NO.1006/2007 BETWEEN:
SRI. N. KRISHNAMURTHY SON OF LATE N.N. NAGAPPA AGED ABOUT 46 YEARS RESIDING AT NO.37, (401/37) 10TH CROSS S.P. EXTENTION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003. ... APPELLANT (BY SRI. S. CHANNARAYA REDDY, ADV.) AND:
1. THE CORPORATION OF CITY OF BENGALURU REPRESENTED BY ITS COMMISSIONER N.R. SQUARE BENGALURU-560 001.
2. SRI. H. HEMACHANDRA SON OF LATE A.V. HEME GOWDA AGED ABOUT 56 YEARS 3. SMT. D.K. SAVITHRAMMA DAUGHTER OF LATE A.V. HEME GOWDA AGED MAJOR.
4. H. JAYAPRAKASH SON OF LATE A.V. HEME GOWDA AGED MAJOR 5. H. SHYAMAPRASAD SON OF LATE A.V. HEME GOWDA AGED MAJOR 6. H. SIRDHAR SON OF LATE A.V. HEME GOWDA AGED MAJOR 7. N. LATHA SON OF LATE A.V. HEME GOWDA AGED MAJOR 8. H. SHOBHA SON OF LATE A.V. HEME GOWDA AGED MAJOR ALL ARE RESIDING AT NO.38 9TH CROSS, S.P. EXTENSION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003.
9. SRI. M. NARASIMHA @ NARASIMHAIAH DEAD REP. BY HIS LRS.
9A. SMT. NAGARATHNA WIFE OF LATE M. NARASIMHAIAH AGED ABOUT 51 YEARS 9B. SRI. GOPAL SON OF LATE M. NARASIMHAIAH AGED ABOUT 32 YEARS 9C. SMT. VIJAYA KUMARI DAUGHTER OF LATE M. NARASIMHAIAH AGED ABOUT 29 YEARS 9D. SRI. MURALIDHAR SON OF LATE M. NARAISIMHAIAH AGED ABOUT 28 YEARS.
ALL ARE RESIDING AT NO.97, NEW NO.61 2ND MAIN ROAD RAJAMAHAL GUTTAHALLI BENGALURU-560 003. ... RESPONDENTS (BY SRI. H.S. DWARAKANATH, ADV. AND SRI. AJIT KALYAN, ADV. FOR CAVEATOR 2,3-8 SMT. VIMALA V., ADV. FOR R9) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2007 PASSED IN O.S.NO.1130/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH.12) DISMISSING THE SUIT FOR DECLARATION.
IN R.F.A. NO.844 /2007 BETWEEN:
1. SRI. H. HEMACHANDRA SON OF LATE SHRI. A.V. HEME GOWDA AGED ABOUT 55 YEARS 2. SMT. D.K. SAVITHRAMMA DEAD L.Rs. ALREADY ON RECORD CAUSE TITLE AMENDED VIDE ORDER DATED 19.06.2013 3. H. JAYAPRAKASH SON OF LATE A.V. HEME GOWDA AGED MAJOR 4. H. SHYAMAPRASAD SON OF LATE A.V. HEME GOWDA AGED MAJOR 5. H. SIRDHAR SON OF LATE A.V. HEME GOWDA AGED MAJOR 6. N. LATHA SON OF LATE A.V. HEME GOWDA AGED MAJOR 7. H. SHOBHA SON OF LATE A.V. HEME GOWDA AGED MAJOR ALL ARE RESIDING AT NO.38 9TH CROSS, S.P. EXTENSION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003. ... APPELLANTS (BY SRI. H.S. DWARAKANATH, ADV. AND SRI. AJITH KALYAN, ADV.) AND:
1. SRI. M. NARASIMHA @ NARASIMHAIAH DEAD REP. BY HIS LRS.
1(A). SMT. NAGARATHNA WIFE OF LATE M. NARASIMHA AGED ABOUT 51 YEARS 1(B). SRI. GOPAL SON OF LATE M. NARASIMHA AGED ABOUT 32 YEARS 1(C). SMT. VIJAYA KUMARI DAUGHTER OF LATE M. NARASIMHA AGED ABOUT 29 YEARS 1(D). SRI. MURALIDHAR SON OF LATE M. NARAISIMHA AGED ABOUT 29 YEARS.
ALL ARE RESIDING AT NO.97, NEW NO.61 2ND MAIN ROAD RAJAMAHAL GUTTAHALLI BENGALURU-560 003.
2. SRI. N. KRISHNAMURTHY SON OF LATE SHRI. N.N. NAGAPPA MAJOR RESIDING AT NO.37, (401/37) 10TH CROSS S.P. EXTENTION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003.
3. THE CORPORATION OF CITY OF BENGALURU REPRESENTED BY ITS COMMISSIONER N.R. SQUARE BENGALURU-560 001. ... RESPONDENTS (BY SRI. S. CHANNARAYA REDDY, ADV. FOR R2 SRI. S.N. PRASHANTH CHANDRA, ADV. FOR R3 RESPONDENTS 1(A) TO 1(D) ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2007 PASSED IN O.S.NO.1130/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH.9) DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION, IN SO FAR AS THE DIRECTION THAT CORPORATION SHOULD TAKE APPROPRIATE ACTION IN ACCORDANCE WITH LAW TO PROTECT THE SUIT PROPERTY AS PUBLIC PROPERTY FOR THE PURPOSE OF PUBLIC.
THESE APPEALS COMING ON FOR FINAL HEARING AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals are filed by the plaintiff and defendant Nos.2 to 8 challenging the judgment and decree of the trial Court dismissing the suit and directing the first defendant to take appropriate action vide judgment dated 15.02.2007 passed in O.S.No.1130/1998 on the file of City Civil Court (CCH-12), Bengaluru.
