Disposed

S. Ramaiah v. Sri. Kariyanna

Karnataka HC23 Feb 2024RFA/671/2005

Case brief

AI extract

What is this about?

Two connected first appeals concerning ownership of survey numbers in Nagarabhavi village. The High Court held plaintiffs failed to prove title, as Gangamma had sold the entire property to Thimmakka under Ex.D8. The Sangha's agreements and irrevocable GPA supported by consideration were upheld. The decree in O.S.No.2443/1984 was set aside and the suit dismissed; the appeal by the agreement purchas

What the court decided

AI extract

S. Ramaiah Vs Sri. Kariyanna — Specific Performance | Karnataka HC (2024)

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RFA 671/2005 C/W RFA 1508/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

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RFA NO.671 OF 2005 (DEC) C/W RFA NO.1508 OF 2015 (DEC/INJ)

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1 . RAMAIAH S/O LATE SIDDARAMAIAH

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SINCE DEAD BY HIS LRS.

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1(a) MUNIYAMMA W/O LATE S. RAMAIAH SINCE DEAD BY HER LRS.

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1(b) THIMMEGOWDA R. W/O LATE S. RAMAIAH SINCE DEAD BY HIS LRS.

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1(b)(i) DEVI T GOWDA W/O LATE THIMMEGOWDA. R AGED ABOUT 42 YEARS

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1(b)(ii) PAVITHRA. T, D/O LATE THIMMEGOWDA. R AGED ABOUT 24 YEARS

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1(b)(iii) SHASHANK GOWDA. T, S/O LATE THIMMEGOWDA. R AGED ABOUT 22 YEARS

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ALL ARE RESIDING AT NO.9, 4^TH CROSS, ISEC MAIN ROAD NAGARABHAVI VILLAGE BANGALORE-560 072.

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1(c)	GANGADHAR R.
	S/O LATE S. RAMAIAH AGED ABOUT 45 YEARS
1(d)	MANJUNATHA R. S/O LATE S. RAMAIAH AGED ABOUT 43 YEARS
1(e)	HANUMARAJ R. S/O LATE S. RAMAIAH AGED ABOUT 39 YEARS
1(f)	PRAKASH R. S/O LATE S. RAMAIAH
	AGED ABOUT 38 YEARS
1(g)	NAGARAJ R. NAGARABHAVI S/O LATE S. RAMAIAH
	AGED ABOUT 35 YEARS
	ALL ARE R/AT NO.15
	ISEC MAIN ROAD NAGARBHAVI VILLAGE BANGALORE NORTH TALUK
	BANGALORE - 560 072
2 .	S. SIDDAPPA S/O LATE SIDDARAMAIAH
	SINCE DEAD BY HIS LR'S
2(a)	DODDAMMA @ JAYAMMA W/O LATE SIDDAPPA S. AGED ABOUT 61 YEARS
2(b)	SIDDARAMAIAH S/O LATE SIDDAPPA.S AGED ABOUT 44 YEARS
2(c)	GANGAMMA
	D/O LATE SIDDAPPA S. AGED ABOUT 40 YEARS
2(d)	MANJUNATHA S.
	S/O LATE SIDDAPPA S.
	AGED ABOUT 36 YEARS

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2(e) SUMANGALA S. D/O LATE SIDDAPPA S. AGED ABOUT 33 YEARS

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2(f) GAJENDRA S/O LATE SIDDAPPA S. AGED ABOUT 31 YEARS ALL ARE R/AT NAGARBHAVI VILLAGE YESHWANTHPURA HOBLI BANGALORE NORTH TALUK, BANGALORE 3 . S. NANJAPPA S/O LATE SIDDARAMAIAH AGED ABOUT 50 YEARS R/O NAGARBHAVI VILLAGE YESHWANTHPUR HOBLI BANGALORE NORTH TALUK BANGALORE - 560 072 4. KENDRA UPADHYAYARA SANGHA REP. BY ITS SECRETARY R/AT NO.24, SUBRAMANYA SETTY ROAD, BASAVANAGUDI BANGALORE - 560 004 … APPELLANTS (BY SRI.NITHIN RAMESH, ADV. FOR SRI.SRIDHAR PRABHU, ADV. FOR APPELLANT NO.4; VIDE ORDER DATED 10.11.2022 APPEALS ON BEHALF OF APPELLANT 1(a TO g); APPELLANT NO.2(a TO f) AND APPELLANT NO.3 STAND DISMISSED) AND:

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1 . SRI.KARIYANNA S/O LATE KARIYANNA, MAJOR R/AT NAGARABHAVI VILLAGE YESHWANTHPURA HOBLI BANGALORE

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2 . BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, BANGALORE REP. BY COMMISSIONER

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE, N.R.SQUARE, BANGALORE - 02

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EXECUTIVE ENGINEER GOVINDARAJANAR WARD BRUHATH BENGALURU MAHANAGARA PALIKE, BDA COMPLEX, 4^TH MAIN ROAD MC LAYOUT, VIJAYANAGARA BANGALORE - 40

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ASSISTANT EXECUTIVE ENGINEER BRUHATH BENGALURU MAHANAGARA PALIKE, COTTON PET MAIN ROAD CHANDRA LAYOUT, WARD NO.39 BANGALORE - 20 … RESPONDENTS

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(BY SRI.G.KRISHNAMURTHY, SR. ADV. A/W SRI. M.N.UMESH, ADV. FOR R1; SRI. JAYAKUMAR S.PATIL, SR.ADV. FOR SRI. ASHWIN S. HALADY, ADV. FOR R2; VIDE ORDER DATED 06.07.2023; SMT.SUMANGALA GACHINAMATH, ADV. FOR R3 TO R5; SRI. C. JAGADEESH, ADV. FOR PROPOSED R5)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.02.2005 PASSED IN O.S.NO.2443/1984 ON THE FILE OF THE 19^TH ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH NO.18, BANGALORE, DECREEING THE SUIT FOR DECLARATION AND PERMANANET INJUNCTION.

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IN RFA NO.1508 OF 2015

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BETWEEN:

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SRI. K. LAKSHMINARAYANA AGED ABOUT 54 YEARS S/O SRI C. T. KALAIAH R/AT NO.176/B, 10^TH CROSS

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BAPUJI NAGAR BANGALORE-560 026 … APPELLANT

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(BY SRI. SHASHIKIRAN SHETTY, SR. ADV. FOR SRI. M. SRINIVAS, ADV. FOR SMT. LATHA SHETTY, ADV.)

