Kempaiah vs Muninanjamma

L. Narayana Swamy, J.—This appeal is filed by the defendant No. 1(a) in the suit OS No. 2191/1989 on the file of the XV Addl. City Civil and Sessions Judge, Bangalore filed by the predecessor of the Respondents 1 and 2 for declaration of ownership, possession and for payment of arrears of rent. The court below by the judgment and decree dated 22.04.2009 has decreed the suit.

For the sake of convenience, the parties would be referred to as per their ranking in the court below.

The facts of the case to be stated in brief are that one Smt. Muninanjamma w/o late Anjanappa was the absolute owner of the plot measuring 120'' x 30'' having purchased the same from its owner Muniveerappa in three bits under three different sale deeds dated 27.6.1953, 13.7.1953 and 12.7.1956. The plaintiff had constructed houses in an area measuring 90'' x 30'', leaving a small portion measuring about 30'' x 30'' abutting Vyalikaval Main Road. This vacant portion is the suit schedule property.

It is stated, in 1959, the defendants 1 and 2, approached the plaintiff and requested her to permit them to stay there by putting up two temporary huts and offered to pay a ground rent of Rs. 15/- each. Accordingly, the plaintiff permitted the defendants 1 and 2 to put up the huts measuring 12'' x 10'' each and stay there on a monthly ground rent of Rs. 15/- each. Since then, the defendants are living in the said huts and they are irregular in payment of ground rents.

It is stated, three days prior to filing of the suit, the defendants attempted to dig a foundation and attempted to construct a pucca house without any manner of right, title or interest. Thus the plaintiff filed the suit seeking for the relief''s as aforesaid.

The defendants appeared through an advocate. The first defendant filed the written statement and contested the suit. The defendant No. 2 did not file any written statement and did not lead any evidence.

The first defendant died during pendency of the suit and his L.R. who is the son, was brought on record and he contested the proceedings. The deceased first defendant filed written statement and denied the plaint averments. It is contended that the plaint schedule site is no more a site as there are dwelling houses. There is no site measuring 30'' x 30'' and the plaintiff herself does not know the correct dimension of the schedule site. She herself has shown the approximate measurement and there are two huts but plaintiff is claiming that it is a building site. There is a pucca building of the defendant No. 1, wherein he was residing with his six family members.

The deceased first defendant further contended that himself was the owner of the schedule property and he constructed the building on site No. 63 in Jabbar Block measuring 20'' x 25'' which was allotted in his favour by the then C.I.T.B under allotment order dated 22.9.1967 and he came in possession on 23.9.1968. The CITB now the BDA, has executed an absolute registered sale deed in favour of the deceased first defendant dated 16.11.1983 and khata has been entered in his name and he is paying kandayam to the City Corporation. He has put up the dwelling house after obtaining necessary sanctioned plan and licence from the City Corporation and he is in lawful possession of the property bearing No. 63 and so, the suit of the plaintiff is not maintainable. The plaintiff is claiming her right under the registered sale deed dated 12.7.1956, but once the land has been acquired by the C.I.T.B, the plaintiff ceases to be the owner in possession of the schedule property. It is denied that the defendants 1 and 2 have obtained the schedule property on a ground rent of Rs. 15/- and they are in permissive possession of the suit schedule property.

The LR of the first defendant also filed additional written statement contending that admittedly the alleged sale deed under which the plaintiff claims to have got right, title and interest over the property does not disclose any property No. The plaintiff by inserting the property No. is not entitled for any relief as sought for. The defendants themselves are the owners of the schedule property and there was no cause of action for the suit.

The court below based on the above pleadings of the parties, framed the issues relating to valuation being proper, sufficiency of court fee, description of the suit schedule property, ownership of the suit property by the plaintiff, defendants being in permissive possession of the suit schedule property and entitlement of the plaintiff for the reliefs prayed for.

The first L.R of the plaintiff was examined as PW-1 and got marked Ex. P1 to P33 in support of case of the plaintiff. Defendant No. 1(a) was examined as DW-1 and got marked Ex. D1 to D41. The Court Commissioner was also appointed at the instance of the plaintiff, who inspected the spot and submitted her report. She was examined as CW-1 and Ex. C1 to C3 were marked in her evidence.

The court below heard the arguments of the parties and answered all the issues in the affirmative and in favour of the plaintiff and decreed the suit declaring the ownership of the plaintiff in respect of the suit schedule property and directed the defendants to vacate and deliver the vacant possession of the schedule property in their occupation to the plaintiffs within two months and to pay the arrears of rentals. Being aggrieved, the LR of the first defendant has filed the present appeal.