2. The parties are referred in the original rank in order to avoid confusion.
3. Brief facts of the case.
The subject matter involved in dispute in the suit is property bearing No.400/38, 10th Cross, Swimming Pool Extension, Sudheendranagar, Malleswaram, Bangalore-560 003, measuring East to West 30 feet and North to South 35 feet which consisted of a dwelling room in an area of 6’ x 8’ which is morefully described in the schedule to the suit.
4. The case of the plaintiff in the suit is that originally, the suit schedule property was purchased by the father of the plaintiff No.1 Late Sri Muniveerappa in the year 1984 under a Registered Sale Deed dated 20.10.1948 from Sri Chikkanna in terms of Exhibit P.1. The plaintiff No.1 is the only legal representative of late Muniveerappa who died on 02.04.1980 leaving behind the plaintiff and Muniveerappa’s wife Smt. Rajamma who also died on 03.08.1991. Sri. Muniveerappa died intestate and the suit schedule property was his self acquired property. Thus the plaintiff No.1 succeeded to the estate of deceased Muniveerappa.
5. Plaintiff No.2 is the General Power of Attorney Holder of Plaintiff No.1 who is in charge of the suit schedule property and hence he has been arrayed as Plaintiff No.2. Plaintiff No.1 had constructed the room in the suit schedule property at his cost. He had been continued in possession and enjoyment of the suit schedule property. At no point of time, the defendants were in possession of the suit schedule property and they have no manner of right, title and interest over the suit schedule property.
6. The father of plaintiff No.1 Sri Muniveerappa had sold several sites out of his property purchased under the sale deed in the year 1948 and he had retained the suit schedule property for himself. To evidence this, the plaintiffs have produced a copy of Agreement of sale dated 08.08.1955 by which late Sri. Muniveerappa had agreed to sell away the suit schedule property in favour of the late Sri. N.N.Nagappa the father of plaintiff No.2. Unfortunately, late Muniveerappa could not execute the sale deed in favour of father of plaintiff No.2 even though he had received the entire sale consideration. It is contended that as could be seen from the boundary mentioned in the said agreement of sale, boundaries of suit schedule property and the boundaries of the property mentioned in the sale agreement are one and the same.
7. Plaintiff No.2 has purchased the schedule property for valuable consideration under a registered sale deed dated 15.05.2002 which was supplemented by a rectification deed dated 26.07.2002. The power of attorney executed in favour of plaintiff No.2 on 21.01.1997 was registered. The suit schedule property was situate in Jodi Ranganathapura village, Malleswaram. Subsequently the said village is named as Swimming Pool Extension.
Sy.No.6 was in Kasaba Hobli. Jodi Ranganathapura was part of Bengaluru North Taluk. There were several litigation between the Corporation of City of Bengaluru and the site owners of Jodi Ranganathapura village in the Civil Court as well as before the High Court of Karnataka. Under the circumstances, the Corporation of City of Bengaluru was reluctant to issue Khata in favour of the site holders of Jodi Ranganathapura village. At one point of time, the Corporation of City of Bengaluru claimed that the sites in Jodi Ranganathapura village belong to the Corporation of City of Bengaluru itself. The Corporation cancelled the Khatha of several site owners alleging that they were unauthorized occupants. Subsequently the Government of Karnataka accorded sanction to the Corporation to grant ownership to the person who have constructed the building on payment of land costs. In this regard, the Estate Officer of the Corporation of City of Bengaluru reported that several persons were unauthorized occupants of the sites in Jodi Ranganathapura village.
8. Under the circumstances, the father of the plaintiff No.1 could not get khata transferred to his name in respect of the schedule property. Plaintiff No.1 has applied for change of Khata on 03.02.1997. Having received the application, acknowledgment was issued. Defendant No.1 called for production of certain documents and the plaintiff No.1 furnished the same to the Corporation of the city of Bengaluru. In spite of production of such documents, the Corporation is reluctant to issue Khata in favour of plaintiff No.1.
9. It is contended that Late Sri Muniveerappa was the Ex-Corporator of the Corporation of City of Bengaluru nearly for ten years. The Plaintiffs have produced a hand sketch correctly locating the suit Schedule property that the same belongs to plaintiff No.1. It is contended that it appears late Sri. A.V. Hemegowda had filed O.S.No.10548/1993 against the Corporation of City of Bengaluru for restoration of Khata of the property mentioned in the schedule to the said suit claiming ownership of premises bearing No.30, measuring 90’ East to West and 35’ North to South. It is contended that scrupulously the said A.V.Hemegowda had included the suit schedule property belonging to plaintiff No.1 herein also as the property belonging to A.V.Hemegowda. Plaintiff No.1 or any of his family members were not parties to the said suit. Recently, the plaintiffs have come to know about the filing of the said suit. In the said suit, the Corporation of City of Bengaluru had filed Written Statement on 30.05.1984 denying title of Late A.V. Hemegowda, to the said extent of 35’ x 90’. During the pendency of the suit, Sri A.V. Hemegowda passed away and defendants No.2 to 8 herein were brought on record. The said suit came to be dismissed as withdrawn on 7.7.1994. Thus, defendants No.2 to 8 have failed to establish their title to the said extent of 35’ x 90’ of the property.
10. It is contended by the plaintiff that the property described as PQRS in the sketch produced by the plaintiffs is the property of plaintiff No.1. Property No.2 in the said sketch is the property of the defendants 2 to 8. While claiming Khata, defendants No.2 to 8 had included the property of the plaintiffs also. In spite of objections raised by the plaintiffs before the Corporation of City of Bengaluru, the Corporation has issued Khata to the entire extent of 35 x 90’. Defendant No.1 was totally debarred from issuing khata in favour of defendant No.2 in respect of an extent of 35’ x 90’ which is clearly illegal. It is contended that Defendant Nos.2 to 8 has colluded with defendant No.1 who have obtained the sanctioned plan for the purpose of construction in favour of Defendant No.2 to the extent of 35’ x 90’ which includes the suit schedule property. Hence, the plaintiffs have filed the present suit for necessary reliefs.
