Dismissed

Sri N Viswanathaiah v. Sri Anthony Swamy

Karnataka HC4 Dec 2023RFA/231/2006

Case brief

AI extract

What is this about?

The appeal challenged a decree declaring the respondent's title to a reconveyed site. The High Court dismissed the appeal, holding that the BDA's reconveyance in favour of the plaintiff, coupled with a similar reconveyance to one of the appellant's legal representatives, estopped the appellant from questioning the BDA's authority.

What did the court decide?

Appeal dismissed; no order as to costs; liberty reserved to the appellant to seek partition of the property reconveyed to one of the legal representatives of Nanjappa.

Sri N Viswanathaiah Vs Sri Anthony Swamy — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:44022 RFA No. 231 of 2006

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 231 OF 2006 (DEC)

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BETWEEN:

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SRI. N. VISWANATHAIAH, S/O NANJAPPA, SINCE DEAD BY LRS,

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1(A). SRI. V. BHOGESH, S/O LATE VISHWANATHAIAH, AGED ABOUT 58 YEARS, RESIDING AT AVERAHALLI, MANCHANABELE POST, MAGADI TALUK, RAMANAGARA DISTRICT.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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1(B). SMT. KAMALAMMA, W/O GANGADHARA NAIDU, AGED ABOUT 55 YEARS, RESIDING AT MEDAHALLI, VIRONAGAR POST, BENGALURU - 560 049.

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1(C). SMT. INDRAMMA, W/O PRAKASH NAIDU K, AGED ABOUT 53 YEARS, RESIDING AT NO. 173/B, 6TH 'B' CROSS, 1ST MAIN, BEHIND BIG BAZAR, MARUTHI NAGAR, BHADRAPPA LAYOUT, BENGALURU - 560 094.

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1(D). SRI. V. NANJUNDAIAH, S/O VISHWANATHAIAH, AGED ABOUT 50 YEARS, RESIDING AT AVERAHALLI, MANCHANABELE POST, MAGADI TALUK, RAMANAGARA DISTRICT.

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1(E). SMT. RAMAMANI, W/O SUDHAKAR NAIDU, AGED ABOUT 48 YEARS, RESIDING AT NO. 46, 1ST MAIN, 1ST CROSS, SOMESHWARNAGAR, BENGALURU - 560 022.

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1(F). SRI. A.V. RAGHUNATHA, S/O LATE VISHWANATHAIAH, AGED ABOUT 45 YEARS, RESIDING AT AVERAHALLI, MANCHANABELE POST, MAGADI TALUK, RAMANAGARA DISTRICT.

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…APPELLANTS

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(BY SRI. T.N. VISWANATHA, ADVOCATE)

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AND:

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SRI. ANTHONY SWAMY, S/O MARIYAPPA, SINCE DEAD BY LRS.

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1(A) SMT.LOURADHAMMA, W/O LATE ANTHONY SWAMY, SINCE DEAD BY LRS.

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1(B) SRI.A.PRAKASH, SON OF LATE ANTHONY SWAMY

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MAJOR,

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1(C) SRI.A.JOSEPH, SON OF LATE ANTHONY SWAMY, MAJOR,

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1(D) SRI.BALARAJA, SON OF LATE ANTHONY SWAMY, MAJOR,

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1(E) SRI SHANTHARAJA, SON OF LATE ANTHONY SWAMY, MAJOR,

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1(F) SMT.TERESA, D/O LATE ANTHONY SWAMY, MAJOR,

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RESPONDENT Nos.1(B) TO 1(F) ARE R/AT NO.163, 7TH 'B' MAIN, 3RD STAGE, 4TH BLOCK, BASAVESHWARA NAGAR, BENGALURU - 560 079.

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SMT. LAKSHAMAMMA, W/O KEMPANNA, MAJOR,

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SRI. CHANDRAPPA, S/O KEMPANNA MAJOR.

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SRI. GOPAL, S/O KEMPANNA, MAJOR.

