A. Keshava Reddy and Others vs N. Narayana and Others

P.S. Dinesh Kumar, J.—This is plaintiffs'' appeal against the Judgment and Decree dated 31.7.2010 dismissing their suit O.S. No. 1232/2002 on the file of XXVII Addl. City Civil Judge, Bengaluru.

For the sake of convenience, parties are referred as per their rank in the Court below.

PLANTIFFS'' CASE:

"Plaintiffs No. 1 to 5 are sons of Late P.V. Appa Reddy. Plaintiffs No. 6 to 9 are children of Late P.L. Venkata Reddy. Appa Reddy and Venkata Reddy had purchased two plots carved out in Sy. No. 33 (Re-Survey No. 16) of Malenahalli village, Kasaba Hobli, Bengaluru North Taluk, presently known as ''Raj Mahal Gutta Halli'', Bengaluru from Hanumanthappa @ Thammaiah s/o. Guruvabhovi and his son Munivenkatappa under a Sale Deed dated 11.8.1949 registered as Document No. 860/49-50 with Sub - Registrar, Gandhinagar, Bengaluru North.

Hanumanthappa had acquired his right in the said properties under a registered partition deed dated 1.8.1921. He had sold major portion of his properties to one Estur Byrappa.

P.L. Venkata Reddy died on 1.5.1968. P.V. Appa Reddy died on 6.9.1996. Plaintiffs No. 1 to 5 inherited estate of P.V. Appa Reddy and plaintiffs No. 6 to 9 inherited estate of P.L. Venkata Reddy.

Sons of Estur Byrappa namely, B. Anjanappa, B. Kempanna and B. Subbaiah formed a private layout called as ''B. Kempanna & Brothers Layout''. A portion of land purchased by P.V. Appa Reddy & P.L. Venkata Reddy were included in the layout plan to maintain uniformity and to get the approval by the planning authority namely CITB (City Improvement Trust Board) now known as BDA.

Two items of the land owned by the plaintiffs are as described in the plaint schedule. Plaintiffs gave up their claim with regard to item No. 1 before Trial Court and we are concerned only with the item No. 2 in this appeal. Certain area of land on the western and southern side of item No. 2 was utilized for formation of layout and the remaining area of item No. 2 is presently a triangular piece of land as described in the plaint schedule.

Item No. 2 was carved out of Sy. No. 33 (Re-survey No. 16). City Survey Department has assigned CTS No. 1274 to the said piece of land.

Father of plaintiffs No. 1 to 5, P.V. Appa Reddy approached defendant No. 9, the Assistant Revenue Officer of Bruhat Bengaluru Mahanagara Palike (''BBMP'' for short) with an application dated 21.3.1990 to register their names in the Municipal Corporation Records and to issue a Khatha Certificate. He was called upon to produce documents in support of his application. Though, he furnished certain documents, BBMP did not enter their names. Being aggrieved, writ petitions in W.P. No. 3848 & W.P. No. 3849/1995 were filed. This Court by order dated 9.2.1995 issued certain directions to the BBMP. However, BBMP., issued an endorsement dated 10.4.1995 stating that the connected records were called by the City Civil Court in O.S. No. 2356/1982.

On enquiry, plaintiffs learnt that O.S. No. 2356/1982 was filed by one Sharadamma and the same was dismissed on 18.9.1995. The said suit was filed against B. Anjanappa, father of 7th defendant for a declaration and injunction in respect of site No. 1, 1st Main Road, B Kempanna & Brothers layout, on the premise that the plaintiffs therein owned the said land measuring 5 guntas of land being successors of one Moranna (Sharadamma''s husband''s great grand father) and he succeeded to his estate. Relief against main contesting defendant Anjanappa was given up and he was deleted from the suit proceedings. Plaintiff - Sharadamma sought further amendment in pleadings to contend that the said property belonged to one Nanjamma (grand mother of Sharadamma''s husband); that a nominal sale deed was executed on 1.7.1905 in favour of Sidda Bhovi; and that not withstanding the said sale deed, possession of the property remained with plaintiff - Sharadamma and her daughters. One Ratan Chand Jain and Manohar Lal Parekh were also impleaded as parties in the suit and shown as subsequent purchasers in whose name 9th defendant - BBMP., had issued Khatha Certificate on 1.10.1987. After dismissal of O.S. No. 2356/1982, BBMP., revoked the Khatha.