11. It is contended that defendant No.2 also filed W.P.No.28830/1996 and the same was disposed of on 02.06.1997 by this Court without passing any order on the rights of the parties. Plaintiff No.1 also filed application for revocation of Khata made in favour of the defendant No.2. Defendant No.1 has not taken any steps to revoke the khatha. Hence, sought the prayer to declare that the khatha issued in favour of defendant Nos.2 to 8 by defendant No.1 is illegal null and void and also the sketch measuring 35’ X 90’ in favour of the defendant. Plaintiff also sought for relief of direction against defendant No.1 to issue khatha in favour of plaintiff No.1 and also sought for permanent injunction restraining defendant Nos.2 to 8 not to interfere with the suit schedule property.
12. In pursuance of the suit summons defendant Nos.2 to 8 have filed the written statement contending that the suit is not maintainable on the ground of misjoinder of cause of action and parties. Both the first and second plaintiffs have mentioned the different addresses and the relief sought in the suit are two declarations. The first declaration sought is that khatha issued by first defendant in favour of second defendant to the extent of 35’ X 90’ shown in the sketch is illegal, null and void. The second declaration sought is that sanctioned plan of the first defendant in favour of the second defendant shown in the hand sketch is null and void. The third direction is to issue khatha in favour of the plaintiff and fourth relief is for the relief of injunction.
13. The property described in the suit schedule bearing No.400/38 and the dimension given east to west 30 feet and north to south 35 feet. It is added before demolition there was a room with asbestos sheet measuring 6’ X 8’. The description mentioned in the suit schedule property is not in existence and the relief sought in the suit cannot be granted. It is clearly a case of misjoinder of parties and cause of action. The plaintiff should have filed two separate suits and should have sought reliefs in the suit separately. The only common thing for the plaintiffs in coming together against these defendants in regard to the property in the absolute ownership, physical possession and enjoyment of these defendants is the enemity and hatred towards A.V.Hemae gowda. These defendants are the heirs of said Hamegowda. The plaintiff does not disclose as to how the plaintiffs are entitled to maintain one single suit against the defendants. That ground alone, the suit is liable to be dismissed.
14. The defendants, in the written statement, have also denied the entire averments made in para Nos.1 to 20. It is contended that there is no property at all in existence as is described in the suit schedule and hence, prayed the Court to dismiss the suit as not maintainable. It is also contended that suit is bad for misjoinder of parties and there is no any cause of action. The second plaintiff dragged the first plaintiff into the suit though the first plaintiff had nothing to do with the said property. The second plaintiff has no locus standi to maintain the above suit and the very suit is wholly misconceived and not maintainable.
15. The defendants 2 to 8 have also filed additional written statement contending that defendants’ father had got title to the suit property under three sale deeds dated 20.2.1949, 13.12.1950 and 9.9.1954. As such, on the death of the father of defendant Nos.2 to 8, defendants 2 to 8 are the absolute owners of the entire property as described in item Nos.1 and 2 of the sketch produced by the plaintiffs.
16. It is further contended that in the very sale deed of Muniveerappa executed in favour of father of defendants Nos.2 to 8, he has categorically stated that to the east there is a road and to the west Hemegowda’s property. In that view of the matter, it is impermissible for the present plaintiffs claiming under very Muniveerappa to state that they have any property to the east of the defendants’ property.
17. The other contention is that the transfer of title by the first plaintiff in favour of the second plaintiff during the pendency of the suit which did not belong to him, cannot affect the rights of the defendants.
18. The reliefs prayed in the plaint cannot be granted as reliefs which expressly or impliedly barred by the provisions of the Karnataka Municipal Corporation Act and in view of deletion of the prayer for declaration of title, when clearly cloud was thrown on title on the very averments of the plaintiff, the present suit is not maintainable.
19. It is also contended that suit is also barred under the provisions of Sections 34 and 41 of the Specific Relief Act. Even the plaintiff has not pleaded lawful possession and that he is not in possession and that defendants 2 to 8 are in lawful possession. The suit without asking for declaration of title is not maintainable.
20. The first defendant-Corporation did not choose to file any written statement before the trial Court.
21. Based on the pleadings of the parties, the Court below has framed the following issues:
“1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property on the date of the suit?
2. If so, whether they further prove unlawful interference by the defendants 2 to 8?
3. Whether the plaintiffs prove that the katha certificate issued by the 1st defendant in favour of the 2nd defendant to an extent of 35’ x 90’ shown in the sketch is illegal?
4. Whether the plaintiffs prove that the plan sanctioned by the 1st defendant in favour of the 2nd defendant in respect of an extent of 35’ x 90’ as shown in the sketch is illegal?
5. Whether the plaintiff is entitled to a declaratory decree as sought for?
6. Whether the plaintiff is entitled to a decree of permanent and mandatory injunctions as sought for?”
22. In order to prove the case of the plaintiffs, the second plaintiff got examined himself as P.W.1 and got marked the documents Ex.P1 to P33. On the other hand, second defendant has examined himself as D.W.1 and got marked Exs.D1 to D42. The Court below, after having considered the evidence and documents, dismissed the suit of the plaintiffs and further directed the first defendant to take appropriate action, in accordance with law, to protect the suit property as public property for the purpose of the public. Being aggrieved by the judgment of the trial Court, the second plaintiff has filed RFA No.1006/2007 before this Court.
