Siddaiah and Others vs Ramesha and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings of both the Courts below in granting injunction to the plaintiff while restraining defendant Nos. 1 to 4 by way of permanent injunction in interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule property, until and unless the plaintiff is lawfully dispossessed, the defendant Nos. 2 and 3 have filed this appeal.

The case of the plaintiff is that defendant Nos. 1 to 3 were owners of land bearing Sy. No. 167/2c situated at Bogadi Village, Kasaba Hobli, Mysore Taluk. The defendants formed 30 sites in the said land. Site No. 17 measuring 35 feet x 50 feet was sold in favour of plaintiff for Rs. 2,000/-. Possession was handed over to him. From the date of the sale deed, the plaintiff is in possession of the suit schedule property. The defendants have sold various sites to other persons. After purchasing the suit schedule property, the plaintiff has put up a structure. He also made a representation with the defendant No. 4 namely the Mysore Urban Development Authority (''MUDA'' for short) to regularize the revenue site. The defendant No. 4 issued a notice to the plaintiff and adjacent owners demanding payment of penalty for regularization. The plaintiff paid an amount of Rs. 5,500/- on 20.10.1988 and Rs. 5,000/- on 28.2.1989. Once again, a representation was made to MUDA for regularization. There was no reply. Hence, he filed an application before the Mysore City Corporation for regularizing the khata. The defendant Nos. 1 to 3 have no right, title or interest over the suit schedule property. Therefore, a notice was issued to the defendants and the reply was not accepted. Hence, he filed the instant suit seeking for a declaration that he is the absolute owner and for consequential relief for permanent injunction.

Defendant Nos. 1 to 3 filed their written statements and denied the suit averments. They admitted that they were the owners of the said Sy. No. but denied that the site has been sold to the plaintiff. They denied that any site was formed without permission from the Government and that they did not receive any sale consideration from the plaintiff nor executed any sale deed. They have not handed over the suit property to the plaintiff. The transaction with MUDA was also denied.

Defendant No. 4, through the written statement, denied the suit averments. They stated that defendant Nos. 1 to 3 have no manner of right to form and sell the sites, without obtaining permission from the Government of Karnataka and the Deputy Commissioner as well as the very 4th defendant MUDA. The representation as claimed by the plaintiff was denied. That the suit is not maintainable for nonjoinder of the necessary party namely the Mysore City Corporation. The structure said to have been put up by the plaintiff is also denied.

Based on the pleadings, the Trial Court framed the following issues:

"(1) Whether plaintiff proves that he is in possession and enjoyment of suit schedule property as absolute owner?

(2) Whether plaintiff proves that the defendants are illegally causing obstructions to his/her peaceful possession and enjoyment over the suit property?

(3) Whether defendant No. 4 proves that the suit hit by section 64 of Karnataka Urban Development Authority Act?

(4) Whether plaintiff is entitled for the reliefs sought for?

(5) What order or decree?"

The plaintiff was examined as PW-1 and 11 documents were marked. 2 witnesses were examined on behalf of defendants and 27 documents were marked. Issue Nos. 1, 2 and 4 were held in the affirmative and issue No. 3 was held in the negative. The suit of the plaintiff was partly decreed. The relief of declaration of title claimed by the plaintiff was rejected. Defendant Nos. 1 to 4 were restrained by an order of permanent injunction from interfering with the peaceful possession and enjoyment of the plaint schedule property until and unless the plaintiff is lawfully dispossessed. Aggrieved by the same, defendant Nos. 1 to 3 filed an appeal which was dismissed. Hence, this regular second appeal.

Learned counsel for the appellant-defendant Nos. 1 to 3 submits that the impugned orders are erroneous. That the entire case of the plaintiffs possession and title is based on Ex. P1, an unregistered sale deed. The finding recorded by the Trial Court is that Ex. P1 being an unregistered document which is a compulsorily registrable document, cannot be considered by the Court. However, the Trial Court committed an error in holding that the same could be considered for collateral purposes to show that the plaintiff was in possession of the suit schedule property, based on the said document. Therefore, learned counsel contends that when the document is not accepted as proof of evidence, the possession of the plaintiff could not be protected.

Respondent No. 1 is served and unrepresented. Learned counsel for respondent No. 2-MUDA defends the impugned orders. He contends that there is no merit in this appeal. Even if the contention of the appellants are accepted, they could never get any relief from the Court since the property was acquired in terms of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the question of defendants seeking any relief does not arise.

On hearing learned counsels, I am of the considered view that there is no merit in this appeal. The possession of the plaintiff is claimed on Ex. P1 an unregistered document Even if it is a compulsorily registrable document but not registered, the same could be considered for collateral purposes namely with regard to possession of the plaintiff in terms of the sale deed. The sale deed is executed in the year 1982. Since then, the plaintiff has been in possession of the site. Not only he, but various other purchasers of sites from defendant Nos. 1 to 3, were also put in possession in terms of their respective sale deeds. Therefore, to contend that Ex. P1 cannot be looked into for collateral purposes, cannot be accepted.

The defendants led in evidence of the 2nd defendant as DW - 1 and DW - 2 is one Bheemappa who is the Deputy Commissioner of Excise Department. DW - 2 has stated in his evidence that on the acquisition of the land in terms of the Urban Land (Ceiling and Regulation) Act and since the properties stood vested with the State Government, the State Government had inturn handed over the property to the Excise Department for construction of residential quarters for the officials of the Department. He has further stated in his evidence that the possession having been granted to the Excise Department, the possession was given to them by the Deputy Commissioner on behalf of the State Government. Therefore, the evidence of the defendants themselves would show that irrespective of the fact whether the plaintiff is in actual possession of the suit schedule property or not, the question of any relief to be granted to the defendants does not arise. When the property stood vested with the State Government, it shall remain with the State Government. Whether the State Government has appropriately transferred the property to the Excise Department or the Excise Department has infact received possession of State Government is of no consequence. The property having been vested with the State under the Urban Land (Ceiling and Regulation) Act, the plea of the defendants on this front cannot be accepted since their very evidence is contrary.

It is on these circumstances that the trial Court declined to grant a relief for declaration of title. Firstly, since Ex. P1 is an unregistered sale deed and the plaintiff has not sought for specific performance of the agreement and secondly, that the property having been acquired in terms of the Urban Land (Ceiling and Regulation) Act, the possession can only remain until and unless the plaintiff is appropriately dispossessed in terms of law. Therefore, while rejecting the plea for declaration of title, injunction was protected with a liberty that he could continue in possession until and unless he is dispossessed in accordance with law. I am of the considered view that the findings of the Courts below are just and proper. The entire case revolves on the facts. Hence, no substantial question of law arises for consideration. Consequently, appeal being devoid of merit is dismissed.