Basavaraju S/O Basavaiah Vs Sarojamma

BOTH THE APPELLANTS R/AT NO.1402, I^ST CROSS ROAD, 26^TH MAIN, THIMMENAHALLI CORPORATION COLONY, MAGADI ROAD, BANGALORE, NOW CALLED AS KHB COLONY, GOVINDARAJANAGAR, BANGALORE - 560 040.

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…APPELLANTS

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(BY SRI. H P LEELADHAR.,ADVOCATE)

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AND:

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SAROJAMMA SINCE DEAD BY HER LR'S

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HC-KAR

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1(a) SRI. PRAKASH S/O LATE SAROJAMMA W/O LATE THIMMAIAH AGED ABOUT 66 YEARS R/AT NO.16/6, 5^TH CROSS 2^ND STAGE, 1^ST MAIN ROAD MALAGALA, NAGARABHAVI BENGALURU - 560 005.

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HOMBALAIAH AGED ABOUT 54 YEARS, R/AT NO.1403, CORPORATION COLONY, THIMMENAHALLI, MAGADI ROAD, BANGALORE- 560 023.

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THE CORPORATOIN OF CITY OF BANGALORE N.R.SQUAR, BANGALORE - 560 002 REPRESENTED BY ITS COMMISSIONER.

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…RESPONDENTS

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(BY SRI. DHARSHAVARDHAN, ADVOCATE FOR SRI. GIRISHA T.R., ADVOCATE FOR R1(A) SRI. M.A.SUBRAMANI., ADVOCATE FOR R3; R2 - SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DATED 26.05.2008 PASSED ON OS NO.3148/94 ON THE FILE OF THE IX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH.NO.10), DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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IN RFA NO. 1246/2008

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BETWEEN:

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SRI BASAVARAJU S/O. BASAVAIAH

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HC-KAR

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AGED ABOUT 61 YEARS SERVICE AT TELEGRAPHIC DEPARTMENT, R/AT.NO.1402, IST CROSS, GOVINDARAJANAGAR, MAGADI ROAD, BANGALORE-560 079.

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...APPELLANT

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(BY SRI. H P LEELADHAR.,ADVOCATE)

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AND:

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SAROJAMMA SINCE DEAD BY HER LR'S

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1(a) SRI. PRAKASH S/O LATE SAROJAMMA W/O LATE THIMMAIAH AGED ABOUT 66 YEARS R/AT NO.16/6, 5^TH CROSS 2^ND STAGE, 1^ST MAIN ROAD MALAGALA, NAGARABHAVI BENGALURU - 560 005.

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...RESPONDENT

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(BY SRI. DHARSHAVARDHAN, ADVOCATE FOR SRI. GIRISHA T.R., ADVOCATE FOR R1(A))

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 29.08.2008 PASSED IN OS.NO.8256/1997 ON THE FILE OF THE XXXVII ADDL.CITY CIVIL AND SESSIONS JUDGE, CCH.38, BANGALORE CITY, DISMISSING THE SUIT FOR PERPETUAL INJUNCITON.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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HC-KAR

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ORAL JUDGMENT

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RFA No.920/2008 arises out of judgment and decree dated 26.05.2008 passed in O.S.No.3148/1994 on the file of IX Additional City Civil and Sessions Judge, Bangalore ('trail Court' for short) while RFA No.1246/2008 arises out of judgment and decree dated 29.08.2008 passed in O.S No.8256/1997 on the file of the XXXVII Additional City Civil & Sessions Judge, Bangalore City ('trial Court' for short).

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Aforesaid suit in O.S.No.3148/1994 is filed by Smt. Sarojamma (respondent in these appeals) against Sri.Basavaraj, his wife Sharadamma (who are the appellants in these appeals) and Sri. Hombalaiah and Corporation City of Bangalore. Suit in O.S.No. 8256/1997 is filed by Sri.Basavaraj against aforesaid Smt.Sarojamma.

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For the purpose of convenience, parties are referred to in this judgment by their names.