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SRI. KRISHNA,

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S/O KEMPANNA, MAJOR,

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RESPONDENTS 2 TO 5 ARE R/AT NO. 15, JUGANAHALLI, RAJAJINAGAR II BLOCK, BENGALURE - 560 010.

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SRI. APPI REDDY, S/O MUNIYAPPA, MAJOR, R/AT NO. 1432, PIPELINE, VIJAYANAGAR EXTENSION, BENGALURU.

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SMT. NARAYANAMMA, D/O MUNEERAMMA, MAJOR.

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SMT. JAYAMMA, D/O MUNEERAMMA, W/O VENKATA REDDY, MAJOR, SINCE DEAD BY LR.

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SMT. SAROJAMMA, W/O NARAYANA REDDY, MAJOR, SINCE DEAD BY LR.

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RESPONDENTS 7 TO 9 ARE R/A NO. 1, 2ND MAIN ROAD, JUGANAHALLI, RAJAJINAGAR, BENGALURU - 560 010.

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SMT. SAVITHRAMMA, W/O VENKATESH, D/O MUNEERAMMA, MAJOR, R/AT "GURUKRUPA", NO. 1432, PIPELINE, VIJAYANAGAR, BENGALURU - 560 040.

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SRI. N. NANJUNDAIAH, S/O NANJAPPA, MAJOR, R/AT NO. 3/13, 3RD CROSS, 8TH MAIN ROAD, GANESHA BLOCK, MAHALAKSHMI LAYOUT, BENGALURU - 560 080.

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SRI. N. BHOGAIAH, S/O NANJAPPA, MAJOR, R/A NO. 333, 3RD MAIN ROAD, 1ST PHASE, RAJAJINAGAR, MANJUNATHANAGAR, BENGALURU - 560 010.

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SRI. A. N. RAMACHANDRAIAH, S/O NANJAPPA, AGED ABOUT 64 YEARS, R/AT NO.8, 4TH MAIN ROAD, S.K. NAGAR, NANDINI LAYOUT, BENGALURU - 560 096.

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SMT. MUNIVENKATAMMA, W/O LATE B. T. RAMAIAH NAIDU, SINCE DEAD BY LRS

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14(A). SRI. R. GANGADHARA NAIDU, S/O LATE B. T. RAMAIAH NAIDU, AGED ABOUT 68 YEARS,

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R/AT MEDAHALLI, VIRGONAGAR POST,

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K. R. PURAM, BENGALURU - 560 079.

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14(B). SRI. R. ASHWATHAPPA, S/O LATE B. T. RAMAIAH NAIDU, AGED ABOUT 65 YEARS, R/AT BALLALASAMUDRA VILLAGE AND POST, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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14(C). SRI. R. NANJUNDAIAH, S/O LATE B. T. RAMAIAH NAIDU, AGED ABOUT 64 YEARS, R/AT BALLALASAMUDRA VILLAGE AND POST, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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14(D). SRI. R. MANJUNATH, S/O LATE B. T. RAMAIAH NAIDU, AGED ABOUT 59 YEARS, R/AT BALLALASAMUDRA VILLAGE AND POST, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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SMT. DEVEERAMMA, W/O LATE JAYARAMAPPA, SINCE DEAD BY LRS.

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15(A). SRI. H. J. MURULIDHARA, S/O LATE JAYARAMAPPA, MAJOR,

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R/AT 2ND CROSS, T. G. EXTENSION, 1ST FLOOR, P. L. D. BANK ROAD, HOSKOTE TOWN, BENGALURU - 562 114.

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15(B). SMT. H. J. LALITAMBA, D/O LATE JAYARAMAPPA, W/O GUNASHEKHAR B, MAJOR, R/AT NO. 52/6, 2ND CROSS (RIGHT), NETRAVATHI EXTENSION, K. R. PURAM, BENGALURU.

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15(C). SMT. ANITAMBA H. J, D/O LATE JAYARAMAPPA, W/O LATE VARADARAJU, MAJOR, R/AT 2ND CROSS, T. G. EXTENSION, 1ST FLOOR, P. L. D. BANK ROAD, HOSKOTE TOWN, BENGALURU - 562 114.

