Dismissed

H T Ramanna Gowda S/O Thirumallaiah v. B S Sonnaulla S/O Late Baji Saheb

Karnataka HC15 Nov 2023RFA/717/2006

Case brief

AI extract

What is this about?

In an appeal against dismissal of a suit for declaration of title and permanent injunction, the High Court held that the appellant failed to prove his title over the property. The appeal was dismissed as the trial court was not perverse in rejecting additional evidence of Power of Attorney not produced earlier.

What the court decided

AI extract

H T Ramanna Gowda S/O Thirumallaiah Vs B S Sonnaulla… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:40750 RFA No. 717 of 2006

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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REGULAR FIRST APPEAL NO. 717 OF 2006 (DEC-INJ)

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BETWEEN:

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H. T. RAMANNA GOWDA, S/O THIRUMALLAIAH, SINCE DECEASED BY HIS LRS,

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1(A). SMT. SHANTHAMMA, AGED ABOUT 53 YEARS, W/O LATE H.T. RAMANNA GOWDA,

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1(B). SRI. DIVAKAR R, AGED ABOUT 33 YEARS, S/O LATE H.T. RAMANNA GOWDA, ALL ARE RESIDENT OF NO.208, I CROSS, R.R. TEMPLE ROAD, DEVASANDRA, BANGALORE - 560 036.

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…APPELLANTS

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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(BY SRI. RAKESH B. BHATT, ADVOCATE)

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AND:

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B. S. SONNAULLA, S/O LATE BAJI SAHEB, NO.6, PACARAYANAPURA, BANGALORE - 560 026, GPA HOLDER OF M.A. BASHEER.

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SURESH BHATIA, S/O M.M. BHATIA,

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NC: 2023:KHC:40750 RFA No. 717 of 2006

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3. SUNIL BHATIA , S/O M.M. BHATIA,

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R2 AND R3 ARE RESIDING AT NO.4406/7/8, "HIGH POINT", NO.5, PALACE ROAD, BANGALORE 560 001.

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…RESPONDENTS

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(BY SRI. H.N. PRAKASH, ADVOCATE FOR R1; SRI. ANIL RAMACHANDRA, ADVOCATE FOR R2 AND R3)

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THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.01.2006 PASSED IN O.S.NO.8785/1997 ON THE FILE OF THE VIII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-15), DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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

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JUDGMENT

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Unsuccessful plaintiff has preferred the present appeal challenging the validity of the judgement and decree passed in O.S.No.8785/1997 dated 18.01.2006 on the file of VIII Addl. City Civil and Sessions Judge, Bangalore (CCH-15).

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NC: 2023:KHC:40750 RFA No. 717 of 2006

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The parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Court below.

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The plaintiff filed a suit for declaration and

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injunction with the following prayer in respect of a vacant site bearing No.8 formed out of Sy.No.3 of Basavanapura Village, Krishnarajapuram Hobli, Bengaluru South Taluk, Bengaluru District which is a converted land for residential sites and conversion fine paid already and bounded on east by road, west by site No.7, north by road, south by site No.8A measuring east to west 60 feet and north to south 40 feet, in all 2400 sq.feet (herein after referred to as suit schedule property):

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PRAYER

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"(A) Declaring that the plaintiff is the absolute owner of the suit site property.

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(B) By granting permanent Injunction restraining the Defendants, agents, servants, assigners, workers, Hunchmen, coolies or anybody acting on them from interfering the

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Plaintiff's peaceful possession and enjoyment of the suit schedule site property and destroying the site stones.

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(C) Directing the defendants to pay the Plaintiff the costs of this suit.

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(D) Granting such other reliefs as to this Hon'ble Court deems fit and proper under the circumstances of the case."

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The plaint averments reveal that the plaintiff is the absolute owner of suit property having purchased the same by the registered sale deed dated 05.09.1988 from its erstwhile owner Sri. M. A. Basheer through his Power of Attorney holder, Sri. Sonnaulla (defendant No.1). It is contended that suit property is a residential site converted to non-agriculture residential sites vide order bearing No.285/87-88 dated 16.06.1988 of the Deputy Commissioner, Bengaluru District and the conversion certificate is issued by the Tahsildar vide No.285/87-88 dated 30.05.1988 and the plaintiff is paying taxes to the I.T.I. Notified Area Committee, Krishnarajapuram,

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Bengaluru-38 and he is in possession of the suit property.

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It is the contention of the plaintiff that after receipt of the entire sale consideration of Rs.14,000/-, Sri. B.S.Sonnaulla, the General Power of Attorney (GPA) holder of Sri. M. A. Basheer sold the property and put the plaintiff in possession of the suit property.

