Dismissed

Mysore Urban v. Smt Kausalya Devi

Karnataka HC1 Dec 2020RFA/772/2011

Case brief

AI extract

What is this about?

Appeal by a development authority against a decree of declaration and perpetual injunction over an allotted house site. Holding that the plaintiff proved her title and possession through the chain of registered sale deeds and that the authority's plea of fraud was unsupported, with crucial records withheld, the court found no infirmity and dismissed the appeal.

What the court decided

AI extract

Mysore Urban Vs Smt Kausalya Devi — Property and Title | Karnataka HC (2020)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 01^ST DAY OF DECEMBER, 2020

¶4

PRESENT

¶5

THE HON'BLE MRS. JUSTICE S.SUJATHA

¶6

AND

¶7

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶8

RFA.NO.772 OF 2011 (DEC/INJ)

¶9

BETWEEN:

¶10

MYSORE URBAN DEVELOPMENT AUTHORITY J.L.B. ROAD MYSORE - 570 017 BY ITS COMMISSIONER

¶11

....APPELLANT

¶12

(BY SRI M.V. VEDAMURTHY, ADVOCATE)

¶13

AND:

¶14

SMT. KAUSALYA DEVI W/O LATE P. MURALIDHAR AGED ABOUT 69 YEARS R/AT DOOR NO.5932 SITUATED AT CROSS ROAD 2^ND STAGE, VIJAYA NAGAR DEVRAJ MOHALLA MYSORE-570 001

¶15

SINCE DEAD REP. BY HER LRS

¶16

¶17

A. SMT. BHAVANA R. PUNJABI D/O KAUSALYA DEVI, AGED ABOUT 50 YEARS R/AT.NO.59/10, 39^TH 'B' CROSS M.S.R. LAYOUT, JAYANAGAR, 4^TH 'T' BLOCK BANGALORE - 560 041

¶18

B. M. GOVIND, S/O KAUSALYA DEVI AGED ABOUT 48 YEARS R/AT NO.5932, CROSS ROAD II STAGE, VIJAYANAGAR DEVARAJA MOHALLA MYSORE

¶19

C. M. MAHAVEER AGED ABOUT 46 YEARS S/O KAUSALYA DEVI, R/AT NO.46 1^ST FLOOR, 7^TH MAIN YADAVAGIRI, MYSORE

¶20

CAUSE TITLE AMENDED VIDE COURT ORDER DTD:23.09.2014

¶21

….RESPONDENTS

¶22

(BY SRI. MANMOHAN .P.N, ADVOCATE FOR R1(A TO C)

¶23

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 15.11.2010 PASSED IN O.S.243/2009 ON THE FILE OF THE II-ADDL. SENIOR CIVIL JUDGE, MYSORE, DECREEING THE SUIT FOR THE DECLARATION AND PERMANENT INJUNCTION.

¶24

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.11.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

¶25

¶26

JUDGMENT

¶27

The captioned appeal is filed by the

¶28

appellant/defendant challenging the judgment and decree passed in O.S.No.243/2009.

¶29

The facts leading to the case are as under:

¶30

The respondent/plaintiff filed a suit for

¶31

declaration and consequential relief of perpetual injunction stating that she is the absolute owner of the suit schedule property and to restrain the appellant/defendant and its officials from interfering with the peaceful possession and enjoyment of the respondent/plaintiff. The subject matter of the suit property is house No.5932 situated at Vijayanagar 2^nd Stage, Devaraja Mohalla, Mysuru. The respondent/plaintiff specifically contended in O.S.No.243/2009 that the suit schedule property was allotted to one Kariyappa by the appellant/authority on 06.06.1994 and was also put in possession of the