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15(D). SRI. RAJESH H. J, S/O LATE JAYARAMAPPA, MAJOR, R/AT 2ND CROSS, T. G. EXTENSION, 1ST FLOOR, P. L. D. BANK ROAD, HOSKOTE TOWN, BENGALURU - 562 114.

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…RESPONDENTS

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(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. AMSHITH HEGDE H.S, ADVOCATE FOR R(A TO E); SRI. D.P. MAHESH, ADVOCATE FOR R1(F); SRI. H.S. NAGENDRA, ADVOCATE FOR R12 AND R13; SRI. B.C. CHETHAN, ADVOCATE FOR R11(A) R2, R3, R4, R5, R7, R10, R14(A), R14(B), R14(C), R14(D), R15(A), R15(B), R15(D) - SERVED AND UNREPRESENTED; VIDE ORDER DATED 30.01.2013 R8 AND R9 ARE DEAD AND R6, R7 AND R10 ARE TREATED AS LRS OF DECEASED R8 AND R9; VIDE ORDER DATED 28.03.2013 SERVIE OF NOTICE TO R6 IS HELD SUFFICIENT; VIDE ORDER DATED 22.11.2022 R15(C) IS HELD

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SUFFICIENT BY WAY OF PAPER PUBLICATION;

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VIDE ORDERS DATED 24.07.2013 AMENDED CAUSE TITLE FILED IN RESPECT OF DCEASED R1;

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VIDE ORDER DATED 06.02.2023 AND 10.03.2023 R1(A) DEAD AND R1(B) TO R1(F) ARE TREATED AD LRS OF DECEASED R1(A);

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VIDE ORDER DATED 30.10.2023 R11(B AND C) ARE CALLED OUT, ABSENT BY WAY OF PAPER)

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THIS RFA IS FILED U/S.96 R/W O 41 R 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.10.2005 PASSED IN O.S.NO.3388/92 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESS. JUDGE, BANGALORE (CCH-25), DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri.T.N.Viswanatha, learned counsel for the appellants, Sri.Udaya Holla, learned Senior Counsel for

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Sri.Amshith Hegde, learned counsel and Sri.D.P.Mahesh, learned counsel for respondent No.1.

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The present appeal is directed against the judgment and decree passed in O.S.No.3388/1992 dated 17.10.2005 on the file of III Additional City Civil and Sessions Judge, Bangalore City (CCH-25).

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Brief facts which are utmost necessary for disposal of the appeal are as under:

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Dry land bearing Sy.No.141/2-3-4 of Ketha Maranahalli village measuring 1 acre 8 guntas, originally belonged to Gowramma, who sold the same jointly in favour of Srinivasa Rao, Kempaiah and Kempanna on 11.12.1961. Kempaiah sold his share in favour of Muneeramma to the extent of 16 guntas and so also Srinivasa Rao and Kempanna got 16 guntas of land each when they partitioned the land.

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It is further stated that each one of the family members got share in Sy.Nos.141/1, 141/3 and 141/4 jointly and converted the said agricultural land into an unauthorized layout forming residential sites

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On 04.07.1968, respondent No.1 - Anthony Swamy purchased two revenue sites bearing Nos.3 and 12 jointly from Kempanna and Muneeramma, totally measuring 90 ft. x 40 ft. which was bounded on East by

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150 ft. road, West by site No.14, North by site Nos.4 and 11 and South by 25 ft. road.

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On 29.11.1971, Kempanna sold site bearing No.3 measuring East to West 30 ft., North to South 35 ft., formed in Sy.No.141/3, in favour of Narayanamma. In the interregnum, the lands had been acquired by the CITB (Now BDA) in the entire extent of the land.

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Applications were filed by the individual site

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owners and sought for reconveyance of the property under the 'reconveyance scheme' existed with the then CITB.

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Thereafter, to form west of chord road, for footpaths and other requirements, the lands which were acquired by the CITB and compensation was paid to the land owners.

