The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.562 OF 2016 CONNECTED WITH REGULAR FIRST APPEAL NO.561 OF 2016 IN RFA NO. 562/2016 BETWEEN: SRI. K. SARAVANAN S/O T. KUPPUSWAMY, AGED ABOUT 50 YEARS, RESIDING AT NO.148, 4TH CROSS, R. K. MUTT, K. G. NAGAR, BANGALORE - 560 019. (BY SRI. SHRIDHAR PRABHU, ADVOCATE) ...APPELLANT AND: SRI. SELVARAJ SINCE DEAD BY HIS LR’S, 1 . GAJALAKSHMI W/O LATE SELVARAJ, AGED ABOUT 60 YEARS, 2 2 . SRI. SRINIVAS S/O LATE SELVARAJ, AGED ABOUT 43 YEARS, 3 . SMT. LATHA D/O LATE SELVARAJ, AGED ABOUT 38 YEARS, ALL ARE RESIDING IN A PORTION OF PROPERTY NO.148, 4TH CROSS, R.K.MUTT LAYOUT, K.G.NAGAR, BANGALORE – 560 019. 4. BANGALORE DEVELOPMENT AUTHORITY KUMAR PARK WEST, T-CHOWDAIAH ROAD, BENGALURU – 560 020. (REPRESENTED BY ITS COMMISSIONER) (BY SRI. M. S. ASHWIN KUMAR, ADVOCATE FOR R2 & R3; VIDE ORDER DATED:27/10/23, R2 & R3 ARE THE LR’S OF DECEASED R1) …RESPONDENTS THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.01.2016 PASSED IN OS NO.6541/2005 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.23), DISMISSING THE SUIT FOR DECLARATION. IN RFA NO. 561/2016 BETWEEN: SRI. K. SARAVANAN S/O T. KUPPUSWAMY, 3 AGED ABOUT 50 YEARS, RESIDING AT NO.148, 4TH CROSS, R.K.MUTT, K.G.NAGAR BANGALORE - 560 019. (BY SRI. SHRIDHAR PRABHU, ADVOCATE) ...APPELLANT AND: 1. SMT. GOWRI W/O MURUGESH, MAJOR IN AGE, RESIDING IN A PORTION OF PROPERTY NO.148 (DOOR NO.79), SITUATED AT 4TH CROSS, R.K.MUTT LAYOUT, K.G.NAGAR, BANGALORE – 560 019. 2. BANGALORE DEVELOPMENT AUTHORITY KUMAR PARK WEST, T-CHOWDAIAH ROAD, BENGALURU - 560 020. …RESPONDENTS (BY SRI. M.S.ASHWIN KUMAR, ADVOCATE FOR R1; SRI. K. KRISHNA, ADVOCATE FOR R2) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.01.2016 PASSED IN OS NO.6543/2005 ON THE FILE OF THE XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND POSSESSION. THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.11.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 4 RESERVED FOR ORDERS ON : 19.11.2024 PRONOUNCED ON : 17.01.2025 CORAM: HON'BLE MR. JUSTICE K NATARAJAN CAV JUDGMENT
Legal Reasoning
RFA No.562/2016 is filed by the appellant-plaintiff under Section 96 of CPC for setting aside the judgment dated 18.01.2016 passed by the Additional City Civil and Sessions Judge, Bangalore, in O.S. No.6541/2005, for having dismissed the suit of the plaintiff. 2. Whereas, RFA No.561/2016 is filed by the appellant- plaintiff for setting aside the judgment passed by the Additional City Civil and Sessions Judge, Bangalore, in O.S. No.6543/2005 dated 18.01.2016 for having dismissed the suit of the plaintiff. 3. Heard the learned Counsel for the appellant in both
Legal Reasoning
appeals and the learned counsel for the respondent. The rank of the parties before the trial Court is retained for the sake of convenience. 5 4. The case of the plaintiff in O.S. No.6541/2005 is that he is the absolute owner of the property bearing Site No.148 situated at Ramakrishna Mutt Extension Layout, K.G. Nagar Bangalore, measuring East to West 20 feet and North to South 36 feet, bounded on East by road, West by property No.147, North by road and South by property No.123. The property originally belonged to BDA which formed a layout known as 'Ramakrishna Mutt Extension Layout'. The same was allotted by BDA in favour of one C. Vishwanath and the plaintiff purchased the same from the said Vishwanath. On 11.01.1989, the BDA executed a sale deed in favour of Vishwanath, and Bangalore Mahanagar Palike also issued khatha certificate on 18.07.2004. The plaintiff purchased the suit schedule property No.148 of Ramakrishna Mutt Extension Layout, on 25.09.2004 by the registered sale deed from Vishwanath and thereby, he became the owner of the property. The Bengaluru Mahanagara Palike transferred khatha in his name and the plaintiff paid taxes. It is further alleged in the plaint that the plaintiff has availed loan from the Millennium Credit Co-operative Society Limited, 6 Bangalore, and created the mortgage by depositing title deeds. It is also alleged that the said property No.148 is consisting of four tenements and the plaintiff is residing in one portion and three portions of the property are in occupation of different persons. The defendant Selvaraj is in occupation of a portion of the said property measuring 10 x 10 ft. At the time of purchase of the property by the plaintiff, the defendant was paying ₹75/- per month as rent to Vishwanath. The rents were paid till 2004. Thereafter, the defendant stopped the payment of rent. There is no rental agreement between them. The suit schedule property is a temporary shed and is