23. In the appeal memorandum it is contended that the Court below has committed an error in not appreciating both oral and documentary evidence. The Corporation has not filed any written statement and also not contested the case and in spite of it, the Court below dismissed the suit and given directions in favour of the Corporation, which is wholly illegal and liable to be set aside.
24. It is further contended that there was no issue in the suit as to whether the property in question is a public property, more so, no documents were produced before the trial Court regarding title of the Corporation in respect of the suit schedule property. Merely because a request letter was made to the Corporation to allot adjacent pieces of property that by itself will not amount to establishing title of the Corporation to the suit schedule property. The learned trial Judge misdirected himself in going into the question as to whether the suit schedule property is a public property.
25. It is further contended that if the suit schedule property were to be the public property, there was no question of transferring the khata in the name of the defendant Nos.2 to 8 whose claim is based on three sale deeds virtually claiming that the suit schedule property is a private property. Hence, the approach of the Court below to the facts and circumstances of the case is erroneous and hence, the very judgment and decree is liable to be set aside. The Court below has not at all appreciated the documentary evidence produced by the plaintiffs, which establish the absolute ownership of plaintiff No.2 over the suit schedule property and also lawful possession thereof, and in spite of that has mechanically passed the judgment and decree without application of mind.
26. It is further contended that the trial Court having held that the suit schedule property does not belong to defendant Nos.2 to 8 and in view of voluminous documents to establish possession of plaintiff No.2 to the suit schedule property, the lower Court ought to have granted permanent injunction in favour of the plaintiffs against defendant Nos.2 to 8 and the same has not been done and as such, committed an error in appreciating both oral and documentary evidence in a proper perspective. Accordingly, prayed this Court to set aside the judgment and decree and to allow the appeal.
27. The appellant has also filed an application under Order XLI Rule 27(aa) and (b) r/w 151 of Civil Procedure Code praying this Court to permit plaintiff No.2 to produce additional documents i.e., original electricity bills in respect of the suit schedule property (25 in number), original electricity paid receipts (27 in number) and certificate issued by BESCOM for providing electricity supply to the suit schedule property and photographs showing the possession of the plaintiff No.2 and tax paid receipts pertaining to the suit schedule property (11 in number).
28. In support of this contention, an affidavit is sworn to by the appellant/plaintiff No.2 that the suit schedule property is in his possession and he has let out the same for parking purpose to about 7 tenants and also obtained the electricity connection and for want of proper knowledge and non availability documents, he could not produce the documents before the Court below. It is further sworn to that in order to decide the issue with regard to possession, the documents produced by him along with the application are necessary and since some of the documents could not be produced before the Court below and they are obtained recently, these documents are necessary to decide the issue involved between the parties and hence, prayed this Court to permit the appellant/plaintiff No.2 to produce those documents.
29. The defendant Nos.2 to 8 have also filed an appeal in RFA No.844/2007 being aggrieved by the judgment of the trial Court contending that very direction given by the Court below against the defendant No.1 is erroneous. It is contended that the Court below has committed an error in coming to the conclusion that suit schedule property is a public property. No such enquiry is held and none of the parties were aware that such question was involved in the suit and there was no any issue in the said suit regarding the said aspect and in spite of it, the impugned judgment was passed.
30. The trial Court has erred in not considering the case of the appellants/defendants 2 to 8 that the property belongs to them inspite of producing various documents in that regard and it has committed an error in coming to the conclusion that it is a public property.
31. It is further contended that the trial Court erred in not noting that the Corporation itself has not claimed the property as belonging to the Corporation and such a finding that it is a public property is without any basis. There was no material whatsoever for the Court to come to the conclusion that property belongs to the Corporation and submission made in the light of the letters addressed by respondent Nos.1 and 2 to respondent No.3 stating that the property belong to Corporation would not make it the property of the Corporation. Hence, the judgment of the trial Court is liable to be set aside.
32. The trial Court erred in holding at page No.32 of the judgment that the measurements as per the sale deeds of the defendants is 30’x65’ while in reality it is 35’x73’ and the very judgment of the trial Court is otherwise opposed to law and facts of the case and hence it requires interference by this Court and the same is liable to be set aside.
33. The learned counsel appearing for appellant in MFA No.1006/2007 in his argument, he vehemently contended that the plaintiffs have filed the suit seeking for the relief of declaration to declare that the katha made in favour of defendant Nos.2 to 8 by the Corporation and also the Sanction Plan issued in favour of defendant Nos.1 and 2 are null and void and illegal and also sought for an order of injunction against the defendants. The Court below has committed an error in dismissing the suit and hence, plaintiff No.2 has preferred the appeal in RFA No.1006/2007.
34. The learned counsel would submit that the property was purchased by the father of plaintiff No.1 on 20.10.1948 under Ex.P.1 and during his life time, he has executed a sale agreement in favour of plaintiff No.2 vide sale agreement dated 08.08.1955, which is marked as Ex.P.2. The entire sale consideration was received and plaintiff No.2 was put in possession. The plaintiff No.1 could not execute the sale deed during his life time.
Plaintiff No.1 has executed registered General Power of Attorney in favour of plaintiff No.2 on 21.01.1997 in terms of Ex.P.3 and so also, during the pendency of the suit, the sale deed was executed on 15.05.2002 which is marked as Ex.P.28. It is the contention of the appellant counsel that layout was formed by Sri.Muniveerappa. In terms of Exhibit P.1, he has derived title and there is no dispute with regard to formation of layout by him. The suit schedule property, which is numbered as No.400/38 measuring East to West 30 feet and North to South 35 feet and the same was fenced and construction was made to the extent of 6’ x 8’ feet. It is contended that the defendants have filed suit in O.S.No.10548/1993 and the same was dismissed as withdrawn and thereafter, obtained the katha illegally in their favour. It is also contended that W.P.No.28830/1996 was filed and only direction was given to consider the representation and further, learned counsel would contend that there was an interim order throughout and the very defendants have filed an application restraining the plaintiffs not to put up the construction and the same was dismissed. An application is filed to vacate the interim order granted in favour of plaintiff and the same was also dismissed. The defendants have also filed an application under Order 7 Rule 11 of Civil Procedure Code and the same also dismissed. In spite of it, the Court below has committed an error in dismissing the suit filed by the plaintiff.