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AND:

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SHRI. K. KARIYAPPA AGED ABOUT 69 YEARS S/O LATE KARIYANNA R/AT NAGARABHAVI VILLAGE YESHWANTHPURA HOBLI BANGALORE NORTH TALUK BANGALORE 560 072 …RESPONDENT

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(BY SRI. D. R. RAVISHANKAR, SR.ADV FOR SRI. SHREEDHARA. S, ADV.)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, READ WITH ORDER XLIII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DEGREE DATED: 16.09.2015 PASSED IN OS NO. 1049/2010 ON THE FILE OF THE XII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH.NO.27) AT BANGALORE. DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUCTION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.01.2024 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.G.SHIVASHANKARE GOWDA J. , DELIVERED THE

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FOLLOWING:

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J U D G M E N T

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The defendants No.2 to 4 (Ramaiah, Siddapa and Nanjappa) and 6 (Kendra Upadhayara Sangha¹ ) in O.S.No.2443/1984 have challenged the judgment and decree dated 24.02.2005 passed by the XIX Additional City Civil Judge, Bengaluru, in R.F.A.No.671/2005.

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1.1. Plaintiff (Lakshminaryana) in

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O.S.No.1049/2010 has challenged the judgment and decree dated 16.09.2015 passed by the XII Addl. City Civil and Sessions Judge, Bengaluru (CCH-27), in R.F.A.No.1508/2015.

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Brief facts pleaded in O.S.No.2443/1984:

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� One Kunta Ramaiah’s elder brother was Siddaramaiah. His daughter was Gangamma (Plaintiff No.1). Sanjeevaiah, Kariyappa, Chikkamallappa and Ramiah are her sons. Gangamma and her four children have brought this suit inter alia for declaration and

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1 for short 'the Sangha'

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injunction that they are the owners of properties bearing Sy. No. 1/4, measuring 31 guntas; Sy. No. 1/5, measuring 2 acre 35 guntas; Sy. No.1/7 measuring 1 acre 35 guntas. Plaintiffs gave up their claim with regard over Sy. No.1/4 vide order dated 06.02.1995. They amended the area in Sy. No.1/7 guntas as 28 guntas. In effect, the suit claim was for Sy. No.1/5 measuring 2 acres 35 guntas and Sy.No.1/7 measuring 28 guntas;

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defendants No. 1 to 4 are children of one Siddaramaiah;

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� the Genealogical Tree is as follows:

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2.1. BDA (Defendant No.5) notified the suit properties for formation of Nagarbhavi Layout. The Sangha claims its right over the suit properties on the

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basis of an Agreement to Sell and an irrevocable GPA executed by Ramaiah, Siddappa and Nanjappa (defendants No. 2 to 4).

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2.2. Plaintiffs’ case is, Kunta Ramaiah was the original owner of Sy.No.1/5 and 1/7. After his death in 1933, the properties devolved upon plaintiff No.1Gangamma and her name was entered in the revenue records. At some point, the names of some of the defendants appeared in Cultivator’s Column in respect of those Sy. Nos. Plaintiffs learnt that BDA had sought to acquire the lands for the Sangha to form of layout named as ‘Teachers Colony’. Hence, plaintiffs have brought the instant suit for declaration of their title and permanent injunction.

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2.3. Defendant No.1 resisted the suit by filing independent written statement but the same was not taken into consideration as her name and the claim in

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respect to Sy.No.1/4 was deleted vide order dated 06.02.1995.

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2.4. Defendants No.2 to 4 resisted the suit by filing their common written statement inter alia admitting the relationship between plaintiffs and defendants No.1 to 4. They contended that Kunta Ramaiah was not the owner of Sy. Nos.1/5 or 1/7 and plaintiff No.1 was not the owner of Sy.No.1/4. The name of Gangamma that appeared in the revenue records was not the name of plaintiff No.1, but it was the name of one Gangamma w/o Dasegowda and sister of Kunta Ramaiah. Plaintiff No.1 has colluded with the revenue officials and got her name inserted in some of the revenue records. Defendants No.2 to 4 are the absolute owners of the suit properties and they have sold the suit properties to the Sangha.

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2.5. The defence taken by defendants No.2 to 4

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with regard to each survey number is as follows:

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i. That Sy.No. 1/7 originally belonged to one Dasegowda. After his death, Sy. No. 1/7 devolved upon his wife Gangamma. After Gangamma’s death, her daughter Thimmakka and her sons i.e., defendants 2 to 4 continued in possession. Plaintiff No.1 is taking undue advantage of the common name of herself and Dasegowda’s wifeGangamma and making a false claim over the suit properties. Even otherwise, defendants No. 2 to 4 have perfected their title by adverse possession. They have been continuously in possession for a period of more than 12 years adverse to plaintiffs’ interest.

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ii. That Sy.No.1/5 belonged to Kunta Ramaiah’s brother Siddaramaiah. There was a partition between the brothers and the land was equally divided between them. Kunta Ramaiah sold his share of property in Sy. No. 1/5 under a registered Sale Deed dated 13.1.1931 in favour of his daughter/plaintiff No.1. Plaintiff No.1 sold it by a Sale deed dated 18.5.1966 in favour of Thimmakka (mother of Defendants No. 2 to 4). After Thimmakka’s death, defendants

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No.2 to 4 inherited and continued to be in possession of Sy.No.1/5.

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iii. Therefore, plaintiffs are not entitled for any relief and prayed for dismissal of the suit.

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However, defendants No. 2 to 4 withdrew their written statement by filing a memo dated 14.09.1994. They also filed a memo dated 06.01.1998 stating that they were not inclined to lead any evidence.

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2.6. Defendant No.5-BDA resisted the suit by filing separate written statement contending inter alia that land in Sy.Nos.1/4, 1/5 and 1/7 have been notified for formation of Nagarabhavi Layout; that final notification was yet to be issued; that whoever established his title over the suit properties shall receive compensation as per the award. That the suit is not maintainable for non-compliance of Section 64 of the BDA Act. That BDA was not a proper party and the suit was liable to be dismissed.

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2.7. Defendant No.6-the Sangha, adopted the

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written statement filed by defendants No.2 to 4. It also filed a separate written statement contending inter alia that it is registered under the Societies Registration Act. The Sangha had entered into agreements with defendants No. 2 to 4 to purchase the suit properties. Pursuant to the agreements, the Sangha had taken possession of suit properties. After receiving the total consideration, defendants No.2 to 4 have executed a power of attorney in favour of the Sangha. All the revenue records stood in the name of defendants No. 2 to 4 who had also perfected their title by adverse possession.

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2.8. It is further pleaded by the Sangha that the

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BDA had notified to acquire suit properties along with other lands vide preliminary notification dated 12.02.1982. The Sangha sought denotification of these lands from the Government. The BDA granted its 'No Objection Certificate’ and the lands were dropped

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from acquisition proceedings in the final notification dated 16.05.1985. Defendants No.2 to 4 and their predecessors in title were in possession of suit properties and they were paying the land revenue. From 30.11.1981, the Sangha came into possession of the suit properties, developed and formed a layout. Since 30.11.1981, the Sangha has been paying assessed tax through defendants No.2 to 4. Plaintiffs have no right title or interest nor they were in possession at any point of time.