in dilapidated condition having asbestos sheet roofing with mud wall. Therefore, the plaintiff intended to demolish and put up new construction for the purpose of his own occupation. The plaintiff issued legal notice to the defendant on 01.03.2005 calling upon the defendant to pay the rent from 01.11.2004 and to vacate the premises. The defendant instead of vacating the premises, got issued the reply Notice on 30.03.2005 by disputing the relationship as landlord and tenant. The defendant also disputed the title of the 7 predecessor of the plaintiff. Hence, the plaintiff was constrained to file the suit. 5. It is further contended that the defendant has no right, title or interest over the property and has no authority over the property. Hence, the defendant is liable to be dispossessed from the suit schedule property. The defendant, in the reply notice, claimed that he has forfeited and estopped from claiming the right of tenancy. The defendant denied the title of the property. Therefore, the aforesaid suit was filed for declaration and possession. 6. The case of the plaintiff in O.S. No.6543/2005 is also same as the facts stated in O.S. No.6541/2005. It is stated that the plaintiff has purchased the property bearing No.148 of Ramakrishna Mutt Extension Layout, K.G. Nagar Bangalore measuring 20 feet x 36 feet from one Vishwanath under the sale deed dated 25.09.2004. The said Vishwanath was an allottee and purchased the same from BDA on 11.01.1989. It is contended that the property was consisting of four tenements 8 and in one portion of the property, the plaintiff is residing and in the remaining three portion, the tenant are occupied. The defendant Gowri is in occupation of one portion. The defendant is in possession of 10 feet x 10 feet and she was paying ₹75/- per month to Vishwanath. Now, the plaintiff is required for his own occupation and to demolish the old dilapidated building. Hence, the notice was issued to the defendant, who denied the title of both the plaintiff and his predecessor. Therefore, the present suit came to be filed for declaration and possession of the property. 7. In pursuance of the summons, the defendants appeared through their counsel and filed written statement contending that the suit schedule property actually bears house No.79 originally belonged to one Sarojamma, who had two daughters namely, Gajalakshmi and Gowri. The defendant Selvaraj is the husband of Gajalakshmi and the son-in-law of Sarojamma. It is contended that the property bearing No.79 was measuring East to West 10 feet x North to South 15 feet. The house, which is existing now, was constructed by 9 Sarojamma about 35 years back and she was residing in the said house till her death on 11.04.1993. Earlier to the death of Sarojamma, about 22 years back, the said Sarojamma divided the property into two portions and gave northern portion measuring 10 feet x 10 feet to Gajalakshmi, the wife of defendant-Selvaraj and, the southern portion of the property measuring 10 feet x 5 feet was given to another daughter Gowri, who is the defendant in O.S. No.6543/2005. It is contended that the northern boundary of the schedule property is the portion of property NO.148 and it is in the possession of the plaintiff and the remaining portion of No.79 is in possession of Gowri, another daughter of Sarojamma. It is also contended that the legal representatives along with her husband deceased Selvaraj had been enjoying the portion of the property bearing No.79 measuring 10 feet x 10 feet over a period of 22 years as absolute owners and only Gajalakshmi should have been made as a party to the suit, instead of her husband, who is nothing to do with property and it does not form a part of property No.148. It is further contended that no property bearing No.148 in this area was allotted to Vishwanath, the vendor of the plaintiff, by 10 the BDA at any point of time. The documents produced by the plaintiff do not in any way relate to the property of the defendant. The documents produced by the plaintiff are of recent origin and created for the purpose of filing of the suit. The plaintiff's vendor Vishwanath had no right to sell the property bearing house No.79 which is in possession of the defendants in both suits. The defendants were never the tenants under Vishwanath and not paid any rent to him as stated by the plaintiff in the suit. 8. The defendants never paid any rent to the plaintiff's vendor at any point of time. It is also contended that the plaintiff's vendor C.Vishwanath had previously filed a suit in OS.No.4376/1980 against one Ammakannamma, on the file of