¶32

¶33

said site. Subsequently, appellant/authority has executed title deed in favour of Kariyappa which was registered as document No.10122 in Book No.1. On 10.10.2005, Kariyappa sold the suit schedule property to Smt. C.M.Madhura for valuable sale consideration of Rs.2,61,500/- under registered sale deed dated 10.10.2005 and pursuant to alienation, the original allotee namely Kariyappa delivered possession to C.M. Madhura. Smt. C.M.Madhura got her name mutated to the property extracts. Smt. C.M.Madhura in turn sold the suit schedule property to one S.Shivaprasad Mada for sale consideration of Rs.3,00,000/- under registered sale deed dated 24.02.2006 and possession was also delivered pursuant to execution of registered sale deed. Said Shivaprasad Mada also got his name mutated in the property extracts on the basis of the registered sale deed. The said Shivaprasad Mada having acquired right and title over the site i.e., the

¶34

¶35

suit schedule property approached the City Corporation, Mysuru seeking approval of plan. The authority approved the plan and as per the approved plan, the said Shivaprasad constructed residential house in the residential property. He also secured water connection and electricity connection from respective competent authorities. On 28.06.2007, the respondent/plaintiff's vendor namely Shivaprasad Mada sold the suit schedule property to the present respondent/plaintiff for a valuable sale consideration of Rs.20,00,000/- under registered sale deed dated 28.06.2007 and accordingly, delivered possession of the residential house to the respondent/plaintiff. The respondent/plaintiff got her name mutated to the katha of the suit schedule property. The respondent/plaintiff is asserting her title by relying on the title documents and sanction order in favour of the original allotee namely Kariyappa.

¶36

¶37

The present suit is filed by the respondent/plaintiff seeking declaration and

¶38

consequent relief of injunction. When the present appellant/authority issued a notice as per Ex.P-20 and also pursuant to appellant/authority having caused the paper publication, the respondent/plaintiff sought for relief of declaration and injunction by relying on the registered sale deed in her favour.

¶39

Per contra, the appellant/authority on receipt of summons, contested the proceedings by filing written statement. The appellant/authority stoutly denied the entire averments made in the plaint. At para 5 of the written statement, the appellant/authority took a contention that the suit schedule property was never allotted to Kariyappa. It is the case of the appellant/authority that Kariyappa never submitted an application seeking grant of site. It was alleged in the written statement that documents are forged by

¶40

¶41

Kariyappa and others and in this regard, the appellant/authority has already lodged a criminal complaint with the jurisdictional Police Station at Lakshmipuram. It is also contended at para 5 of the written statement that respondent/plaintiff is well aware of criminal proceedings. Since respondent/plaintiff is asserting right on the basis of forged documents, she is not entitled for relief as sought in the plaint and hence, the appellant/authority prayed for dismissal of the suit. A plea was also taken in the written statement that suit is bad for nonjoinder of necessary parties.

¶42

Based on the rival pleadings, the Court below has formulated the following issues:

¶43

" 1) Whether the plaintiff proves that she is the absolute owner in lawful possession and enjoyment of suit schedule property by virtue of registered sale deed dated 28/06/2007?

¶44

2) Whether the plaintiff proves that the defendant has allotted the suit schedule

¶45

¶46

property in favour of Sri Kariyappa on 06/06/1994 and executed registered title deed on 06/01/2005?

¶47

3) Whether the plaintiff proves that the defendant Authority is trying to interfere with her peaceful possession and enjoyment of suit schedule property and thereby illegally disposes her?

¶48

4) Whether the defendant proves that the suit not properly valued and court fee paid is not sufficient?

¶49

5) Whether the suit is bad for nonjoinder of necessary party?

¶50

6) Whether the plaintiff is entitled for the relief of declaration and consequential relief of permanent injunction?

¶51

7) What order or decree?"

¶52

The respondent/plaintiff in support of her

¶53

contention lead in evidence through General Power of Attorney holder and to corroborate ocular evidence relied on documentary evidence vide Exs.P-1 to P-35. The appellant/authority examined its official witness as DW.1 and by way of rebuttal evidence relied on documents vide Exs.D-1 and D-2.