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2.9. The suit was dismissed vide order dated 19.3.2002. On appeal in R.F.A.No.451/2002, this Court set-aside the order of dismissal and remanded the matter vide order dated 23.10.2003 for fresh disposal in accordance with law.

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Based on the pleadings, the following issues were framed before the remand order and the same have been retained even after the remand:

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1) Whether the plaintiffs prove their title as owners in possession of the suit schedule survey numbers?

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2) Whether they further prove that defendants interfered in their possession and enjoyment of the suit schedule survey numbers?

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3) Whether the first defendant proves her title as owner of suit survey No. 1/4?

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4) Whether she further proves that she has perfected her title by adverse possession in respect of the suit survey number ¼?

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5) Whether the defendants 2 to 4 prove that they are in possession and enjoyment of the suit schedule properties as owners for the various reasons as pleaded in the written statement?

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6) Whether they further prove that they have perfected the title to the suit schedule survey number by way of adverse possession and thereon, the suit is barred by time?

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7) Whether they further prove that they have entered into an agreement with 6th defendant to sell the suit schedule survey numbers and that they have delivered possession of the suit schedule properties to 6th defendant?

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8) Whether the 5^th defendant proves that the suit is bad for non-compliance of Section 56 of the BDA Act and therefore, it is liable to be dismissed?

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9) Whether they further prove that the suit against first defendant is not maintainable?

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10) Whether the 6^th defendant proves that in order to form a layout to enable its members to purchase sites, it has entered into an agreement with defendants 2 to 4 to purchase be suit schedule survey numbers?

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11) Whether the 6^th defendant further proves hat pursuant to the said agreement, it has taken possession of the suit survey numbers from defendants 2 to 4 by paying consideration to them?

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12) Whether the 6^th defendant further proves that the 5th defendant BDA has issued preliminary notification for acquiring the said suit survey numbers for formation of the layout of the 6th defendant?

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13) Whether he further proves that the defendants 2 to 4 are the owners in possession of the suit schedule property?

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14) To what relief the parties are entitled?

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On behalf of the plaintiffs, five witnesses were

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examined as PW.1 to PW.5 and Ex.P1 to P40 were marked. On behalf of the defendants, five witnesses were examined as DW.1 to DW5 and Ex.D1 to D147. After remand, Exs.D5 to D10 were marked. After hearing both the parties, the Trial Court while answering issues No. 1 and 2 in the affirmative; issues

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No. 5, 6, 7, 10, 11 and 13 in the negative and holding that issues No. 3, 4, 8, 9 and 12 did not arise for consideration has decreed the suit declaring that plaintiff No. 3 as the owner in possession of Sy.No.1/5 and 1/7. Aggrieved by the same, defendants are before this court in R.F.A.No.671/2005.

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Brief facts pleaded in O.S.No.1049/2010:

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Defendant No.1, Kariyappa is the owner of Sy.No.1/5, measuring 2 acres 36 guntas of Nagarabhavi Village. He entered into an agreement on 21.01.2002 to sell the suit property in favour of plaintiff, Lakshminarayana for a total consideration of Rs.30,00,000/-. After execution of the agreement, plaintiff was informed about the litigation pending before this Court in RFA No.671/2005. Due to the said litigation, defendant was unable to execute the sale deed and hence, executed irrevocable GPA dated 08.08.2005 in favour of the plaintiff, authorizing him to represent in all his litigation. On 11.01.2010,

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defendant sent a notice to plaintiff asserting that the GPA was null and void and threatened to revoke the same. Plaintiff sent a reply to the notice. However, defendant No.1 revoked the GPA. Hence, plaintiff has brought this suit seeking declaration and injunction.

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5.1. Kariyappa (Defendant No.1) resisted the suit by filing written statement contending that the suit is misconceived; that there was no cause of action; that the GPA was already revoked; that proper court fee was not paid; and that the GPA was not coupled with interest and sought for dismissal of the suit.

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On the basis of the pleadings, the Trial Court

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has framed the following issues:

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1. Does the plaintiff prove that, he has purchased the suit schedule property for a valid sale consideration amount of Rs.30,00,000/- as contended in the plaint?

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2. Does the plaintiff prove that, the General Power of Attorney Dated:8.8.2005 executed in his favour is a irrevocable G.P.A as contended in the plaint?

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3. Does the plaintiff prove that, he is in possession of the suit schedule property as on the date of filing of the suit?

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4. Does the plaintiff prove that, the defendants are interfering in his possession over the suit schedule property?

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5. Is the suit property valued and court fee paid on the same is sufficient?

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6. What order or decree?

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Before the Trial Court, on behalf of plaintiff, three witnesses were examined as PWs-1 to 3 and Exs.P1 to P31 marked. On behalf of defendants, one witness was examined as DW-1 and Exs.D1 to D30 marked. Answering all issues in the negative and the suit has been dismissed. Feeling aggrieved, Lakhminarayana is before this Court in RFA No. 1508/2015.

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Heard the arguments of Sri. Nithin Ramesh, learned Advocate for the Sangha (appellant No.4/defendant No.6); Sri.G.Krishnamurthy, learned Senior Advocate for respondent No.1/plaintiff No.3; Sri. Jayakumar S. Patil, learned Senior Advocate for respondent No.2/defendant No.5; Smt. Sumangala

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Gachchinamath, learned Advocate for respondents No.3 to 5; Sri. C. Jagadeesh, learned Advocate for proposed respondent No.5 and Ms. Nayana Tara.B.G, learned Advocate for impleading Applicant in I.A.No.1/2012 in RFA No.671/2005.

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Heard the arguments of Sri. K. Shashikiran Shetty, learned Senior Advocate for Sri. M. Srinivas and Smt. M. Latha Shetty, learned Advocates for the plaintiff and Sri. D.R. Ravishankar, learned Senior Advocate for Sri. S. Shreedhara, learned counsel for the defendant in RFA No.1508/2015.