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Muneeramma sold her share in Sy.No.141/2, 141/3 and 141/4 in all measuring 23 guntas in favour of Nanjappa, who was defendant No.3 in the suit under the registered sale deed dated 09.02.1970. On purchase of

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the said land by Muneeramma, Nanjappa got the land surveyed and fixed the boundaries and she could get only 16 guntas of land as against the recitals in sale deed to the extent of 23 guntas. Respondent No.1 - Anthony Swamy could not locate his site and therefore, filed a suit in O.S.No.2930/1972 against Kempanna, Muneeramma and Nanjappa. Said suit came to be dismissed on 31.01.1975 by recording a finding that the property of Anthony Swamy was not identifiable. Thereafter, Anthony Swamy filed O.S.No.1051/1975 on 04.06.1975 seeking a relief of declaration of title and injunction. The said suit came to be decreed on 30.09.1978.

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Being aggrieved by the said judgment and decree, an appeal came to be filed by defendant No.3 - Nanjappa in R.A.No.265/1978 which came to be renumbered as R.A.No.331/1980 and ultimately, said appeal came to be dismissed on 03.12.1980 on merits.

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Being aggrieved by the dismissal of the appeal, Nanjappa filed second appeal in R.S.A.No.452/1981 and

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said appeal came to be allowed on 03.03.1992 by setting aside the judgment of both the Courts and an additional issue came to be framed.

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Post remand, the suit in O.S.No.1051/1975 was re-numbered as O.S.No.3388/1992. The same was contested by the defendants and after due contest, the learned Trial Judge also appointed a Court Commissioner to identify the property of Anthony Swamy. Commissioner gave a report vide Ex.C.1 along with the sketches marked as Ex.C.2 to Ex.C.5.

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On cumulative consideration of the material evidence on record placed by the parties, learned Trial

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Judge has taken note of the fact that the CITB has reconveyed the portion of the suit property in favour of Anthony Swamy and portion of the suit property in favour of one of the son of Nanjappa (original defendant No.3) by name A.N.Ramchandraiah, who is arraigned as defendant No.3(d) after the death of Nanjappa, decreed the suit in O.S.No.3388/1992 on 20.11.2004 after contest.

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Being aggrieved by the said judgment and decree, defendant No.3 - Nanjappa filed R.A.No.155/2005.

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Learned Judge who heard the said appeal on merits, framed two more additional issues and remanded the matter to the trial Court for fresh disposal in accordance with law.

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Post further remand, O.S.No.3388/1992 was re-heard and allowing the parties to place additional evidence on record and additional issues and also appointed a Court Commissioner. Court Commissioner relied on 07 documents which were exhibited and marked as Ex.C.1 to C.7 comprising of report of the commissioner at Ex.C.1, sketches at Ex.C.2 to Ex.5, notes prepared by the Commissioner at Ex.C.6 and answers to the memo of instructions at Ex.C.7 and again decreed the suit on 17.10.2005. Thereafter, one of the legal representatives of the defendant No.3 namely N.Vishwanath [defendant

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No.3(a)] has preferred the present appeal on the following grounds.

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The impugned Judgment and decree of the Court below suffers from infirmity, illegality and the same requires modifications from the hands of this Hon'ble Court in all probabilities and circumstances of the case.

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It was specifically contended and argued by the appellant to the effect that the alleged suit property was acquired by the City Improvement Trust Board even before the alleged sale in favour of the 1st Respondent. In view of the acquisition proceedings, very suit filed by the 1st Respondent for declaration of his alleged title is not maintainable. The said fact is clear from Sec. 9 of the Code of Civil Procedure. The very mandatory provisions, bars the civil suit. And in view of the said mandatory provision, the 1st Respondent is not entitled for the relief of declaration and injunction. The said contention was not considered by the court below while passing the impugned Judgment and Decree. The non-consideration of point of law while molding relief amounts to miscarriage of justice.

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The Court below further failed to consider the contention of the appellant to the effect that the alleged suit property has been conveyed by the Bangalore Development Authority during the pendency of the suit. The alleged document will not confer any right, title on the first Respondent as the said document came into existence during the pendency of the proceedings. The court below ought not to have attached value to the alleged document while considering the question of title to the alleged suit property.