¶54

¶55

The Trial Court having assessed the oral and documentary evidence, answered issue Nos.1 to 3 in the affirmative by holding that the respondent/plaintiff has established the allotment of suit schedule property in favour of one Kariyappa on 06.06.1994 and consequent execution of registered sale deed on 06.01.2005. While answering issue Nos.1 to 3, the Trial Court has also held that the respondent/plaintiff authority has established her title over the suit schedule property by virtue of registered sale deed dated 28.06.2007 and has also proved the appellant/defendant interference with her peaceful possession and enjoyment over the suit schedule property. On these set of reasonings, the Trial Court decreed the suit by its judgment and decree in O.S.No.243/2009.

¶56

¶57

Assailing the correctness and legality of the

¶58

judgment and decree passed by the Court below, the appellant/defendant is before this Court.

¶59

Learned counsel appearing for the

¶60

appellant/authority would contend before this Court that the relief of declaration granted by the Court below suffers from serious infirmities. He would submit to this Court that the findings recorded by the Court below that the appellant/authority has allotted the suit schedule property in favour of Kariyappa and consequent execution of registered title deed dated 06.01.2005 is erroneous. To buttress his argument, he would vehemently submit to this Court that respondent/plaintiff has not produced any original documents to prove that suit schedule property was allotted to Kariyappa on 06.06.1994. He would submit to this Court that the sanction order/allotment letter as per Ex.P-2 is forged and further the alleged

¶61

¶62

sale deed executed in favour of Kariyappa is not a genuine document. On these set of grounds, the learned counsel appearing for the appellant/authority would vehemently argue and submit that respondent/plaintiff has failed to discharge her burden and establish the allotment in favour of Kariyappa and consequent sale deed by appellant/authority in favour of Kariyappa. He would urge before this Court that there are standard procedures contemplated in the Karnataka Urban Development Authority Rules, 1991 and relying on these rules, he would submit to this Court that the respondent/plaintiff has not at all placed any materials to show that sale deed dated 06.01.2005 in favour of original allotee namely Kariyappa was by following all prescribed procedures contemplated under the 1991 Rules. On these set of grounds, he would vehemently argue and submit before us that the documents relied on by the

¶63

¶64

respondent/plaintiff are forged documents which would not create any right and title in favour of respondent/plaintiff and as such, the suit filed by the respondent/plaintiff is liable to be dismissed and the reasonings and findings recorded by the Court below deserves to be reversed which is in absence of legal evidence.

¶65

Per contra, learned counsel appearing for the respondent/plaintiff would vehemently argue and contend before us that the appellant/authority having taken a plea of fraud, have not at all lead in any rebuttal evidence to non-suit the respondent/plaintiff. He would submit to this Court that the judgment and decree passed by the Court below is based on legal evidence which is rightly appreciated and suit is decreed. In absence of rebuttal evidence, the learned Judge has meticulously examined the clinching evidence on record adduced by the

¶66

¶67

respondent/plaintiff. Learned counsel contends that the appellant/authority is estopped from contending that respondent/plaintiff has not placed materials to establish that procedure was strictly followed while issuing allotment letter and also executing sale deed in favour of Kariyappa. To buttress his argument, he would take this Court to Ex.P-22 and contend that respondent/plaintiff in fact had sought for relevant document relating to the suit schedule property. The appellant/authority instead of furnishing all the materials, on the contrary, has issued an endorsement stating that documents are not available. He would further argue and contend before us that the endorsement issued as per Ex.P-22 runs contrary to Ex.P-34 which is an endorsement dated 05.07.2009, wherein the Secretary has stated that documents would be furnished only after filing of the suit. Relying on these two documents, which are admittedly

¶68

¶69

issued by the appellant/authority, he would contend that the best evidence which would have relevancy over the controversy has been withheld by the appellant/defendant. He would submit to this Court that an adverse inference has to be drawn against the appellant/authority for having withheld the material documents which would have thrown light over the controversy between the parties. Learned counsel appearing for the respondent/plaintiff would further contend that the cogent and clinching evidence produced by the respondent/plaintiff is also corroborated and established in cross-examination by the respondent/plaintiff. Learned counsel has taken this Court through the cross-examination of DW.1 and relying on several admissions elicited from the mouth of DW.1, he would submit to this Court that the judgment and decree of the Trial Court in decreeing the suit is based on legal evidence. The

¶70

¶71

respondent/plaintiff has established her title over the suit schedule property and the declaration of ownership and also possession over the suit schedule property is established by the respondent/plaintiff by producing title documents and also relevant property extracts which have got presumption value. He would submit to this Court that the judgment and decree of the Trial Court does not suffer from any serious infirmities. On these set of grounds, learned counsel appearing for the respondent/plaintiff requests this Court to dismiss the appeal.

