Sri Chinnappa @ Kumarappa Bhovi v. State of Karnataka

Sri Prasanna K.C., S/o Chinnappa @ Kumarappa Bhovi, Aged about 28 years. Petrs.2 to 4 are r/a No.9/8, 1st Main Road, Byrasandra, 1st Block East, Jayanagar, Bangalore – 560 011. (By Sri H.N. Venkatesh, Adv.) And: 1 2 3 4 State of Karnataka, By its Secretary to the Department of Revenue, M.S.Bldg., Vidhana Veedhi, Bangalore – 560 001. The Commissioner, Bangalore Development Authority, T.Chowdaiah Road, Kumara Park West, Bangalore – 20. The Commissioner, Bruhat Bangalore Mahangara Palike, N.R.Square, Bangalore – 2. The Commissioner, BBMP, Bangalore South, N.R.Square, Bangalore – 2. 3 5 6 7 8 Sarvodaya Education Trust, Reptd. By its Trustee, Smt. Jayalakshmi, major, W/o late Siddaiah, No.376, 10th Cross, Jayanagar 2nd Block, Jayanagar Extension, Bangalore-4. S.Vivekananda, S/o late Sri Siddaiah, Major, Trustee of Sarvodaya Education Trust, No.376, 10th Cross, Jayanagar 2nd Block, Jayanagar Extension, Bangalore-4. Smt. Usha, R/o NO.26, 16th A Main Road, Byrasandra, Bangalore – 11. The Assistant Revenue Officer, BBMP Jayanagar Sub-Zone, BDA Complex, Jayanagar, Bangalore – 11. …. Respondents. (By Sri H.T.Narendra Prasad, HCGP for R1 Sri M.B.Prabhakar, Adv. For Sri U.Abdul Khader, Adv. For R2 Sri Vinayaka, Adv. For R3, R4 and R8 Sri K.B.S. Manian, Adv. For R5 and R6 Notice held sufficient to R7) 4 Between: W.P.NO.36597/2010 1 1(a) 2 3 4 Sri Chinnappa @ Kumarappa Bhovi, S/o late Kondaiah @ Kuntanna, Since deceased by his L.Rs. Smt. Lakshmamma, W/o late Chinnappa @ Kumarappa Bhovi, Aged about 57 years, R/a 9/8, 1st Main Road, Byrasandra 1st Block East, Jayanagar, Bangalore – 560 011. Sri Jaykumar K.C., S/o Chinnappa @ Kumarappa Bhovi, Aged about 34 years. Mrs. Saraswathi K.C., D/o Chinnappa @ Kumarappa Bhovi, Aged about 31 years. Sri Prasanna K.C., S/o Chinnappa @ Kumarappa Bhovi, Aged about 28 years. Petrs.2 to 4 are r/a No.9/8, 1st Main Road, Byrasandra, 1st Block East, Jayanagar, Bangalore – 560 011. (By Sri H.N. Venkatesh, Adv.) …. Petitioners. 5 And: 1 2 3 4 The Commissioner, Bangalore Development Authority, Kumara Park West, T.Chowdaiah Road, Bangalore – 560 020. The Deputy Secretary-I, C.A.Sites Division, B.D.A., Kumara Park West, T.Chowdaiah Road, Bangalore – 560 020. The Commissioner, Bruhat Bangalore Mahanagara Palike, N.R.Square, Bangalore – 2. M/s Sarvodaya Education Society, No.376, 10th Cross, Jayanagar, 2nd Block, Bangalore – 11, Reptd. By its Secretary, Sri S.Vivekananda. (By Sri G.S.Kannur, Adv. For R1 and R2 Sri B.V.Muralidhar, Adv. For R3 Sri K.B.S. Manian, Adv. For R4) --- …. Respondents. Writ Petition No.14385/2010 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the endorsement dated 12.11.2009 passed by the 8th respondent vide Annexure 'S', etc. 6 Writ Petition No.36597/2010 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the site lease agreement renewal dated 13.11.2007 vide Annexure 'L' executed by the 2nd respondent on behalf of the 1st respondent favouring 4th respondent by declaring the same as illegal, arbitrary and violative of Article 300-A of the Constitution of India, etc. These Writ Petitions coming on for Orders this day, the Court passed the following: ORDER The petitioners contend that they are the owners of land bearing Sy.No.70/3 measuring 2 acres 21 guntas situated at Byrasandra Village, Uttarahalli Hobli, Bangalore South Taluk. It is their case that the said property was granted by Mysore Amaldar as per the grant order dated 10.12.1903 to the predecessors in title of the petitioners herein. The property belonging to the family of the petitioners was partitioned as per the deed of partition at Annexure ‘A’ dated 27.10.1937 wherein Sy.No.70/3 measuring 2 acre 21 guntas had fallen to the share of Kondaiah, the father of the deceased first petitioner. After the death of Kondaiah, the petitioners herein filed a suit for partition and separate possession 7 of the properties belonging to them in O.S.No.766/2006 on the file of the City Cviil Judge, Bangalore City. The said suit was compromised between the parties. On the basis of the partition deed, the petitioners made an application to the Bruhat Bangalore Mahanagara Palike (‘BBMP’ for short) for registering the katha in respect of the said property in their favour. The BBMP has issued an endorsement as per Annexure ‘S’ dated 12.11.2009 without registering the katha on the ground that the property is a civic amenity site belonging to the Bangalore Development Authority (‘BDA’ for short) has been leased in favour of an Educational Institution. That is why the petitioners have filed W.P.No.14385/2010 challenging the said endorsement and for a writ of mandamus directing the State Government, BDA and the BBMP to consider their representation for change of katha.

