Partly allowed

Smt Santhanalakshmi v. B Marappa

Karnataka HC10 Feb 2023RFA/44/2009

Case brief

AI extract

What is this about?

This High Court appeal concerns a suit for mandatory injunction and possession of property. The construction team acquitted the plaintiff's claim of title, but upon final hearing, the High Court found the land acquired by BDA and awarded a decree. The decision reversed the dismissal in one appeal and allowed the plaintiff's suit.

What did the court decide?

The first appeal filed against the decree dismissing the suit was allowed, setting aside the impugned judgment and decree and granting a decree for mandatory injunction and possession.

Smt Santhanalakshmi Vs B Marappa — Specific Performance | Karnataka HC (2023)

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1 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA REGULAR FIRST APPEAL NO.605 OF 2007 (INJ)

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C/W

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REGULAR FIRST APPEAL NO.44 OF 2009 (INJ)

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IN R.F.A.No.605/2007

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BETWEEN:

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B MARAPPA

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S/O. RAMASANDRADA BYRAPPA, HINDU, MAJOR,

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R/AT NO. S-231, PIPELING ROAD, CHELUR PALYA,

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HOSAHALLY, BANGALORE – 560 023. SINCE DEAD BY HIS LRs.,

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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1(a) JAYALAKSHMAMMA, W/O LATE B.MARAPPA, AGE:75 YEARS,

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1(b) M.VINAYKUMAR, S/O LATE B.MARAPPA, AGE:59 YEARS,

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1(c) M.GEETHA, D/O LATE B.MARAPPA, AGE:58 YEARS,

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1(d) M.VEENA, D/O LATE B.MARAPPA, AGE:46 YEARS, ALL ATE RESIDING AT No.s-231, PIPELINE ROAD,

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RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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CHELUR PALYA, HOSAHALLY, BANGALORE-560 023.

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…APPELLANTS

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(BY SRI. SANGAMESH G.PATIL., ADVOCATE FOR A-1(a TO d))

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AND:

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SRI C KEMPANNA S/O. CHANNABASAPPA HINDU, MAJOR R/AT NO. 26/4, 12TH MAIN, SHIVANAHALLI, RAJAJINAGAR, BANGALORE -10.

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THE CORPORATION OF THE CITY OF BANGALORE J.C. ROAD, BANGALORE, REP BY ITS COMMISSIONER

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THE ASSISTANT EXECUTIVE ENGINEER CORPORATION OF THE CITY OF BANGALORE, J.C. ROAD, BANGALORE-02.

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…RESPONDENTS

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(BY SRI. P D SURANA, ADVOCATE FOR R1; SRI. N.K.RAMESH, ADVOCATE FOR R-2 & R-3)

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THIS RFA FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 20.11.2006 PASSED IN OS.NO.5421/1994 ON THE FILE OF THE XVI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, CCH.NO.12, DECREEING THE SUIT FOR MANDATORY INJUNCTION, POSSESSION AND PERMANENT INJUNCITON.

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IN R.F.A.No.44/2009

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BETWEEN:

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SMT.SANTHANALAKSHMI, W/O SRI.A.CHIKKARANGAIAH, AGED ABOUT 64 YEARS, No.670, 6^TH MAIN, VIJAYANAGAR, BANGALORE:40,

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3 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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REPRESENTED BY HER GPA HOLDER, SRI.A.CHIKKARANGAIAH.

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…APPELLANT

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(BY SRI. P.D.SURUNA FOR SRI.H.C.SHIVAKUMAR, ADVOCATE)

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AND:

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B MARAPPA

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S/O. RAMASANDRADA BYRAPPA,

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HINDU, MAJOR, R/AT NO. S-231, PIPELING ROAD, CHELUR PALYA, HOSAHALLY, BANGALORE – 560 023. SINCE DEAD BY HIS LRs.,

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1(a) JAYALAKSHMAMMA, W/O LATE B.MARAPPA, AGE:75 YEARS,

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1(b) M.VINAYKUMAR, S/O LATE B.MARAPPA, AGE:59 YEARS,

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1(c) M.GEETHA, D/O LATE B.MARAPPA, AGE:58 YEARS,

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1(d) M.VEENA, D/O LATE B.MARAPPA, AGE:46 YEARS,

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ALL ATE RESIDING AT No.s-231, PIPELINE ROAD, CHELUR PALYA, HOSAHALLY, BANGALORE-560 023.

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THE CORPORATION OF THE CITY OF BANGALORE J.C. ROAD, BANGALORE-2, BY ITS COMMISSIONER

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RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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THE ASSISTANT EXECUTIVE ENGINEER CORPORATION OF THE CITY OF BANGALORE, J.C. ROAD, BANGALORE-02.

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…RESPONDENTS

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(BY SRI. SANGAMESH G.PATIL, ADVOCATE FOR R-1(a TO d); SRI. B.V.MURALIDHAR, ADVOCATE FOR R-2 & R-3)

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THIS RFA FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:17.04.2008 PASSED IN OS.NO.5145/1994 ON THE FILE OF THE IX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR MANDATORY INJUNCTION, POSSESSION AND PERMANENT INJUNCTION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Smt.R.Santhanalakshmi, the unsuccessful plaintiff, is in appeal.