Plaintiffs were under the impression that after dismissal of the suit in O.S. No. 2356/1982, the BBMP., would issue Khatha Certificate in their name. However, BBMP., insisted upon a survey report before entering their name in the municipal records and for issuance of Khata Certificate. Accordingly, plaintiffs got a survey done and in the survey sketch, item No. 2 was demarcated as CTS No. 1274. BBMP., did not accept the said survey sketch because survey was conducted by a private agency. Plaintiffs approached survey department and learnt that an appeal filed by father of defendants No. 3 & 5 (Doddappaiah) was pending in respect of very same land and plaintiffs got impleaded in the said appeal No. CTS(B)Appeals.60/95-96. Whilst, the appeal was pending, Joint Director of Land Records directed the Assistant Director to inspect and submit a report and the same was complied with. As per the said report, item No. 2 (CTS 1274) was traceable to a Site in Sy. No. 33 (Re-Survey No. 16) of Malenahalli. The Joint Director without examining this report, remanded for a second enquiry by his order dated 8.2.2000. The said order was challenged in W.P. No. 14687/2000, wherein, certain directions were issued by this Court on 8.11.2000. However, the enquiry officer No. 2 did not take any further action. Accordingly, another writ petition in W.P. No. 7638/2001 was filed before this Court, wherein, a direction was issued on 2.8.2001 to conduct a survey. Subsequently, in the 2nd enquiry, certain adverse orders were passed on 25.1.2002 without taking into consideration the actual location of item No. 2.

In the meanwhile, the BBMP., changed the Khatha in the name of defendants No. 1 & 2 and the same was challenged in WP No. 17257/1999. Defendants No. 1 and 2 appeared and contended that their name was entered in terms of a judgment and decree in O.S. No. 35/1996. Accordingly, the writ petition was disposed of with an observation that the plaintiffs may seek redressal of their grievance by filing a Civil Suit.

Plaintiffs, having learnt about O.S. No. 35/1996 collected it''s particulars. It was a suit for a decree for specific performance of an agreement dated 12.3.1993 executed by Doddappaiah and defendants No. 3 to 6 in favour of deceased Sharadamma. Judgment and decree in O.S. No. 35/1996 gave rise to proceedings in Execution No. 18/1997, in which a Sale Deed was executed through the Court Commissioner on 2.7.1998 in favour of defendants No. 1 and 2 herein.

Armed with the sale deed, Defendants No. 1 and 2 attempted to interfere with the peaceful possession and enjoyment of plaintiffs in item No. 2. Defendant No. 7 who is one of the neighbours and son of B. Anjanappa who had formed the layout was also interfering with the possession of the plaintiffs.

Hence, the plaintiffs presented the instant suit with following prayers:--

(i) for a decree of permanent injunction against defendants No. 1 to 7;

(ii) for a declaration that the sale deed dated 2.7.1998 pursuant to O.S. No. 35/1996 and consequent registration of Sale Deed dated 2.7.1998 registered as Document No. 840/1998 in the office of Sub Registrar, Gandhinagar, Bengaluru is not binding;

(iii) for a declaration that Khatha issued by BBMP., in favour of defendants No. 1 and 2 in respect of item No. 2 is null and void, and

(iv) a declaration that the plaintiffs are entitled to be declared as Khathedars in respect of plaint schedule properties."

DEFENDANTS'' CASE:

"The first and second defendant filed their written statements contending that the suit property never stood in the name of plaintiffs; that the plaintiffs were unable to provide correct description and boundaries; that the plaintiffs have sold half portion of the suit schedule properties to one Murugesh Modaliar under a registered Sale Deed dated 4.5.1951; that the issue in dispute has been decided in O.S. No. 2356/1982 and O.S. No. 35/1996, consequently, the present suit is hit by Doctrine of Res Judicata. They also asserted that suit property is situated in Sy. No. 76. Certain portions in Sy. No. 76 was acquired for gramthana and formation of roads. The remaining portion was renumbered as Sy. No. 1, 4 & 7. Suit Site is a part of land comprised in new Sy. No. 7. Accordingly, they prayed for dismissal of the suit.

7th defendant in his written statement contended that neither Appa Reddy nor Venkata Reddy had any right in the schedule property. The Sale Deed dated 11.8.1949 under which they claimed ownership has nothing to do with the suit property; that the suit property belonged to Kempanna and his brothers; that he has inherited the suit property from his father - B. Anjnappa, who had acquired the same in a family partition; defendants 1 and 2 have no right over the suit property and as such he is the owner in possession of the property.

