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CASE NO.: Appeal (civil) 482  of 2001         Special Leave Petition (crl.)   4988     of 2000

PETITIONER: MANOJI RAO

       Vs.

RESPONDENT: T.KRISHNA & ORS.

DATE OF JUDGMENT:       11/01/2001

BENCH: S.R.Babu,, K.G.Balakrishna

JUDGMENT:

RAJENDRA BABU, J.  : L.....I.........T.......T.......T.......T.......T.......T..J

     Leave granted.

     This  appeal  arises out of a  suit  [O.S.No.10579/89] filed  in  the  court  of First  Addl.   City  Civil  Judge, Bangalore.  The respondents-plaintiffs sought for the relief of  declaration as to the ownership of the suit site  No.20, measuring 20 ft.  x 32.5 ft.  at Ramakrishna Mutt Extension, Gavipuram,  Guttahalli, Bangalore as described in detail  in the  schedule  to the plaint.  They claimed that  they  have been  residing  in  this  site  by  putting  up  a  hut  and thereafter  the  C.I.T.B, the predecessors of the  Bangalore Development  Authority  issued a letter of  allotment  dated 19.7.1973  and  a possession certificate was also  given  on 17.3.1981.  Allegations against the appellant-defendants are that  they had trespassed over a portion of the property and as  regards  rest  of  the   property  they  were   creating disturbance  and thus the plaintiffs sought for  declaration of  right, title or injunction.  The plaintiffs relied  upon several  documents  such  as the letter of  allotment  dated 19.7.1973  [Ex.P.1];   a  demand  notice  calling  upon  the plaintiffs  to pay the value of the site as per Ex.P.2;  the challans   showing  that  amounts   were  remitted  by   the plaintiffs  [Ex.P.3  to  P.5];  the  possession  certificate dated   18.3.1981  issued  by   the  Bangalore   Development Authority  that the plaintiffs was given possession of  site No.20   with  the  measurements   indicated  in  the  plaint [Ex.P.6];    the  certificate  issued   by   the   Bangalore Development  Authority to indicate that the suit site stands in  the name of the plaintiffs [Ex.P.7];  the licence issued by  the Bangalore Development Authority for construction  of building on site No.20 [Ex.P.8] and the plan approved by the Bangalore  Development Authority [Ex.P.9].  The trial court, however, took the view that the possession certificate dated 17.3.1981 cannot be taken to be a document of title which is only  a possession certificate and no document conveying the title  to  the  plaintiffs had been made available  for  the court  and, therefore, the plaintiffs cannot be declared  to

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be  the  owner.  Proceeding on this basis, the  trial  court dismissed  the  suit.  It relied upon the circumstance  that the  defendants  were  in  possession of a  portion  of  the property  and they were residing thereat even prior to 1980. Therefore, the plaintiffs cannot seek a suit for ejection of the  defendants on the basis that they had been allotted the site   by  the  Bangalore   Development  Authority   without obtaining  any  documents of title.  When vacant  possession has  not  been  given to the defendants the  plaintiffs  had failed  to  prove their possession of the suit property  and the question whether the defendants trespassed into the suit property  illegally  and  encroached upon it by  putting  up structures  would  not  arise for  consideration.   On  that basis, the trial court dismissed the suit.

     On appeal to the High Court, the learned single Judge, after noticing the various documents that have been filed in the  case,  held  that  the fact that  the  defendants  were residing  in  a portion of the suit site even prior  to  the allotment  would not confer any right upon them and DW.1 had admitted  in the course of his evidence that site No.20  was allotted to the plaintiffs.  In the absence of any title set up  by  the  defendants  or claimed by  them  and  when  the defendants have not only unequivocally admitted the title of the  plaintiffs but also merely claimed that the application was pending consideration of the Government, the trial court ought  to  have  decreed  the suit and  allowed  the  appeal granting  the  relief sought for by the  plaintiffs.   Hence this appeal.

     It  is  contended  before  us that in  the  course  of arguments  it  had been submitted by the Advocate  appearing for  the  plaintiffs  that site no.20 which is  the  subject matter of the dispute has been allotted to defendant No.1 by the  Bangalore Development Authority.  But no  clarification was  made  either by production of any document  before  the Court  in support of this contention.  In the absence of any such  material,  we do not think it would be safe to  assume that  such  allotment had been made in favour  of  defendant No.1  and so the plaintiffs have become disentitled.  On the other hand, when the High Court has taken into consideration all  the  documents  available on record and on  that  basis holds  prima  facie that the plaintiffs have the  possessory rights  over  the  suit property and a declaration  to  that effect has been given, the matter falls within the region of appreciation  of material on record.  Though the trial court had  taken a different view, on appreciation of the material the  first appellate court took the view that the  documents clearly  establish  the claim made by the plaintiffs and  no documents  were  available with the defendants.  We do  not, therefore,  think that there is any good reason to interfere with  the  order made by the High Court and we dismiss  this appeal.  No costs.