AI Structured Summary
Not yet generated for this judgment
Judgment
S. Abdul Nazeer
This appeal is directed against the judgment and decree in R.A.No. 63/2010 dated 8.4.2011 on the file of the V Additional District and Sessions Judge, Mysore reversing the judgment and decree in O.S. No. 233/1997 dated 22.12.2009 on the file of the Principal Civil Judge (Sr. Dn.) & CJM, Mysore. The appellant is the plaintiff in the suit and the respondents are defendant Nos. 1 and 2. The plaintiff filed the above suit for declaration, possession, permanent injunction and mandatory injunction in respect of the suit schedule site. According to the plaintiff, she is the absolute owner of the site bearing Nos. 1 and 2 having katha No. 209/68/2 situated at Nachanahallipalya Village, Mysore Taluk, carved out in the land bearing Sy. No. 28/2 measuring 60 ft. x 60 ft., having purchased the same from Sri. G.C. Kempa Thimmaiah, G.C. Moodala Giriyappa and G.C. Nagendra under a deed of sale dated 6.9.1991 Since the date of the purchase, she has been in possession and enjoyment of the property. The first defendant by taking undue advantage of the plaintiff being a resident of Delhi without having any manner of right, title or authority and in collusion with the local authorities has started construction on the plaint schedule property.
The first defendant has filed the written statement contending that he is the owner of the site bearing No. 769 situated at ''D'' Block, Nachanahalli, Mysore, measuring east to west 35 ft. and north to south 50 ft., and bounded on north by site No. 772, south by road, east by site No. 770 and west by site No. 768. The allotment of the site was made by the erstwhile City Improvement Trust Board (''CITB'' for short) {now Mysore Urban Development Authority (''MUDA'' for short)} on 10.10.1984 for consideration of Rs. 11,660.40 ps. He has paid the entire amount to the CITB and thereafter obtained possession certificate on 5.2.1996. He has also got the katha of the property transferred to his name in the property register of the Mysore City Corporation. He has also paid the enhanced value of the site as per the demand made by the second defendant in a sum of Rs. 29,866/- on 6.1.1995. Thereafter, he has filed an application for grant of licence for construction of house on the above property and the Mysore City Corporation has sanctioned the plan on 26.2.1997. He has constructed the structure according to the said plan. He has completed the construction on the above said property except the minor works. He has legal and valid title to the said property. The plaintiff appears to be confused in identifying her property. The first defendant''s property is different from the one mentioned in the plaint. The dimensions of the two properties and the boundaries are different.
The second defendant has filed the written statement denying the plaintiff''s tile to the suit schedule property. Sy. No. 28/2 of Nachanahallipalya village has been acquired by the Special Land Acquisition Officer for its benefit under the provisions of the erstwhile City of Mysore Improvement Act, 1903 to form a layout as per the notification issued by the State Government dated 28.2.1982, which has been published on 10.3.1982 in the Karnataka Gazette. After completion of the land acquisition proceedings, it has formed the layout on the land and one of the sites so formed has been allotted in favour of the first defendant. The first defendant is in possession and enjoyment of the said property. The plaintiff has no right in Sy. No. 28/2 of Nachanahallipalya Village, Mysore.
On the basis of the pleadings of the parties, the trial Court has framed the following issues:
(i) Whether the plaintiff proves her title to the suit property?
(ii) Does she further prove that the defendant No. 1 has illegally put up construction over the suit schedule site?
(iii) Whether the court fee paid is sufficient?
(iv) Whether the plaintiff is entitled for the reliefs as sought?
(v) What order or what decree?
The power of attorney holder of the plaintiff was examined as P.W1 and documents Ex. P1 to Ex. P10 have been marked in his evidence. The general power of attorney holder of the first defendant was examined as D.W1 and documents Ex. D1 to Ex. D22 have been marked in his evidence. The trial Court on appreciation of the oral and documentary evidence has record has decreed the suit. The lower appellate Court has set aside the said judgment and decree and has dismissed the suit.