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The Trial Court further erred in decreeing the suit without even noticing that there is no cause of action for the suit when the alleged suit property was acquired by the City Improvement Trust Board. The said contention was completely ignored by the court below while passing the impugned Judgment and Decree.

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The Court below having noticed that the real controversy is with regard to the identity of the suit property. In the instant case, the first Respondent has categorically admitted in his deposition to the effect that the suit property cannot be identified and the said fact is corroborated from the report submitted by the Commissioner. When the very existence of the suit property is not identifiable, the Court below ought not to have answered additional issue in favour of the 1st Respondent contrary to the oral and documentary evidence placed by the appellant in order to establish the nonexistence of the suit property. The finding of the Court below with regard to the additional issue is contrary to the clear admission on the part of the first Respondent. The Court below further failed to notice that 4 versions as to location of first Respondent's site having come on record i.e., 4 from the lips of the first Respondent and one from the Commissioner - each being ireconsicilable. If the court below ought to have rightly appreciated the said versions, it ought not to have granted decree for declaration as well as for permanent injunction.

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The Commissioner report being wholly tangential and she having identified a site as shown by the 1st Respondent and reporting that sites 3 and 2 are not identifiable. When the Commissioner has submitted her report with regard to non-identity of the suit property the court below ought not to have granted decree with respect to nonexisting property.

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NC: 2023:KHC:44022 RFA No. 231 of 2006

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The Court below further failed to notice that the first Respondent having admitted that his site was running East to West but claimed in the plaint on running North to South in earlier proceedings and later amending the plaint, has clearly proved his inability to locate the suit properties.

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The Court below further failed to notice that the first Respondent has not verified the revenue sketch and recording a finding of title in the absence of very layout map disentitles the first Respondent for the reliefs claimed in the suit.

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The very approach of the Court below to the volume of evidence in this case is not participatory, negative elucidation. The Court below further failed to discuss the oral and documentary evidence, which clearly establishes that the first Respondent is not entitled for any relief of declaration or for permanent injunction.

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The Trial Court further erred in holding that the appellant's father Nanjappa being the subsequent Purchaser and he has no right to put the claim over the alleged property of the first Respondent even though ample number of documents were placed in order to establish lawful possession. The said finding of the Court below is perverse, capricious and contrary to the oral and documentary evidence placed by the appellant in order to establish his title. The registered document supported by revenue documents and the Commissioner's report clearly establishes lawful possession and title of the appellant.

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The Court below having noticed that the appellant's father had purchased 23 guntas of land in the said Survey Numbers and he got surveyed by the Survey Authorities and demarcated his land in the said survey

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numbers, erred in holding that the 1st Respondent is in possession of the suit property.

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The Court below further erred in holding that the 1st Respondent's title has been perfected by the Bangalore Development Authority by executing Re-conveyance Deed without even noticing that the very existence and identity of the suit property is at stake. The Court below ought not to have placed reliance on the subsequent documents alleged to have been executed by the Bangalore Development Authority.

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 The Court below further failed to notice that the 1st Respondent laid claim in respect of alleged site No.3 and 12 at the first instance and thereafterwards got amended the plaint and at present the 1" Respondent is laying claim in respect of site No. 121/A. In order to establish the alleged site Nos. 3, 12 and 121/A, are one and the same and the same are identifiable. No material or any other evidence has been placed by the 1" Respondent to establish his alleged title to the suit properties and alleged possession to the suit properties, the Court below ought not to have granted not only for declaration but also for injunction. The Court below further failed to notice that the alleged sale deed said to have been executed by B.D.A. on 01.09.1975, whereas the dispute started in the year 1972 and a finding was already given in O.S. No.2930/1972 to the effect that the identity of the property is not established. In order to establish the said fact, the appellant has placed the Judgment and Decree marked as Ex.D15 and D16. When such being the case the Court below ought not to have considered the B.D.A. documents placed by the 1st Respondent while considering the question of title as well as identity of the property.