CCH-12, claiming another portion which was in occupation of one Lakshmi and her children for permanent injunction and other relief, although Ammakannamma was not in possession. The suit was dismissed on 23.06.1992. After the dismissal of the said suit in the year 1992, nobody interfered. It is further contended that Vishwanath did not take any further steps to set aside the order 11 and it was revealed the case filed pertaining to the said suit has been destroyed. The plaintiff or his vendor Vishwanath claiming title from BDA, they should approach the BDA for necessary relief, the BDA is not party in the suit. The legal representative of the deceased defendant are in possession and enjoyment of the suit schedule property from 1978, continuously for more than 22 years. And alternatively pleaded that if the plaintiff and his vendor had any title over the suit schedule property, then same is extinguished, as the defendants have perfected their title to the property by adverse possession, as they are enjoying the property more than 12 years earlier to the filing of suit. 9. The defendant in connected matter 6543/2005 hence for dismissing of the suit. 10. Based upon the pleadings the Trial Court framed the issues and additional issues in both cases as under; In OS.No.6541/2005 1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2) Whether the plaintiff proves that the defendant is a tenant under him in respect of the suit schedule property on a monthly rental basis? 12 3) Whether the plaintiff proves the valid termination of the tenancy of the defendant by issuing legal notice dated 01.03.2005? 4) Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient? 5) Whether the plaintiff is entitled for the decree of possession as prayed for? 6) What order or decree? Additional issues: 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the defendant has perfected her title by way of adverse possession? In OS.No.6542/2005 1) Whether the plaintiff proves that he is the absolute owner of suit schedule property? 2) Whether the plaintiff proves that the defendant is tenant under him in respect of the suit schedule property on a monthly rental basis? 13 3) Whether the plaintiff proves the valid termination of tenancy of the defendant by issuing a legal notice dated 01.03.2005? 4) Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient? 5) Whether the plaintiff is entitled for decree of possession as prayed for? 6) What order or decree? Additional issues: 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the defendant has perfected her title by way of adverse possession? 11. On behalf of the plaintiff he himself examined as P.W.1 and got marked Ex.P.1 to 23 documents and also examined 2 witnesses as P.W.2 and P.W.3. And on behalf of the defendant in OS.No.6541/2005 examined as DW.1 in both cases and got marked Ex.D.1 to 19 documents. After hearing the 14 arguments the Trial Court answered the entire issues in the negative and both the suit of the plaintiff came to be dismissed vide impugned judgment dated 18.01.2016. Being aggrieved by the same the plaintiffs have filed this appeal before the court. 12. The counsel for the appellant has contended that the judgment of the trial court is erroneous and liable to be set aside. The trial court has not properly appreciated the evidence on record and failed to appreciate the facts and circumstances of the case. The trial court erred in answering the issue No.1 in the negative. The trial court ought to have decreed the suit of the plaintiff. The documents produced at Ex.P.1 to 4 and 20 were not looked into. The BDA executed the sale deed in favour of vendor of the plaintiff Vishwanath. The trial court also failed to observe that the reference 78 and 79 are not the property numbers but only the door numbers. The trial court got confused regarding the premises in occupation of the respondent is different. The Ex.P.15 to 17 where the property 147 was allotted to the father of the respondent. There was a litigation, the respondent has taken alternative site at HSR Layout. The Ex.D.1 15 photograph property and other portion have been identified by the defendant No.1 herself. The respondents have encroached the property of the plaintiff. The evidence of PW.3 - Prashanth AE from BDA also examined on behalf of plaintiff. Hence, prayed for allowing the appeal. 