With these pleadings, parties went to trial. On behalf of plaintiffs, one witness was examined as PW. 1 and 27 documents marked. Defendants examined two witnesses DWs. 1 and 2 and got 23 documents marked."

Based on the pleadings of parties, trial Court framed following issues for it''s consideration:--

"1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

Whether the plaintiffs prove that the defendants one to seven without having any right, title or interest over the schedule property interfering in their peaceful possession?

If so, whether the plaintiffs are entitled to have a relief of perpetual injunction against the defendants as prayed?

Whether the plaintiffs further prove that the judgment and the decree in O.S.35/1996 and Ex. 18/1998, are not binding on the plaintiffs?

Whether the plaintiffs further prove that the khatha made in favour of the defendant Nos. 1 and 2, by defendant No. 9, with respect to the item No. 2 schedule property is null and void and not binding on the plaintiffs?

Whether the court fee paid by the plaintiff is sufficient?

Whether the defendants prove that the suit is barred by time?

To what order and decree?"

The learned trial Judge answered issues No. 1 to 5 in the negative and issues No. 6 & 7 in the affirmative and dismissed the suit.

Trial Court has taken up issues No. 1 to 5 together and summoned up its'' opinion as follows:--

"It is to be noted that the Judgment so passed in O.S. No. 35/1996 and Ex. 18/1998 have attained finality and the plaintiffs have not challenged it within three years from the date of judgment. Thus judgment and the decree so passed in the said suit and the execution proceedings thereto are binding on them.

Hence, I answer issues No. 1 to 5, in the negative."

Issue No. 6 is with regard to limitation. Learned trial Court has held that as the Sale Deed dated 2.7.1998 has not been challenged within 3 years, the suit is barred by time. In the result, the suit has been dismissed.

Heard Sri Vivek Reddy, learned Senior Counsel instructed by Sri G. Ravishankar Shastry, appearing for appellants No. 7 & 8, Sri Sanket Yanagi, learned Counsel for appellants No. 1 to 6 and Sri G.S. Venkata Subbarao, learned Counsel appearing for the respondents No. 1 and 2 and Sri T. Jayaprakash, learned Counsel appearing for the respondents No. 8 and 9.

Sri Vivek Reddy, learned Senior Counsel for appellants No. 7 & 8 (defendant No. 10 and Plaintiff No. 8) contends that the impugned judgment and decree is unsustainable in law mainly on three grounds viz., fraud, want of identification of property and misrepresentation by the contesting respondents. Amplifying his contentions, he submits as follows:--

"(i) Re - fraud : That fraud vitiates everything. In the instant case, the defence set up by the contesting respondents/defendants against whom the appellant has sought a decree for permanent injunction and other reliefs is that they had acquired their title to the item No. 2 under a Sale Deed dated 2.7.1998 executed in their favour pursuant to a decree in O.S. No. 35/1996, suit for specific performance filed by Sharadamma -(mother of respondents No. 1 and 2), Doddappaiah and his children (Defendants 3 to 5) against Lingappa (Defendant No. 6) in respect of a property bearing No. 1 (New No. 1) situated in I Main Road, B. Kempanna & Brothers Layout, Division No. 45, Palace Gutta Halli, Bengaluru, wherein the plaintiffs No. 3 to 6 and defendant therein were directed to execute a Sale Deed in favour of plaintiffs No. 1 and 2 therein (Respondents No. 1 & 2 herein). Further, only one witness namely, Doddappaiah, who was a second plaintiff was examined as PW.1 and one document - Ex. P1, an acknowledgement issued by the Police was marked. On the strength of such judgment and decree, the defendants/Respondents No. 1 and 2 obtained a Sale Deed dated 2.7.1998 in execution proceedings and have been claiming ownership of the item No. 2.

That pleadings and judgment in O.S. No. 35/1996 speaks volumes about the manipulative skills and malafide intention of the contesting respondents. According to him, the contesting respondents have played fraud in obtaining a Sale Deed in their favour.