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The Court below having held that the appellant's father purchased the suit properties from Muneeramma under a sale deed dated 09.02.1970, erred in decreeing the suit for declaration.

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The Judgment and decree in appeal are otherwise opposed to law, facts, circumstances, evidence on record, unreasonable, does not confirm to the judicial order and the same are liable to be set aside.

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The Judgment and Decree under challenge are otherwise opposed to law based on surmise and conjecture and liable to be set aside.

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The appeal arises out of the suit for declaration of title to Revenue sites No.3 and 12 purchased for Rs.3,000.00.

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Reiterating the grounds urged in the appeal memorandum, Sri.T.N.Vishwanatha, learned counsel for the appellants vehemently contended that the trial Court has not taken into consideration that the property that has been sold by Muneeramma is to the extent of 23 guntas was the subject matter and after, the land was acquired by CITB, defendant No.3 got resurveyed the land and fixed the boundaries to the available extent of 16 guntas in Sy.No.141/2.

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It is his contention that the land of Anthony Swamy which was originally measuring 90 ft. x 40 ft., by purchase of two revenue sites, has been lost in the acquisition proceedings. Therefore, BDA could not have reconveyed the land in favour of Anthony Swamy and sought for allowing the appeal.

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He further pointed that earlier the suit filed by Anthony Swamy seeking identification of his property in O.S.No.2930/1972 having been dismissed, there could not have been relocation of the land by appointment of the Court Commissioner in O.S.No.3388/1992 and therefore, sought for allowing the appeal.

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Further, he pointed out that Anthony Swamy was bound to identify his land with specific boundaries after the land has been acquired and said Antony Swamy was unable to relocate his land and BDA based on the title deeds produced by Anthony Swamy under the reconveyance scheme, has wrongly reconveyed the property in favour of Anthony Swamy. Therefore, Anthony

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Swamy did not become the owner of the suit property as

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is claimed in the plaint and sought for allowing the appeal.

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Per contra, Sri.Udaya Holla, learned Senior Counsel for the contesting respondents contended that the right accrued in favour of the plaintiff - Anthony Swamy by virtue of two sale deeds where under two revenue sites which were purchased by Anthony Swamy at an undisputed point of time is not in dispute.

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Admittedly, the CITB acquired the entire property in Sy.No.141 for the purpose of forming the west of chord road and thereby, the individual site owners were

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in occupation of the sites were required to apply for reconveyance to the extent possible. As such, Anthony Swamy applied to the BDA for reconveyance and he has been reconveyed with the suit property in lieu of his earlier two sale deeds and therefore, he has become the owner of the suit property by virtue of the reconveyance deed executed by the BDA.

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He also points out that similar reconveyance has been made in favour of one of the legal representatives of Nanjappa namely A.N.Ramachandraiah [Defendant No.3(d)] and therefore, it should not lie in the mouth of the plaintiff that the reconveyance made in favour of Anthony Swamy is incorrect.

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He also pointed out that the suit property has been identified by the Court Commissioner, who has filed the report vide Ex.C.1 and sketches in respect of respective portions of the property occupied by different people in the form of Ex.C.2 to C.5 and same has been rightly appreciated by learned Trial Judge in the impugned judgment and sought for dismissal of the appeal.

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Other respondents adopted arguments that of the respondent No.1 and sought for dismissal of the appeal.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, following points

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would arise for consideration:

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1. Whether the appellant has made out a case that reconveyance deed executed in favour of Anthony Swamy is incorrect and thereby, Anthony Swamy did not get any legal title over the suit property?

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2. Whether the father of appellant namely Nanjappa is the absolute owner of the entire property and therefore, reconveyance made in favour of Anthony Swamy by the BDA is incorrect?

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3. Whether the impugned judgment is suffering from legal infirmity or legal perversity and thus calls for interference of this Court?

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4. What order?