13. During the pendency of the appeal the appellant also filed interlocutory application under Order 41 Rule 27 of CPC., along with the documents. It is contended that the appellant produced the allotment letter issued by the City Improvement Board on 17.07.1973 in favour of Vishwanath, the possession certificate also issued on 31.10.1975. The allotment letter dated 1973 issued in favour of one Kannaiah in respect of site No.147. The CITB also issued allotment letter in favour of one Thamaiah, the sketch prepared by the BDA related to the adjacent site showing the detail of site No.148 adjoining site located at Ramakrishna Mutt, the modified plan of layout site No.148 and copy of the written statement filed by the respondent in the suit filed by the one Manjunath and they have admitted the allotment of site No.148 in favour of Vishwanath, sketch prepared by the appellant and photographs of site No.148 and these documents 16 were not able to produced during the trial, these documents clinches the issue and the documents in favour of the vendor of the plaintiff were clearly reveals the property was originally allotted to the Vishwanath by the CITB on 17.07.1973 and from whom the plaintiff has purchased the property on 25.09.2004 and hence prayed for allowing the Interlocutory Application consequently allow the appeals. 14. Per contra learned counsel for the respondent has supported the judgment and decree passed by the trial court for having dismissed the suit of the plaintiff contended that the plaintiff filed the suit by claiming the respondents are tenants under them, the respondents/defendants denied the relationship by replying the legal notice and suit is filed as tenancy suit. The Ex.P.1 is not the sale deed. The case of the defendant is site Nos.147 and 148 are not the same properties. The defendant is residing in the said property for more than 40 years. The defendant in possession of property more than 12 years, they perfected the title by way of adverse possession. The plaintiff failed to prove the case in the trial court, therefore rightly 17 dismissed the suit of the plaintiff. Hence, prayed for dismissing the appeals. 15. In support of the arguments the learned counsel for the appellant relied upon the various judgments are as under; 1) AIR 2008 SC 2033 Anathula Sudhakar Vs P.Buchi Reddy (dead) by Lrs and Ors., 2) AIR 1954 SC 1092 K.K. Verma Vs Union of India 3) AIR 2005 SC 4407 Saroop Singh Vs Banto and others 4) (2024) 1 S.C.R. 60 Brij Narayan Shukla (D) Thr. Lrs Vs Sudesh Kumar Alias Suresh Kumar (D) Thr.Lrs & Ors. 5) 2024 INSC 769 Neelam Gupta & Ors. Vs Rajendra Kumar Gupta & Anr. 6) (2020) 7 S.C.R. 528 Narasamma & Ors. Vs A.Krishnappa (dead) through Lrs 7) AIR 1998 SC 1297 K.K.Modi Vs K.N.Modi and others 8) AIR 2009 SC 2034 18 L.N.Aswatham Vs P.Prakash 9) (2014) 2 SCC 269 Union of India and others Vs Vasavi Co-operative Housing Society Ltd., and others 16. Having heard the arguments and perused the records, the points that arises for my consideration are; 1) Whether the plaintiff proves in both the suits that he is the absolute owner and in possession of the suit schedule property measuring east to west 20 feet and north to south 36 feet bearing No.148? 2) Whether the plaintiff further proves that the defendant in both suits were tenant under the plaintiff and they failed to vacate the premises? 3) Whether the plaintiff entitled for the possession from the defendant? 4) Whether the defendant has perfected their title by way of adverse possession? 5) Whether the suit is bad for non-joinder of necessary parties? 19 6) Whether the judgment of trial court in both suits called for interference? 7) What order? 17. To prove the case of the plaintiff, the plaintiff himself was examined as P.W.1 and got marked 23 documents. Exs.P.1 is the certified copy of the sale deed dated 11.01.1989 executed by one Vishwanath in favour of the plaintiff, Ex.P.2 is the certified copy of the sale deed dated 25.09.2004, Exs.P.3 and 4 are the khatha extracts and khatha certificate, Ex.P.5 to 7 are tax paid receipt and encumbrance certificates, Ex.P.8 is the legal notice issued to the defendant, Ex.P.9 is the postal acknowledgment, Ex.P.10 is the reply by the defendant. Exs.P.15 to 18 are the allotment letter, possession certificate, the certified copy of the sale deed dated 23.01.2012 and the endorsement respectively. The sale deed executed by BDA in favour of Vishwanath is Ex.P.20. Ex.P.21 is the sale deed executed in favour of plaintiff. Ex.P.22 is the tax paid receipt and Ex.P.23 is encumbrance certificate. 