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Dispute is with regard to property bearing Site No.1402, situated at Thimmenahalli, Corporation Colony, 26th

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Main Road, Magadi Road, Bangalore city (hereinafter referred to as suit property)

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4.(I) Case of Smt. Sarojamma, who is the plaintiff in O.S.No.3148/1994 and the defendant in O.S.No.8256/1997 is;

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(a) that she is the absolute owner of the suit property having been allotted to her by the Corporation, who also executed absolute Lease Deed in her favour. That she has been in possession and enjoyment of said property as evidenced by the Possession Certificate, Allotment Letter etc.

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(b). That Sri. Basavaraj and his wife are having their property on the eastern side, while Sri. Hombalaiah has his property on the western side of the suit property. Since the said persons tried to interfere with the peaceful possession and enjoyment of the suit property, she had earlier filed a suit in O.S.No.1494/1984. On contest, the said suit came to be dismissed on 22.02.1994. Taking undue advantage of the dismissal of the suit, Basavaraj, his wife and said Hombalaiah attempted to enter upon and put up construction on the suit property. As such, the plaintiff filed said suit seeking following reliefs;

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HC-KAR

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(i) declaration of title, declaring that the plaintiff to be the absolute owner of the suit property;

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(ii) permanent injunction to restrain defendant Nos.1 to 3 from disturbing her peaceful possession in the suit property.

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4.(II) Case of Basavaraj/plaintiff in O.S.No.8256/1997 and defendant No.1 in O.S.No.3148/1994 is;

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(a). that he is the owner in possession of the suit property residing therein with his family for over 20 years and the same had been allotted to him by the Bangalore City Corporation. That the said allotment was made on 08.04.1976 as per the Allotment Letter and the possession certificate. However, the number of the suit property given thereunder was 952. He has put up the construction by investing the huge amount on the suit property as identified by city Corporation.

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(b). That Smt.Sarojamma was also an allottee of a site by the Corporation. The said allotment was subsequent to the allotment of suit property made in his favour. The allotment in favour of the Smt.Sarojamma was shown as Site No.1402. But while identifying the

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property, the Corporation authority made a mistake by identifying suit property as Site No. 952 though it was Site No.1402 which was later clarified by the City Corporation.

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(c). After such clarification, he had filed an application for confirmation on 11.01.1978, followed by another representation on 08.01.1981. That since the Corporation had not taken any action on such representations, Smt.Sarojamma taking advantage of the situation tried to dispossess the plaintiff from the suit property. Smt.Sarojamma had earlier filed suit in OS No.1494/1984 seeking relief of injunction against him which was dismissed with the finding regarding he being in possession, based on documents, evidencing his possession such as voter list, ration card. Thus, he has been in possession and enjoyment of the suit property without any interference from whomsoever.

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Both Smt. Sarojamma and Basavaraj has filed written statements in aforesaid suits reiterating the contents of their respective plaints.

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HC-KAR

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Considering the pleadings, the trial Court framed

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the following issues in O.S. No. 3148/1994;

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"1) Whether the plaintiff proves that she is the owner and in lawful possession of the suit schedule property?

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1. Whether the plaintiff proves that the defendants No.1 to 3 tried to enter the suit schedule property taking advantage of dismissal of O.S.No.1494/1984 filed by her?

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1. Whether the plaintiff proves that the suit is not hit by the principles of res-judicata?

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1. Whether the suit is barred by limitation as alleged by defendants 1 and 2?

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1. Whether the plaintiff is entitled to a decree of declaration as sought for?

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1. Whether the plaintiff is entitled to a decree of Permanent Injunction as sought for?

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1. To what Decree or Order?".

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And following issues were framed in O.S. No.8256/1997;

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"1) Whether the plaintiff proves his lawful possession of the suit schedule property as on the date of suit?

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(2) Whether he further proves that defendant interfered with his lawful possession of the suit schedule property?

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(3) Whether he is entitled to the injunction as prayed for?

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(4) What Order?".

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HC-KAR

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In O.S.No.3148/1994 Smt.Sarojamma examined

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herself as PW1 and marked 34 documents as Ex.P1 to Ex.P34. While Basavaraj and Hombalaiah examined themselves as DW.1 and DW.2 respectively and marked 22 documents as Ex.D1 to Ex.D22.

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In O.S.No.8256/1997, Basavaraj who is the plaintiff examined himself as PW1 and marked 16 documents as Ex.P1 to Ex.P16. Smt.Sarojamma, who is the defendant therein examined herself as DW1 and marked 22 documents as Ex.D1 to Ex.D22.