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Sri.Nithin Ramesh, for the Sangha in RFA No.671/2005, praying to allow the appeal, mainly submitted that:

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plaintiffs have not produced title document to prove their title;

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plaintiffs cannot rely on the weakness of defendants case to establish their title. In a suit for declaration, the relief is not only

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against the defendants but the declaration is in rem ;

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� plaintiffs have conceded during the trial that they did not have possession of the suit properties. They have deposed that they had documents to show that their mother was in possession of Sy. No.1/5 from 196869 and 1971-72. Further, that they had documents to show that their mother was in possession of Sy.No.1/7 between 1966-67 and 1971-72 only. This means that as on the date of the filing of the suit in 1984, plaintiffs had no document to prove their possession over either Sy.No.1/5 or 1/7;

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in the connected RFA No.1508/2015, the sale deeds executed by the Sangha are marked in evidence as Ex.P12 to Ex.P31. Plaintiffs' GPA holder has signed the said sale deeds as consenting witness and has

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admitted that the possession of the Layout was with the allottees/members of the Sangha;

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P.W.1 in his deposition has stated that he is not aware of the formation of layout in Sy.No.1/5 & 1/7 but admitted that the layout plan approved by the BDA and sites have been carved out in Sy. No.1/5 & 1/7;

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if plaintiffs claim that they were the owners in possession of the suit properties were to be genuine, they would not have got deleted Sy. No. 1/4 deleted on 08.02.1995, after 11 years of filing this suit;

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similarly, in the year 1984, Sy.No.1/7 is shown 1 acre 35 guntas and after 20 years, in the year 2004, the plaint was amended restricting the claim to 28 guntas. Thus, the plaintiffs were not sure about the area of the land;

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plaintiffs have not sought for possession of the land, therefore, a suit for only declaration without seeking for possession is not maintainable;

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though defendants No.2 to 4 have withdrawn the appeal on 10.11.2022, the Sangha can maintain this appeal on its own independent right;

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defendants No. 2 to 4 have executed agreements dated 21.08.1981 & 25.3.1982 by receiving the entire sale consideration and put the Sangha in the possession of the lands;

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right from the early stages of the suit proceedings defendants No. 2 to 4 have been displaying their dubious conduct. Firstly, they withdrew their written statement on 14.9.1994; secondly, on 6.1.1998 they filed a memo not to lead their

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evidence; thirdly, they engaged plaintiffs’ Advocate who had appeared in the Revenue Court to get change of entries in the name of the plaintiff (Ex.P15); and lastly, withdrawing this appeal on 10.11.2022;

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� Exs.P16 and 40 were introduced in the second round of litigation after the remand.

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Sri.G.Krishnamurthy, for plaintiff No.3/respondent No.1 in RFA No.671/2005 has contended that defendants No.2 to 4 have withdrawn the appeal. The Sangha is claiming title under agreements and GPA. The Sangha has no independent title over the suit properties. The suit was filed on 16.07.1984. All the subsequent events after filing of the suit is subject to lis pendens . The execution of registered Will dated 15.09.1967 is not in dispute. It is executed by Thimmakka in favour of defendants No.2 to 4. In the year 1935, Durasth was conducted and in Sy.No.1/5 in respect of 2 acres 36 guntas, in

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Sy.No.1/7, Gangamma’s name was entered in respect of 28 guntas. Sy.Nos.1/5 and 1/7 were not sold to Thimmakka. Thimmakka has no right in the suit schedule property as defendants No.2 to 4 claiming right under Ex.P20/Will as the schedule refers to Sy.No.1/2 and 2/3, not Sy.No.1/5 and 1/7. No title will flow to Thimmakka under Ex.D8. BDA has notified acquisition of Sy.No.1/5 and 1/7. Defendants No.2 to 4 have filed their written statements and the same has been adopted by the Sangha. Since, defendants No. 2 to 4 have withdrawn their written statement, the Sangha shall not get any title.

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Sri. Patil, for the BDA in RFA No.671/2005 has contended that BDA is a statutory authority; that no notice has been issued to the BDA before filling the suit.

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Ms. Nayana Tara, for impleading applicant in I.A.No.1/2012 in RFA No.671/2005 contended that after acquisition of the property by the Sangha, layouts

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have been formed and lease-cum-sale deeds have been executed. Plaintiffs were never in possession of suit property. In Sy.No.1/5, 61 sites were formed, allotment was made in the year 1989. In respect of 34 sites, sale deeds have been executed. Plaintiffs and other defendants are consenting witness to the said sale deeds. Suit properties are no more agriculture lands and the suit is not maintainable.

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It is the contention of Sri. Shashi Kiran Shetty, for the appellant/plaintiff in RFA No.1508/2015 is that defendant is the owner of 2 acres 35 guntas land in Sy.No.1/5. Defendant had executed a registered irrevocable GPA dated 08.08.2005 in favour of plaintiff. The cancellation of GPA on 11.01.2010 is illegal. Plaintiff’s suit was dismissed on the ground that the GPA was not acted upon and court fee was not paid. During the pendency of this appeal, parties have entered into a compromise in RFA No.671/2005 with regard to 34 sites. Plaintiff is the consenting party to

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the sale deeds in respect of 34 sites, thereby plaintiff’s right under the agreement as well as the GPA is recognized.

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Sri. D.R. Ravishankar, for the respondent/ defendant in RFA No.1058/2015 contended that plaintiff has entered into an agreement in respect of Sy.No.1/5 on 21.01.2002 and later obtained Ex.P2/GPA from defendant. The said property originally belonged to Gangamma, the daughter of Kunta Ramaiah. Defendant No.1 is Gangamma’s son and defendants No.2 to 6 are the wife and children of Sanjeevaiah, the other son of Gangamma. They have succeeded the property as heirs of Gangamma. Since they are the title holders, plaintiff has paid consideration of Rs.30,00,000/-. On 08.08.2005, an irrevocable GPA was executed. On the said GPA, plaintiff has made improvements in the land and fought the litigation throughout. From the date and agreement, he is enjoying and dealing with the suit

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properties. Defendants without any cause got issued a notice dated 11.01.2010 cancelling the irrevocable GPA. In 34 sale deeds, there is specific reference recognizing plaintiff’s right. The Trial Court without considering these aspects has erred in dismissing the suit.

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We have given our anxious consideration to the arguments addressed on behalf of the parties in both appeals and perused the records.

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In the light of the rival contentions urged on both parties, the points that arise for our consideration are:

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(i) Whether plaintiffs in O.S. No.2443/1984 prove their title and possession over the suit properties?

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(ii) Whether defendants No.2 to 4 have entered into an agreement to sell the suit properties in favour of the Sangha?

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(iii) Whether the Sangha proves that it has formed the layout in the suit properties,

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allotted the sites to its members, released the roads, civic amenities sites and park in favour of BDA?

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(iv) Whether Lakshminarayan (plaintiff in O.S.No.1049/2010) has acquired 2 acres 36 guntas in Sy.No.1/5 for a consideration of Rs.30 Lakhs from defendants through an Agreement dated 21.01.2002 and irrevocable GPA dated 08.08.2005?

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(v) Whether Lakshminarayan (plaintiff in O.S.No.1049/2010) proves that he is in possession of the suit property?

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(vi) Whether plaintiffs in both suits are entitled for the reliefs claimed?

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(vii) Whether the impugned judgments and decree call for any interference?

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Reg. Point No.(i):

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Originally, the suit properties consisted of Sy.Nos.1/4, 1/5 and 1/7. By way of amendment, plaintiffs got deleted Sy.No.1/4. Now the suit is confined to Sy.Nos.1/5 and 1/7 only.