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REG. POINT Nos.1 TO 3:

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In the case on hand, property earlier belonged

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to the family of Muneeramma and other sharers are not in dispute. Sy.No.141/1, 141/3 and 141/4 of Kethamaranahalli, Bangalore Taluk was the subject

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matter. Earlier the same property belonged to one Gowramma, who sold the same in favour of Srinivasa Rao Kempaiah and Kempanna. Kempanna sold his share in favour of Muneeramma and so also in favour of Srinivasa Rao. Kempanna got 16 guntas of land each when they partitioned the land. These aspects when are not in dispute, Nanajappa said to have purchased 23 guntas of land from Muneeramma by virtue of the sale deed dated 09.02.1970.

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After the sale, defendant No.3 - Nanjappa got the land surveyed and measured. He found that though the sale deed recitals said that he was the owner of 23 guntas of the land, the actual land that was available in Sy.No.141/2, 141/3 and 141/4 is only to the extent of 16 guntas.

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Later, the entire land was acquired by CITB for formation of west of chord road. Since, the property was acquired by the then CITB (Now BDA), the individual site

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owners approached the BDA for reconveyance of the property.

¶174

BDA taking note of the title that existed in respective site owners under the reconveyance scheme, recoveyed the suit property in favour of Anthony Swmay.

¶175

Defendant No.3 - Nanjappa had also applied for reconveyance and taking note of the right of Nanjappa in respect of the property in Sy.No.141/2, 141/3 and 141/4, reconveyed a portion of the property in favour of one of the legal representatives of Nanjappa namely A.N.Ramachandaiah [Defendant No.3(d)].

¶176

These aspects when not in dispute, it is the case of the defendants that Anthony Swamy could not locate his property at all and therefore, no property has fallen to the share of Anthony Swamy and the entire property of Anthony Swamy under the two sale deeds has

¶177

been lost in the acquisition proceedings and therefore, reconveyance in faovur of Anthony Swamy by the BDA is

¶178

25 - NC: 2023:KHC:44022 RFA No. 231 of 2006

¶179

incorrect. Defendants also took a specific contention that the suit filed by Anthony Swamy against the defendants in the absence of BDA being a party is bad in law for misjoinder of necessary parties and therefore, sought for dismissal of the suit.

¶180

It is not in dispute that earlier the suit filed by Anthony Swamy in O.S.No.2930/1972, no doubt came to be dismissed. The said suit was filed only for the purpose of identification of the suit property. However, that did not debar the Anthony Swamy to file one more suit seeking relief of declaration of his right in O.S.No.1051/1975 which ultimately got renumbered as O.S.No.3388/1992 and has seen several rounds of litigation as referred to supra.

¶181

Post remand of the suit for the second time, in view of the additional issues framed by the Court, the parties placed additional evidence on record.

¶182

26 -

¶183

NC: 2023:KHC:44022 RFA No. 231 of 2006

¶184

While answering the additional issues Nos.1 and

¶185

2, in O.S.No.3388/1992 learned Trial Judge in paragraph

¶186

No.32 of the impugned judgment has held as under:

¶187

"32. Additional Issue No. 1 and 2:- It is the contention taken by the 3rd defendant that the execution of the sale deed by B.D.A. in favour of the plaintiff is invalid and without jurisdiction and the suit is not maintainable on the original cause of action. The learned Counsel for defendant No.3 has submitted his arguments that the cause of action for that suit would arise in 1995 or so 20 years after this suit is filed and it arises after B.D.A. is notified to the contrary and the new cause of action wipes out the old one and old and new causes of action cannot co-exists. He has further submitted in his arguments that the B.D.A. is necessary party as source of title flows from it and irregularity is admittedly committed by it and the suit is hit by order 2, Rule 2 and Rule 14 of CP.C. Further, he has submitted in his arguments that the Court has to recognise the rights of the defendant owing to misjoinder of causes of action and absence or proper party to the suit. No doubt, the B.D.A. has reconveyed and re-allotted site No.3 and 12 (New No.121/A) to the plaintiff - Anthony Swamy and issued Possession Certificate and Khata has been changed to the name of the plaintiff. At the same time the B.D.A. reconveyed the property purchased by the defendant No.3 from defendant No.2 by executing a sale deed in favour of defendant No.3(d) i.e., L.R. of 3rd defendant and issued possession certificate as per Ex.P.27(f). Ex.P.27(h) is the sale deed dated 11.10.96 executed by B.D.A in favour of the Legal Representatives of defendant No.3. Now the 3rd defendant has questioned the power of jurisdiction or authority of the B.D.A. The 3rd defendant or any other person has not challenged the said