¶72

Heard learned counsel for the

¶73

appellant/authority and learned counsel for the respondent/plaintiff. We have perused the pleadings of the parties.

¶74

On re-assessing of the entire oral and documentary evidence on record, the following points would arise for consideration:

¶75

¶76

1) Whether the Court below was justified in holding that respondent/plaintiff has acquired valid right and title on the basis of registered sale deed dated 28.06.2007?

¶77

2) Whether the finding of the Court below that respondent/plaintiff is in possession and appellant/authority has interfered with the peaceful possession over the suit schedule property is perverse and suffers from serious infirmities?

¶78

Re: Point No.1:

¶79

The respondent/plaintiff is asserting her title on the basis of registered sale deed dated 28.06.2007 executed by Shivaprasad Mada for a valuable sale consideration of Rs.20,00,000/-. The respondent/plaintiff to substantiate her contentions has relied on sanction order/allotment letter. It is the specific case of the respondent/plaintiff that appellant/authority has allotted site No.5932 on 06.06.1994 in favour of one Kariyappa. Pursuant to

¶80

¶81

allotment of site, the appellant/authority has executed a registered sale deed on 06.01.2005 for sale consideration of Rs.20,000/-. The sale deed in favour of original allotee is also produced as per Ex.P-3. The respondent/plaintiff to establish title has elaborately narrated the flow of title. At para 3 of the plaint, the respondent/plaintiff has specifically averred that Kariyappa on 10.10.2005, sold the vacant site to one C.M.Madhura for a valuable sale consideration of Rs.2,61,500/-. The said C.M.Madhura in turn sold the vacant site in favour of one Shivaprasad Mada for a sale consideration of Rs.3,00,000/- under registered sale deed dated 24.02.2006. The said Shivaprasad Mada applied for approval of plan to City Corporation, Mysuru. It is also averred at para 5 of the plaint that the competent authority has approved the plan and thereafter Shivaprasad has constructed a residential house which is now the subject matter of the suit. On

¶82

¶83

perusal of para 5 of the plaint, it is forthcoming that it is the vendor of the respondent/plaintiff namely S.Shivaprasad Mada, who has constructed the residential house and in turn has sold the schedule property which comprises of a residential house in favour of the respondent/plaintiff under registered sale deed dated 28.06.2007. The respondent/plaintiff to corroborate and substantiate her contention has produced the title deeds, katha certificates, self assessment extracts, encumbrance certificates and also photographs to establish that appellant/authority is not at all in possession and title over the vacant site has changed several hands and now there is a residential house constructed by the vendor of respondent/plaintiff.

¶84

Per contra, the appellant/defendant has vaguely denied the title of respondent/plaintiff. The appellant/defendant has disputed the allotment of site

¶85

¶86

to one Kariyappa on 06.06.1994. The

¶87

appellant/defendant has also disputed Kariyappa's possession over the vacant site. The

¶88

appellant/defendant has also denied and disputed the title deed executed by the appellant/defendant in favour of Kariyappa pursuant to sanction order. At para 5 of the written statement, the appellant/defendant has taken a contention that all the documents are forged by Kariyappa and the appellant/defendant authority has already lodged a criminal complaint with the jurisdictional police Station at Lakshmipuram. It is averred at para 5 of the written statement that said criminal case is pending for consideration. The appellant/authority has further contended in the written statement that on the basis of forged documents, the respondent/plaintiff is seeking declaration and perpetual injunction, to which she is not entitled.