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Trial Court on appreciation of evidence decreed the suit in O.S No.3148/1994 declaring Smt.Sarojamma to be the absolute owner of the suit property and restrained Basavaraj and others by way of permanent injunction from disturbing the peaceful possession and enjoyment of the suit property by Smt. Sarojamma. Consequently, suit in O.S.No. 8256/1997 filed by Sri. Basavaraj came to be dismissed.

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HC-KAR

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As against the judgment and decree passed in O.S. No.3148/1994, Basavaraj who is the defendant in the said

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suit is before this Court in RFA No.920/2008. Similarly, aggrieved by the judgment and decree of dismissal of his suit in OS No.8256/1987, Basavaraj is before this Court in RFA No.1246/2008.

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Since, the parties subject matter and the issues involved in the matters are same, these two appeals are taken up together for the analogous hearing and disposal.

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Sri. Leeladhar, learned counsel appearing for the appellant/Basavaraj in both the matters, taking this Court extensively through the records, submits;

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(a) that there was a mistake in the number of a site which was originally allotted in favour of the appellant/Basavaraj. In that, while allotting the said site in the year 1976 the same was referred to as Site No.952, which mistake was subsequently discovered, upon which the appellant/Basavaraj had made an application to the Corporation on 11.01.1978 as per Ex.P4. In response to which, Commissioner, Corporation had issued a reply dated

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05.01.1979 as per Ex.P5 informing him that necessary action

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was being taken to evict the unauthorised occupant from the site which was allotted to him.

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(b) He further submits that appellant/Basavaraj thereafter had submitted a Letter as per Ex.P6 seeking allotment of Site No.1402 in exchange of Site No.952 as he was interested in putting up construction. He submits that in the meanwhile, Corporation allotted the suit site in favour of Smt. Sarojamma which was cancelled and a lease-cum-sale agreement dated 25.02.2000 as per Ex.D18 produced in O.S. No. 3148/1994 came to be executed by Bangalore Mahanagara Palike in favour of appellant/Basavaraj, confirming the allotment of suit property in favour of appellant/Basavaraj.

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(c) Further, he refers to the judgment of this Court passed in RFA No.708/1984 which was filed by Smt.Sarojamma as against dismissal of her earlier suit in O.S.No.1494/1984 and contends that in an earlier proceedings possession of appellant/Basavaraj over the suit property has been confirmed and upheld. The trial Court in both the suits have grossly erred in not taking the said fact into consideration which has resulted

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in perversity and consequent passing of erroneous judgment. He submits that appellant/Basavaraj has been in possession of the suit property having put up construction thereon. In such circumstances, a suit for mere declaration and injunction is not maintainable without Smt.Sarojamma seeking the relief of possession. Hence, seeks for allowing of the appeals.

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In response, Sri. Dharshavardhan, learned counsel appearing for the Sarojamma/respondent, submits;

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(a). that the allotment of the suit property was made in favour of Sarojamma as per Ex.P3 on 10.04.1984. A possession certificate was issued as per Ex.P1. She had obtained the sanction plan for putting up a construction. Khata was made in her name. Thus, she has been in possession and enjoyment of the suit property. That though the suit in O.S No. 1494/1984 earlier filed by her resulted in dismissal, upon the first appeal filed by her in RFA No.708/1994, this Court taking into consideration of she filing the present suit in O.S No. 3148/1994 for substantial reliefs, observed that since a competent Court is seized of the matter, parties were relegated with a direction that the controversy be resolved without being

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influenced by the dismissal of the suit. He further submits that things stood thus, the Corporation proceeded to allot the very same property in favour of the appellant/Basavaraj as per Ex.D18 and also executed a lease-cum-sale deed on 25.02.2000 despite there being an interim order passed by the Trial Court which are all the events occurred subsequent to filing of the suit.

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(b). He submits since the allotment of the suit property in favour of Smt. Sarojamma is prior in time, the subsequent allotment made by the Corporation in favour of the appellant/Basavaraj in disobedience to the interim order was unsustainable, which fact has been taken note of by the both trial Courts, resulting in decreeing the suit of Smt.Sarojamma and dismissal of the suit of the appellant/Basavaraj. Hence, he submits that no grounds are made out for requiring intervention at the hands of this Court.