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It is further contended by the plaintiff that on 23.11.1997 when the plaintiff was measuring his site for preparation of building plan, defendant Nos.2 and 3 came along with some followers and obstructed plaintiff from taking the measurement of the site and they also threatened that they will not allow plaintiff or nobody to take measurement of the site as defendant Nos.2 and 3 have purchased the sites formed out of Sy.No.3 through its original owner. Some villagers mediated the dispute and classified the quarrel. However, defendant Nos.2 and 3 gave an open threat that they will dispossess the plaintiff within 15 to 20 days.

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It is further contended by the plaintiff that he gave a complaint before the Krishnarajapuram Police on

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24.11.1997, but the police refused to register the complaint and directed the plaintiff to approach the Court of law for taking necessary orders.

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The plaintiff further contended that after the purchase of the site, the plaintiff's name has been mutated in the record of I.T.I. Notified Area Committee, Krishnarajapuram and upto date tax are paid. The plaintiff also contended that defendant Nos.2 and 3 are powerful and influential persons and they have no respect towards the law and might dispossess the plaintiff at any time by creating false documents and therefore, filed a suit with the aforesaid prayer.

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Upon receipt of suit summons, defendant No.1 remained exparte and defendant Nos.2 and 3 filed a detailed written statement contending that they are the owners of the suit property having purchased the same from Sri. M. A. Basheer who is the owner of entire area of 01 acre 24 guntas in Sy.No.3 of Basavanapura Village and they have developed the entire land by investing huge

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sums of money and the sale deed said to have been executed by the Power of Attorney holder of Sri. M. A.

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Basheer who is the defendant No.1 had no right, title or interest to sell the suit site in favour of the plaintiff on account of Prevention of Fragmentation Act is in force and sought for dismissal of the suit.

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9. Based on the rival contentions of the parties,

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the trial Court raised the following issues:

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"1) Whether the valuation of the schedule property and the Court Fee paid are improper and inadequate?

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2) Whether the plaintiff proves title to the schedule property?

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3) Whether he proves his exclusive lawful possession of the schedule property?

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4) Whether he proves the alleged cause of action against the defendants?

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5) What relief/reliefs the parties are entitled to?"

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In order to prove the case of the plaintiff, the

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plaintiff got examined himself as PW-1 and placed on record three documents which were exhibited and marked

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as Exs.P1 to P3, among them Ex.P1 is the Demand Register extract, Ex.P2 is the Tax paid receipt and Ex.P3 is the original sale deed dated 05.11.1988.

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To counter the evidence placed on record by the plaintiff, defendant No.3 namely Sunil Bhatia got examined himself as DW-1 and he has relied on nine documents which were exhibited and marked as Exs.D1 to D9, comprising of four sale deeds, certified copy of the Mutation Register extract, certified copy of the RTC extract, computerised RTC extract, two encumbrance certificates and tax paid receipt.

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Learned trial Judge after concluding the

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recording of evidence, heard the parties in detail and dismissed the suit of the plaintiff by holding that the plaintiff failed to prove his title over the suit property.

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Being aggrieved by the said dismissal of the suit, the plaintiff has preferred the present appeal on the following grounds:

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The judgement and decree of the trial Court are against law, against the evidence and probabilities of the case.

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The Court below committed a grave error in holding that the appellant has not taken delivery of the suit schedule property and failed to note that the appellant has been in on uninterrupted possession and enjoyment of the suit schedule property on the date of filing the suit.

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Having held on issue No.1 in favour of the Appellant that the valuation and Court fee paid are proper and adequate, the Court below erred in holding on issue No.2 that the Appellant has not proved title to the suit schedule property.

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The Court below failed to see the appellant has produced ample evidence to hold that he has title to the suit schedule property.

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The Court below failed to notice that the original sale deed No.6758/1988-89 dated 05.09.1988 Exhibit P-3 whereunder the Appellant purchased the suit property for a consideration of Rs.14,000/- from the original owner M.A.Basheer clearly proves the Appellant's title to the suit property.

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The Court below further failed to notice that after such purchase, he got the Khatha in respect of the said property changed to his name from authorised and appointed authority that ITI Notified Area Committee, K.R.Puram after producing the documents and the authorities received the property tax which his

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Exhibit P-2, the building tax registered extract as Exhibit P-1, show that the property stands in his name. The Appellant has also produced exclusive layout plan.