¶89

¶90

We have meticulously examined the documents relied on by the respondent/plaintiff. On perusal of Ex.P-2, it is the Xerox copy of sanction order/allotment letter dated 06.06.1994. Admittedly, the respondent/plaintiff has placed on record the Xerox copy. Though it is the Xerox copy, it is not at all objected and same is marked as Ex.P-2. The contention of the appellant/defendant is that this document is forged. It is trite law that one who alleges fraud, fabrication has heavy onus to discharge. In the present case on hand, no material has been placed by the appellant/defendant by way of rebuttal evidence to establish that Ex.P-2 is a forged document. If the appellant/defendant is disputing this document alleging fraud, then it is for the appellant/defendant to establish the same by producing cogent evidence and mere suspicion cannot be accepted. Though Ex.P-2 is the Xerox copy, we

¶91

¶92

would find that this document is specifically in the form and in the manner provided by law. Thereby we are bound to presume that the sanction order/allotment letter is genuine document. The credibility of Ex.P-2 further gets strengthened in view of appellant/authority having executed registered sale deed in favour of the original allotee namely Kariyappa under Ex.P-3. Under Ex.P-3, it is forthcoming that the appellant/authority has executed sale deed by receiving sale consideration of Rs.20,000/-.

¶93

On perusal of Ex.P-3, it is forthcoming that appellant/authority has executed sale deed in favour of original allotee. This sale deed is not at all questioned by the appellant/authority till this date. There is recital in the sale deed that sale consideration of Rs.20,000/- was paid to the appellant/defendant authority. Except denying Ex.P-3, there is no specific

¶94

¶95

denial in regard to execution of sale deed by the authority in favour of the original allotee namely Kariyappa. There is a vague statement in the written statement at para 4, wherein the appellant/defendant has contended that it is false that the title deed was also issued in favour of Kariyappa. On perusal of the written statement, it is forthcoming that there is absolutely no specific denial of receipt of sale consideration of Rs.20,000/- under Ex.P-3 which is the sale deed executed by the appellant/authority in favour of the original allotee namely Kariyappa. The appellant/defendant has also not objected and questioned the mutation which were certified pursuant to the alienations. The original allotee namely Kariyappa has sold the vacant site in favour of Smt. C.M.Madhura as per Ex.P-6. Smt. C.M.Madhura has submitted an application to mutate her name and accordingly, her name was mutated and subsequently,

¶96

¶97

Madhura has paid tax. As per Ex.P-9, the said Smt. C.M.Madhura has in turn sold the vacant site to one S.Shivaprasad Mada under registered sale deed dated 24.02.2006. On perusal of Ex.P-11, katha is changed in favour of S.Shivaprasad Mada. As per Ex.P-13, the vendor of respondent/plaintiff applied for approval of plan to construct the residential house. Ex.P-15 is a completion certificate issued by the Mysuru City Corporation. The said Shivaprasad has in turn sold the suit schedule property to the respondent/plaintiff as per Ex.P-17 under registered sale deed dated 28.06.2007 and since 2007, it is the respondent/ plaintiff who is in exclusive possession as absolute owner of the suit schedule property.

¶98

On perusal of the above said cogent and clinching evidence, it can be gathered that the vacant site over which the appellant/authority is asserting right and title is not in existence and at present there

¶99

¶100

is residential building which was constructed by the respondent/plaintiff's vendor. These documents clearly indicate and establish that the appellant/authority has lost possession over the site way back in the year 2005.

¶101

The appellant/authority has examined DW.1 and the appellant/authority except producing the ocular evidence of its official namely M.V.Swamy and authorisation letter and certified copy of FIR, there is absolutely no rebuttal evidence adduced by the appellant/defendant to displace the clinching legal evidence placed on record by the respondent/plaintiff. The appellant being an authority has been litigating the present case on hand. The appellant/authority by way of rebuttal evidence is banking on the registration of crime in Crime No.0066 which came to be registered on 22.03.2009. The Commissioner has submitted a written complaint. On perusal of Ex.D-2,