(ii) Re-want of identification of property : Learned Senior Counsel submits that the identity of the property is a major crisis in this case. According to him, the suit is dismissed on the premise that the title in respect of item No. 2 vested with the contesting respondents by virtue of the sale deed executed pursuant to decree in O.S. No. 35/1996 although the description of suit schedule property in O.S. No. 35/1996 and the schedule of item No. 2 herein do not match. Suit Property in O.S. No. 35/1996 is described as a triangular shaped land bearing No. 1 (Old No. 1) situated in I Main Road, B. Kempanna & Brothers Layout, Division No. 45, Palace Gutta Halli, Bengaluru - 3, whereas the relief sought in the instant suit is in respect of property bearing CTS No. 1274 situated at I Main Road of B. Kempanna & Brothers Layout formed out of Sy. No. 33 (Re-survey No. 16) of Malenahalli Village presently known as Palace Gutta Halli, Bengaluru - 3. He therefore submits that the description of properties are conspicuously different and therefore the issue could not have been resolved without a proper identification of suit property, which could have been achieved only by conducting a survey by a competent authority. He submits that plaintiffs went to the Court with a positive and firm averment that it was necessary to have a survey conducted. He adverted to a portion of paragraph No. 17 of the plaint to fortify his contention that the appellants pleaded before the Court below for a joint survey. The said portion reads as follows:--

"In view of the claim made by the defendants 1 & 2 on the properties belonging to plaintiffs it is just and essential to have joint survey both by the City Survey Department not below the rank of Director as well as other competent Department of Survey in conformity with survey settlement records in order to avoid any sort of manipulations and as such a joint survey is sought for by the plaintiffs."

(iii) Re-misrepresentation by the contesting respondents:

Learned Senior Counsel vehemently submitted that the contesting respondents/defendants are guilty of misrepresenting facts in the Court below. To demonstrate this contention, he placed reliance on the deposition of DW. 1, who has stated thus in his cross - examination:

"One Doddapapaiah gave instructions to prepare the said agreement of sale. Our counsel prepared the said agreement of sale. Our counsel had also participated in the said agreement. Our counsel''s name is S.U. Narasimhan. it is false to say that at the time of preparing the said agreement of sale we never produced any documents pertaining to Sy. No. 76. We had produced encumbrance certificate and registered documents. It is true that in the deposed at Ex. P19 even after 26.3.1993 and subsequently on which dates I have deposited I have not stated about the agreement of sale dated 12.3.1993. It is true that in the said suit of OS No. 2356/82 I have never referred to the above stated agreement of sale till its disposal. It is false to say that on 10.3.1993 the so-called agreement never came into existence. After the agreement came into existence the said document was in possession of Smt. Sharadamma. In OS No. 35/96 the agreement of sale was produced by defendants 1 and 2 herein and myself" (sic)

Referring to the above evidence, the learned Senior Counsel submitted that DW.1 - Sri T.S. Sriram is none other than the power agent of defendants/respondents No. 1 and 2. In his cross - examination, he has admitted that the agreement of sale which ought to have been subject matter of the suit in O.S. No. 35/1996 came into existence on 12.3.1993. His deposition further reveals that on 26.3.1993 whilst he was deposing in O.S. No. 2356/1982 (Sharadmma v. B. Anjanappa), he did not chose to mention about execution of the agreement of sale dated 12.3.1993. Therefore, according to the learned Senior Counsel, the contesting respondents have clearly misrepresented before the Courts of law.

He further submitted that the defendants have relied upon Ex. D5, an order passed by the enquiry officer in survey proceedings dated 25.1.2002. Adverting to para -15 of the said order, he submitted that though the records produced before the said authority were with respect to the property situated in Hosa Gutta Halli Village, the adjudicating officer had conveniently given a finding that based on other papers the property in question could be considered to be situated near the Gramathana of Malenahalli. Such document is relied upon by the respondents/defendants to support their case. Thus, according to the learned Senior Counsel at every stage and before every forum, the contesting respondents have misrepresented facts.

To substantiate that the contesting defendants have not come before the Court with clean hands, learned Senior Counsel adverts to paragraph - 15 of the written statement filed by defendants No. 1 and 2, wherein, it is stated thus:--

....

(a) ....

"(b) It is not necessary, it is not just and essential to have a joint survey by Survey Department and other Departments. Other Departments are not competent. This is absolutely unwarranted. Un-essential and illegal. Mischievous. The survey Department has more than once conducted a Survey, drawn a sketch and ultimately has said that the site of defendant No. 1 and 2 comes under Survey No. 76 of Malenahalli village and that New Sy. No. 7 is the residuary of Old Sy. No. 76. This is the report given by competent authorities throughout."

According to the learned Senior Counsel, the tenor of defence contained in the portion of written statement extracted above clearly demonstrates that the defendants No. 1 and 2 did not want a survey to be conducted which indicates that they had something to hide and therefore, it could be inferred that they have not come before the Courts and other authorities with clean hands.

