Sri M S Ramaraju Vs the Commissioner

THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.07.2022 PASSED IN O.S. NO.16086/2006 ON THE FILE OF XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal by the unsuccessful plaintiffs

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who are aggrieved by the dismissal of the suit filed in O.S. No.16086/2006.

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2. For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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Facts leading to the case are as under:

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The plaintiffs initially instituted the suit in O.S.No.16086/2006 seeking the relief of bare injunction.

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During the pendency of the proceedings, they amended the plaint and incorporated the relief of declaration of title. The case of the plaintiffs is that the suit schedule property originally formed part of old Survey No.46, now renumbered as Survey Nos.46/4 and 46/6, measuring 22 guntas and 12 guntas respectively, both parcels being contiguous and situated at Cholanayakanahalli, also known as Manorayanapalya. The plaintiffs trace their title to one M.S. Raju, husband of plaintiff No.1 and father of plaintiff Nos.2 to 7, who is stated to have purchased 22 guntas in the said survey number under a registered sale deed. It is their specific assertion that upon the demise of M.S. Raju, they succeeded to the property as his legal heirs and

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continue to retain possession over the entire extent, which presently falls within the limits of the Bruhat Bengaluru Mahanagara Palike (BBMP).

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The gist of the plaintiffs’ grievance is that the defendant–Corporation, while undertaking developmental activities in the locality, attempted to lay a road traversing through the suit schedule property. According to the plaintiffs, such action was undertaken in a highhanded manner, without initiating any acquisition proceedings and without issuing prior notice. Alleging unauthorized interference with their alleged lawful possession, the plaintiffs approached the Court seeking protective relief.

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On service of summons, the defendant–BBMP entered appearance and filed written statement stoutly denying the plaint averments. The Corporation specifically contended that a substantial portion of the area claimed by the plaintiffs has long since been utilized for formation of roads by various owners and that the existing roads in

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the layout are being maintained by the BBMP in discharge of its statutory obligations. It was further contended that the suit schedule property as described is not in existence and that, in any event, if the plaintiffs have any dispute with previous landowners regarding boundaries or extent, the same cannot be foisted upon the Corporation. The BBMP asserted that it was merely proposing to asphalt an already existing road and sought dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues. Both parties adduced oral and documentary evidence in support of their respective stands. Upon appreciation of the evidence, particularly the rebuttal material produced by the Corporation, the Trial Court recorded a finding that the suit schedule property, as described by the plaintiffs, was not identifiable or in existence in the manner asserted and consequently dismissed the suit.

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This Court has heard the learned counsel

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appearing for the plaintiffs and the learned counsel appearing for the BBMP at considerable length. The pleadings and the entire oral and documentary evidence

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have been carefully perused. Particular attention has been bestowed upon the photographs produced by the defendant–Corporation and marked as Exs.D-2 to D-12, which depict the physical features of the locality and the existence of an already formed road.

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In light of the rival contentions and the material on record, the following points arise for consideration:

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i) Whether the finding of the Trial Court that the plaintiffs have failed to establish that the defendant–Corporation is forming a road in the suit schedule property without acquisition and without notice suffers from perversity or illegality warranting interference?

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ii) Whether the finding of the Trial Court, while answering Issue No.4 in the negative, that the plaintiffs have failed to prove entitlement to the relief of declaration and consequential perpetual injunction is vitiated by perversity or misappreciation of evidence?

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iii) What order?

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Finding on Point Nos.i and ii:

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It is no doubt true that the plaintiffs have

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produced title documents marked at Exs.P-1 and P-2 to substantiate that their predecessor-in-interest acquired rights in portions of old Survey No.46 under registered sale deeds. To that extent, the foundational aspect of acquisition of title by their ancestor stands supported by documentary evidence. However, the mere production of title deeds does not conclude the controversy. The crucial question that arises for consideration is whether, in the factual matrix emerging from the record, the plaintiffs could have maintained the present suit, particularly in the

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amended form seeking declaration and injunction without impleading the persons who are in occupation of the land and who have admittedly constructed residential buildings within the very survey numbers in dispute. The controversy, therefore, is not confined to abstract title but extends to the existence, identity, and present character of the property on ground.

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The rebuttal evidence adduced by the defendant–Corporation, more particularly the photographs marked at Exs.D-2 to D-12, assumes considerable significance. These photographs unmistakably depict a fully developed layout comprising formed roads, asphalted stretches, drainage lines and several residential structures. The visual evidence demonstrates that the area is no longer an open tract of land as portrayed in the plaint but is a developed residential locality with civic infrastructure already in place. The material placed on record indicates that the roads are not newly carved out but are existing roads, which the Corporation is maintaining in discharge of

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its statutory obligations. This evidence substantially discredits the plaintiffs’ allegation that the BBMP is attempting to freshly form a road through an intact and unutilized portion of their land without acquisition.

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During the course of cross-examination, the Corporation confronted PW.1 with a sketch reflecting the layout pattern, the existence of formed roads and the construction of multiple residential houses within the survey numbers in question. In response to these suggestions, PW.1 made admissions which materially weaken the plaintiffs’ case. A reading of paragraph 4 of the plaint itself indicates an implicit acknowledgment that the layout had already been formed and that transactions had taken place in respect of portions of the land. When these pleadings are juxtaposed with the photographic evidence at Exs.D-2 to D-12, it becomes evident that the plaintiffs were fully aware that several residential houses had come up in the disputed land.