Learned Counsel for the plaintiff/appellant would contend that the suit schedule property is a part and parcel of Sy. No. 28/2 of Nachanahallipalya, Mysore Taluk. The said survey number has not been acquired by the State Government for the benefit of the second defendant except to an extent of 121/2 guntas. The suit schedule property is not a part of the acquired land. In fact, when there was a dispute regarding identification of the property, the Commissioner was appointed by the trial Court and the Commissioner has given a report stating that suit schedule property is not a part and parcel of the acquired portion of Sy. No. 28/2. Since the suit schedule property has not been acquired by the State Government, the second defendant had no right to allot the site in question in favour of the first defendant. The trial Court on appreciation of the materials on record has rightly decreed the suit. The lower appellate Court has set aside the well-considered judgment and decree on certain assumptions and surmises. The lower appellate Court in the course of the judgment has held that the conversion order and the layout plan in respect of the land in question has not been produced, which cannot be the basis for consideration of title to the property.
On the other hand, learned Counsel appearing for the first respondent/first defendant submits that the CITB had allotted the site in his favour on the basis of which he has put up a construction thereon. The plaintiff has no right, title or interest whatsoever in the said property.
The second defendant has also sought to justify the impugned judgment and decree.
At the time of admission of the appeal, this Court has framed the substantial question of law as under:
Whether the lower appellate Court is justified in holding that the suit schedule site is a part of the acquired land in Sy. No. 28/2 of Nachanahallipalya Village for the benefit of the second respondent?
The contention of the plaintiff is that she has purchased site Nos. 1 and 2, katha No. 209/68-2 carved out in Sy. No. 28/2 of Nachanahallipalya Village, Mysore Taluk, measuring north to south 60 ft. and east to west 60 ft. under a registered sale deed at Ex. P2 dated 6.9.1991 from its previous owners G.C. Kempa Thimmaiah, G.C. Moodala Giriyappa and G.C. Nagendra, represented by their power of attorney holder Sri. Krishnamurthy for a sale consideration of Rs. 90,000/-. It is also clear from the sale deed that the plaintiff was put in possession of the site in question. Ex. P3 is the encumbrance certificate issued by the Sub-Registrar of Mysore from 1.4.1980 to 16.7.1992, which shows that site Nos. 1 and 2, katha No. 209/68/2 measuring 60 ft. x 60 ft. has been sold by its vendors in favour of the plaintiff. Ex. P4 is the R.R. patta book, which shows the names of G.C. Kempa Thimmaiah, G.C. Moodlagiriyappa and G.C. Nagendra as the owners of the suit schedule property. Ex. P5 is the R.R. patta book issued by the Assistant Director of Land Records, Mysore Sub-Division, Mysore, which shows the location of the land bearing Sy. No. 28/2A and 2B. Ex. P6 is the index of land extract issued for the year 1998 and Ex. P7 is another demand register extract, which shows the name of the plaintiff in respect of the suit property.
The case of the first defendant is that site No. 769 situated in ''D'' Block, Nachanahally. Mysore, has been allotted by the then CITB, Mysore (now MUDA) on 10.10.1984 for a sale consideration of Rs. 11,660.40 ps. The first defendant has paid the entire amount to the CITB and obtained possession certificate dated 5.2.1996. Katha of the said property was transferred and he has paid tax to the competent authority and he has also paid the enhanced sital value to the MUDA as per the demand notice dated 26.12.1994. He has made an application for grant of licence for construction of a house on the above property and the competent authority has sanctioned the same on 26.2.1997. It is also clear that lease-cum-sale deed dated 3.11.1996 has also been executed by the MUDA in his favour. The case of the second defendant is that Sy. No. 28/2 of Nachanahallipalya Village, has been acquired by the Special Land Acquisition Officer of the MUDA under the provisions of the City of Mysore Improvement Act, 1903 to form a layout and after completion of the land acquisition proceedings, the CITB has formed the layout by carving sites and one of the sites has been allotted in favour of the first defendant. The second defendant has not examined any of the witnesses in support of its contention. However, it is not disputed that out of the aforesaid survey number, only 121/2 guntas has been acquired by the State Government for the benefit of the CITB. The question is whether the suit schedule property is a part of the aforesaid acquired portion of 121/2 guntas in Sy. No. 28/2?