He submits that the trial Court ought to have taken cognizance of the pleadings on behalf of the plaintiffs for survey of land and appointed a Commissioner to survey the land in question, which could have correctly resolved the dispute.

On facts, Sri Sanket Yanagi, learned Counsel for the appellants No. 1 to 5 made submissions in similar lines of learned Senior Counsel Sri. Vivek Reddy.

Further, assailing the legality and correctness of the impugned judgment, learned Counsel submitted that the learned trial Judge misdirected himself with regard to the identity of the property; failed to notice that appellant''s predecessors-in-title namely, P.V. Appa Reddy and P.L. Venkata Reddy were indeed the title holders of item No. 2 having acquired the same under a valid deed of Conveyance dated 11.8.1949.

Accordingly, both learned Counsel pray for allowing this appeal.

Learned Senior Counsel Sri. Vivek Reddy, fairly submitted that in the event, this Court accepts the plea that survey of land is necessary, then the matter may be remanded back to the trial Court for fresh adjudication.

In sum and substance, the case of the appellants is that the predecessor-in-title of appellants namely, P.V. Appa Reddy and P.L. Venkata Reddy had acquired a valid title under a registered Sale Deed dated 11.8.1949 and the appellants had succeeded to the estate of their respective parents. Consequently appellants had a valid right, title and interest in item No. 2. It is their further case that the claim of defendants No. 1 and 2 over item No. 2 based on the Sale Deed dated 2.7.1998 executed pursuant to decree in O.S. No. 35/1996 is wholly untenable because the schedule of the property mentioned in O.S. No. 35/1996 is completely in variance with the property claimed by the appellants in the instant suit. Item No. 2 was in fact carved out of Sy. No. 33 (re-numbered as Sy. No. 16 after a re-survey) of Malenahalli Village. Therefore, according to them, when the identity of the property does not match, the trial Court ought to have decreed the suit in favour of the appellants herein.

Per contra, learned counsel for the respondent No. 1 & 2 made following submissions:

"(i) that without a prayer for declaration of title, suit laid by the plaintiffs only for bare injunction is not maintainable;

(ii) adverting to the stand taken by the defendant No. 7 denying the title of both the plaintiffs as well as defendants No. 1 and 2, learned Counsel submits that the trial Court has recorded a categorical finding that the plaintiffs were unable to show as to how they acquired the title so also the defendant No. 7 was unable to prove his right, title and interest over the suit schedule property;

(iii) that the trial Court while dealing with issue No. 5 has held unless the cloud cast upon the plaintiffs'' right, title and interest to the suit property is cleared, they are not entitled for any relief. According to him, the Sale Deed dated 2.7.1998 pursuant to decree in O.S. No. 35/1996 casts a cloud on the title of the plaintiffs and therefore the trial Court has rightly dismissed the suit;

(iv) the 7th defendant has not challenged the above adverse findings recorded by the trial Court and dismissed the suit filed by the plaintiffs. In these circumstances, notwithstanding the stand taken by the 7th defendant setting up the title within himself and denying the title of both plaintiffs as well as defendants No. 1 and 2, in view of dismissal of the suit, title and possession of defendants No. 1 and 2 has remained unaffected. Accordingly, he prays for dismissal of the appeal."

In the light of rival contentions urged before this Court, following points arise for our consideration:--

(i) Whether pleadings and evidence on record entitle plaintiffs/appellants for the relief of a declaration that Sale Deed dated: 2.7.1998 is not binding on them as also the consequential prayer for injunction?

(ii) Whether suit is barred by limitation?"

Re-point No. 1:

"Case of the plaintiffs in nutshell is that:

(i) their predecessors-in-title P.V. Appa Reddy and P.L. Venkata Reddy had purchased some land from Hanumantappa vide Sale Deed dated: 11.08.1949;

(ii) One Estur Byrappa had also purchased major portion of land held by Hanumantappa;

(iii) Sons of Estur Byrappa formed a layout and named it as ''B. Kempanna & Brothers Layout'';

(iv) Land belonging to the plaintiffs/appellants was also included while forming the layout to bring it in conformity of the extant rules governing formation of layout and its approval;

(v) P.V. Appa Reddy approached defendant No. 9 - BBMP., with an application dated 21.3.1990 to register their names in the municipal records and BBMP insisted on survey.

(vi) Defendant No. 1 and 2 have obtained a sale deed dated 2.7.1998 pursuant to decree in O.S. No. 35/1996 and the same is not binding on them."