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Heard. Perused records.

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On hearing learned counsel for both the parties following points arise for consideration:

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(1) Whether the appellant/Basavaraj has proved that the number of the suit property was wrongly mentioned as Site No.952, though it was site No.1402 and that he is absolute owner in possession of the same?

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(2) Whether the plaintiff/ Smt. Sarojamma has proved that she is absolute owner in possession of site No.1402 ?

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(3). Whether the trial Court is justified in decreeing the suit in O.S.No.3148/1994 and dismissing the suit in O.S.No. 8256/1997 filed by Basavaraj?

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(4) What order?

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Regarding Point No.1:

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The very averments made in the plaint in O.S.No.8256/1997 by the Basavaraj would indicate that though

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he is claiming to be allottee of site No.1402, admittedly he had been allotted site No.952 and this discrepancy with regard to identity of the suit property continued. Therefore, in order to get over and to rectify this anomaly, admittedly he had made an application as per Ex.P4 on 11.01.1978.

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Interestingly, Basavaraj had filed a suit in O.S.No.647/1983 against Corporation for relief of permanent

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injunction in which the description of the property given by him is as under:

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SCHEDULE

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House property bearing No.952, measuring EastWest 25 feet, North-South 40 feet, situated at Thimmenahalli, Magadi Road, Bangalore, bounded on:

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East by: Site House by: Hombalaiah's house North by: Road South by: Vacant site

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The said suit had been decreed on 04.07.1984 as

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sought for and an affidavit filed in the said suit by the Basavaraj is produced at Ex.D2 in O.S.No.647/1983. Paragraph No.2 of the said affidavit reads as under:

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"2. I submit that the Site No.952 was allotted to me on 08.04.1976 and the Possession Certificate issued to me by the Corporation, is herewith produced. I constructed the cement sheet roofing building on suit schedule property. I am residing in the same from the past 5 years. After the same was allotted I have paid taxes regularly."

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The aforesaid two undisputed documents, which

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though was not brought to the notice of the Court by Basavaraj, establish the fact that he had been indeed allotted

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site No.952 and that he had not raised any issue with regard to

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identification of the property till disposal of the said suit on 04.07.1984. Therefore, the stand taken up by Basavaraj in the present suit, that there was discrepancy with regard to identity of the property which he subsequently sought to be rectified by making representation in the year 1978-79 is untenable.

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During his cross-examination, Basavaraj has also admitted that in the year 1977 he had made an application to the Deputy Revenue Officer for the change of property allotted to him. But he has no such document regarding the same. He also admitted that he had written letter stating that persons in occupation of the property site No.952 be evicted and possession be given. This aspect of the matter has been taken note of by the trial Court at paragraph No.11 of its judgment in O.S.No.8256/1997.

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The aforesaid factual aspect of the matter would indicate that Basavaraj was clearly aware of the fact that he was allotted site No.952 and he asserted right, title, interest and possession with respect to the very same site in Exs.D1 and D2 which is a decree passed in O.S.No.647/1983 and an affidavit filed therein. Thus, Basavaraj cannot distance himself

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from Exs.D1 and D2 which have come up at undisputed point in time.

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Though it is vehemently urged by learned counsel for Basavaraj that dismissal of the suit in O.S.No.1494/1984 filed by Smt.Sarojamma, establishes the right of Basavaraj over the suit schedule property bearing No.1402, it is necessary to note that the Co-ordinate Bench of this Court while disposing of the Regular First Appeal in RFA No.708/94, that was filed by Smt. Sarojamma against dismissal of her suit in O.S.No.1494/1984, had made the following observations:

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"2. In the course of the submissions, respondent's learned advocate pointed out to me, that the present appellant has filed a composite suit for a declaration and consequential reliefs being O.S.No.3148/1994 before the City Civil Court, Bangalore. This suit was filed after the dismissal of the present suit which was for an injunction simplicitor. The matter being effectively subjudice before the competent forum, to my mind, it is unnecessary to go into the same question in appeal which the learned trial Judge is competent to decide in the pending suit. It is however, clarified, that since the earlier suit was for a limited relief and since obviously, the entire matter was not properly agitated, that the parties shall be free to establish their respective cases in the present proceeding and that none of the earlier observations or findings shall come in their way while doing so."