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The Court below failed to appreciate that the suit site property has been purchased by M.A.Basheer vide Registered Sale Deed No.6758/1988-89 dated 05.11.1988. Registered at Sub-Registrar, from A.T. Thomas and that he sold the same to the Appellant through his GPA holder B.S. Sonaulla, Bangalore South Taluk.

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The Court below ought to have held that thus the Appellant has proved his title to the suit property and also his possession there of from date of such sale in his favour.

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The Court below is not right in making much of the fact of non examination of the GPA holder are non production of the original power of attorney.

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The Court below failed to see the appellant was not at all a party to suit O.S.No.10007/1990 filed by M.A.Basheer against defendant No.2 and 3 and is not aware of the same. Thus, the allegation of the defendant No.2 and 3 have been denied.

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The Court below erred in holding that the Appellant has not proved his exclusive lawful possession of the suit property and that he has further not proved cause of action.

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The discussion of the point in para 14 of its judgement relating to the doctrine of "Possession fallows title" in the present case, is wholly wrong and the same is liable to be rejected. It is wrong for the Court below to assume that the said property is a vacant site.

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The Court below failed to see that the Appellant has proved his exclusive and lawful possession of the suit property from the date sale deed in his favour that i.e., 05.09.1985 and therefore the Court below ought to have granted the relief prayed for.

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Sri. Rakesh B. Bhatt, learned counsel appearing

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for the appellant, reiterating the grounds urged in the appeal memorandum contended that even though the impugned judgment does not specifically dispute the title of the plaintiff, the suit of the plaintiff came to be dismissed on the ground that the plaintiff failed to place on record the Power of Attorney said to have been executed by the owner of the land by Sri. M. A. Basheer in favour of defendant No.1 Sonnaulla and he has filed an application with the certified copy of the Power of Attorney which was

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executed by Sri. M. A. Basheer in favour of defendant No.1 and sought for placing additional documents on record.

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He also contended that the trial Court has misdirected itself in dismissing the suit of the plaintiff in as much as there is no dispute that it is Sri. M. A. Basheer who is the owner of the entire land in Sy.No.3 of Basavanapura Village having purchased the same from Sri. A. T. Thomas by virtue of a registered sale deed dated 27.01.1987.

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He further contended that Sri. M.A.Basheer has executed a registered Power of Attorney in favour of defendant No.1 Sonnaulla and therefore, Sonnaulla has every right to sell the property in favour of the plaintiff which has not been appreciated by the trial Judge and sought for allowing the appeal.

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He also contended that the trial Court did not properly appreciated the material evidence on record especially the registered sale deed, whereunder, the

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consideration amount was paid by the plaintiff to Sonnaulla and the same has been mentioned in Ex.P2 - Sale Deed, Ex.P3 - Sale Deed and revenue entries have been mutated in the name of the plaintiff. Therefore, the plaintiff was in lawful possession and title has passed in respect of site No.8 formed in Sy.No.3 of Basavanapura Village in favour of the plaintiff as such, suit of the plaintiff ought to have been decreed by the learned trial Judge and sought for allowing the appeal.

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Per-contra, Sri. Anil Ramachandra, learned counsel representing respondent Nos.2 and 3 who are defendant Nos.2 and 3 in the Court below, contended that the plaintiff has not properly proved his title to the suit property which has been rightly appreciated by the learned trial Judge in the impugned judgment and sought for dismissal of the appeal.

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He further contended that Sri. M. A. Basheer being the owner of the land in Sy.No.3 of Basavanapura Village is not in dispute and he has sold the entire

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property in favour of defendant Nos.2 and 3 by virtue of four sale deeds which are marked as Exs.D1 to D4. Thereafter, the revenue entries were mutated in the name of the defendants and the defendants are paying taxes to the property from then on and they have developed the land. It is further contended that there is no site No.8 as is claimed by the plaintiff in the suit property and therefore, sought for dismissal of the appeal. He drew the attention of this Court to the schedules mentioned in Exs.D1 to D4, whereunder, there is no mention that the suit land is converted for non-residential purposes and what has been sold in Exs.D1 to D4 is the property which is agricultural land. Therefore, the bar as contemplated in Prevention of Fragmentation Act was not applicable to the sale deed executed by Sri. M.A. Basheer in favour of the defendant Nos.2 and 3.

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He also brought to the notice of this Court that if at all the plaintiff has been duped by the defendant No.1 Sonnaulla, the plaintiff can very well proceed against the

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defendant No.1 under the Indemnity Clause in Ex.P3 and

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as such sought for dismissal of the appeal.