2. It is further contended that the BDA has renewed the lease deed in respect of the civic amenity site No.1 of Jayanagar 4th 8 Block East Road, Bangalore, in favour of M/s Sarvodaya Education Society, the 4th respondent in W.P.No.36597/2010. The petitioners have called in question the validity of the said renewal of the lease deed in W.P.No.36597/2010.

3. Objections have been filed on behalf of the BDA stating that the said property is the property of the BDA and that it has been leased in favour of the aforesaid Education Society in a lawful manner.

4. Learned Counsel for the petitioners would contend that Sy.No.70/3 of Byrasandra Village, Uttarahalli Hobli, Bangalore South Taluk was granted in favour of the predecessors in title of the petitioners herein on 10.12.1903. Thereafter, a partition was entered into as per the deed of partition at Annexure ‘A’ dated

27.10.1937 wherein the property in question had fallen to the share of Kondaiah, the father of Chinnappa, the first petitioner herein. 9 Chinnappa died during the pendency of these writ petitions. Petitioner Nos.1(a), and 2 to 4 are his legal representatives. It is further contended that the petitioners filed a civil suit O.S.No.766/2006 for partition and separate possession of the family properties. The said suit was decreed on 18.2.2010. On the basis of the decree, they sought for registering the katha in respect of the property in their favour. The BBMP has not registered the katha despite production of the decree of the Civil Court. An endorsement Annexure ‘H’ has been issued, which is erroneous and unsustainable in law. It is further argued that the property in question was not acquired at any point of time by the City Improvement Trust Board (‘CITB’ for short), the predecessor of the BDA. The property was always in possession of the predecessor of the petitioners and as of now, it is in possession of the petitioners. He has pointed out various endorsements and the revenue records produced along with the writ petitions for establishing that petitioners are the owners of the said property. Civic amenity site 10 No.1 is nothing but Sy.No.70/3 of Byrasandra village, Uttarahallli Hobli, Bangalore South Taluk. BDA has renewed the lease in favour of the Education Society without authority of law. It is argued that BDA could not have executed the lease deed in respect of the property belonging to the petitioners. Assuming that the property has been acquired, it has lapsed because the scheme has not been implemented within the period prescribed. Therefore, the endorsement at Annexure ‘H’ and the lease deed at Annexure ‘L’ requires to be quashed.