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Smt.R.Santhanalakshmi instituted the suit against

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Sri.B.Marappa, the Corporation of the City of Bengaluru and one of its official, seeking for a decree of mandatory injunction and possession of the 'B' schedule property measuring 8 ft., x 10 ft., consisting of a small structure

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which had been erected and which formed a part of the property bearing No.1518/B measuring (14 ft.,+16 ft.,)/2 x 35 ft.,

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5 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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It was her case that the site bearing No.1518/B was allotted in her favour under an allotment letter dated 23.05.1978 and she was also put in possession of the same. She stated that at the time of allotment, the site allotted to her measured 15 ft., x 35 ft., and after she paid the sital value, the actual measurements were taken by the BDA., and it was noticed that the property actually measured (14 ft.,+16 ft.,)/2 x 35 ft.,. She also stated that the Khata in respect of this portion was registered in her name and she had also obtained a sanction to a building plan for putting up the construction.

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She stated that when she attempted to put up the construction, Sri.B.Marappa who was a stranger to the property, obstructed her and he actually trespassed on a portion of the property on 28.09.1994 and on being enquired, he became aggressive and despite approaching the police, she was unable to dispossess him. She also stated that Sri.B.Marappa had illegally and unautorizedly constructed a shed over the site measuring 8 ft., x 10 ft.,

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6 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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on her site and she was entitled to the vacant possession of this area. She stated that since her title was being denied and a portion of her property was in the possession of Sri.B.Marappa, she was constrained to file a suit for mandatory injunction and for delivery of possession.

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Sri.B.Marappa entered appearance and denied the averments put forth by Smt.R.Santhanalakshmi, in its entirety. He stated that he was the absolute owner of Sy.No.1 of Hosahalli Village and he was in continuous possession of that property. He accordingly sought for dismissal of the suit.

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The Trial Court framed seven issues.

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Smt.R.Santhanalakshmi's husband Sri.Chikkarangaiah

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was examined as PW1 and 18 documents were admitted in evidence and marked as Exhibits.

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Sri.B.Marappa examined himself as DW1 and got

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12 documents admitted in evidence and marked as exhibits.

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7 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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The Trial Court, on consideration of the evidence adduced, came to the conclusion that she had not proved that she was the owner of the suit property and that Sri.B.Marappa had encroached into a portion of the said property.

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The Trial Court also came to the conclusion that she was also not entitled for a decree of possession and mandatory injunction and it accordingly dismissed the suit.

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The Trial Court came to the conclusion that though Smt.R.Santhanalakshmi contended that she has deposited the sital value and she was allotted the site by BDA, the lease cum sale agreement said to have been executed in

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her favour was not produced and therefore, according to the Trial Court, this caused a serious doubt on her entitlement to the property.

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The Trial Court also observed that she claimed that she took possession of the site for 10 years from 11.08.1978, but since there was no lease cum sale

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8 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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agreement or a sale deed executed in her favour on the expiry of 10 years, her assertion that she possessed the title could not be accepted, though there was a Khata certificate issued in her favour.

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The Trial Court did take note of the fact that

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Sri.B.Marappa had filed a suit in OS No.9980/1980 for injunction against one Sri.B.Adirajaiah and the BDA, contending that he was the owner of the land bearing Sy.No.1 and the same had not been acquired by the BDA. The Trial Court noticed that this suit filed by him had in fact been dismissed and during the pendency of that suit, as a matter of fact, a Commissioner had been appointed who had submitted a sketch indicating that 2 guntas of land in Sy.No.1 had been acquired on behalf of the BDA.

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The Trial Court also noticed that Sri.B.Marappa had preferred an appeal in RFA No.335/2002, but there was no material produced indicating the result of this appeal. The Trial Court observed that notwithstanding the dismissal of

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9 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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the suit filed by Sri.B.Marappa, since

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Smt.R.Santhanalakshmi had failed to establish that she

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had been allotted the site by the BDA, it proceeded to dismiss the suit.

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Smt.R.Santhanalakshmi being aggrieved, is in

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appeal.

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Along with this appeal, Smt.R.Santhanalakshmi has filed an application seeking for production of additional evidence. The additional evidence that she seeks to produce is a registered sale deed executed in her favour

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by the BDA., in respect of site No.1518/B ie., the 'A' schedule property. A copy of the order passed in RFA No.335/2002 is also produced along with the written arguments.

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Since, the sale deed has been executed just prior to filing of this appeal, it would be necessary to allow the application and permit the production of this sale deed.

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10 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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As stated above, admittedly Sri.B.Marappa's father had instituted a suit in OS No.9980/1980 seeking for a decree of injunction in respect of 2 guntas of Sy.No.1.

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In the said suit, initially, the Trial Court had dismissed the suit as against which, an appeal had been filed in RFA No.189/1992 and the matter was remanded. On remand, the Trial Court appointed a Commissioner and the Commissioner had reported that 2 guntas in Sy.No.1 had been acquired and Sri.B.Adirajaiah had been allotted a site from among the five sites that the BDA had formed in the said 2 guntas of land. On the basis of this finding, the Trial Court dismissed OS No.9980/1980.