No evidence is brought on record by the plaintiffs with regard to the title and physical possession of the item No. 2 between 11.8.1949 and 23.1.1990 on which date, an application was moved before the BBMP., for registration of their names in the municipal records. Plaintiffs have relied upon Ex. P9, a certified copy of the Partition Deed dated 1.8.1921 and Ex. P10, certified copy of a Sale Deed dated 11.8.1949. No other document worthy of its name testifying the title or possession of item No. 2 is brought on record.

Admittedly, the prayer for a declaration that they are the absolute owners of the property has been deleted vide order of the Trial Court dated 20.2.2012. Then, what remained for consideration of the Trial Court was a consequential relief for permanent injunction, a judgment and decree of declaration that Sale Deed dated 2.7.1998 was not binding, a declaration that Khatha issued in favour of defendants No. 1 and 2 is void and a declaration that plaintiffs are entitled to be declared as Khathedars in respect of the property in question.

The second prayer for injunction being a consequential relief obviously hinges upon the prayer for a declaration that the plaintiffs are the absolute owners of the property. The first prayer having been given up, the plaintiffs shall not be entitled for the second prayer for injunction.

Insofar as the prayer concerning the binding nature of the Sale Deed dated 2.7.1998 obtained by the defendants No. 1 and 2 in pursuance of the Judgment and Decree in O.S. No. 35/1996 and Ex. No. 18/1998, in our considered view, plaintiffs shall not be entitled for the relief prayed for because item No. 2 described in the plaint is not exactly the same as the suit property described in O.S. No. 35/1996. The item No. 2 as described in the instant suit reads as follows:--

"2. Item No. 1 All the piece and parcel of site bearing CTS No. 1274 situated at 1st Main Road of "B Kempanna and Bros" layout formed out of Old Sy. No. 33, re-survey No. 16 of Malenahalli, presently known as palace Guttahalli, Bangalore - 560 003 measuring east to west 90'' and on the southern side 6''. And north to south on the eastern side 129'' and on the western side 110'' and along with barbed fence and bounded on the:--

East by: 1st Main road Sheshadripuram (Old Bellari Road)

West by: Encroached portion & house No. 2 owned by Daga

North by: 1st Main Road of B. Kemp anna & Bros. layout

South by: Portion encroached."

The property which was the subject matter of O.S. No. 35/1996, a suit for specific performance which stood decreed and consequently the Sale Deed having been registered in favour of defendants No. 1 and 2 reads as follows:--

"SCHEDULE

All that piece and parcel of the Vacant Triangular Open Shaped land bearing No. 1, (old) and No. 1, (new), situated in I Main Road, B. Kempanna & Bros., Layout, Palace Guttahalli, Seshadripuram Main Road, Bangalore - 3, which is measuring East to West and North to South:--

and bounded on the:--

East by: Seshadripuram Main Road,

West by: Private property & water Lane,

North by: I Main Road and on the

South by: NIL., (Joining the same to Seshadripuram Main Road.)"

If the schedules of both properties are juxtaposed, the eastern and northern boundaries of both properties are the same. The western and southern boundaries do not match. The dimensions also do not exactly match. The fact that the plaintiffs have sought a relief to the effect that the Sale Deed dated 2.7.1998 in respect of the suit property in O.S. No. 35/1996 is not binding on them strongly suggests that the parties in the suit have understood that item No. 2 in the instant suit and the suit property in O.S. No. 35/1996 are one and the same. However, there was no specific plea in the plaint to the effect that the item No. 2 of the instant suit property and the suit property in O.S. No. 35/1996 are either same or otherwise. However, contents of paragraph No. 17 of the plaint disclose that the defendants No. 1 and 2 have staked claim over item No. 2 on the strength of the Sale Deed dated 2.7.1998 and therefore, the plaintiffs have rushed to the Court. It is settled law that case of a plaintiff should stand or fall on its own intrinsic strength, there must be a strong foundation of pleadings with a super structure of unimpeachable evidence on record to entitle a plaintiff a decree prayed for in the Civil Suit.

As observed by us, no material is brought on record by the plaintiffs in the instant suit which would demonstrate in unambiguous terms that the plaintiffs are the title holders in possession of item No. 2 except Ex. P10, a copy of Sale Deed dated 11.8.1949. Rest other documents have surfaced by virtue of various actions initiated by the plaintiffs in the form of application to the BBMP., filing a writ petition etc., Suffice to note that there is no clinching evidence on record to entitle the plaintiffs the relief prayed for.