5. On the other hand, Sri M.B.Prabhakar, learned Counsel appearing for the respondents submits that petitioners have no right, title or interest whatsoever in respect of the property in question. It is submitted that the property originally stood in the name of Kondaiah, the father of the deceased first petitioner. Kondaiah sold the said property in favour of Ranganna and Muni Rangappa under a registered sale deed dated 3.1.1938. The State 11 Government had issued a notification dated 23.5.1947 proposing to acquire the said land for the benefit of the CITB. The name of Ranganna and Muni Rangappa, purchasers of the said property is shown in the preliminary notification. This was followed by a final notification dated 23.5.1947 wherein the names of the purchasers of the property is again shown as the kathedars. An award was passed on 27.6.1950 and the award amount is paid to the kathedars. Possession of the said property was taken on 10.7.1950. Thereafter, a layout was formed and the civic amenity site was allotted in favour of the Education Society in accordance with law. It was again renewed in favour of the said Education Society. The compromise decree in O.S.No.766/2006 dated 18.2.2010 is not binding on the BDA or the Education Society as they are not parties to the said suit. Even otherwise, it is only a partition decree. No declaratory relief has been granted in favour of the petitioners. He prays for dismissal of the writ petitions. 12

6. Learned Counsel appearing for the Education Society adopts the arguments of Sri M.B.Prabhakar, learned Counsel appearing for the BDA. He further submits that petitioners have not produced any materials to substantiate that the civic amenity site leased in favour of the Education Society has been formed in Sy.No.70/3 of Byrasandra village, Uttarahalli Hobli, Bangalore South Taluk. Therefore, they cannot maintain the petitions on this ground also.

7. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

8. The contention of the petitioners is that they are the owners of the civic amenity site No.1 of Jayanagar 4th Block East Road, Bangalore and that it has been formed in Sy.No.70/3 of Byrasandra village, Uttarahalli Hobli, Banglaore South Taluk. It is 13 further contended that the said land was granted to their predecessors under a grant order dated 10.12.1903. Thereafter, a partition deed was entered into between the members of the family wherein Sy.No.70/3 has fallen to the share of Kondaiah, father of Chinnappa and that after the death of Chinnappa, petitioners are the absolute owners of the said property. On the other hand, the contention of the BDA is that petitioners have no right, title or interest whatsoever in respect of the said property. It is their case that Kondaiah had sold the property in favour of Ranganna and Muni Rangappa under a registered sale deed dated 3.1.1938. The Government had acquired the said land from Ranganna and Muni Rangappa and that compensation amount was also paid through cheques in their favour. The contention of the learned Counsel for the school is that civic amenity site in question has not been made in Sy.No.70/3 as contended by the learned Counsel for the petitioners. Learned Counsel for the petitioners pointed out various endorsements and certain revenue records to establish that they are 14 the owners of the property. The endorsements and the revenue records do not confer title. Be that as it may. It is well established that no writ petition can be entertained to decide the disputes regarding title or disputed questions relating to title to immovable properties between private individuals. High Court, cannot, in its writ jurisdiction without permitting the parties to lead evidence and without reference to actual physical possession, declare that a particular person is in possession of the property. A writ petition is not an appropriate remedy where the matter requires determination of disputed questions of fact involving elaborate examination of evidence. The parties have to approach the competent Civil Court to get the dispute settled by obtaining a decree. In the instant case also, the matter involves disputed question of fact, which has to be established before a competent Civil Court by leading evidence. The disputed questions of fact cannot be agitated in writ proceedings. Whether the petitioners are the owners of the property or not has to be established before the Civil Court. There is also a 15 dispute relating to identity of the civic amenity site. This also has to be established by the aggrieved party. In the circumstances, I decline to entertain these writ petitions. They are accordingly dismissed. Needless to say that the Bruhat Bengaluru Mahanagara Palike has to transfer the katha in terms of declaratory decree, which may be passed by the Civil Court in respect of the property in question. All the contentions on merit are kept open.

9. In view of the dismissal of the writ petitions as above, I.A.No.I/2012 in W.P.No.36597/2010 does not survive for consideration. It is accordingly dismissed. No costs. Sd/- JUDGE. BMM/-