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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
R
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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
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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
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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.
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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
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(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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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:
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“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
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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
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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,
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
32
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.
33
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.
41. The learned counsel also relied upon the
judgment in the case of Union of India (UOI) vs.
Ibrahim Uddin and others reported in
34
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
35
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.
36
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
37
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
38
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?
39
(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
40
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
41
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
42
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
43
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.
44
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
45
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.
46
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
47
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
48
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.
49
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
50
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
51
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,
52
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
53
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,
54
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
55
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
56
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
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