Mr. K.C. Srinivas vs Mrs. Gurramma and Mr. Ankappa Reddy

Anand Byrareddy, J.—These appeals are heard and disposed of by this common judgment having regard to the fact that the parties are common and the appeals are preferred against a common judgment rendered in the civil suits in OS 3860/1993, wherein the present appellant was the first defendant and in OS 4819/1994, wherein the present appellant was the plaintiff. The first respondent had in her suit, O.S. No. 3860/1993, sought for a declaration that she was the lawful owner of the suit property and for a further declaration that the appellant was not entitled to be registered as the khatedar of site no. 20 (Khata no. 41), 3rd Cross, Ex-Servicemen Colony, Bangalore - 560 032, while indicating the boundaries of site no. 18, and for revocation and cancellation of building plan LP no. 289/1991-92, issued by the competent authority.

The appellant in his suit, O.S. No. 4819/1994, had sought the relief of permanent injunction restraining the first respondent from interfering with his possession of the suit property, namely, Site no. 20, above referred to.

It was the case of the first respondent that, the appellant had purchased land bearing Survey No. 33/9 of Matadahalli village, Bangalore North taluk, measuring 1 acre and 12 guntas, under a registered sale deed. He had thereafter formed 32 residential sites in the said land, of varying dimensions. He had sold all the said sites. One Govindaswamy Reddy is said to have purchased 10 sites, namely, site nos. 17, 18, 19, 21, 22, 23, 25, 26, 27 and 28, from the appellant, under a sale deed dated 8.11.1974. The said Govindaswamy is said to have sold site no. 17 to one Krishna Reddy, who in turn is said to have constructed three shops and a residential building therein.

The respondent is said to have purchased the said site no. 17 with all the structures thereon, under a registered sale deed dated 15.5.1980, from Krishnareddy and also Site no. 18 from Govindaswamy under a sale deed dated 15.5.1980. It was her further case that the third defendant, had resorted to widening the road on the northern side of the property and in the process had encroached upon and consumed a portion her site bearing no. 18. There was no proceedings initiated for acquisition of the land, prior to such road widening. The two sites bearing no. 17 and 18, together measure, East to West 85 feet and North to South (30+ 15)/2 feet. Site no. 18 alone, measures East to West 45 feet and North to South 24 feet on the eastern side and 15 feet on the Western side.

It was the case of the respondent, that site no. 20 formed on the southern side of the suit property, site no. 18, had been sold to one Siddaramanna, who had in turn sold it to one Sakamma, who had constructed a house thereon.

The respondent had let out the suit property to the second respondent to run a fuel depot. He had later redelivered possession. It was then under the possession of one Ankappa Reddy, a power of attorney holder of the respondent, who was running a real estate agency therein in the name and style of Karthik Estate Agency. It is the case of the respondent that on 16.10.1992, when the respondent approached the third respondent seeking to obtain change of Khata in her favour in respect of the suit property, it was discovered that the appellant had manipulated the documents and had obtained change of khata in his favour in respect of property shown as Site no. 20 - but the boundaries and dimensions of which was that of the suit schedule property. It was this, according to the respondent, which gave a cause of action for the suit.

To compound the mischief, it is claimed, that the appellant had also instituted a petition for eviction against the second respondent, claiming him to be a tenant in respect of site no. 20, while the boundaries ascribed to it were that of Site no. 18. The respondent herein had sought to enter appearance in the said eviction proceedings as a necessary party. Her application to implead herself therein was rejected by the Court on the footing that the property claimed by the respondent and the subject matter of the proceedings were different. The eviction petition filed by the appellant having been decreed, the appellant dispossessed the respondent and demolished the structures thereon and had completely changed the nature of the property by putting up other construction thereon.

The appellant had contested the suit of the respondent on that footing, that the eviction proceedings against respondent no. 2 having been decreed, he had obtained possession of the property in accordance with law and had thereafter invested substantial sums of money to put up further construction and that the respondent was making a false and concocted claim in respect of the property. He had hence filed the suit for injunction. He admitted that he was the original owner of the land in which 32 sites had been formed. He however, claimed that he had not sold all the sites, but had retained site no. 20. In so far as Site no. 17 and 18 are concerned, the same were abutting the cart road in existence on the northern side of the layout. When the city Corporation resorted to widening the said cart road, both site no. 17 and 18, were consumed in such widening. A portion of site no 19 and 20 was also lost in such road widening exercise. It was hence asserted that site no. 17 and 18 ceased to exist. The Corporation had after ascertaining these circumstances had effected Khata in respect of site no. 20 in favour of the appellant and hence, the suit claim of the respondent was not tenable.

The City Corporation represented by respondents 3 to 5 have affirmed that the khata has indeed been transferred in favour of the appellant in respect of what is identified as site no. 20, but had taken a neutral stand in so far as the controversy as to the identity of the property either as no. 18 or 20, and undertook to abide by the finding of the trial court.

On the basis of the above rival contentions, the trial court had framed the following issues:

O.S. No. 3860/1993

Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

Whether the plaintiff proves that she is in lawful possession of the suit property as on the date of suit?

Whether the plaintiff proves that there was an attempt by the defendants to get khatha transferred in the name of the first defendant?

Whether the plaintiff is entitled to the declaration as prayed?

Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?

What decree and order?

Additional Issues:

Whether the suit schedule property forms part of site No. 18 belonging to the plaintiff or site No. 20 belonging to the first defendant?

Whether the first defendant''s allegation is correct that site No. 17 and 18 have been covered by the road?

O.S. No. 4819/1994

Whether the plaintiff proves that he is in lawful possession of the suit schedule property on the date of the suit?