I have heard the learned counsel for the appellant and learned counsel for the respondents 1 and 2 and perused the entire records.

The learned counsel for the appellant contended that the plaintiff has failed to establish how property No. 63 in the occupation of the appellant is correlated to the plaint schedule when the two properties have different dimensions, boundaries, measurements, etc., it is contended, the Court below has failed to note that it is not in dispute that CITB acquired the lands for Jabbar Block and layout was formed and sites were distributed to the slum dwellers and one of the sites allotted to the father of the appellant is Site No. 63 in support of which documents are produced by the appellant, it is further contended, the Court below failed to note that allotment made in favour of the appellant was not called in question and BDA being a necessary party, not made a party, it is also contended, the Court below failed to note that land acquired in Jabbar Block is not denotified and the observation made to the effect that "allotment does not arise" is erroneous on the part of the court below, it is contended that Muneshwara Block and Jabbar Block are different and Ex. P17 to P35 related to Muneshwara Block and the property of appellant is situated in Jabbar Block which is admitted by the plaintiff, which the court below failed to notice, it is contended, the court below has failed to note the admission made by PW-1 regarding allotment of site by the CJ.T.B in favour of the first defendant and also first defendant constructing the house and residing there. It is his contention, the Court below failed to note that plaintiff did not establish whether he has got land either in Muneswara Block or Jabbar Block and PW-1 has admitted that his site is situated in Muneshwara Block. Thus the learned counsel for the appellant submits that the court below has committed an error in decreeing the suit and thus he prays for allowing the appeal and to set aside the impugned judgment and decree.

The learned counsel for the respondents 1 and 2 supported the impugned judgment and decree. It is submitted that the plaintiff became the absolute owner of the property purchased by her under the three different registered sale deeds and the suit schedule property is a portion thereof. The defendants occupied the suit schedule property with permission of the plaintiff on a ground rent of Rs. 15/- each. Though the property was acquired came to be denotified. Thus, the plaintiff has proved the pleaded case by producing oral and documentary evidence. On the other hand, the first defendant who is the appellant has failed to establish his pleaded case. Thus, the impugned judgment and decree do not suffer from any infirmity or illegality so as to call for interference from this Court. Accordingly, she prays for dismissal of the appeal.

After hearing the arguments of both the parties, the point that arises for my consideration in this appeal is, whether the impugned judgment and decree suffer from any illegality or infirmity so as to call for interference from this court? My answer would be in the negative for the following reasons:

It is the pleaded case of the plaintiff that the suit schedule property is a part of the three bits of sites got acquired by her through three different registered sale deeds dated 27.6.1953, 13.7.1953 and 12.7.1956. All the three registered sale deeds are produced and marked as Ex. P1 to P3. These sale deeds are of an undisputed point of time and are not set aside by any Civil Court. It is true, in none of the sale deeds Sy. No. out of which the sites were formed, is mentioned and only Site Nos. 5, 5/1 and 5/1 respectively are mentioned in the sale deeds executed by the same vendor by name Muniveerappa. It is their further case that construction was made to the extent of 90'' x 30'' by the plaintiff and the remaining vacant site earlier, in which huts were put up later by the defendants 1 and 2 on the Eastern side out of the entire extent measuring 120'' x 30'' abutting Vyalikaval Main Road measuring about 30'' x 30'' is the suit schedule property. The plaintiff stated, defendants came to the suit schedule property on a ground rent of Rs. 15/- each thereby they were allowed to put up shed measuring 12''x20'' each on a payment of ground rent of Rs. 15/- by each of the defendant.

On the other hand, it is the case of the defendant No. 1 that the suit schedule property was acquired by the C I T B thereby the plaintiff lost her right, title and interest in the suit schedule property. It is his case, he was allotted site No. 63 measuring East to West 20'' and North to South 25'' in Jabbar Block Extension vide allotment letter dated 22.9.1967 as per Ex. D8 and thereafter sale deed was executed by the C I T B vide sale deed dated 16.11.1983 as per Ex. D6. Memo is also produced by the first defendant as per Ex. D5 dated 17/23.9.1968 under which he claims to have got possession of the site allotted to him. Even in the sale deed executed by the CITB in favour of the first defendant there is no mention of any Sy. No. in which the site sold to him was carved out.