20 18. To corroborate the evidence of the plaintiff, the plaintiff also examined P.W.2 who has deposed in support of the plaintiff's case contending that the suit schedule property No.148 has been purchased from one Vishwanath. The defendants, in both cases, are in possession of property No.148. The plaintiff also examined one more witness P.W.3, who is an Assistant Engineer of BDA. P.W.3 has given evidence that property No.148 is the BDA property situated at Ramakrishna Mutt and he has visited the property where the plaintiff and defendants are in possession of the property. He also submits that the BDA gave alternate sites to both parties in HSR layout. 19. The case of the defendants is that the both the defendants are the sisters, they denied the contention of the plaintiff that they were the tenants under the vendor of the plaintiff i.e. Vishwanath. They were never the tenants under the plaintiff. There is no relationship of landlord and tenants between them and they are not liable to pay any rents. It is also contended that the plaintiff has not produced any documents to prove the relationship of landlord and tenant between them. It 21 is further contended that the defendants are in possession and enjoyment of the property bearing No.79 situated at Behind Ramakrishna Mutt belonged to her mother Sarojamma measuring East to West 10 feet and North to South 15 feet. A house was constructed by her mother about 40 years back and they were residing in the house till the death of Sarojamma on 11.04.1993. Earlier to the death of Sarojamma, about 22 years back, the said Sarojamma divided the property into two portions and gave one portion to the defendant and another portion of the property to her sister and they are residing ever since more than about 30 years. The defendant has stated that she do not know where the property No.148 is situated. The defendant has further stated that the property No.79 is not form the part of property No.148. The property No.148 is situated elsewhere and not adjoining to their house No.79. 20. The defendant has further stated that they are in possession and enjoyment of the property for more than 12 years. The documents clearly reveals that the property was 22 owned by Kannayya Shetty and Sarojamma, residing in house No.79 for more than 30 years. 21. In support of their case, the defendants produced and marked 19 documents as per Exs.D.1 to D.19. 22. Ex.D.1 is the photograph showing that the defendants are in possession of the small portion of the property by putting up huts. Ex.D.2 is the notice issued by BDA to Gajalakshmi and Gowramma and the notice was issued for encroaching the property belonged to site No.148. Ex.D.3 is the reply notice issued by the defendants to the BDA stating the pendency of the suit. These documents are not useful to the defendants except that they are residing in the portion of the property. Ex.D.4 is the pension receipt in form No.OAPS-IV in the name of the mother of the defendants showing the house No.79 of Ramakrishna Ashrama. Ex.D.5 is the death certificate of the mother of the defendants. Ex.D.6 is the death certificate of one Selvaraj. Ex.D.7 is the marriage invitation card of the son of defendant showing the house number as 79, Behind 23 Ramakrishna Mutt with the address of the defendants showing as No.79, behind Ramakrishna Mutt and the marriage was held on 02.02.1996. Ex.D.8 is the receipt given by Sri Krishna Vadhiraja Kalyana Mandira, Shankarpuram, Bengaluru, for the marriage purpose, where residential address in the name of one of the defendants is showing as No.79, Behind Ramakrishna Mutt. Ex.D.9 is the electricity bill details and Ex.D.10 is the electricity Bill. Ex.D.11 is inland letter showing the address of Kannayya Shetty as No.79, behind Ramakrishna Mutt. No.79, behind Ramakrishna Mutt. Ex.D.12 is the details of vehicle insurance showing the address as No.79, behind Ramakrishna Mutt. Ex.D.13 is the Syndicate Bank passbook in the name of one of the defendants Gowramma with address shown as No.79, Behind Ramakrishna Mutt. Ex.D.14 is another other bank passbook showing the same address. Ex.D.15 is the cumulative record of Lakshamana where the address is shown as No.79, Behind Ramakrishna Mutt Gavipuram. Ex.D.16 is another insurance policy premium receipt. Ex.D.17 is the marriage invitation card of one Rekha held in the year 2000 where the 24 same address is shown Ex.D.18 is the photograph showing the huts where the defendants are residing. 