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As against dismissal of OS No.9980/1980, the children of Sri.Ramasandrada Byrappa ie., Sri.B.Maheshwarappa and Sri.B.Marappa had preferred an appeal in RFA No.335/2002. It was their case that their lands had not been acquired and even before the alleged award was passed, possession had been taken and

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11 -

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RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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therefore, the entire act of BDA in forming the site and allotting it, was illegal.

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This Court after examining the records in detail, came to the conclusion that the land comprising of five sites including that of Sri.B.Adirajaiah was acquired and an

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award was also passed. This Court therefore, took the view that the defect in acquisition of these 2 guntas of land stood cured.

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The Trial Court also took note of the fact that Sri.B.Marappa himself had admitted that the award has been passed in respect of Sy.No.1 and he had not challenged the allotment. This Court, accordingly,

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dismissed the appeal. However, liberty was reserved to Sri.B.Marappa and his brother to work out their remedies, if any, in respect of the land that had not been acquired or the compensation which may be due to him in respect of the land acquired.

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12 -

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RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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It may also be pertinent to state here that the site that had been allotted to Smt.R.Santhanalakshmi is one of the five sites that the BDA., had formed. One other allottee Sri.C.Kempanna had also instituted a suit in OS No.5421/1994 against Sri.B.Marappa and the Corporation of the City of Bengaluru, seeking for a decree of injunction and the Trial Court in that suit has also recorded a clear finding that the lands of Sri.B.Marappa and his father had in fact been acquired and Sri.B.Marappa himself had admitted that he had not challenged the acquisition proceedings.

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The Trial Court accordingly came to the conclusion that the land claimed by Sri.B.Marappa and his father had been acquired and as a matter of fact, BDA had formed five sites and Sri.C.Kempanna, the plaintiff therein was one of the allottee. The Trial Court, accordingly, decreed the said suit. As against this decree, an appeal has been

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preferred by Sri.B.Marappa in RFA No.605/ 2007** .

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**Corrected Vide Court Order dated:2/8/2023.

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13 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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The Trial Court in OS No.5421/1994 has clearly recorded the fact that the lands belonging to

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Sri.B.Marappa and his father had been notified for acquisition and an award has also been passed.

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This Court in RFA No.335/2002 has also noticed this

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and has also held that the allotment which had been made prior to passing of the award could not be vitiated because subsequently, the award was passed and thereby, the defect, if any, had been cured.

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It may be pertinent to state here that this dismissal

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of the suit filed by Sri.B.Marappa and his brother, though challenged unsuccessfully in this appeal, had not been carried further. As a consequence, the determination against Sri.B.Marappa and his brother in respect of Sy.No.1 has attained finality.

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Since there is already a decree passed against Sri.B.Marappa and his brother holding that they had no rights over Sy.No.1 and the same has been acquired by

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14 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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the BDA., and this decree has also been affirmed by this Court and accepted by Sri.B.Marappa, it is clear that Sri.B.Marappa and his brother would have no right whatsoever in respect of Sy.No.1.

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The Trial Court though noticed that an appeal in RFA No.335/2002 had been filed, has however proceeded to observe that the result of the appeal was not indicated and therefore, no cognizance of it could be taken. Since it is indisputable that the appeal filed by Sri.B.Marappa has also dismissed and attained finality, he cannot oppose the granting of injunction in favour of the allottees of the BDA.

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It may be pertinent to state here that in the present appeal Smt.R.Santhanalakshmi had in fact produced a registered sale deed executed in her favour by the BDA and this would therefore establish that she had acquired a valid title.

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In the companion appeal Sri.C.Kempanna had already produced the lease cum sale agreement executed

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15 - RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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in his favour by the BDA and the Trial Court has also found that he was entitled to a decree and had decreed the suit filed by Sri.C.Kempanna.

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In the light of the judgment passed in

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RFA No.335/2002, the decree passed by the Trial Court against Smt.R.Santhanalakshmi cannot be sustained. It is accordingly reversed and the suit of

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Smt.R.Santhanalakshmi is decreed as prayed for.

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Further, since the rights of Sri.B.Marappa and his brother have been concluded by virtue of the judgment in RFA No.335/2002, the decree of the suit in favour of Sri.C.Kempanna cannot also be found fault with, since the very issues involved in that suit were decided against Sri.B.Marappa.

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As a consequence, RFA No.44/2009 filed by Smt.R.Santhanalakshmi is allowed . The impugned judgment and decree in that appeal is set-aside and the suit of Smt.R.Santhanalakshmi is decreed as prayed for.

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16 -

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RFA No. 605 of 2007 C/W RFA No. 44 of 2009

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The appeal filed by Sri.B.Marappa through his legal representatives ie., RFA No.* 605 /2007 is dismissed .

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Sd/JUDGE

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GH List No.: 1 Sl No.: 29

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*Corrected vide Chamber Order dated:15.07.2023

Smt Santhanalakshmi v. B Marappa

Case brief

What is this about?

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Smt Santhanalakshmi v. B Marappa

Case brief

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