¶102

¶103

it is forthcoming that the Commissioner of

¶104

appellant/authority has lodged a complaint against Kariyappa, who is the original allotee. This complaint is lodged alleging fraud which has taken place in the year 1994 and the crime is registered almost 15 years after the alleged occurrence of offence. Even after 15 years, the Commissioner of appellant/authority is unable to mention the names of officials of appellant/authority who are involved. Conveniently, a crime is registered against the original allotee and there is no reference to the officials who are involved in the commission of offence as stated in the complaint. There is a reference in the written complaint lodged by the Commissioner that the officials are also involved in destroying the records. There is also reference to the availability of ledger maintained by the office of the appellant/authority and at ledger No.96/4 at page 91, the name of Kariyappa

¶105

¶106

is registered. If all these material aspects are taken into consideration, it is not forthcoming as to why the appellant/authority has not questioned the sanction order by seeking appropriate relief of declaration before the competent civil Court. The appellant/ authority has also for reasons best known to it has not challenged the sale deed in favour of the original allotee Kariyappa as per Ex.P-3. It is the appellant/authority which is asserting right and title over the vacant site bearing No.5932. The sanction order is of the year 1994. The sale deed in favour of the original allotee Kariyappa by the appellant/authority is of the year 2005. The appellant/authority except alleging fraud has not initiated any action.

¶107

The sanction order as per Ex.P-2 and the registered sale deed at Ex.P-3 would clearly indicate transfer of title. The appellant/authority is seriously

¶108

¶109

disputing title of respondent/plaintiff by alleging fraud. It is trite law that any person against whom the written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may institute a suit and seek adjudication of a void or voidable document. The principle is that the documents which are disputed though not necessary to be set aside may if left outstanding, be a source of potential mischief.

¶110

In this background, if the allegations made in the written statement are examined, we are of the view that the allegations in regard to fraud has no substance and the same cannot be entertained. Learned counsel appearing for the appellant/authority is unable to submit to this Court as to what happened to the criminal case which came to be registered in 2009. We are also of the view that

¶111

¶112

appellant/authority by symbolically registering a crime cannot insist and submit that the fraud is established against the original allotee Kariyappa.

¶113

Inference of fraud is to be drawn from positive materials on record and cannot be based on speculation and surmises; however suspicious the circumstances, however strange the coincidences and however grave the doubts, they alone cannot take place of proof of fraud. The evidence of fraud must be sufficient to overcome the natural presumption of honesty and fair dealing.

¶114

The solitary testimony of DW.1 who is the Second Division Assistant would not suffice and establish fraud. The charge of fraud even in civil proceedings must be established beyond reasonable doubt. The level of proof required is extremely high and is rated on par with a criminal trial. Plea of fraud must be examined by the Court with utmost rigor.

¶115

¶116

The appellant/authority except examining the Second Division Assistant and producing copy of complaint filed after 15 years, has not produced any clinching evidence to prove fraud. The ocular evidence of DW.1 is unreliable and would not even create doubt that there was unfairness in the transaction.

¶117

The present respondent/plaintiff happens to be the fourth purchaser. The respondent/plaintiff after verifying the records and the title deeds has purchased the property. She has also made an attempt where a notice was issued by the appellant/authority to secure the documents relating to the site. Ex.P-22 is an endorsement issued by the appellant/authority and receipt of an application submitted by the respondent/plaintiff on 12.09.2008. The appellant/authority has issued an endorsement stating that the records are not available in the office of the appellant/authority. As per Ex.P-34, the

¶118

¶119

appellant/authority has issued an endorsement stating that the documents sought for will be furnished after filing of the case in the Court. The appellant/authority has made a reference in regard to the ledger maintained by the office of the appellant/authority in regard to allotment of sites. In the complaint, there is a reference to the ledger extract where the original allotee's name was found at page 91 of the ledger extract. Even this material document is also not produced before the Court below. The appellant/ authority has withheld crucial documents which would have thrown light over the controversy between the parties.