Whether the suit is not maintainable without the relief of declaration of title?

Whether the suit is not maintainable for mis-joinder and non-joinder of parties?

Whether the plaintiff proves that the defendants attempted to interfere in the possession of the suit property by the plaintiff?

Whether the plaintiff is entitled to a decree for permanent injunction?

The trial court found favour with the respondent and decreed the suit as prayed for by her and dismissed the suit of the appellant with costs. It is that which is under challenge in the above two separate appeals.

The learned Senior Advocate. Shri S.P. Shankar, appearing for the counsel for the appellant contends that the court below has fallen into error in addressing the material on record. It is pointed out that admittedly, the appellant had, after purchasing land measuring 1 acre and 12 guntas, formed 32 sites. The finding of the trial court that the appellant had purchased the said extent of land, but excluding five sites of which site no. 20 was one, is a finding arrived at on an erroneous reading of the evidence. This finding is in the face of the admitted circumstance to the contrary by the first respondent, that the sites were all formed after such purchase. Therefore the finding that the appellant had not purchased site no. 20 was without substance. This was not also the case of the respondent.

It is also contended that the petition for eviction of the tenant in occupation of site no. 20 having been decreed in favour of the appellant by a competent court and he having obtained possession thereof in accordance with law is sought to be ignored, though the same has attained finality. It is inexplicable that the court below has granted possession of the suit schedule property to the first respondent, even in the absence of such a prayer.

It is also contended that the first respondent had not tendered evidence on her own but had sought to tender evidence through a power of attorney holder, who was not competent to speak to the pleadings of the first respondent and hence no reliance could be placed on such evidence.

While on the other hand, the learned counsel for the first respondent seeks to justify the findings of the court below and asserts that the grounds urged in support of the appeal have all been answered by the trial court and further, in addition to the report of the court commissioner appointed by the trial court, this court had in the course of the hearing appointed a court commissioner to ascertain the existence or other wise of all the sites formed in the row comprising the disputed site starting from the opposite end of the row, and the report clearly exposes the mischief sought to be played by the appellant in seeking to assign different site numbers to the sites originally formed to accommodate the site claimed as no. 20, when actually it was site bearing no. 18. Hence the learned counsel seeks dismissal of the appeals. On a consideration of the rival contentions and the record, it is seen that the trial court in examining the defence set up by the appellant has addressed the material documents produced in support thereof by the appellant and has proceeded to arrive at findings as follows. Exhibit D. 1 was the entire file pertaining to the property maintained by the City Corporation, which was summoned at the trial. The sale deed dated 3.6.1971, under which the appellant had purchased the land in question, was found at pages 20 to 23 of Exhibit D-1, along with a site plan showing the alleged formation of a road over site no. 17 to a large extent, over site no. 18 to the entire extent and over site no. 20 to some extent. But, however, the trial court has found that this was not an authenticated document and was produced by the appellant and could only serve his purpose. Secondly, the trial court has found that the last portion of the sale deed produced as part of Exhibit D.L. defining the property and other details were illegible. The trial court has then juxtaposed the sale deed Exhibit D. 1 and the certified copy of the sale deed found at Exhibit P. 26 and has found the two to be inconsistent. The trial court has thus negated the claim of the appellant to being in possession of Site no. 20 which was found to have been sold to Sakamma, under the sale deed, Exhibit P. 4. This discrepancy, coupled with the stand of defendants 3 to 5 representing the City Corporation, to the effect that not with standing the change of khata in favour of the appellant, the said authorities holding that they would abide by a finding of the trial court as to the actual ownership and possession which was the area of controversy in the suit, has left the trial court in little doubt that the claim of the appellant was nebulous and was never established.

Nextly, the trial court has referred to the findings of the Court Commissioner appointed by it. Significantly, the appellant had not issued any instructions to the said Court Commissioner. The report was not challenged by the appellant. The said report did not indicate that sites bearing nos. 17 and 18 purchased by the respondent had been acquired by the City Corporation for the purposes of widening the road. The trial court has concluded that the appellant was not in possession of site no. 20, but had yet managed to obtain change of khata in respect of the same in his favour by recourse to manipulation of documents.

In so far as the contention that eviction proceedings initiated by the appellant in respect of site no. 20 had attained finality and that the same could not be ignored in considering the claim of the first respondent etc., is concerned, the trial court has opined that the law is well settled as to the question of title to the property could only be incidental in proceedings for eviction under special legislation and would not operate as res judicata, in a subsequent civil suit, in which the question of title was directly raised. Further, though the second defendant was a respondent in the eviction proceedings, he had not contested the same and therefore, it could not be said that there was any finding that was conclusive in so far as title to the property or the identity was concerned.

Further, the trial court has also held that the mutation entry in respect of the property by itself would not be conclusive of title to the property.

Further, as this court found it necessary to verify and ascertain the existence of the row of sites commencing from the southern end to the northern end - shown as site nos. 32 to 18 (in descending order) as shown in the layout plan Exhibit P. 6 (namely, 32, 30, 28, 26, 24, 22, 20, 18). And seen from the report of the Court Commissioner, appointed by this court, as per report dated 26.7.2013, there was a last minute attempt to confound the findings by reference to a property bearing no. 29 in the said row. This site no. 29 is not found in that row even in the site plans referred to and relied upon by the appellant himself. If the said site number is taken as Site no. 32, the site no.-20 claimed by the appellant is clearly demonstrated as being site no. 18. This would mean that the findings in favour of the first respondent and the suit claim as being valid and tenable.

Accordingly, the appellant has miserably failed to establish his claim to the suit property and consequently both the appeals are dismissed.