35. The defendants have contended in the written statement that they are the owners of the property in question claiming right in respect of including the suit schedule property and also other property, which has been shown in the sketch which is marked as Ex.P.31 and no dispute with regard to the execution of the sale deed and Court below fails to consider the measurement and committed an error in coming to the conclusion that the property belongs to the Corporation. Even though there was no any material is placed by the Corporation and even the Corporation did not file any written statement and claimed any right in respect of the suit schedule property and hence, it requires an interference by this Court.
36. The learned counsel would also in support of his argument in respect of the application filed under Order 41 Rule 27 would submit that along with the application, he has produced the electricity bills and receipts for having made the payments and also the photos which could not be produced before the Court and some of them have been secured recently and some of them were misplaced. Hence, he could not produce the same before the lower Court and hence, those documents are necessary. The learned counsel would contend that the trial Judge did not consider the Exs.P.31 to 33 i.e., Bank Pass Book and other documents to establish the possession of the plaintiff and hence, it requires the interference of this Court.
37. On the other hand, the learned counsel appearing for respondents/defendants would submit that the Court below has considered the evidence of plaintiff No.2 who has been examined as P.W.1 before the lower Court and categorically discussed that the measurement, which the plaintiff claims 30x35 is vacant site and also discussed in para Nos.10 and 11 of the judgment. Plaintiff No.2 claiming the right in terms of Ex.P.28 which was executed during the pendency of the suit. The learned counsel also would contend that Exs.D.33 and 34 discloses that the properties have not been retained while selling the property and in both sale deeds on the southern side of the properties which is mentioned as properties of Sri.A.V.Hemegowda and so also in Exs.D.2 and 3 on the south it is mentioned as Sri.A.V.Hemegowda’s properties.
38. The duty of the plaintiff has to identify the property in which he claims the relief as envisaged under Order 7 Rule 3 and the same has not been done and the Court below rightly comes to the conclusion that the plaintiffs are not entitled for the relief as claimed in the plaint. However, the Court below has committed an error in directing the Corporation to take action in respect of the suit schedule property. The learned counsel would contend that being aggrieved by the direction of the trial Court in favour of Corporation, appeal RFA No.844/2007 is filed by the defendants. It is contended that the said direction is erroneous and Corporation has not claimed any right in respect of the said property. There was no any pleadings and also the Corporation did not choose to file any written statement. In the absence of any pleadings and in the absence of any right claimed by the Corporation, the trial Judge ought not to have given such direction. Hence, the said appeal is filed against the said findings. It is also contended by the learned counsel that the plaintiff did not seek any relief of declaration to declare that they are the absolute owners and in the absence of that pleadings, the trial Court ought not to have discussed with regard to the title of the properties and the relief sought in the plaint also cannot be granted, unless the suit is filed for the better relief i.e., for declaration in the absence of declaratory relief. The very suit itself is not maintainable.
39. In support of his arguments, the learned counsel appearing for appellant in RFA No.844/2007 and also defendants No.2 to 8, relied upon the judgment reported in the case of Gulabrao Balwantrao Shinde and others vs. Chhabubai Balwantrao Shinde and others reported in AIR 2003 SC 160, the learned counsel relying upon this judgment brought to my notice paragraph No.7 of the judgment, the Apex Court in its judgment held that in the absence of any pleadings and evidence to the effect that the Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, the High Court has erred in recording a finding that the property in possession of Chhabubai was in lieu of maintenance which could be enlarged into full ownership rights on her. The learned counsel relying upon this judgment would contend that the trial Judge ought not to have proceeded to consider the title of the parties in the absence of declaratory relief.
40. The learned counsel also relied upon the judgment reported in the case of Devi Sahai Palliwal vs.
Union of India (UOI) and others reported in AIR 1977 SC 2082 and brought to my notice para No.6 of the judgment. In this judgment, the Apex Court held that the respondent did not deliver vacant possession in accordance with the contract and therefore the respondent is liable for manse profits. The High Court found that there was no enforceable contract and the appellant was not entitled to rely on it. The High Court was correct in holding that there is no allegation in the plaint to support any pleadings under Section 70 of the Indian Contract Act. It is opined that in the absence of proper pleadings under Section 70 of the Indian Contract Act should not be entertained. The learned counsel referring this judgment would also contend that in the absence of any pleading with regard to the claiming the ownership, the trial Judge ought not to have considered the same with regard to the ownership.
MANU/SC/0561/2012 and brought to my notice in paragraph No.20 of the judgment that admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. The learned counsel relying upon this judgment would contend that the plaintiff has admitted in the plaint itself that there is a cloud on his title and hence, ought to have sought for declaratory relief to declare him as absolute owner of the property that has not been done and also brought to my notice paragraph No.63 of the judgment wherein held that in absence of any factual foundation of the case, based on Will, the first appellate Court committed a grave error taking into consideration the said Will. The learned counsel also brought to my notice paragraph No.69 of the judgment wherein held that the Court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where inspite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the Court records a finding on it.
42. The learned counsel relying upon the judgment in the case of Mohammad Mustafa Vs. Abu Bakar and others reported in AIR 1971 SC 361 has brought to my notice paragraph No.5 of the said judgment wherein it is held that, ‘the finding having been reached without proper pleadings and necessary issues the same cannot bind any of the parties to the suit though it does indicate the serious injustice that is likely to happen to the appellant because of his defective pleadings’ and submits that in the case on hand also there was no pleading with regard to the title and no relief was sought for declaration. The finding reached by the trial Court without proper pleadings and necessary issues cannot bind any of the parties, which indicates serious injustice.