So far as the prayer for declaration to declare that the Sale Deed dated 2.7.1998 is not binding on them is concerned, unless it is the specific case of the plaintiffs that item No. 2 in the instant suit is the very property described in the suit schedule of O.S. No. 35/1996, and such claim is proved to the satisfaction of Court with cogent evidence, the plaintiffs shall not be entitled for the said relief.

The next question is with regard to the prayer for a declaration to the effect that the Khatha effected by the BBMP., in KTR/112/1999-2000 in favour of defendants No. 1 and 2 with regard to item No. 2 does not bind the plaintiffs. In the above discussions, we have held that the plaintiffs have not averred and proved that item No. 2 in the instant suit and the suit schedule property in O.S. No. 35/1996 are one and the same. Further, the said prayer is not supported with analogues pleadings and evidence. Therefore, in our view, plaintiffs shall not be entitled for the said relief.

The last relief sought reads as follows:--

"(e) That the plaintiffs are entitled to be declared as kathedar in respect of item No. 1 & 2 of the plaint schedule property."

On the face of it, the prayer is misconceived and ambiguous. Further, in view of the fact that the plaintiffs have given up that prayer for declaration of title, they shall not be entitled for this prayer as well.

Before parting with the case, we are constrained to make following observations:--

"The plaintiffs initially commenced the litigation with a prayer for a declaration of title and other consequential reliefs. Somewhere midway they gave up the main prayer for declaration of title and continued the suit with auxiliary reliefs. The tone and tenor of the pleadings on behalf of the parties leads any reasonable person to infer that both parties have ventured upon a speculative litigation.

During the course of hearing, a memo dated 15.9.2015 was filed by the plaintiffs in these proceedings annexing a photocopy of a communication issued by the office of the Chairman, CITB and a photocopy of the private layout of ''M/s. B. Kempanna and Brothers''. The date of the communication is not legible. The rest of the content reads as follows:--

"GOVERNMENT OF MYSORE

OFFICE OF THE CHAIRMAN CITY IMPROVEMENT TRUST BOARD BANGALORE

No. ....

Dated....

MEMO

Ref: 1) Application dated 17/2/-62 from Sri. B. Kempana and Brothers, requesting for the issue of clearance certificate in respect of their private layout in S. No. 16 (including Gramatana land) of Malenahalli village as per the modified layout plan sanctioned.

2) Report dated 16-5-63 from the Engineer Officer of the Board recommending the grant of clearance certificate and release of six sites pledged to the Board.

-----

Since the layout works have been completed in all respects satisfactorily Sri. B. Kempannna and Brothers are permitted to dispose of the sites in the aforesaid layout. The sites pledged by them viz., 1, 26, 27, 28, 29 and 49 in the said private layout are also released. Subject to the condition agreed to by them in the agreement executed on 28.6.63.

CHAIRMAN"

By the above memo, the CITB which was the planning authority at the material point of time has permitted disposal of sites mentioned therein. According to the defendant No. 7, site No. 1 is the property claimed by defendants No. 1 and 2 in O.S. No. 35/1996. Parties in the instant suit, also appear to have understood that item No. 2 and suit schedule property in O.S. No. 35/1996 are one and the same. If we try to analyse and solve the zigsaw puzzle, it emerges that parties are staking their claim in respect of site No. 1 in the layout. Defendant No. 7 in his written statement has taken a specific stand that neither Appa Reddy nor Venkata Reddy had any right title or interest over the property in question. He has specifically stated that the suit property comprised in the layout belonged to Kempanna and his brother and he has inherited the same from his father in a family partition. He has also stated that even defendants No. 1 and 2 did not have any title over the property. Thus, he has expressly denied the title of both plaintiffs as well as defendants No. 1 and 2. No efforts have been made by either the plaintiffs nor defendants No. 1 and 2 to overcome denial of their title by 7th defendant.

Quest for truth is the sine qua non of judicial function. We may usefully refer to a few passage contained in the judgment of the Hon''ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., :

"33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

Lord Denning further observed in Jones that:(QB p. 64) "...It''s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth:"

World over, modem procedural codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and Judges.

Section 30 CPC reads as under:

"30.Power to order discovery and the like. -

Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party, -

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit."

"Satyameva Jayate" (literally "truth stands invincible") is a mantra from the ancient scripture Mundaka panishad. Upon Independence of India, it was adopted as the national motto of India. It is inscribed in Devnagri script at the base of the national emblem. The meaning of the full mantra is as follows:

"Truth along triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of truth resides."