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18.1. According to the plaint averments, property belonged to Kunta Ramaiah. Gangamma (plaintiff no.1) is the daughter to Kunta Ramaiah and succeeded to his estate as the heir. It is further averred that the BDA sought to acquire the suit properties. The most interesting and relevant paragraph (o) in the amended plaint. In substance, it is sated therein that defendants have asserted that plaintiff No.1 had sold the suit properties therefore, it is upto them to prove the sale. It is settled that in a suit of this nature, it is always for the plaintiff to aver and prove his case.

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18.2. There is no dispute with regard to the fact that suit properties belonged to Kunta Ramaiah and plaintiff No.1 succeeded to the same. Defendants’ claim that plaintiff No.1 sold the property to Thimmakka under Ex. D8.

¶200

18.3. The entire evidence placed on record by the plaintiffs is only the revenue records. Plaintiff No.3 (Kariyappa) is the son of plaintiff No.1. He has

¶201

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examined himself as PW-1. Plaintiffs are placing reliance only on the records of rights (Pahanis) for the period between 1966-67 till 1973-74. PW-1 has admitted his cross-examination (held on 19.06.1996) as follows:

¶204

“....It is true my grand father Putta Ramaiah sold the property he got in the family partition in favour of my mother by a registered sale deed dated 13.1.1931. I accept the property purchased by my mother on 13.1.1931 has been sold in favour of Thimmakka by my mother. I have also attested the document as witness so also my brothers Sanjeevaiah and others. Ex.D8 is the registered sale deed dated 18.5.1966 execyted by my mother in favour of Thimmakka. Thimmakka is the wife of Siddhramaiah. Thimmakka is the senior aunt of defts. 2 to5...”

¶205

18.4. It is relevant to note that Kunta Ramaiah’s

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sister name is also Gangamma. Her husband’s name is Dasappa @ Dasegowda. Her daughter is Thimmakka.

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18.5. The sale deed dated 18.05.1996 executed by plaintiff No.1 (Gangamma) in favour of Thimmakka is at Ex.D8. When the entire property was sold to Thimmakka, how plaintiff No.1/Gangamma’s name was found in the pahani (record of rights) between 1966-67 and 1973-74 requires consideration. The explanation comes from the mouth of PW-1 himself in his examination-in-chief, which reads thus:

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"My father’s (sic) name is wrongly mentioned as Dasasppa, husband of Gangamma in Pahani extracts. . ."

¶211

18.6. It is important to note that he has also admitted that his father’s name is Kariyanna. Revenue entries in the name of Gangamma w/o Dassappa. Gangamma w/o Dassappa is Thimmakka’s mother. PW-1 has sought to take advantage of Gangamma’s name in the pahani in an attempt to prove that suit properties belonged to his mother. In view of his admission that his father’s name is Kariyanna, at best, it can be construed that revenue entries were in the

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name of Thimmakka’s mother and not PW-1’s mother. We may record that plaintiffs’ claim for title based on incidental revenue entries subsequent to the sale of the property on 18.05.1966 as per Ex.D8 is wholly untenable.

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18.7. Thus, it is clear that the original owner Kunta Ramaiah sold his property as per Ex.P19 to the plaintiff No.1 (Gangamma w/o Kariyannna). She has in turn sold the suit properties in favour of Thimmakka as per Ex. D8 dated 18.05.1966.

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18.8. Thus, learned Advocate is right in his submission that plaintiffs in order to prove their case, are relying on the weakness in defendants’ case. It is settled that in any suit, plaintiff case shall stand or fall on its own intrinsic strength and not on the weakness of defendants’ case.

¶217

18.9. It is relevant to record that when the plaint was presented in the year 1984, no schedule was

¶218

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mentioned. Only in the year 2004 by way of an amendment, the schedule has been incorporated. No explanation is forthcoming in this behalf neither in the plaint nor in the evidence. Further, when the plaint was presented Sy.No.1/7 was shown as 1 acre 35 guntas. But in the year 2004, by an amendment, plaintiffs not only introduced the schedule, but also reduced the extent of said land to 28 guntas. Thus, according to the plaintiffs, the land measured 1 acre 35 guntas in 1984 and 28 guntas in 2004. No proper explanation is given to sustain the amendment.

¶221

18.10. PW-1 has stated in his evidence that in the year 1985, plaintiffs got measured the land in Sy.No.1/5 and 1/7 and learnt that Sy.No.1/7 measured only 28 guntas, not 1 acre 35 guntas. At the same time, he has also stated that he had no records to show that the lands were surveyed. The explanation offered by PW-1 with regard to Sy.No.1/4 is that plaintiffs had realized the mistake only in the year

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1992 at the time of survey. At one breath, PW-1 talks about the survey in the year 1985 and in the other breath states that they realized the mistake in the year 1992; and they have filed an application for amendment in the year 2004 after 20 years.

¶225

18.11. Another aspect is the incorrect genealogical tree furnished in the plaint. The evidence discloses that Kunta Ramaiah had a sister by name Gangamma, w/o Dasappa @ Dasegowda and his younger brother is Siddaramaiah. This is fortified by the evidence of PW-1 wherein he has admitted that Dasegowda is Gangamma’s husband and sister of Kunta Ramaiah; that during partition, some portion of the property was also given to said Gangamma, who gave it to her daughter Thimmakka. Thimmakka executed a Will/Ex.P20 dated 15.09.1967 bequeathing the property in Sy.Nos.1/2 and other properties received in the family partition and also the property acquired under Ex.D8 from plaintiff No.1 in favour of

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her co-sister Lakkamma and her children i.e., Ramaiah, Siddappa and Nanjappa, who are defendants No.2 to 4. She also bequeathed other property in favour of her own daughter Puttasiddamma, who is defendant No.1 (later deleted by plaintiffs).

¶229

18.12. We have carefully analyzed the evidence, particularly with regard the property sold by Kunta Ramaiah in favour of his daughter i.e., plaintiff No.1 under Ex.P19. It refers to sale of land of 2 acres 35 guntas and 2 acres 27 guntas. The schedule in Ex.P19/sale deed, shows that Kunta Ramaiah has not retained any portion of the property for himself and sold it in favour of his daughter. As per Ex.D8/sale deed, plaintiff No.1 has sold the entire property in favour of Thimmakka. This means that the entire property Gangamma had sold the entire property that she had acquired. Then plaintiffs have to prove that they have acquired title over the property in

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Sy.Nos.1/5 and 1/7, which was carved out during Phodi of Sy.No.1/2.