43. The learned counsel further relied upon the judgment in the case of Mohd. Amin and others Vs. Vakil Ahmed and others reported in AIR 1952 SC 358 and referring to paragraph 23 of the said judgment would contend that the High Court has committed an error in awarding mesne profits though same had not been claimed in the plaint. Referring to the principles laid down in the said judgment, he would contend that there was no prayer for the relief of declaration to declare ownership in the plaint and the Court below has committed an error in considering the same.
44. The learned counsel further relied upon the judgment reported in the case of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs., and others reported in AIR 2008 SC 2033 and referred to paragraphs Nos.10 and 11 of the judgment regarding the points raised for consideration wherein in paragraph No.11 with regard to the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, the Apex Court in paragraph No.11.3 has held that ‘where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction’.
45. Further, with regard to the application under Order XLI Rule 27 of CPC seeking permission to produce additional evidence, learned counsel relied upon the judgment of this Court in the case of Punny Akat Philip Raju Since (dead) by his LR’s and others Vs. Dinesh Reddy reported in 2016 (2) Kar.L.J 425 and brought to my notice paragraphs 41 to 47 of the said judgment regarding the scope of Order 41Rule 27 of CPC and as to when it has to be entertained and it is observed that, Order 41 Rule 27 of CPC enables the appellate Court to accept additional evidence only in exceptional circumstances.
46. Having heard the arguments of the learned counsel for appellant/plaintiff No.2 and also the learned counsel for appellants/defendants 2 to 8 and also considering the grounds urged in both the appeals, the points that would arise for my consideration before this Court are:-
(i) Whether Court below has committed an error in answering issue Nos.3, 4 and 5 in negative in coming to the conclusion that suit against the first defendant is not maintainable in view of the statutory provisions of KMC Act?
(ii) Whether Court below has committed an error in answering issue Nos.1, 2 and 6 in the negative that plaintiffs are not in possession of the suit schedule property and also declining grant of permanent and mandatory injunction as sought in the plaint?
(iii) Whether Court below has committed an error in entertaining the suit without seeking better prayer for the relief of declaration of title?
(iv) Whether the appeal filed by the appellant/plaintiff No.2 deserves to be allowed?
(v) Whether the appeal filed by the appellants/defendants Nos.2 to 8 deserves to be allowed?
(vi) Whether the appellant/plaintiff No.2 in RFA No.1006/2007 has made out a ground to allow the application filed under Order 41 Rule 27 of CPC?
Point No.1:
47. Plaintiffs have filed the suit before the Court below seeking four prayers. First prayer is against defendant No.1 to declare that the khata issued by defendant No.1 in favour of defendant No.2 to an extent of 35’x90’ shown in the sketch produced by the plaintiffs is illegal, null and void and further prayers are for the relief that the plan sanctioned in favour of defendant No.2 by defendant No.1 to an extent of 35’x90’ shown in the hand sketch is illegal and for a direction against defendant No.1 i.e., Corporation to issue khata in favour of plaintiff No.1 in respect of the suit schedule property.
48. The Court below while considering the prayer sought in the plaint in connection with issue Nos.3, 4 and 5, has discussed in detail at paragraph Nos.10 to 13 of the judgment regarding the statutory provisions. At paragraph No.12 referring to the provisions of Section 482(1) and (1- A) of the KMC Act, it forms an opinion that defendant No.1 is a statutory body and it cannot be prevented from discharging its official duties in effecting khata or any rejection to do so. Further referring to the provisions of Section 114A of the KMC Act has observed that an aggrieved party can approach the higher authorities of the Corporation i.e., Standing Committee to get redressal. But in the case on hand, plaintiffs never approached the competent authorities under the KMC Act by challenging the order passed by the defendant No.1 and that there is a statutory bar to file the suit against defendant No.1. It is further observed that though plaintiffs have sought declaratory relief and an issue was framed in that regard, as per the request of the plaintiffs themselves same was deleted by order dated 4.2.1998 and accordingly, it is held that the relief of declaration declaring that the plaintiffs are the absolute owners of the suit schedule property cannot be granted in view of the discussions made above. Since the plaintiffs have not complied with the statutory notice under Section 482 of the KMC Act and also sought for deleting the prayer with regard to declaration and there was a bar under Section 114A of the KMC Act to approach the Civil Court and did not redressal the grievance before the appropriate forum and hence, I do not find any reasons to interfere with the order of the trial Court in answering issue Nos.3 to 5 in the negative since it is forbidden under law. Accordingly, I answer point No.1 in the negative.
Point Nos.2 and 3 :-
49. The contention of the appellant in RFA No.844/2007 that there was no pleading and also issue was not framed with regard to the considering the title of the parties and there was a cloud on the title of the plaintiff and the defendants also asserts title in respect of the suit schedule property and there is also a threat of dispossession as narrated in the plaint and when such being the case, the plaintiff ought to have sought the relief of declaration. Hence, the very approach of the trial Court is erroneous.
50. Before considering the contention, I would like to mention the very pleadings of plaintiff in the plaint. I would like to extract the very pleadings of the plaintiff which has been narrated in para Nos.10 and 11 of the plaint, which reads as follows.