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Despite such knowledge, the plaintiffs have

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chosen not to implead the owners or occupants of these residential buildings, whose rights would inevitably be affected if the declaration sought were to be granted. Instead, the suit is structured as if the entire controversy is between the plaintiffs and the BBMP, premised on an allegation that the Corporation is attempting to lay a road without recourse to acquisition proceedings. The admissions elicited in cross-examination at page 12 further reinforce that the property has undergone substantial development and that third-party interests have crystallized over time. In the absence of necessary parties namely, the persons in possession and enjoyment of the developed sites, the suit, in its present form, suffers from a fundamental defect.

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In this backdrop, the admissions of PW.1 assume decisive importance. This Court, therefore, deems it appropriate to extract the relevant portion of the crossexamination, which reads as under:

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"�ಾನು ಈ �ೇ� ನ�� ಾ�ಾ ಆ��ಯ�� ಾ�ೕಕ��ೆ�ೕ�ೆ ಅಂತ �ೂೕ�ಸಲು ಪ !ಾರ �ೇ#ದು� %%ಎಂ'ರವರ )ರುದ* �ಾ+ದ �ಾ�ಾ ಸ ಇಲ� ಎಂದ-ೆ ಸ ಯಲ�. �ಾ�ಾ ಆ��.ೆ /0ಪ12 ನಂಬ4 ಇಲ�, ಸ�ೇ2 ನಂ.46/4 ಮತು� 46/6 ಅಂತ ಇ�ೆ . �ಾ�ಾ ಆ��ಯ 34 ಗುಂ7ೆಯ 8ೇಔ: ;ಾ�< ನು= ನನ= >ಂ?ನ ವ@ೕಲ .ೆ �ೊ1A�ೆ�ನು. �ಾ�ಾ ಆ��ಯ�� ನನ= ಹಂCನ ಮ�ೆಯ )��ೕಣ2 40X60 ಇ�ೆ , 34 ಗುಂ7ೆಯ ಉ#ದ Fಾ.ೆಯ�� ಅನGಕೃತ ಕಟAಡಗಳನು= �ಾ+�ೊಂ+�ಾ�-ೆ ಮತು� ಅ�� Lೇ-ೆಯವರು �ಾಸ ಇ�ಾ�-ೆ . ಅನGಕೃತ�ಾM ಕಟAಡ �ಾಡುವವರ )ರುದ� �ೇಸು �ಾ+?�ೕ-ಾ ಅಂತ ವ@ೕಲರು �ೇಳNವ ಪ0Oೆ=.ೆ PಾQಯು ಅದು ಇ�� ಸಂಬಂಧ ಇಲ� ಅಂತ PಾQ ಉತ�ರ �ೇಳNSಾ�-ೆ ."

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On a comprehensive re-appreciation of the entire oral and documentary evidence, this Court is of the considered view that the plaintiffs’ case does not withstand scrutiny in the face of the cogent rebuttal evidence adduced by the defendant–Corporation. While the plaintiffs sought to project the suit schedule property as a contiguous and intact extent retained by them, the material placed on record by the Corporation unmistakably establishes that the land in question is not a vacant or unutilized parcel as portrayed in paragraph 4 of the plaint.

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The photographs marked at Exs.D-2 to D-12, coupled with the admissions elicited in cross-examination, clearly reveal that the area has been fully developed into a residential layout. Roads have already been formed, infrastructure has been provided, and numerous residential buildings have been constructed by individual purchasers. The evidence demonstrates that the layout is substantially exhausted and that third-party interests have crystallized over time.

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Though the plaintiffs made a feeble attempt to contend that they have retained the entire extent of land and that interference is only by the Corporation, such assertion stands belied by the admissions on record. During trial, the Corporation successfully elicited that several residential buildings have come up within the survey numbers in question. Significantly, the plaintiffs have failed to identify, demarcate or furnish particulars of any specific vacant portion over which they claim exclusive possession. There is neither clarity as to boundaries nor

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evidence indicating subsisting, undisturbed possession over any identifiable vacant site. In a suit seeking declaration and consequential injunction, such foundational facts assume critical importance and cannot be left in ambiguity.

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In view of the overwhelming rebuttal evidence, this Court is of the opinion that the plaintiffs could not have maintained the present suit in its amended form seeking declaration of title and consequential injunction, particularly when the material on record demonstrates that substantial portions of the land have been alienated and are presently in occupation of third parties who are not arrayed as parties to the proceedings. A declaration of title in respect of land that is no longer in the exclusive possession of the plaintiffs and over which independent third-party rights have intervened cannot be granted in the absence of such necessary parties.

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The findings recorded by the Trial Court are

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thus firmly rooted in the evidence on record and do not suffer from perversity or misappreciation. The conclusions drawn are a logical outcome of the rebuttal evidence adduced by the defendant–Corporation. Accordingly, Point Nos.(i) and (ii) formulated for consideration are answered in the negative .

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However, it is made clear that the observations and findings recorded herein are confined to the adjudication of the present suit as framed against the BBMP. If the plaintiffs have instituted or propose to institute independent proceedings against individual purchasers or occupants asserting specific rights over identifiable portions, the findings recorded by the Trial Court as well as by this Court shall not prejudice or foreclose such remedies, which shall be considered on their own merits in accordance with law.

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