¶233

18.13. On evaluation of the pleadings as well as the evidence relied upon by the plaintiffs, in particular PW-3 P.L. Venkatesh Murthy, ADLR that in the year 1929, Sy.No.1 was made into 4 hissas . In the year 1935, hissa No.5 to 7 were made. Sy.No.1/2 was divided into Sy.Nos.1/2, 1/5, 1/6 and 1/7. Earlier, Sy.No.1/2 was measuring 7 acres 16 guntas. After hissa , Sy.No.1/2 measures 2 acres 8 guntas, Sy.No.1/5 measures 2 acres 36 guntas, Sy.No.1/6 measures 1 acre 24 guntas and Sy.No.1/7 measures 28 guntas. In this regard, relevant entries were made in Exs.P17 and 18. Thus it is clear that land in Sy.No.1/2 during phodi was divided into Sy.Nos.1/2, 1/5, 1/6 and 1/7. Plaintiff No.1 acquires the land in Sy.No.1/2 from her father and sold it to Thimmakka. Thimmakka bequeathed the said property in favour of defendant Nos.2 to 4 and their mother Lakkamma

¶234

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under the Will/Ex.P20. Ex.D5 is an endorsement issued by the Tahsildar on 25.11.1978 informing the change of khata from the name of Thimmakka in favour of defendant No.2/Ramaiah indicating that the Will has been acted upon. Then nothing remains in favour of plaintiff No.1 with regard to Sy.No.1/2. Consequently, plaintiffs cannot claim any title in respect of either Sy.No.1/5 or Sy.No.1/7. Therefore, plaintiffs’ claim that name of Gangamma, w/o Dasappa @ Dasegowda was wrongly interpreted as Gangamma w/o Kariyanna fails.

¶237

18.14. As recorded hereinabove, plaintiffs have given up their claim in respect of Sy.No.1/4. For reasons stated hereinabove, we hold that plaintiffs have failed to establish their title over Sy. No. 1/5 and 1/7. Hence, we answer point No. (i) in the negative and against the plaintiffs.

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Reg. Point No.(ii):

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The Sangha claims the suit properties from defendants No.2 to 4. Its claim is based on two agreements dated 21.12.1981 (Ex.D5) and dated 29.08.1986 (Ex.D7). The original documents are placed before the Court after remand of the suit for fresh disposal. In order to establish Exs.D5 and D7, on behalf of the Sangha, its Secretary, Shivarudrappa (DW-1) has been examined. His testimony shows that land in Sy.Nos.1/5 and 1/7 belonged to Gangamma w/o Dasegowda. This aspect is admitted by PW-1. The same is the version of PW-2/Chikkanna. Neither PW-1 nor PW-2 have asserted that any portion was retained by Kunta Ramaiah or Gangamma.

¶242

19.1. The evidence of DW-1 Sangha’s claim based in Exs.D5, D7 and D8. In the crossexamination, PW-1 has not denied the said aspects, but pleaded ignorance. He has also not denied delivery of possession of suit property by defendant Nos.2 to 4 in favour of Sangha. The testimony of PW-1 is clear

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that he is not aware of the written statement filed by defendant Nos.2 to 6. He is not aware of the agreement and GPA executed by defendants No.2 to 4 in favour of the Sangha. He is also not aware of delivery of possession by defendants No.2 to 4 in favour of the Sangha.

¶246

19.2. It is also relevant to note that the Sangha

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has formed the layout after obtaining NOC from the BDA.

¶248

19.3. We have perused the evidence of PWs-1 to 5, DWs-1 to 5 and exhibits relied upon by the parties. The evidence does not support plaintiffs’ case in any manner.

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19.4. The agreements under Exs.D5 and D7 and irrevocable GPA at Ex.D8 are supported with consideration. The Exs.D50 to D58 are the consideration receipts.

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(i) Ex.D50 is executed by defendant No.2 on 21.12.1981 by receiving Rs.10,000/- from the Sangha through cheque in respect of Sy.No.1/2, 1/3 and 1/5;

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(ii) Ex.D51 is executed by defendant No.3 on 21.12.1981 by receiving Rs.10,000/- from the Sangha through cheque in respect of Sy.No.1/2, 1/3 and 1/5;

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(iii) Ex.D52 is executed by defendant No.4 on 21.12.1981 by receiving Rs.10,000/- from the Sangha through cheque in respect of Sy.No.1/2, 1/3 and 1/5. Defendants No.2 to 4 also acknowledge receipt of Rs.90,000/- from the Sangha.

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(iv) Ex.D53 is the joint receipt executed by defendant Nos.2 to 4 on 21.12.1981 receiving Rs.30,000/- referring to the agreements in respect of Sy.No.1/7.

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(v) Ex.D54 dated 25.11.1982 and Ex.D55 is dated 19.04.1983 executed together by defendant Nos.2 to 4 for having received Rs.6,000/- and

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Rs.16,000/- respectively from the Sangha, referring to Sy.Nos.1/2, 1/3 and 1/5.

¶260

(vi) Ex.D56 dated 06.06.1983 is joint receipt executed by defendant Nos.2 to 4 for having received Rs.5,000/- from the Sangha referring to Sy.Nos.1/2, 1/3, 1/4, 1/5 and 1/7.

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(vii) Ex.D57 dated 26.10.1983 is executed by defendant No.3 by receiving Rs.2,000/- referring to land in Sy.Nos.1/2, 1/3, 1/4, 1/5 and 1/7.

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(viii) Ex.D58 is joint receipt executed by defendant Nos.2 to 4 on 26.10.1983 by receiving Rs.2,500/- referring to Sy.Nos.1/2, 1/3 and 1/5. The above documents clearly demonstrate that the agreements and the irrevocable GPA are supported with consideration.

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19.5. Above all, in their written statement, defendants No.2 to 4 have admitted the execution of agreements and irrevocable GPA in favour of Sangha. It is the contention of the learned Advocate for the

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plaintiffs that defendant Nos.2 to 4 have withdrawn their written statement and the admission made cannot be made use of. It is pertinent to note that Sangha has not only filed its independent written statement but has also adopted the written statement filed by defendants No.2 to 4, therefore, it becomes part of the written statement of the Sangha. Therefore, the contention urged on behalf of plaintiff that defendants No.2 to 4 have withdrawn the written statement and the same is fatal to the case of the Sangha is untenable and liable to be rejected. The evidence in totality clearly established that defendants No.2 to 4 are the owners of the suit properties on the strength on agreements, irrevocable GPA coupled with the consideration. Accordingly, we answer point No.(ii) in the affirmative and in favour of the Sangha.

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Reg. Point No.(iii):

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It is the contention of plaintiffs that they are

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in possession and enjoyment of the suit properties as

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an agricultural land. According to the plaintiffs, formation of the roads is the cause of action. They claim that suit properties is still a cultivable land and in their possession. Though PW-1 has reiterated plaintiffs’ stand in his evidence.