22. On perusal of the documents, it goes to show that the defendants in both cases are the sisters and daughter of Gajalakshmi and they are in possession of the property measuring 10×5 feet and 10×10 feet. It reveals that the defendants are in the possession having put up a small construction or hut in the portion of property No.148. However, the plaintiff in the cross-examination has admitted that he and his vendor is residing in house No.78 and he was allotted a site bearing No.148 and one Vishwanath is his vendor of the said property. The very same site has been purchased by the plaintiff as per the sale deed executed by the BDA, which reveals that No.148 has been allotted to the vendor of the plaintiff as per Ex.P.15 to Ex.P.18, and the sale deed has been executed as per Ex.P.20 by the BDA in favour of Vishwanath. 23. Learned counsel for the appellant-plaintiff has contended that previously, these areas were all the slum areas 25 with the various persons occupied in a small portion. Subsequently, they occupies the said area & requested the BDA to allot an alternate site and accordingly, the site No.148 measuring 20 x 36 feet has been allotted to one Vishwanath as per Exs.P.15 to 18 and the sale deed has been executed as per Ex.P.20. In spite of execution of the sale deed and allotment, the defendants' contention is that they are in a possession of the property since 30 years. Their mother was also in possession and subsequently, it was allotted. It appears they have put up huts and residing there separately. On careful reading of the records of the plaintiff and defendants, it appears that the property measuring 20 x 36 feet has been allotted to Vishwanath, the vendor of the plaintiff. The sale deed also clinches the issue that Vishwanath had been allotted the site and he was in possession of the said property. Subsequently, it was sold to person the present plaintiff. On careful perusal of the previous documents and the additional documents produced by the appellant, it reveals that the said Vishwanath also filed an application to CITB showing that the house No.77 on the same area. The CITB issued a letter showing the site No.148 26 measuring 20 x 36 feet allotted to Vishwanath. The additional documents and the memo produced goes to show that the property measuring 20 x 36 feet was allotted to Vishwanath on lease cum sale for 10 years. The said document is dated 31.10.1975. Kannayya Shetty also said to be requested for the site and site No.147 had been allotted measuring 20 x 35 feet. The said Kannayya Shetty was the predecessor of defendants. Later, the City Improvement Trust Board allotted the site No.147, measuring 20 x 35 feet as per allotment letter dated 19.07.1973 for the amount of Rs.234/- paid by Kannayya Shetty. The document dated 19.02.2010 reveals that the plaintiff requested the CITB to issue a sketch of the property. The sketch was also produced, which reveals that the property No.148 site was allotted in the slum area and adjacent to property No.148. On the western side, a small portion is given as site No.147, which belongs to Kannayya Shetty who is the predecessor of the defendants. The sketch of the layout has been produced which reveals that the extent of site Nos.147 and 148. Site No.148 is situated on the corner side and site No.147 is inside. It reveals that the land allotted to the defendants' 27 predecessor i.e. Kannayya Shetty is site No.147, and site No.148 is allotted to Vishwanath. Therefore, the defendants are in possession of the said portion of the property bearing No.148. After allotment, they have not moved. Even otherwise, they could have stayed before the proper allotment by the CITB and the BDA, as it was the alum area. Subsequently, demarcated portion was allotted by the BDA to the parties. Accordingly, property No.148 has fallen to the share of Vishwanath, the vendor of the plaintiff. Previously, a suit was filed by Vishwanath against one Selvaraj and it was dismissed where existence of the property was mentioned. The learned counsel for the appellant- plaintiff also brought to the notice that the allotment of property No.147 to the defendants' family was not available. Therefore, requested the BDA for allotment of an alternate site. Accordingly, they have been allotted an alternative site at HSR layout and the same has not been denied by the defendants' counsel. It appears that small extent of property No.147 has been allotted to Kannayya Shetty. Later, it came to know that there was no existence or availability of property No.147. Therefore, an alternate site has been allotted to defendants. 