¶188

27 - NC: 2023:KHC:44022 RFA No. 231 of 2006

¶189

reconveyance deed executed in favour of the plaintiff and the Legal Representatives of the 3rd defendant and also possession certificate issued by the B.D.A. The 3rd defendant has not questioned the power or jurisdiction or Authority of the B.D.A. before any competent authority or before the Court of law immediately. However, the B.D.A. reconveyed the property-bearing No.121 and issued delivery certificate in favour of the L.R. of the 3rd defendant. Therefore, the defendant No.3 is estopped from questioning the authority of B.D.A."

¶190

Taking note of the fact that there was a dispute

¶191

as to the identification of the property, a Court Commissioner was also appointed to find out where exactly the property of Anthony Swamy would lie.

¶192

After spot inspection, Court Commissioner has submitted a report vide Ex.C.1 and also sketches vide Ex.C.2 to C.5. Material on record in the form of reconveyance deed executed by BDA in favour of Antony Swamy coupled with commissioner report would clearly establish that plaintiff has been successful in establishing his right over the suit property.

¶193

28 -

¶194

NC: 2023:KHC:44022 RFA No. 231 of 2006

¶195

As could be seen from the material evidence on

¶196

record, BDA after taking note of the title that existed in Anthony Swamy, in respect of two revenue sites which were purchased by Anthony Swamy under the registered sale deeds, recoveyed the suit property in favour of the plaintiff. Admittedly, the property that has been purchased by the Anthony Swamy had different boundaries and after reconveyance, the boundaries are bound to change in view of the BDA reconveying the property to the extent that it is in occupation of the plaintiff.

¶197

That itself could not be taken advantage by the defendants in denying the very title of Anthony Swamy in respect of the suit property. More so, when defendant No.3 had also sought for reconveyance of the property and the BDA has reconveyed the property in favour of one of the legal representatives of defendant No.3 - A.N.Ramachandraiah.

¶198

29 - NC: 2023:KHC:44022 RFA No. 231 of 2006

¶199

Therefore, by sheer logic, contention of the defendants that reconveyance in favour of Anthony Swamy is bad and reconveyance in favour of A.N.Ramchandraiah is good cannot be countenanced in law.

¶200

As such, Learned Trial Judge has rightly answered additional issue Nos.1 and 2 as referred to supra and decreed the suit of the plaintiff.

¶201

Further, when one of the legal representatives

¶202

of Nanjappa got a property reconveyed and in the possessions of the same it should be for and on behalf of legal representatives of Nanjappa. Therefore, the contention of appellant thatr reconveyances in favour of Antony Swamy is bad in law and cannot be countenanced in law.

¶203

In view of the foregoing discussions, point Nos. 1 to 3 as referred to above are answered in negative .

¶204

30 -

¶205

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¶206

REGARDING POINT NO.4 :

¶207

In view of the findings of this Court on point Nos.1 and 2 as above, following:

¶208

ORDER

¶209

i. Appeal is merit less and hereby dismissed.

¶210

ii. No order as to costs.

¶211

iii. However, if the appellant has got any right seeking partition in respect of the property that has fallen to the share of A.N.Ramachandariah being one of the son of original defendant No.3 (Nanjappa), he is at liberty to do so and the observation made by the Court in this judgment shall not affect the rights of the appellant in the said suit.

¶212

Sd/JUDGE

¶213

KAV List No.: 1 Sl No.: 36 CT: BHK

Sri N Viswanathaiah v. Sri Anthony Swamy

Case brief

What is this about?

What did the court decide?

Sri N Viswanathaiah v. Sri Anthony Swamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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