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20.1. It is the specific defence of the Sangha that

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the suit properties is no more an agricultural land and it is a layout called as 'Teachers Layout'. The evidence placed on record by the Sangha in particular Ex.D20 is a Gazette Notification dated 26.08.1982 issued by the BDA notifying lands in Nagarabhavi and Malagala Villages for formation of 'Nagarabhavi Layout'. The said notification shows the name of the Khatedars and Anubhavadars of the lands proposed for acquisition. In Sy.No.1/2 and 1/3, the name of Thimmakka W/o Siddaramaiah, Ramaiah, Siddappa, Nanjappa to an extent of 2 acres 8 guntas and 27 guntas respectively. In Sy.No.1/5, the name of Ramaiah, Siddappa and Nanjappa is shown to an extent of 2 acres 36 guntas. In respect of Sy.No.1/7,

¶275

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the name of Gangamma W/o Dasappa is shown to an extent of 28 guntas. Nowhere it refers the name of plaintiffs or their mother Gangamma W/o Kariyanna. But, in respect of land in Sy.No.1/4, name of Gangamma W/o Kariyanna, Puttasiddamma is shown. This Gangamma is plaintiff No.1 and Puttasiddamma is defendant No.1. Since the suit claim is withdrawn in respect of Sy.No.1/4, it is not relevant to discuss the same.

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20.2. By the time Gazette notification was issued, the Sangha has entered into agreements with defendants No.2 to 4 and approached the BDA for deletion the lands from acquisition. The Sangha’s request was considered, the lands were dropped from the acquisition. The BDA has issued notice as per Ex.D21 dated 20.05.1988 to the Sangha under Karnataka Town and Country Planning Act to deposit conversion fee of Rs.5,73,118/- to change the land from agriculture to non-agriculture purpose. The notice also refers the land in Sy.No.1/2, 1/3, 1/4, 1/6,

¶279

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1/7, 2, 10, 25/2, 25/3, 50/3, 53, 54/1, 54/2, 55/4A, 55/4B and 55 of Nagarabhavi Village. Ex.D23 and 24 are the receipt issued by BDA on 04.08.1988, 10.08.1988 for having received Rs.2,50,000/- and Rs.3,23,118/-. Ex.D25 is a plan approved by the BDA. Ex.D26 is the letter issued by the BDA on 19.05.1988 in favour of the Sangha referring to BDA’s resolution No.955(940), dated 29.03.1988 approving the recommendation of the Committee for change of land use and to approve the layout plan in Sy.No.1/2, 3, 4, 5, 6, 7; 2, 5, 10, 25/2, 25/3, 50/3, 54/1, 2; 55/4A, 4B and 55/5 of Nagarabhavi Village. Ex.D28 is the payment receipt issued by BDA dated 26.05.1989 for having received Rs.1,14,900/- in respect of layout formation and electricity charges as demanded in Ex.D29/notice. Exs.D30 and 31 are the receipts issued by BDA dated 20.07.1989 and 07.08.1989 for having received Rs.4,34,610/- and Rs.5,74,500/- towards layout charges. Exs.D32 to 38 are the receipts issued by BDA dated 26.12.1988, 04.12.1989, 05.04.1990,

¶282

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07.05.1990, 04.06.1990, 12.10.1992, 12.07.1990 for having received Rs.1,65,960/-, Rs.3,00,000/-, Rs.4,00,000/-, Rs.3,00,000/-, Rs.2,50,000/-, Rs.20,00,000/-, Rs.5,00,000/- towards supervision charges, water supply charges. In all these receipts, we can notice the reference of Sy.Nos.1/2, 3, 4, 5, 6, 7; 2, 5, 10, 25/2, 25/3, 50/3, 53, 54/1, 2; 55/4A, 4B and 55/5 to an extent of 28 acres 29 guntas of Nagarabhavi Village.

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20.3. Exs.D41 to 44 are the letters and estimate dated 11.10.1994 issued by BWSSB to the Sangha asking them to countersign the estimate and deposit the funds for UGD facilities.

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20.4. Ex.D47 is the demand notice dated 27.10.1988 issued by BDA to the Sangha to deposit Rs.78,40,888/- towards developmental charges in the Layout.

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20.5. Ex.D49 is the work order dated 06.02.1989 issued by BDA in favour of the Sangha having

¶288

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sanctioned private layout in Sy.No.1/2, 3, 4, 5, 6, 7; 2, 10, 50/1, 53, 54/1, 4A, 4B; 55/5 of Nagarabhavi Village in favour of the Sangha to an extent of 28 acres. It refers to resolution of BDA dated 29.03.1988 in No.959(940) acknowledging payment of Rs.78,40,888/- demanded under Ex.D47.

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20.6. Ex.D48 is the agreement entered into by the Sangha with Developer Sri. Lakshman on 07.07.1988 for formation of private layout in Sy.No.1/2, 3, 4, 5, 6, 7; 2, 10, 50/1, 53, 54/1, 4A, 4B; 55/5 of Nagarabhavi Village. Ex.D138 is the letter dated 07.07.1988 of Sri. Lakshman to the Sangha demanding payment of Rs.46,00,000/-. Ex.D140 is the certificate dated 25.04.1992 issued by the Sangha certifying that Sri. Lakshman has formed layout in an extent of 28 acres at an estimated cost of Rs.46,00,000/-. In this regard, we have also perused the evidence of DW-3/Lakshman, the Contractor, his testimony confirms the above aspects.

¶292

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20.7. After such conversion, the Special Deputy Commissioner, Urban Land Ceiling dated 27.05.1989 issued an endorsement in favour of the Sangha 'No Objection' for transfer of sites held by Sangha in Sy.No.1/2, 1/3, 1/4, 1/5, 1/6, 1/7, 2, 10, 50/1, 53, 54/1, 54/4A of Nagarabhavi Village. Ex.D39 is the notice dated 14.02.1992 issued by BDA to the Sangha for execution of relinquishment of CA sites. Pursuant to it, Sangha executes Ex.D40/relinquishment deed on 14.12.1995.

¶295

20.8. Exs.D64 to 124 are the possession certificates issued by the Sangha in favour of its members in the layout formed in Sy.No.1/2, 3, 4, 5, 6, 7; 2, 10, 50/1, 53, 54/1, 4A, 4B; 55/5 of Nagarabhavi Village between 09.10.1992 and 06.09.1997.

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20.9. DW-2/Smt.T.B.Jayalakshmi and

¶297

DW-4/S.Rajamma are the allottees of the sites. The testimony DW-2 shows the allotment of site No.221 by the Sangha and execution of lease-cum-sale deed on

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30.11.1989. The testimony of DW-4 shows the

¶301

allotment of site No.238 in Sy. No.1/5 by the Sangha in the year 1989. In the year 1991, she has obtained the plan approval from BDA and put up the construction in the said site.

¶302

20.10. DW-5/Mariswamy has also worked as Secretary of the Sangha. Apart from DW-1, his testimony shows 61 sites were carved out in Sy.No.1/5. Sy.No.1/7 was reserved for park as per sanctioned plan by Town Planning Authority attached to BDA. BWSSB laid underground drainage in Sy.No.1/5. According to him, the allottees in site No.103, 109, 111, 112, 120, 135, 138, 139, 140, 144, 145, 148, 151, 209, 210, 218, 221, 222, 238 and 244 have put up the construction after the allotment.

