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CASE NO.: Appeal (civil)  1299 of 2002

PETITIONER: Corporation of City of Bangalore

RESPONDENT: Zulekha Bi & Ors

DATE OF JUDGMENT: 24/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL No. 1299  OF 2002 With Civil Appeal No. 1300 of 2002

Dr. ARIJIT PASAYAT, J

1.      Challenge in these appeals is to the order  passed by a learned Single Judge of the Karnataka High Court  allowing the First Appeal filed under Section 96 of the Code of  Civil Procedure, 1908 (in short the ’CPC’).  The respondent  No.1 was the plaintiff and was appellant before the High  Court.  The case set out in the plaint is as follows:

2.      The plaintiff is the absolute owner of the suit schedule  property, having purchased it from M.N. Rudrappa under  registered sale deed dated 9-2-1981 and is in possession of it  since that date. The schedule property is the joint family of  the plaintiff’s vendor and the suit property fell to the share of  the plaintiff’s vendor’s family who are not alive, plaintiff’s  vendor became a co-parcener and in that capacity he sold  the suit property to plaintiff on 9-2-1981, and the khata is  not changed to his name. Now, the plaintiff, with an  intention to erect compound around the suit property has  stocked stone slabs, but defendants 2 and 3 at the instance  of the first defendant are trying to prevent the plaintiff from  entering in to the schedule property and erecting stone slabs  and on 20-11-1982, defendants 2 and 3 with gundas tried to  trespass into the suit schedule property and interfered in the  peaceful possession and enjoyment of the property by  plaintiff, trying to remove the stone slabs stocked therein  and this was resisted by the plaintiff and well wishers.  It is  the contention of plaintiff that, he being the absolute owner  and in possession of the suit property has got prima facie  case.  3.      The respondent No. 2 was the defendant No. 2 and his  stand was as follows:

Plaintiff is not the owner of the scheduled property  and that, neither plaintiff nor his vendor Rudrappa had any  manner of right, title and interest over the schedule property.  It is denied that the plaintiff’s vendor had the property under  the partition deed dated 26-01-1946 as alleged. Defendant has  pleaded ignorance with regard to the application of plaintiff  dated 24-04-1980 to change khata. It is denied that the  plaintiff has stocked stone slabs to erect compound with the

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schedule property, with the help of goondas. It is contended  that, the plaint schedule is mis-leading and the sale deed  produced does not disclose any number of the property and  there is no existence of such property as described in the  plaint. It, is the specific case of second defendant that the vast  vacant land belongs to the Corporation and he had applied to  the Corporation for lease of the land and after obtaining  sanction of the Government, Corporation granted lease of Plot  No. 15 measuring 226.6 Sq Yards in Siddaiah Road bounded  on the East by Corporation land granted to third defendant,  West by land granted to M.A. Krishnamurthy, North by  Corporation Road and South by Corporation Plot No. 14 and  he has complied with all terms and conditions of the lease. It  is contended that, when he tried to enclose the property with  stone slabs, husband of the plaintiff Kustaq Ahmed obstructed  the work and threatened to remove the slabs under imaginary  rights, that there is no cause of action for the suit and she  prayed for dismissal of the suit with costs.

4.      Similarly the third defendant and the 4th defendant also  filed written statement contending that plaintiff was not the  owner of the suit land and had no right, title and interest.  The  following issues were framed by the trial court.  1.      Whether plaintiff proves that suit property belongs  to M.N. Rudrappa and that she has deprived title to  it by the sale deed executed by him? 2.      Whether plaintiff is in lawful possession of suit  property? 3.      Whether the suit has been property valued? 4.      Whether 4th defendant is not a necessary party to  this suit? 5.      Whether the plaintiff is entitled to relief of  declaration and injunction prayed? 6.      To what reliefs are parties entitled?

5.      Ultimately the suit was dismissed by the trial Court and  as noted above First Appeal was filed by the respondent No.1.

6.      It appears that the High Court referred to the various  stands, it was concluded that the documents produced by the  appellant did not prove its title.  The ultimate conclusions  were as follows:

"The documents referred to above are definitely  not prove the title of the Corporation.  Therefore, the above documents are rejected as  not valid for want of clarify and the property  mentioned therein has not been identified at  all. The Corporation as a mighty Public Body  after all would have produced the register of  property or the present plan after the  Municipal Corporation Act has come into force.  Not aa single attempt has been made by the  Corporation to prove the title if they are really  entitled to claim. It is un-fortunate that by the  negligence of the Corporation, the Courts are  not able to find out whether the property  claimed by the plaintiff is a public property or  private property of the other persons under  whom, the property is claimed to be purchased  by the plaintiff. Therefore, I have no hesitation  to .reject the evidence of Corporation the 1st    respondent herein as neither useful for the  Corporation nor useful to the case. The mere  facts that the Corporation leased out that the

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property to defendants-2 and 3, it is seen ipso- facto prove that they are having got the title to  the property, no proof is forthcoming in respect  thereof."

7.      There are several infirmities in the High Court’s judgment  and a few need to be highlighted.  The High Court in para 10  concluded that since the appellant was claiming title in  respect of suit property, it was for the Corporation to prove the  title by production of document in their possession.  This  conclusion is not sustainable because it is the plaintiff who  has to prove her title.  It is to be noted that the Corporation  referred to various documents i.e. Exh. D1 to D9 to prove that  the Corporation was the owner of the property.  

8.      It has been rightly pointed out by learned counsel for the  appellant that there was no Khata extract or tax paid receipt  produced by the plaintiff to substantiate her claim for title over  the property.

9.      Further the High Court referred to Exh. P6 which was an  acknowledgment purported to have been issued from the office  of the Assistant Revenue Officer, Bangalore City.  The High  Court concluded that the same established that the plaintiff’s-  vendor had got title over the property.   

10.     The conclusion is clearly without any foundation in law.   It is to be noted that the learned Single Judge himself noted  that Exh. P6 is the acknowledgment issued for having received  application from plaintiff by the Corporation on 24.4.1981 and  the same was returned on 15.6.1981 requiring the plaintiff to  submit further information and to show the spot to the  Revenue Inspector and to produce the plan.  By no stretch of  imagination same can be considered to be a document proving  title over the property.  The fallacies in the conclusions of  learned Single Judge are too numerous to be referred to in  detail.  11.     Since the First Appeal has been disposed of in the most  casual manner, we deem it appropriate to set aside the  impugned judgment and remit the matter to the High Court  for a fresh consideration in accordance with law. 12.     The appeals are allowed but without any order as to  costs.