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In view of the rival contention of the parties,

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this Court perused the material on record meticulously. On such perusal of the material on record, following points

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would arise for consideration:

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Whether the plaintiff/appellant has made out a case for placing additional evidence on record?

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Whether the plaintiff has made out the case that he is the lawful and absolute owner in possession of the suit property?

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Whether the plaintiff further proves that defendant Nos.2 and 3 being stranger to the suit property, interfered with the peaceful possession and enjoyment of the suit property?

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Whether the impugned judgment is suffering from legal infirmity or perversity and thus, calls for interference?

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What order?

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REG. POINT NOS.1 TO 4:

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In the case on hand, the suit property including the entire area of 01 acre 24 guntas in Sy.No.3 was earlier belonging to Sri. A.T.Thomas. He sold the property in favour of Sri. M.A.Basheer on 27.01.1987 through a registered sale deed. There is no dispute about the ownership of Sri. M.A.Basheer in respect of entire land in Sy.No.3 of Basavanapura Village.

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According to the plaintiff, Sri. M.A.Basheer having purchased the land from Sri. A.T.Thomas, executed a registered Power of Attorney in favour of defendant No.1 Sonnaulla. Sri. Sonnaulla said to have developed the land acting for and on behalf of Sri. M.A.Basheer and got it converted for residential purposes and then sold individual sites to the prospective purchasers that of plaintiff by assigning site numbers.

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It is pertinent to note that on behalf of the plaintiff, only three documents were placed before the

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Court and marked as Exs.P1 to P3 referred to supra. Ex.P3 is the registered sale deed, wherein, the description of the suit property is mentioned in the second paragraph of the second page of Ex.P3. The same reads as under:

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"The Schedule property bearing Sy.No.3, of Basavanapura Village, K.R.Pura Hobli, Bangalore South Taluk, which was also converted vide order No.285/87-88 dated 16.6.88 by the Deputy Commissioner Bangalore District and Thasildar issued Conversion certificate vide No.285/87-88 dtd. 30.5.86."

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Admittedly, the conversion order is mentioned as order bearing No.285/87-88 dated 16.06.1988 said to have been passed by the Deputy Commissioner. In the very same paragraph, it has been mentioned that Tahsildar has issued conversion certificate vide No.285/87-88 dated 30.05.1986.

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The plaint averments and the evidence placed by the plaintiff by way of affidavit would mention that the certificate issued by the Tahsildar as 30.05.1988 which is

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against the recitals of Ex.P3. Who tampered the dates in page No.2 of the original sale deed date by inserting dates as 16.06.1988 and 30.05.1986 is not explained by the plaintiff, either in his evidence or in his pleadings.

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Sri. Rakesh B. Bhatt, learned counsel for the appellant however tried to impress upon the Court by drawing the attention of this Court to the certified copy of Ex.P3 which is produced before the Court but not marked. No doubt in the sale deed, the certificate issued by the Tahsildar is mentioned as 30.05.1986. Even assuming for the sake of arguments that the Tahsildar has issued the conversion certificate on 30.05.1988, how he could issue a certificate on 30.05.1988 when the very same conversion order was passed by the Deputy Commissioner on 16.06.1988 is a question that remains unanswered on behalf of the plaintiff.

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Be it what it may. The fact remains that the plaintiff failed to produce before the Court, the order of the Deputy Commissioner dated 16.06.1988 to show that

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there was a development of the land by defendant No.1 Sri. Sonnaulla and whereby, he formed a layout consisting of number of residential sites and the plaintiff has purchased one such site for a sale consideration of Rs.14,000/-.

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In the absence of such clinching evidence on record, the trial Court disbelieved the version of the plaintiff that he is possessing the suit property on the ground that plaintiff has failed to prove his title to the suit property by producing the Power of Attorney of Sri. Sonnaulla, who is the vendor of the plaintiff.

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Further, it is settled principles of law that whenever a party approaches the Court with a declarative relief, it is incumbent on such party to establish that he possesses a legal title over the property for which he has sought for declaration. In the case on hand, Ex.P1 is the Demand Register extract, said to have been issued by the I.T.I. Notified Area Committee, Krishnarajapuram, Bangalore.

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Admittedly, it is a quasi revenue authority. If the entire land in Sy.No.3 of Basavanapura Village has been converted for non-residential purpose, the power of I.T.I. Notified Area Committee, Krishnarajapuram would cease to collect taxes from the land which has been converted for residential purpose. Likewise, Ex.P2 which is a document that has been relied upon by the plaintiff is a tax paid receipt dated 16.09.1993.