10. It appears that, late Sri. A.V. Hemegowda had filed O.S.NO.10548/1993 against the Corporation of City of Bangalore for restoration of Khata of the property mentioned in the schedule to the said suit, surprisingly, in the said suit, the said A.V. Hemegowda, claimed ownership of premises bearing No.30, measuring 90’ East to West and 35’ North to South. At this juncture, it is relevant to state here that, scrupulously the said A.V. Hemegowda had included the suit schedule property belonging to plaintiff No.1 herein also as the property belonging to A.V. Hemegowda. To the said suit, the plaintiff No.1 or any of the wife and children of Plaintiff No.1 were not parties. Recently, the plaintiff have come to know about the filing of the said suit. In the said suit, the Corporation of the City of Bengaluru had filed Written Statement on 30.05.1984 denying title of late A.V. Hemegowda, to the said extent of 35’ x 90’. A copy of the Written statement filed by the Corporation of the City of Bengaluru in O.S.NO.10548/1983 is annexed herewith. The Corporation of City of Bengaluru had specifically taken-up a contention that, late A.V. Hemegowda had no title to the said extent of property and he has miserably failed to prove his title to the said extent of site. During the pendency of said suit, it appears that Sri. A.V. Hemegowda, died and defendants 2 to 8 herein were brought on record. The said suit came to be dismissed as withdrawn by a memo filed by the defendants 2 to 8 on 07.07.1994. Thus, it is clear that the defendants 2-8 failed to establish their title to the said extent of 35’ x 90’ of the property.
11. The property described as PQRS in the sketch produced by the plaintiffs is the property of plaintiff No.1. Property No.2 in the said sketch is the property of the defendants 2 to 8. While claiming khata it appears that the defendants 2 to 8 had included the property of the plaintiffs also. Several objections were raised by the plaintiffs before the corporation of city of Bengaluru in this regard for having given khata to the defendant No.2 to the entire extent of 35’ x 90’. The corporation of the City of Bengaluru did not notice the said objections. Having already stated, that the defendants 2 to 8 have no manner of right, title and interest over the entire extent of 35’ x 90’ of property, the defendant No.1 was totally debarred from issuing khata in favour of Defendant No.2 in respect of an extent of 35’ x 90’ which is clearly illegal and Arbitrary. The plaintiffs have got reason to believe that the Defendant No.1 has colluded with the other defendants and for extraneous consideration Khata has been made over to the defendant No.2 in respect of the said extent. Further, the defendant No.1 has also appears to have sanctioned a plan for the purpose of construction in favour of Defendant No.2 in the extent of 35’ x 90’ which includes the suit schedule property belonging to the plaintiff No.1. Under the circumstances, the plaintiffs are constrained to present suit for necessary reliefs.
51. On perusal of the pleadings in para Nos.10 and 11 of the plaint, it is clear that the father of the defendants A.V.Heme Gowda claimed ownership of the premises bearing No.30 to the extent of 90 feet x 35 feet in O.S.No.10548/1993. It is specifically contended that the said A.V.Heme Gowda scrupulously had included the suit schedule property belonging to plaintiff No.1 as the property belonging to A.V.Heme Gowda. On perusal of para No.11 of the plaint also, it is stated that defendant Nos.2 to 8 had included the property of the plaintiff also and several objections were raised by the plaintiffs before the Corporation of City of Bengaluru in respect of the extent of 35x90 feet.
52. Having considered the pleadings of the plaintiff, it is clear that the defendants have made the claim in O.S.No.10548/1983 in respect of the suit schedule property. When the pleading has been made in the plaint that the defendants have claimed and asserts their title in respect of the suit schedule property, the plaintiff ought to have sought the relief of declaration to declare that the plaintiff is the absolute owner and the same has not been done and the relief sought only to declare the katha made in favour of defendants is illegal. The very pleadings discloses that there is a cloud on the title of the plaintiff and when such being the case, the plaintiff ought to have sought the better relief of declaration of title and the consequential relief of injunction. It has to be noted that the judgment of the trial Court is appears to be under confusion. The Court below while answering issue Nos.3, 4 and 5 as held in para No.14 that the prayer of declaration was deleted at the instance of the plaintiff vide order dated 04.02.1998. The Court below while considering the other issues with regard to the possession and injunction in para No.17 has formed an opinion after discussing the material on record, an observation is made that without any hesitation, the Court held that the plaintiffs have utterly failed to prove their lawful possession over the suit schedule property. As on the date of the suit and also held that the plaintiffs are not entitled for any declaratory relief either against defendant No.1 or against defendant Nos.2 to 8 and further held that the plaintiffs are not entitled for the relief of permanent injunction or mandatory injunction as prayed in the plaint. It has to be noted that when the plaintiffs did not seek for the better relief of declaration, the trial Court ought to have held that the very suit itself is not maintainable when there was a cloud on the title of the plaintiffs. The judgment relied upon by the learned counsel for defendants, which was in the case of Anathula Sudhakar vs. P.Buchi Reddy (dead) by LRs and others reported in MANU/SC/7376/2008, wherein the Apex Court while answering issue with regard to between the parties, whether considering the facts of the case, the plaintiffs ought to have filed a suit for declaration of title and injunction, considering the said issue in para No.11.3 and it is held that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. It is further observed that the prayer for declaration will be necessary only if the denial of the title by the defendants are challenged to plaintiffs. Title raises a cloud on the title of the plaintiff to the property. The cloud said to raise over a person title when some approved difficult in his title to the property or some prima-facie right of third party over. It is made out to shown an action for declaration is the remedy to remove the cloud on the title to the property.
53. Having considered the principles laid down in the judgment, which has been summarized in para No.17 of the above judgment, the issue which has been answered in the said matter. This Court has to analyze the facts and circumstances of the case. I have already pointed out in para Nos.10 and 11 of the plaint, the plaintiff has categorically stated that the defendants have claimed their title in respect of the suit schedule property including the same in the suit filed by the father of the defendants in O.S.No.10548/1983 and it was the contention of the defendants that the said suit was compromised between the defendants and the Corporation and no document is placed before the Court, whether it was compromised or dismissed as withdrawn as contended by the plaintiff in the plaint. Both the parties have not placed any document whether it was withdrawn or compromised. Hence, it is clear that there was a threat to the title of the property in spite of it, the plaintiff did not seek for the relief of declaration and instead of that, he sought only the relief to declare the khata made in favour of defendant Nos.2 to 8 is illegal and sought direction against defendant No.1 to issue katha in favour of plaintiffs. The pleadings is very clear that there is a cloud on the title of the plaintiffs. Hence, the plaintiff’s ought to have sought for the relief of declaration.