¶303

20.11. These are the records which have come

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into existence at an undisputed point of time when the Sangha has corresponded with BDA, Special DC, Urban Land Ceiling, BWSSB. The Sangha has made a request

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to BDA for deletion of lands from acquisition for formation of private layout. A careful perusal of the correspondence and the action taken by the BDA and other statutory authorities clearly demonstrates that the Sangha has acted in letter and spirit for furtherance of its cause. the evidence of DW-3/private contractor Sri.Lakshman indicated the formation of Layout.

¶308

20.12. The evidence on record does not point out anything to doubt the transaction of the Sangha. The material on record sufficiently explain that the Sangha has formed the layouts. The evidence also discloses that the Sangha has surrendered CA sites and parks in favour of BDA. The evidence of PW-2/Chikkanna, PW4/Ramaiah, PW-5/Narayanappa does not inspire confidence as the facts discernible from the records are at an undisputed point of time. Accordingly, we answer point No. (iii) in the affirmative and in favour of the Sangha.

¶309

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Reg. Points No. (iv) and (v):

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The suit in O.S.No.1049/2010 is based on the agreement dated 21.01.2002 and irrevocable GPA dated 08.08.2005 said to have been executed by Sri. K. Kariyappa (defendant No.1). While discussing point No.(i), we have come to the conclusion that the land in Sy.No.1/5 was sold to Thimmakka by Gangamma (plaintiff No.1). Defendant No.1 is the son of Gangamma. Gangamma sold the entire property in favour of Thimmakka. Gangamma or her father Kunta Ramaiah have not retained any property in Sy.No.1/5 which was carved out of original Sy.No.1/2.

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21.1. The claim of the defendant No.1 is based on the Will executed by his mother Gangamma. PW-4/ Ramaiah (in O.S.No.2443/1984), the brother of defendant No.1 has asserted in his evidence with regard to execution of Will by his mother and he has attested the said Will. We may record that even if the Will is accepted to be correct, in the absence of proof of Gangamma’s title, neither Kariyappa nor plaintiff can

¶314

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claim any title. Thus, when the plaintiff’s vendor himself did not have any title, he could not have transferred any title to the plaintiff. Hence, in our view, plaintiff has no title in Sy.No.1/5.

¶317

21.2. It is interesting to note that the agreement and GPA were executed in the year 2002 and 2005 for Sy.No.1/5. As discussed hereinabove in points No.(ii) and (iii), agriculture land in Sy.No.1/5 was not in existence as it was converted for non-agriculture purpose and layouts were formed in the year 1988-89. The Sangha has allotted the sites in the developed layout between 1990 and 1997. Hence, for the reasons stated hereinabove, plaintiff’s claim is without any merits. Hence, in our opinion, the alleged agreement and irrevocable GPA dated 21.01.2002 and 08.08.2005 are sham documents.

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21.3. The testimony of PWs-1 to 3 demonstrates formation of layout, BDA taking over the roads, parks and CA sites, allottees with approval of public

¶319

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authorities, constructed the residential houses and they are in possession. Accordingly, we answer points No.(iv) and (v) in the negative and against the plaintiff.

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Reg. Point No.(vi) :

¶323

In view of our findings recorded in points No.(i) to (v), we do not find any merit in their respective claims put forth by plaintiffs in both the suits. Hence, plaintiffs are not entitled to any relief and their suits are liable to be dismissed. Accordingly, we answer point No.(vi) in the negative and against the plaintiffs.

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Reg. Point No.(vii) :

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We have carefully perused the impugned judgments in O.S.No.2443/1984 and O.S.No.1049/2010.

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23.1. As we have discussed hereinabove, the

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entire case of plaintiffs’ rest upon the properties acquired by Kunta Ramaiah. He sold the properties in favour of plaintiff No.1 and in turn she has sold the suit properties in favour of Thimmakka. While answering point No.(i), we have discussed about description of Kunta Ramaiah’s property under the sale deed/Ex.P19 dated 13.01.1931. We have also analysed the boundaries of the lands, which were allotted to Kunta Ramaiah. The boundaries do not point out that Kunta Ramaiah had retained any portion of the property in Sy.No.1/2 for himself. The Trial Court, in our opinion, has incorrectly recorded that Kunta Ramaiah retained a portion of land in Sy.No.1/2. This finding is erroneous in view of evidence of PW-3/ADLR, who had stated that during the Phodi, an extent of 7 acres 16 guntas in old Sy.No.1/2 has been divided into various sub-Phodis such as Sy.Nos.1/2,1/5, 1/6 and 1/7.

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RFA 671/2005 C/W RFA 1508/2015

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23.2. Similarly, the reason assigned by the

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Trial Court that the entries made in the survey records establish the title and possession of the suit property is also erroneous.

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23.3. The Trial Court has thrown burden on the defendants to disprove plaintiffs’ case. The reason assigned by the Trial Court that even after the sale in favour of plaintiff No.1, Kunta Ramaiah has retained a portion of the property is not supported by any evidence.

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23.4. Therefore, we are of the considered opinion that the Trial Court has misdirected itsled that Kunta Ramaiah has retained a portion of the land in Sy.No.1/2. For the detailed reasons recorded in points No. (i) to (vi), the judgement and decree in O.S. No. 2443/1984 requires interference. Accordingly, we answer point No.(vii) in the affirmative in respect of R.F.A. No. 671/2005 and against the plaintiffs.

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RFA 671/2005 C/W RFA 1508/2015

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Insofar as O.S.No.1049/2010 is concerned, plaintiff’s claim is against Kariyappa, who is the son of Gangamma. When Gangamma has sold the property to Thimmakka, Kariyappa has no title. Hence, no detailed discussion is required as plaintiff’s claim is contingent upon the decree in O.S.No.2443/1984. We have already held that documents executed by Kariyappa are unenforceable, the dismissal of O.S.No.1049/2010 does not call for interference. Accordingly, point No. (vii) is answered in the negative in respect of R.F.A. No. 1508/2015.

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In view of our finding on points No.(i) to (vii), RFA No.671/2005 merits consideration and RFA No.1508/2015 is devoid of merits. Hence, the following:

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ORDER

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(i) RFA No.671/2005 is allowed ;

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RFA 671/2005 C/W RFA 1508/2015

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(ii) The judgment and decree dated 24.02.2005 in O.S.No.2443/1984 passed by the XIX Additional City Civil Court, Bengaluru, is hereby set aside;

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(iii) Consequently, the suit in OS No.2443/1984 is dismissed;

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(iv) RFA No.1508/2015 is dismissed with costs;

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(v) In view of dismissal of O.S.No.2443/1984, I.A.No.1/2012 filed by impleading applicants does not survive for consideration. Hence, it stands disposed of.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

KNM / PA

S. Ramaiah v. Sri. Kariyanna

Case brief

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S. Ramaiah v. Sri. Kariyanna

Case brief

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