¶120

Now coming to the ocular evidence of DW.1, who is the Second Division Assistant has reiterated the averments made in the written statement. The respondent/plaintiff has succeeded in eliciting the material admissions in cross-examination

¶121

¶122

of DW.1. DW.1 has admitted in cross-examination that the register maintained by the office of the appellant/authority relating to allotment, the original allotee Kariyappa's name is entered in the register bearing No.96/4 at page 91. He has further admitted that a file would be generated in respect of every allotment and further he admits that a file would be maintained and there would be also an entry in the register indicating the particulars of allotees. He has also admitted that the ledger maintained in regard to allotment of sites, all the concerned officials approval would be secured and the signatures would be taken on the allotment order. He has also admitted that before issuing the allotment letter, all requisite enquiries would be done. However, when a question was posed to DW.1 in regard to reference of ledger maintained in respect of the site bearing No.5932, in the complaint lodged by the Commissioner as per

¶123

¶124

Ex.D-2, DW.1 has stated that he has not seen the complaint. On meticulous examination of crossexamination of DW.1, it is forthcoming that DW.1 has pleaded his ignorance in regard to several significant materials which are relevant to the controversy between the parties. On going through the crossexamination of DW.1, we get an impression that DW.1 has absolutely no instructions and he has not gone through the documents relating to the lis between the parties before entering the witness box. We are of the view that the ocular evidence lead in by the appellant/defendant has failed to refute the clinching documentary evidence produced by the respondent/plaintiff.

¶125

The respondent/plaintiff has relied on title documents to establish her ownership as well as possession over the suit schedule property. The appellant/authority has taken a specific contention

¶126

¶127

that the sanction order as per Ex.P-2 and consequent sale deed as per Ex.P-3 is a fictitious and a fraudulent document. It was open for the appellant/authority to demonstrate the fraud committed therein. The sale deed in favour of the original allotee is dated 06.01.2005. Even as on the date of filing of the written statement which is almost after four years, the appellant/authority has not furnished details and the manner in which the fraud has taken place, no particulars are furnished in the written statement. There is absolutely no whisper as to who were the officials in-charge who were dealing with the allotment. The relevant documents are withheld for the reasons best known to the appellant/authority. If the fraud alleged by the appellant/authority is not established, then they are estopped from disputing the sale deed executed by MUDA in favour of Kariyappa as per Ex.P-3. Under Ex.P-3, the

¶128

¶129

appellant/authority has received a sum of Rs.20,000/-. Though the document, as a whole, is denied but the appellant/authority were required to specifically deny the receipt of Rs.20,000/- which is reflected as sale consideration in the sale deed executed by the then Secretary of the appellant/authority. It was open for the appellant/ authority to lead clinching ocular evidence to demonstrate that the signature found on Ex.P-3 is not that of the Secretary who was authorized to deal with the sites and executed documents in favour of allotees. Since this exercise is not done, the appellant/authority is estopped from disputing the sanction order as per Ex.P-2 and the sale deed executed by the Secretary of MUDA i.e., the appellant/authority as per Ex.P-3 for a valuable consideration of Rs.20,000/-.

¶130

¶131

An adverse inference needs to be drawn

¶132

against the appellant/authority for withholding crucial documents. The endorsements issued as per Ex.P-22 and Ex.P-34 would contradict each other. Even when the respondent/plaintiff submitted an application to furnish the records pertaining to allotment of sites in favour of original allotee, the appellant/authority refused to furnish the documents and there is a lot of vagueness and ambiguity as per Ex.P-22. The endorsement indicates that the documents are not available with the office of the appellant/authority and the same are destroyed. While in Ex.P-34, the endorsement indicates that they would furnish only after filing of the suit. This would also reflect on the conduct of the appellant/authority. Under Section 114(G) of the Indian Evidence Act, 1872, there is a duty cast on the party to lead best evidence which would throw light on the issue in dispute. Non-

¶133

¶134

production of the relevant documents admittedly available with the party would give rise to an adverse inference against him when the said documents if produced would be unfavourable to him. If a party wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted is the principle behind it. In the present case on hand, Ex.D-2 is the complaint which is lodged after almost 15 years. The Commissioner who is the complainant makes a reference to availability of a ledger and also it is admitted in the complaint that original allotee namely Kariyappa's name is found at ledger No.96/4 at page 91 of the ledger. No satisfactory explanation is forthcoming as to why this relevant document relating to the allotment of site is withheld. The initial burden which was on the respondent/plaintiff has been discharged successfully by producing title documents

¶135

¶136

as well as Xerox copy of sanction order in favour of original allotee Kariyappa. The onus thereafter would shift on the appellant/authority and it was incumbent upon the appellant/authority to discharge its onus by leading rebuttal evidence as well as to produce all documents relating to the allotment of site to demonstrate that there was fraud committed by the original allotee as well as officials of the appellant/authority. This exercise is not done for the reasons best known to the appellant/authority.

