RENUKA AND SRI. B.S. MADIVALAPPA Vs. SHASHIKALA

JUDGEMENT

(1.) THE parties are referred to by their rank before the trial court. This is appeal is filed by the defendants. It was the case of the plaintiff that she was the absolute owner of the house site bearing No. 17, which was re -numbered as No. 288 and as on the date of suit was No. 65. She had purchased the same under a sale deed dated 26.3.1998 from Vittal N. Shet. The said vendor is said to have purchased the same from one Smt. Venkatamma, wife of Yellappa, in the year 1992. When the plaintiff sought to put up construction on the said property, the defendants along with their henchmen had obstructed them and tried to interfere with the suit property. The plaintiff therefore filed the suit. It transpires that even during the pendency of the suit, the defendants had forcible occupied a portion of the suit property. This entailed the plaintiff seeking to amend the plaint to plead that event and seek appropriate relief in respect of the encroached portion, described as plaint Schedule - B property. The suit was contested. The defendants claimed in their written statement that the land in survey No. 17/7 was the ancestral property of one Yellappa. There was a partition in his family and at that partition, the said land fell to the share of his wife, Venkatamma, she had in turn formed sites and sold several sites to third parties. It was contended that the husband of the plaintiff, V.N. Shet had purchased a site from her too. That was site No. 17. As registration of sales of such sites, which were termed as "revenue sites", was banned, it was claimed that Venkatamma had resorted to a common practice in such circumstances of executing an agreement of sale, in the form of an affidavit and a general power of attorney in putting the purchaser in possession of the suit property. It was further averred that the said Shet was a good friend of the first defendant, and had approached him proposing the sale of a portion of the said site No. 17, for a sum of Rs. 2.30 lakh. The defendant had accepted the offer, but the purchase was made in the name of the second defendant. The defendants had furnished a Schedule to the Written Statement indicating the portion so sold as Schedule - B. This transfer dated 31.1.1995 was also not registered as the ban on registration continued to be in force on that date. The second defendant was however, put in possession of the suit property under certain documents acknowledging the transfer and declaring her possession. The second defendant claimed to have constructed a car shed on the portion of property so purchased. The said construction was later extended to form a residential unit. The defendants had then moved into the said unit and were living there. Taking advantage of the imperfect transfer of title, it was alleged, that Shet claimed further amounts towards the sale, to unjustly enrich himself. And further took advantage of the power of attorney given to him by Venkatamma to execute and register a sale deed in favour of his wife. It is contended that the sale deed does not describe the property accurately and that false documents had been utilized to obtain registration of the entire extent of the property, suppressing the transfer in favour of the defendant. There is also an additional written statement filed in view of the amendment of the plaint and in view of certain further developments. It is stated that the even at the time there was a purported transfer by Venkatamma of the suit property, the land in question was subject matter of acquisition proceedings under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the 'BDA Act', for brevity). The land had vested in the State and hence the transaction which was nebulous in any case, could not confer any right or title, even if it were made in the manner known to law. The portion of the property claimed by the plaintiff is vacant land and hence the plaintiff is not entitled to any relief in respect of the same. Whereas the defendants have been in continuous settled possession of the property and can defend such possession even as against the State and the Bangalore Development Authority (BDA). Hence, the defendants seek dismissal of the suit. The court below had framed the following issues: 1. Whether the plaintiff proves her lawful possession over the suit schedule property?

(2.) WHETHER the plaintiff proves the cause of action as alleged in the plaint?