54. The Court below also while answering other issues comes to a conclusion that the defendants are claiming right based on that Exhibits D.2 to 6. It has to be noted that the defendants at the 1st instance, in the written statement claimed except claiming right based on the suit, which was filed earlier against the Corporation. But, in the additional written statement claimed the title in respect of the suit schedule property based on the sale deeds Exs.D.4 to 6 dated 20.04.1941, 13.12.1950 and 09.09.1954. The Court below discussed with regard to the documents of the plaintiffs in respect of Exs.P.1 to 4 and also Ex.P.28 and also considered the Exs.D.1 to 6 measurement and formed opinion that both of them have not proved their claim. The same ought not have been considered by the trial Court, that too in a suit for bare injunction and also there was a specific pleading in the plaint that there was a cloud on the title of the plaintiffs and defendants asserts their right in respect of the very same property. When such being the case, the trial Court ought not have proceeded to consider the case of the plaintiffs and also the defendants in the absence of declaratory relief. Apart from that, in order to seek for declaratory relief also, the plaintiff has to pay the Court Fee and the same has not been done. Hence, I am of the opinion that the Court below ought to have dismissed the suit of the plaintiff as not maintainable as there was a cloud on the title of the plaintiff. In the absence of better relief of declaration as held by the Apex Court, the principles laid down in the judgment referred by defendant Nos.2 to 6, are aptly applicable to the case on hand, since there was no any pleading and prayer in the plaint for declaration and no necessary issues with regard to title and claim of the defendants the trial Court also ought not to have considered the claim of both plaintiffs and defendants in the absence of declaratory suit. Hence, I answer both point No.2 as negative and point No.3 as affirmative that in the absence of declaratory relief, the Court below committed an error in entertaining the suit which is not maintainable.
Point Nos.4 and 5 :-
55. In view of the discussions made above to point Nos.2 and 3, the very contentions of both appellants in these appeals cannot be considered and this Court has already formed an opinion that in the absence of declaratory suit for better relief, the issue between the parties ought not to have been considered by the trial Court and mere injunction suit is not maintainable and ought to have filed a suit for relief of declaration. When the defendant also asserts the title in respect of the suit schedule property but also there is a dispute to the property in respect of the schedule property. Both of them are claiming the right and title in respect of the very suit schedule property. The contention of the defendants that in all the sale deeds on the south, there is a mention that same is A.V.Hemegowda property cannot create any right on the defendants and the Court below also observed in the order while passing the order and referred Exs.D.2 to 6 and 33 and 34, the rights of the defendants also in the suit filed for the relief of injunction cannot be ascertained also.
56. The appellants in RFA No.844/2007 being aggrieved by the judgment and direction given against the Corporation preferred the appeal and learned counsel would contend that the Court below ought not to have given such direction. On perusal of the impugned judgment, the Court below has formed an opinion that the property belongs to Corporation. It has to be noted that the Corporation has not filed the written statement also and not made any claim in respect of the right of the suit schedule property and when such being the case the Court below ought not to have given such direction. However, it is made clear that the very plaintiff in the suit itself has contended that the Corporation is claiming the right in respect of the swimming pool extension property. Hence, the Government of Karnataka accorded sanction to the Corporation to grant ownership to the person who have constructed the building on payment of land cost. In this regard, the estate officer of the Corporation of City of Bengaluru reported that several persons were unauthorized occupants of the sites in Jodi Ranganathapura Village. There is no dispute that the suit schedule property was situated within the Swimming Pool Extension and it is specifically pleaded in para No.6 that suit schedule property was situate in Survey No.6 of Jodi Ranganathapura Village, Malleswaram, Bengaluru and subsequently, the said village is named as Swimming Pool Extension, Survey No.6 was in Kasaba Hobli, Jodi Ranganathapura was part of Bengaluru North Taluk. There were several litigation between the Corporation of City of Bengaluru and the site owners of Jodi Ranganathapura Village in a Civil Court as well as before this Court. Under the circumstances, the Corporation of City of Bengaluru was reluctant to issue khata in favour of the site holders of Jodi Ranganathapura Village. When such being the pleadings on the part of plaintiff, the very plaintiff and also the defendant both of them who asserts their rights in respect of the suit schedule property as belongs to them to seek for better relief. Under the circumstances, the direction given by the trial Court, defendant No.1 to take action since the same is a public property could not make any differences. Hence, on that ground, the appeal cannot be allowed as contended. Hence, I am of the opinion that the appeals filed by both the plaintiffs as well as the defendants also cannot be entertained in the absence of declaratory relief. Hence, I answer Point Nos.4 and 5 as negative.
Point No.6 :-
57. The learned counsel for appellant in RFA No.1006/2007 and also filed an application under Order 41 Rule 27 of CPC., seeking permission of this Court for production of additional documents. In view of answering Point No.2 as negative and Point No.3 as affirmative, this Court has come to a conclusion that the very injunction sought is not maintainable without seeking the relief of declaration, the question of considering the additional documents also does not arise. When this Court found that in the absence of declaratory relief, the Court cannot consider the issue involved between the parties. The additional documents also not required. Hence, answered the above point as negative.
In view of the discussions made above, I proceed to pass the following;
ORDER Both appeals are dismissed.
Sd/- JUDGE Akc/bkp/nbm