28 They also obtained possession of the property at HSR layout. Therefore, it cannot be said that the defendants have established right over the property. As I have already held above, prior to acquiring the slum dwellers, they have been in possession. Subsequently, after allotment, they have to move out. Accordingly, the defendants have been granted a separate land or site at the HSR layout. In spite of the same, the vendor of the plaintiff has filed a suit that the defendants are the tenants under the plaintiff's vendor and there is no document produced by the plaintiff to show that Vishwanath, the vendor of the plaintiff has let out the property to the defendants in both cases and they have failed to prove that they are the tenants under the said Vishwanath. Further, there is no letter given by the Vishwanath, the vendor of the plaintiff, to show that he is said to be the owner and he has collected the rent. Of course, the plaintiff has failed to prove the fact that the defendants were the tenants under his vendor. In view of Exs.P.15 to 18 and P.20, the plaintiff was allotted and the sale deed has been executed by the BDA. P.W. 3 has given evidence in support of the plaintiff. 29 24. Such being the case, the plaintiff proves that he is the absolute owner of the suit schedule property No.148 measuring 20 x 36 feet. However, he has failed to prove that the defendants are the tenants under him. Though the defendants are continuously in possession of the property, they have not admitted the ownership of the plaintiff or his vendor in order to claim right over the schedule property as adverse possession. Therefore, I am of the view that the plaintiff is entitled for possession of the schedule property as prayed. The trial Court without proper appreciation of the evidence on record and additional evidence adduced by the plaintiff, has dismissed the suit of the plaintiff. In my view, the plaintiff has proved that he is the absolute owner of the property. The defendants without any right, title over or interest over the property residing over the same on lease for so many years and they have not admitted that the plaintiff or his vendor is the owner of the property. Once the defendants have not admitted that the plaintiff or his vendor is the owner of the property, the question of claiming right of adverse position itself does not arise in order to perfected their title. 30 25. In view of the reasoning above, I hold the plaintiff proves in both the suit that he is the absolute owner of the schedule property No.148 measuring 20 x 36 feet. However, he has failed to prove the defendants in both cases, tenants under him and the defendants also failed to prove that they have perfected title by way of adverse possession. Hence, answered the point No.1 in affirmative, in favour of the plaintiff/appellant and point Nos.2 and 4 in the Negative. 26. The defendant also contended that the suit is bad for non joinder of the parties, when the suit of the plaintiff is based upon the sale deed executed by the BDA and his vendor Ex.P.15 to 18 and Ex.P.20, he has proved his title and Therefore the vendors of the plaintiff is not necessary party in the suit. Even the relief claimed by the defendant are not necessary parties in the present suit, since they are in possession, claiming the right over the portion of the schedule property of the plaintiff. Therefore, the suit is not bad for any non joinder of necessary parties. Hence, answered the point No.5 negative against the defendant. 31 27. In view of the judgment of this court holding that the plaintiff proved the title over the property and the defendant are in possession claiming the right over the property without any title or source, merely they are staying in the possession since long when the BDA allotted an alternative site to them in some other place, but they have taken the alternative site from the BDA still they continue in possession. Therefore, the plaintiff once allotted the site and possession is given, the plaintiff purchased the site from the vendor the original allotted of the BDA. Such being the case, the plaintiff is entitled for the possession from the defendant. 28. The Trial Court without appreciating evidence on record, simply dismissed the suit without proper evidence on record placed by the defendants. Therefore, the judgment of the Trial Court requires to be interfered. Accordingly, I proceed to pass the following order, 32 Both appeals are allowed. The suit of the plaintiff in both cases are allowed in part. The plaintiff is declared as owner of the schedule property Site No.148 measuring east to west 20 feet and North to South 36 feet. The defendant are directed to quit and vacate the premises within 3 months for the date of receipt of the copy of the judgment, failing which the plaintiff shall take action as per the due course of law for seeking possession.
Decision
Accordingly, both the appeals are disposed of. No order as to the cost. Sd/- (K.NATARAJAN) JUDGE CS/AKV CT:SK