PW-1 plaintiff No. 1(1) who is examined in the case has deposed to the plaint averments. It is suggested to PW-1 in the cross-examination that suit schedule property is acquired and that CITB has allotted the site in favour of the first defendant. PW-1 has admitted the factum of allotment of site in favour of the first defendant but he has stated, it is not the suit schedule property. In the endorsement dated 4.7.1960 marked as Ex. P9 addressed from the Corporation to plaintiff Sy. No. 8 of Jodi Ranganathapura is mentioned with reference to Site Nos. 5, 5/1, 5/2 and 7 in respect of which the plaintiff had sought for fixing the layout charges. In Ex. P10 dated 6.7.1960 at the request of the plaintiff for sanction to retain the unauthorized existing buildings, the plaintiff was directed to remove the huts existing by the side of the main road leading to Vyalikaval among other things. In Ex. P6 which is the endorsement issued by the Land Acquisition Officer of the B D A dated 18.10.2007 with reference to acquisition of Sy. No. 8 of Jodi Ranganathapura, it is stated as follows:

"Sy. No. 8 of Jodi Ranganathapura village was notified for formation of Muneshwara Block vide Notification dated 25.6.1960 but thereafter no award has been passed in respect of the said land and therefore particulars of award cannot be furnished." It is further stated therein,

"Since the said land has not been taken possession, of handing over to Engineering Department does not arise". In Ex. P29 dated 26.5.2008 which is again the information furnished under RTI by the Special Land Acquisition Officer, Bangalore Development Authority, it is stated as follows:

"The Notification published vide No. RDH 19 LTB 60 dated 25.6.1960 for formation of Muneshwara Block has been canceled vide Notification dated 25.2.1964 in No. RDH 2 LTB 64". Both the above notifications dated 25.6.1960 and 25.2.1964 are produced and marked as Ex. P31 and 32 respectively. In Ex. P31 acquisition notification Sy. No. 8 is mentioned, which notification is canceled by virtue of Ex. P32. The original notices issued to the plaintiff by the Special Land Acquisition Officer, CITB in LAC No. 11/60-61 addressed to the plaintiff are also marked as Ex. P33, P34 and P35.

By perusal of the above oral evidence and the documentary evidence of the plaintiff, it is clear that suit schedule property is part of Sy. No. 8 of Jodi Ranganathapura, it was proposed for acquisition and later the acquisition notification came to be canceled. The plaintiff acquired right, title, interest and possession in respect of the entire property by virtue of the registered sale deeds which are marked as Ex. P1 to P3 and there were huts abutting the road, which were directed to be removed by the plaintiff for sanction to retain the unauthorized existing buildings vide Ex. P10 dated 6.7.1960.

Son of the first defendant as DW-1 has also deposed to the written statement averments. It is to be noted here that surprisingly in none of the documents such as, Ex. D5 dated 17/23.9.1968 the possession certificate, Ex. D6 the sale deed dated 16.11.1983 and D8 dated 22.9.1967 the allotment letter, except mentioning Site No. 63, Jabbar Block Extension, measurement and boundaries as stated therein, the area name and place is not mentioned. These three documents are the basic documents under which the defendant No. 1 is basing his claim. It is not clear as to how the first defendant mentioned situation of Site No. 63 at Jabbar Block, 7th Cross, Maruthi Extension, Malleswaram, Bangalore - 3 in the GPA executed in favour of DW-1. The description of the property in the basic documents of the first defendant is totally insufficient to locate its situation. The sale deed of the first defendant also does not mention the Sy. No. out of which Site No. 63 was formed. Therefore, the defendant-appellant has failed to prove his pleaded case that property of the plaintiff has been acquired and thereby the plaintiff has lost her right over the suit schedule property and he was allotted the same. The first defendant has further failed to prove that the site which was allotted to him is the property over which he is found to be in possession of by the Court Commissioner as per her report. The first defendant has not produced the original possession certificate. It is his case that the deceased defendant applied for copy of the possession certificate with the Bangalore Development Authority as early as on 26.9.1998. No effort was made to obtain the same and produce it before the trial court. Though the defendant No. 1 has produced number of documents relating to Site No. 63, they are of no help to him for want of basic requirement to locate the said site and chronology missing so as to connect it to the suit schedule property in his possession.

The defendant No. 2 has not filed the written statement and has not led any evidence. Thus the say of the plaintiff as against the second defendant remained unchallenged. The second defendant is also found to be in possession of the shed in the suit schedule property by the Court Commissioner during her spot inspection.

Thus the possession of the defendants 1 and 2, when the first defendant has failed to prove his pleaded case and plaintiff having proved her pleaded case and second defendant having failed to contest the case, must be the possession as pleaded by the plaintiff i.e., the permissive possession over which the first defendant put up construction during pendency of the suit.