¶137

The Trial Court assessing the oral and documentary evidence having meticulously examined the pleadings of rival parties, has decreed the suit by holding that the respondent/plaintiff has established her title as well as lawful possession over the residential house which is the subject matter of the suit.

¶138

¶139

For the reasons stated supra, point No.1 formulated by this Court is answered in the affirmative.

¶140

Re: Point No.2:

¶141

The respondent/plaintiff acquired valid right and title under registered sale deed dated 28.06.2007 executed by her vendor namely Shivaprasad Mada. On perusal of the registered sale deed, there is a recital indicating delivery of possession in favour of the respondent/plaintiff. The clinching evidence on record clearly indicates that since 2007, the respondent/plaintiff is in exclusive possession over the residential house which is the subject mater of the suit. The respondent/plaintiff has also produced photographs as per Exs.P-26 to P-29 to demonstrate that she is in physical possession and she is residing in the suit schedule property. The appellant/ defendant issued a notice as per Ex.P-20 dated

¶142

¶143

24.10.2008 calling upon the respondent/plaintiff to appear before the authority on 31.10.2008 at 11.00 a.m. The Commissioner of appellant/defendant has also got an article published in a local newspaper namely "Star of Mysore" to the effect that Commissioner has lodged a complaint pertaining to eights sites which are fraudulently allotted with forged documents between 1995 and 27.01.2008. The Commissioner has given a statement to the press that no such sites were allotted and he has also made a statement that it is a scam where the MUDA officials are also involved. The respondent/plaintiff pursuant to the notice as per Ex.P-20 and paper publication as per Ex.P-30, has rightly approached the Court by seeking relief of declaration and consequential relief of injunction. The appellant/defendant who is aware of the sale transaction is still asserting right over the site bearing No.5932 which is not at all in existence. The

¶144

¶145

clinching evidence on record produced by the respondent/plaintiff clearly establish that Shivaprasad Mada after purchasing the site has constructed a residential house. Approved plan issued by the competent authority is placed on record. Subsequently, he has sold the residential house in favour of the respondent/plaintiff. The site was not at all in existence as on the date of the notice issued by the appellant/authority as per Ex.P-20. The assertion on the part of the appellant/defendant that the site was not at all allotted to Kariyappa and the notice issued to respondent/plaintiff in 2008 amounts to interference. The fact that appellant/authority is still litigating the matter clearly indicates that appellant/defendant are asserting title and are interfering with the respondent/plaintiff's peaceful possession. The Trial Court has examined all these material aspects and has granted consequential relief

¶146

¶147

of injunction having held that respondent/plaintiff has established her title over the suit property. Accordingly, point No.2 formulated above is answered in the negative.

¶148

On re-appreciation of the entire oral and documentary evidence on record, we do not find any legal infirmity or perversity in the conclusion arrived at by the Trial Court.

¶149

Accordingly, the appeal being devoid of merits is dismissed.

¶150

Sd/JUDGE

¶151

Sd/JUDGE

¶152

Mysore Urban v. Smt Kausalya Devi

Case brief

What is this about?

What the court decided

Mysore Urban v. Smt Kausalya Devi

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sonal Jadav. S Vs National Ins Co. Ltd.

The Divisional Manager Vs Smt Sonal Jadav S

Sri B M Gangadhar Vs Divisional Manager

Sri. Rajanna Vs Sri. Venkatesh. H. T.

M/S National Insurance Company Ltd. Vs Mr Dattatareya T R

The Branch Manager Vs Smt Swarnalatha J Shetty