Dismissed

Subbamma v. the Commissioner

Karnataka HC11 Oct 2013RSA/1147/2009

Case brief

AI extract

What is this about?

The appellant plaintiffs, challenging the dismissal of their suit for declaration of title, failed to produce proof that the suit property was not acquired by the Government or possessed by the KGF Sanitary Board, despite the defendant's plea. The High Court dismissed the appeal, holding that the plaintiffs failed to prove their title or possession, while charges of unfairness in not impleading th

What the court decided

AI extract

Subbamma Vs the Commissioner — Succession and Inheritance | Karnataka HC (2013)

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RSA 1147/09

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11^TH DAY OF OCTOBER, 2013 BEFORE: THE HON’BLE MR. JUSTICE A.S.PACHHAPURE REGULAR SECOND APPEAL No.1147 OF 2009

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BETWEEN: 1. Subbamma, W/o. Bajantri Muniswamy, Aged about 90 years, 2. M. Anand, S/o. Bajantri Muniswamy, Aged about 50 years, Both are residing at Pasranadapalli Village, Robersonpet, Bangarpet Taluk. ... APPELLANT/S [By Kum. Saritha N, Adv. for Sri. H. Kantharaja, Adv.] AND: The Commissioner, K.G.F. City Municipality, Robertsonpet, Bangarpet Taluk. ... RESPONDENT/S [By Sri. J.G. Chandramohan, Adv.] ***

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RSA 1147/09

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This RSA is filed u/Section 100 of CPC, against the Judgment & Decree dt: 08.07.2009 passed in R.A. No.54/2007 on the file the Addl. Civil Judge (Sr.Dn.) & JMFC., KGF, dismissing the appeal and setting aside the Judgment and Decree dt: 04.04.2007 passed in O.S. No.121/2005 on the file of the Prl. Civil Judge (Jr.Dn.), K.G.F.

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This RSA coming on for Admission this day, the Court delivered the following:

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JUDGMENT

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The appellants have approached this Court,

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challenging dismissal of their suit for declaration and injunction and their appeal by the first appellate Court.

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The facts relevant for the purpose of this appeal are as under:

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The appellants, who are the plaintiffs in the trial Court claimed to be the owners of the land bearing Sy. No.50/3, measuring 2 acres 4 guntas and 22 guntas kharab of Ragadahlli village as described

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in the schedule to the plaint. The suit property

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was owned by Lakshmaiah Naidu, who sold the same to

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RSA 1147/09

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Muniswamy under the registered Sale Deed dated 28.02.1952 and Muniswamy in turn sold it to G.Muniswamy Naidu under the registered Sale Deed dated 07.03.1955. Thereafter, the 1^st plaintiff purchased the suit property under the registered Sale Deed dated 18.10.1956. After the purchase, the 1^st plaintiff sold it to one S.K.Lakshmanagupta on 17.07.1957. In turn, said S.K.Lakshmanagupta sold the said land to the 1^st plaintiff under two registered Sale Deeds dated on 08.01.1958 and 05.09.1962. So, the plaintiffs claimed that they are in possession of the suit property under the aforesaid two registered Sale Deeds. Later they came to know their names have been deleted in the records and after enquiry with the defendant Municipality, they were informed that the suit property was acquired by the Government. Claiming that the suit property is in possession of the plaintiffs and that there is no acquisition of the land, the present suit came to be instituted seeking

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RSA 1147/09

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the relief of declaration of their title and injunction.

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The defendant Municipality appeared before the trial Court and filed its written statement denying the allegations made and contended that the land was acquired by the Government and in turn was given to the defendant Municipality to dump garbage and since for the last 40 years, they are in possession of the suit property. Thereby, they contended that the Government is a necessary party to the suit and as they are in possession of the suit property, the question of granting decree for declaration does not arise for consideration. They also made a counterclaim for injunction.

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On the basis of the pleadings, the trial Court has framed as many as 6 issues calling upon the plaintiffs to prove the title and possession of the suit property.

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The plaintiffs examined P.Ws.1 to 4 and in

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their evidence got marked the documents Exs.P1 to 25. The defendant examined D.Ws.1 to 3 and in their evidence got marked the documents Exs.D1 to 16.

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The trial Court after hearing learned counsel for the parties and on appreciation of the evidence on record, dismissed both the suit and also the counter-claim. Aggrieved by the Judgment and Decree of the trial Court, the plaintiffs preferred R.A. No.54/2007, whereas the defendant filed its crossobjections. The first appellate Court has dismissed the appeal of the appellant and granted the crossobjections filed by the respondent and decreed the counter-claim. Aggrieved by the Judgment and Decree of the Courts below, the present appeal is filed by the plaintiffs.