In order to decide the dispute in controversy, the Commissioner was appointed. The Commissioner after local investigation has filed a report stating that site Nos. 1 and 2 have been formed in the land bearing Sy. No. 28/2A (original No. 28/2) situated at Nachanahallipalya village. He has further stated that possession of the suit schedule property has not been taken over by the State Government. This has not been challenged by the defendants. It is thus dear that the suit schedule property has not been acquired by the State Government for the benefit of the then CITB. The suit schedule site is not a part of the acquired portion of 121/2 guntas of Sy. No. 28/2. Thus, the title of the suit schedule property has not been transferred in favour of the State Government and thereafter to the CITB. Therefore, allotment of the site in question in favour of the first defendant is without authority of law. The trial Court on appreciation of the materials on record has rightly decreed the suit. The lower appellate Court has set aside the said judgment and decree on the basis that conversion order in respect of the land in question has not been produced and that the plaintiff has failed to produce the layout plan These documents have nothing to do with the title of the property. In fact, the Commissioner''s report, which is available in the record of the trial Court would clearly indicate that the site in question is not vested with the State Government and thereafter, with the then CITB. If that is so, question of allotment of the said site in favour of the first defendant does not arise. The question of law framed as above is answered accordingly. The lower appellate Court was not justified in reversing the well-considered judgment and decree of the trial Court.
However, it is to be noted here that the then CITB had allotted site in favour of the first defendant as early as in the year 1984. He has deposited the sital value with the CITB. He has also deposited the enhanced sital value in the year 1984 with the MUDA. He has put up a small house in the said site after obtaining sanction plan from the competent authority. It is also clear from the above discussion that the CITB had no title to the property in question and the allotment of the site in favour of the first defendant is erroneous. Having regard to Rule 16 of the Karnataka Urban Development Authorities (Allotment of Sites) Rules, 1991, it is just and proper for the second defendant to allot an alternative site in favour of the first defendant.
Learned Counsel for the first defendant submits that if an alternative site in the same layout is allotted to the first defendant, the first defendant has no objection for handing over the suit schedule property to the plaintiff.
This Court has directed Sri. T.P. Vivekananda, learned Counsel appearing for the second defendant to find out if a vacant site of equal dimension in the same layout is available for allotment. After taking instructions, he submits that site bearing No. 1430 measuring 35 ft. x 50 ft. at Nachanahallipalya, ''B'' Block, Mysore is vacant as of now and that it has not been allotted to any one. I am of the view that the second defendant has to allot the said site in favour of the first defendant. In the light of the above discussions, I pass the following:
ORDER
(i) The judgment and decree of the lower appellate Court in R.A.No. 63/2010 dated 8.4.2011 on the file of the V Additional District and Sessions Judge, Myosre is hereby set aside and the judgment and decree of the trial Court in O.S. No. 233/1997 dated 22.12.2009 on the file of the Principal Civil Judge (Sr. Dn.) and CJM, Mysore is restored.
(ii) The second defendant is directed to execute and register the sale deed in respect of site No. 1430 measuring 35 ft. x 50 ft. of Nachanahallipalya Village, ''B'' Block, Mysore, in favour of the first defendant within a period of four weeks from the date of receipt of a copy of this judgment. The stamp duty and registration charges shall be borne by the first defendant.
(iii) The defendants shall get the lease-cum-sale deed dated 3.11.1996 cancelled by registering the document to that effect before the Jurisdictional Sub-Registrar simultaneously while executing a sale deed as per condition No.(ii) at the cost of the first defendant.
(iv) Immediately after the registration of the site by the MUDA in favour of the first defendant as per condition No.(ii), the first defendant shall vacate and hand over the suit schedule property to the plaintiff. No costs.
(vi) Draw the decree accordingly.
(vii) In view of the disposal of the appeal as above, Misc. Cvl. Nos. 12894/2011, 12893/2011 and 13076/2011 do not survive for consideration. They are accordingly disposed of.