(emphasis supplied)

Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in orders to ascertain the truth".

While examining the power of Appellate Court to take note of updated facts, the Hon''ble Supreme Court in the case of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, speaking through Krishna Iyer, J. (as he then was) has held as follows:

..."Equally clear is the principle that procedure is the handmaid and not the mistress of judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render in it the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is not violated, with a view to promote substantial justice- subject of course to the absence of other disentitling factors or just circumstances."

The Hon''ble Supreme Court in the above case has further held thus:--

"5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri which is a leading case on the point. Gwyer, C.J., in the above case, referred to the rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama:

We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.

and said that that view of the Court''s powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co. Sulaiman, J., in the same case relied on English cases and took the view that an appeal is by way of re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard (emphasis, ours). Varadachariar, J. dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously (at p. 103):

It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against".

In furtherance of quest for truth, we draw support from the above passages and hold that we cannot content ourselves by dislodging this appeal from the board of this Court by an order of dismissal simplicitor. We say so, because, this is a classic case in which appellants are staking claim over a property by bringing an action against defendants in which defendants 1 and 2 have sought to resist on the strength of a sale deed which has come into existence on the basis of a decree in a suit for specific performance in which the sale deed has been executed by a Court Commissioner. We are pained to take judicial note of the judgment and decree dated 3.4.1997 in O.S. No. 35/1996. It is abhorring to note that defendants No. 1 and 2 have succeeded in their suit for specific performance which has been decreed based on a solitary document, an acknowledgement issued by the Police. PW.1 therein is defendant No. 3. PWs.3 to 6 and the defendants have been directed to execute the Sale Deed in respect of the suit schedule properties therein in favour of plaintiffs No. 1 and 2 who are none other than defendants No. 1 and 2 in the instant suit. Though there is much to say, we refrain from making any comments on the merits of the said case because the legality and correctness of the said judgment and decree is not questioned in this appeal. To a specific quarry by the Court to the learned Counsel for defendant No. 1 and 2 as to whether the Court commissioner, who had executed the sale deed in their favour had put them in possession of the property, the learned Counsel''s answer was in the negative. The 7th defendant has given an interesting twist to the case by denying the title of defendants No. 1 and 2. What is bothering this Court is the tenacity with which the parties have indulged themselves in this litigation in respect of a property whose description and identity has remained questionable. Having lost the suit, the appellants have zealously pursued this appeal. Therefore, in our considered view, the matter requires a second look all over again by the Trial Court whilst B.D.A. is also brought in the fray.

Sequence of events discernable from the pleadings, records and submissions made on behalf of parties guide us to suspect that there is something ''more'' than what is meeting the eye'' in this case.

Having made a clinical analysis of the entire case from different dimensions, we are of the considered view that, this matter requires a re-trial in which BDA., which is a successor of CITB., is necessarily arraigned as a party-defendant.

Though, we heard the matter at length, we have refrained from adverting to various Rulings cited by both parties lest in our opinion, regarding applicability of any judgment to the facts of this case may influence the trial Court.

In the result, we pass the following:--

(i) appeal is allowed;

(ii) Judgment and Decree dated 31.7.2010 in O.S. No. 1232/2002 on the file of XXVII Addl. City Civil Judge, Bengaluru, is set aside and the matter is remitted back to the Trial Court for fresh disposal in accordance with law after impleading BDA as a party - defendant;

(iii) Trial Court is directed to dispose off the suit as expeditiously as possible;

(iv) It is made clear that any observations made herein are limited only to the extent of sustaining this order of remand. Trial Court shall permit parties to let in additional evidence if any, hear them and dispose of the suit as expeditiously as possible, wholly uninfluenced by any observations contained in this judgment

(v) All contentions of respective parties are left open;

(vi) Parties are directed to appear before the Trial Court on 18.11.2015 at 11.00 a.m. without notice and collect further date of hearing;"

Appeal stands disposed of.

Ordered accordingly.

No costs.

In view of disposal of the appeal, the IA.I/2015 for vacating the interim order dated 9.2.2012; IA.2/2015 for permission to bring the LR''s of deceased A8; IA.3/2015 for CD of 46 days delay in filing; IA.4/2015 for set aside the abatement of A8 and IA.5/2015 for legal heir on deceased A8 are rendered unnecessary and accordingly stand rejected.