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I have heard learned counsel for the

appellants.

RSA 1147/09

It is the contention of learned counsel for

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the appellants that the suit property has been purchased under registered sale transactions and the title of the plaintiffs is proved on the basis of the Sale Deeds. Hence it is contended that the Courts below have committed an error in refusing the relief of declaration. So also, it is contended that the plaintiffs are in possession of the suit property and the rights are protected by granting injunction. She submits that the Courts below have dismissed the claim of the appellant contrary to the records and hence substantial question of law is to be raised for consideration.

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Ex.P1 is the Sale Deed dated 28.02.1952 and

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Ex.P2 is the Sale Deed dated 07.03.1955. The plaintiffs also produced Exs.P3 and 4 other Sale Deeds and on the basis of which they claimed title

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to the suit property. Exs.P7 and 8 are the certificates issued by the Sub-Registrar for the year 1952-62. Ex.P9 is the mutation entry relating

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to the entry of the name in the records of the suit

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property. Ex.P10 is the property extract for the year 2004-05. It reveals the name of KGF Sanitary Board in the owners column as also in the possessors column. Ex.P11 is also the certified extract of the mutation entry in relation to Sy. No.5/2. The plaintiffs have also produced the notice issued to the Commissioner, City Municipality, Robertsonpet, KGF. The postal acknowledgement and also the endorsement given by the City Municipal Council are produced at Exs.30 and 23 respectively. Exs.P24 and 25 are the photographs said to be of the suit property. Though the plaintiffs have produced the record of rights for the years 2004-05, the names of the plaintiffs do not appear both in the owners column as well as in the possessors column. This material placed on record is to be looked into in the context of the evidence of the defendant and also the documents produced.

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RSA 1147/09

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The specific defence of the defendant is

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that the suit property was acquired by the Government and the possession is given to the KGF Sanitary Board to use the suit property for the purpose of dumping garbage of Kolar town. Exs.D1 to 7 are the record of rights for the years 1976-77 to 2005-06. Since from 1976-77 onwards, the name of KGF Sanitary Board appears in the owners column and also in the possessors column. The plaintiffs have not explained the reason as to why their name was deleted from the owners column and also possessors column from these property records.

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It is relevant to note that the defence of the Municipality is that the Government acquired the suit property and thereafter entrusted the possession to the KGF Sanitary Board. There is a specific contention in the written statement that the Government is a necessary party to the suit property. Despite such a contention having been raised by the defendant, the plaintiffs have not

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taken any steps to implead the Government as a party

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to the suit. It is no-doubt true that the records pertains to the acquisition of the suit property have not been produced by the defendant. But, there is no burden cast upon the defendant to establish the acquisition as it is the Government who has acquired the suit property and handed over its possession to the defendant. Despite the contention having been raised in the written statement about the acquisition of the suit property, the plaintiffs have not produced any records pertaining to the land in question nor impleaded the Government as a party

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to the suit. At least they could have produced a certificate from the Government authority to prove that this land is not acquired. The reasons for non-production are best known to the plaintiffs and suppression of this material would lead to an adverse inference.

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That part, Exs.D9 and 10 are the certified

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sketch in relation to the suit sketches and survey

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RSA 1147/09

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number and Ex.D12 is the letter addressed by the

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Karnataka Pollution Control Board to the

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Commissioner of City Municipal Council. Exs.D13 to 15 are the record of rights for the years 1987-88 to 2001-02 in respect of Sy. No.51, wherein the name of

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the KGF Sanitary Board is entered in the records. Ex.D16 is the nil encumbrance certificate for the period from 01.04.1980 to 05.12.2006 and the perusal of the certificate reveals that the property stands in the name of the KGF Sanitary Board and no encumbrance is there in respect of this property in favour of any other person. So, when the City Municipal Council has taken up a defence that the suit property is in possession of the KGF Sanitary Board for the last more than 40 years prior to institution of the suit and in the absence of the Government being a party to the suit, the mere fact that non-production of the records pertaining to the acquisition by the City Municipal Council does not arise as it is not the acquiring authority. So, on

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the basis of the aforesaid material, the Courts below have come to the conclusion that the plaintiffs have not proved their title and also the possession. The very fact that the name of KGF Sanitary Board is in the records since from 1976-77 onwards both in the owners column and possessors column, the first appellate Court was justified in granting the counter-claim and dismissal of the suit of the appellants. The perusal of the material placed on record does not reveal any substantial question of law for consideration.

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In the result, the appeal fails and accordingly it is dismissed. If the plaintiffs have any claim for compensation from the Government, they are at liberty to make a claim.

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Sd/JUDGE.

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Ksm*

Subbamma v. the Commissioner

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Subbamma v. the Commissioner

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