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Thus, the right of Smt.Sarojamma to have her

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dispute resolved comprehensively constituted suit was

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reserved. Therefore, dismissal of suit in O.S.No.1494/1984 is

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of no consequences.

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Despite the above, Basavaraj apparently prevailed upon the Corporation in cancellation of allotment of suit property made in favour of Smt.Sarojamma and khata which prompted Smt.Sarojamma to prefer writ petition in W.P.No.15561/2006, wherein at paragraph No.31 the Coordinate Bench of this Court taking note of the aforesaid order passed in RFA No.708/1994 and taking exception to the conduct of the Basavaraj at paragraph Nos.4 and 5 has held as under:

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4. When such being the position, it seems that again the dispute was raised by the respondent no.2 before the respondent no.1 and in the said dispute, the 2^nd defendant seems to have prayed for cancellation of allotment made in favour of the petitioner. By the impugned order, dated 18.10.2000, the respondent no.1 has cancelled the allotment made in favour of the petitioner in view of the decree passed in O.S.No.1494/1984.

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5. The impugned order cannot be sustained in as much as the subsequent suit i.e., O.S.No.3148/1994 is still pending consideration. As could be seen from the Judgment passed by this Court in R.F.A.No.708/1994, that the parties shall be free to establish their respective cases in O.S.No.3148/1994 that and none of the observations or findings made in O.S.No.1494/1984 shall come in their way while doing so. Which means that the finding in O.S.No.

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1494/1984 will not affect anybody including the petitioner. Therefore, the respondent no.1 should have considered the matter without reference to the findings arrived at in O.S.No.1494/1984. In view of the same, the impugned order is liable to be quashed as the same is based only on the decree passed in O.S.No.1494/1984."

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25. In the teeth of the aforesaid orders, the allotment

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made subsequently by Corporation in favour of Basavaraj, as rightly taken note of by the trial Court has no legal sanctity.

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Regarding point No.2:

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The consistent case of Smt. Sarojamma that she was originally allotted suit property site No.1402. In support of her case, she has produced Possession Certificate dated 25.01.1983-Ex.P1, Rectification Deed dated 23.02.1983-Ex.P2, letter of allotment dated 10.04.1984-Ex.P3 and lease cum sale deed dated 29.09.1991- Ex.P5. The trial Court at paragraph Nos.11 and 12 of its judgment adverting to the contents of these documents has come to the conclusion that the suit property being claimed by Smt.Sarojamma is indeed site No.1402.

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HC-KAR

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It has also taken note of the suggestions made on behalf of the appellants/Basavaraj to Smt. Sarojamma who was examined as PW.1, that the suit property which was earlier allotted to her was cancelled and same was subsequently allotted to Basavaraj and his wife. The trial Court has thus concluded that the Basavaraj and his wife by admitting allotment of suit property in favour of Smt. Sarojamma, have indeed given a go-by to their own defence.

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The trial Court has also taken note of the fact that in justification to the aforesaid stand, appellant/Basavaraj has relied upon Ex.D22-notice dated 18.10.2000 and Ex.D18 a lease-cum-sale agreement dated 25.02.2000 and Ex.D22 by which khata that had been made in favour of Smt. Sarojamma was sought to be cancelled. Basavaraj is claiming his right over the suit property based as these documents, which have come into existence during the pendency of suit and after disposal of the Regular First Appeal in RFA No.708/1984 dated 18.07.1995. Thus, has rightly held and concluded by the trial Court, Smt.Sarojamma has proved to be owner in possession of the suit property.

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HC-KAR

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Regarding Point No.3:

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The trial Court in both suits in the considered view of this Court has committed no error in appreciating the pleadings, oral and documentary evidence adduced by the parties warranting no interference. No grounds are made out in these appeals.

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Points raised above are answered accordingly.

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Appeals are dismissed and Judgment and decree

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dated 26.05.2008 passed in O.S.3148/1994 and Judgment and decree dated 29.08.2008 passed in O.S.No.8256/1997 are confirmed.

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Sd/(M.G.S. KAMAL) JUDGE

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RU/SBN List No.: 1 Sl No.: 14

Basavaraju S/O Basavaiah v. Sarojamma

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Basavaraju S/O Basavaiah v. Sarojamma

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