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In the said tax paid receipt, the assessment is made in a sum of Rs.12/- and a sum of Rs.60/- is paid by the plaintiff in respect of the suit property. What is the basis for Rs.12/- as the taxes for a converted site is not forthcoming either from the evidence of the plaintiff or from the pleadings thereon. When admittedly a revenue property gets converted itself for residential purposes, the local authorities including the I.T.I. Notified Area Committee would lose its power to impose tax and collect the same.

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Over and above the aforesaid evidence on record, there is no document which would clearly establish that number of sites have been formed by defendant No.1 Sri. Sonnaulla acting as Power of Attorney holder of Sri. M.A.Basheer by producing the layout plan.

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Before applying for conversion, a duly approved layout plan must be enclosed along with the application and thereafter conversion proceedings would be proceeded before the Deputy Commissioner. No such documents are forthcoming on record. In Ex.P3 – Sale Deed, there is a recital that photocopies of documents are handed over to the plaintiff by Sri. Sonnaulla who acted as the Power of Attorney holder of the vendor. What are the documents that have been handed over to the plaintiff is not even forthcoming from the recitals of Ex.P3 which is the title deed according to the plaintiff.

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When such is the factual aspect of the matter, the learned trial Judge doubted the title of the plaintiff and

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compared the same with the title that has been established by the defendants.

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On behalf of the defendants, four sale deeds have been marked as Exs.D1 to D4. The same has been executed by the owner of the property Sri. M.A.Basheer in favour of defendant Nos.2 and 3. The schedule mentioned in the title deeds vide Exs.D1 to D4 would go to show that, what has been sold by Sri. M.A.Basheer is the agricultural land and not the converted land. In fact the value that has been mentioned in the sale deed of the plaintiff is Rs.14,000/-, whereas, the value that has been mentioned in the sale deeds of Sri. M.A.Basheer in favour of defendant Nos.2 and 3 is to the agricultural lands and the valuation has been accepted by the Sub-Registrar.

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It is highly unimaginable that a converted site measuring 60x40 would be sold for a sum of Rs.14,000/under Ex.P3.

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Be it what it may. Since Sri. M.A.Basheer has sold the property in favour of defendant Nos.2 and 3 as agricultural land, the conversion order if any, which has been mentioned in the sale deed of the plaintiff appears to be a fake conversion order only to circumvent the provisions of Prevention of Fragmentation Act which was prevailing at the time of execution of Ex.P3 and got it registered by supplying some fake conversion order number.

¶153

Anyway, since the appellant has not placed any material on record which would establish his title to the suit property, the learned trial Judge has rightly dismissed the suit of the plaintiff.

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The plaintiff has filed application under Order XLI Rule 27 of CPC with the copy of the Power of Attorney said to have been executed by Sri. M.A.Basheer in favour of Sri. Sonnaulla.

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Admittedly, it is a registered document and therefore, the veracity thereof cannot be prima-facie disputed. But nothing prevented the plaintiff to produce the said document before the trial Court.

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It is settled principles of law that, a party to a lis should not ordinarily be permitted to place additional evidence on record in an appeal and the Appellate Court cannot automatically admit the additional evidence on record. It is only the event of the Appellate Court feeling difficulty in arriving at a just decision in a given case in the absence of additional evidence, a party must be permitted to place additional evidence on record. The test is, the justice should not suffer for want of additional evidence, and the Court is unable to pronounce the judgment on the issues involved in the case. When such test is applied to the case on hand, this Court does not find that the material available on record is not sufficient to dispose of the appeal on merits. As such, the application seeking to place additional evidence on record cannot be permitted.

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The learned trial Judge while appreciating the case of the parties has taken note of the relevant aspects of the matter, both oral and documentary evidence on record in a pragmatic and cumulative manner and formed an opinion that plaintiff has failed to establish his title over the suit property.

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Even after re-appreciation of the material on record, this Court does not find any legal infirmity or perversity in recording such a finding on the issues raised by the learned trial Judge in the impugned judgment.

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In view of the foregoing discussion, this Court is constrained to hold point Nos.1 to 4 in negative and accordingly they are answered.

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REG. POINT NO.5:

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In view of the findings of this Court on point Nos.1 to 4 as above, the following:

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ORDER

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(i) Appeal is meritless and hereby

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dismissed.

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(ii) No order as to costs.

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Sd/JUDGE

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MCR

H T Ramanna Gowda S/O Thirumallaiah v. B S Sonnaulla S/O Late Baji Saheb

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What the court decided

H T Ramanna Gowda S/O Thirumallaiah v. B S Sonnaulla S/O Late Baji Saheb

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