Based on the different measurements and different boundaries and the DW-1 having denied property having abutted to the Vyalikaval Main Road, which is supported by the Commissioner''s Report, the court below is right in coming to the conclusion that the site claimed by the first defendant and the suit property in respect of which the relief is sought, are not one and the same but they are different properties and there is no merit in the contention taken by the defendant No. 1.

Now coming to the contentions of the learned counsel for the appellant, it is the contention of the learned counsel that the plaintiff has failed to correlate Site No. 63 to the suit schedule property. It is to be mentioned here that it is the specific case of the plaintiff that site No. 63 is not the suit schedule property, where the appellant is in permissive possession of the same. Therefore, the question of plaintiff failing to correlate Site No. 63 to the suit schedule property does not arise and the said contention is not acceptable.

It is contended by the learned counsel for the appellant that the land acquired for formation of Jabbar Block II Stage has not been denotified. No documentary evidence except the acquisition notification has been produced in support of the said contention by the first defendant. No official from the Bangalore Development Authority has been examined. No other allottees as per the boundary of the first defendant''s site as pleaded by him, are examined. It could be gathered from the records, surprisingly to the application filed by the plaintiff to examine the Special Land Acquisition Officer, the first defendant has filed objections thereby he himself has lost an opportunity to substantiate his pleaded case. In that view of the matter and in place of Ex. P29 to P31 produced by the plaintiff to the effect that land Sy. No. 8 has not been taken possession, no award is passed and the final notification has been canceled, the said contention of the learned counsel for the appellant cannot be accepted.

The learned counsel for the appellant contended that it is not in dispute that CITB acquired the lands of Jabbar block and layout was formed and sites were distributed to the Slum Dwellers and one of the sites allotted to the father of the appellant as Site No. 63 in support of which documents are produced by the appellant, which is not properly considered. As already discussed above, Site No. 63 is of a different dimension, no area or place of its location are not mentioned in the basic documents such as allotment letter, possession certificate and sale deed. The first defendant has failed to prove that the property where he is in occupation is the Site No. 63 so allotted to him.

It is contended by the learned counsel that allotment made in favour of the appellant was not called in question and B.D.A being a necessary party is not made a party. It is not the case of the plaintiff that his property is allotted in favour of first defendant by the CITB or BDA and therefore it is not for the plaintiff to call in question the allotment or to agitate against the CITB or BDA.

It is further contended that Muneshwara Block and Jabbar Block are different and Ex. P17 to P35 related to Muneshwara Block and the property of the appellant is situated in Jabbar Block which is admitted by the plaintiff, which the court below has failed to note. If the property of the appellant is in Jabbar Block as allotted and conveyed by the CITB or BDA the relief of the first defendant is elsewhere to agitate and lay a claim and not to claim portion of the suit schedule property as Site No. 63 without there being any supporting documents.

It is also contended by the learned counsel for the appellant that the court below has failed to note the admission made by PW-1 regarding allotment of site by the CITB in favour of the first defendant and also first defendant constructing the house and residing there. There are two aspects, one is allotment of site by the CITB which the plaintiff has admitted but asserted that it is not in the suit schedule property. The second aspect so far as construction is concerned, it is true the plaintiff has admitted but relating to the property where he is in occupation where construction is made during pendency of the suit. Even when the Court Commissioner visited the spot, it was a hut in occupation of the first defendant. Therefore, PW-1 has not admitted first defendant''s construction in Site No. 63, which is part of the suit schedule property as sought to be contended by the learned counsel for the appellant.

It is lastly contended that plaintiff did not establish, whether he has got land either in Muneshwara Block or Jabbar Block and PW-1 has admitted that his site is situated in Muneshwara Block. It is not in dispute that the plaintiff is in possession and enjoyment of remaining property out of the entire property. It is further proved that the defendants are in possession of the suit schedule property. There is little confusion as to Muneshwara Block and Jabbar Block, which are adjacent blocks and that itself is not a ground to doubt the case of the plaintiff in view of the available materials on record.

All the contentions raised by the appellant are given my anxious consideration. There is no merit in any of the contentions raised by the appellant. Based on the evidence both oral and documentary and the case pleaded by the parties, I am of the view that the court below has properly appreciated the same and has come to correct conclusions. There is no illegality or infirmity in the impugned judgment and decree passed by the court below so as to call for interference by this Court.

Accordingly, this appeal fails and it is accordingly dismissed. No order as to costs.