ASHWATHAIAH @ SANJEEVAIAH Vs. B K DURGADA NARASAIAH

JUDGEMENT

(1.) THE parties are referred to by their ranking before the trial court for the sake of convenience.

(2.) THIS appeal is by the defendants. The facts of the case are as follows: The plaintiff who died during the pendency of the suit was a government servant. He had purchased the suit property, which was a site allotted by the erstwhile City Improvement Trust Board (hereinafter referred to as the 'CITB' for brevity) to his vendor and who was put in possession under a possession certificate dated 25.7.1972. The plaintiff had purchased the same under a sale deed dated 21.8.1972, even before a sale deed could be executed in favour of his vendor. A sale deed 4 was ultimately executed in favour of his vendor, by the Bangalore Development Authority, which was the successor-in-interest of CITB, by a sale deed dated 04.09.1991. The property thereafter fell within the jurisdiction of the Corporation of the City of Bangalore and katha was transferred in favour of the plaintiff as on 04.03.1992. The plaintiff thereafter was paying taxes in favour of the Bruhat Bengaluru Mahanagara Palike. It is stated that the plaintiff's daughter Smt.D.H.Latha, wife of Srinivas had constructed a house in a portion of the suit property and she was living with her family of her husband and two children for about 11 years prior to the suit. It is stated that when the daughter of the plaintiff Smt.Latha and the plaintiff had gone out of town, the defendants who are said to be husband and wife, had put up a hut in a portion of the vacant area of the suit schedule 'B' property measuring about feet by 6 feet, overnight. The plaintiff's daughter on her return questioned the defendants of their act, who pleaded that they were very poor and did not have any shelter but when the plaintiff's daughter protested that they could not occupy the suit property, they had pleaded for two days' time to vacate the suit property. However, they failed to do so. It is in this background that the plaintiff reported the matter to the Vyalikaval Police Station on 28.6.2001. However, the police did not take any action. Thereafter, representations were made to the Bruhat Bengaluru Mahanagara Palike as well as the Bangalore Development Authority who in turn expressed that since the property had been handed over to the allottee, it was for the owner of the property to protect the same against trespassers. Therefore, the plaintiff was constrained to file the above suit seeking a declaration of ownership of suit 'B' schedule property which was occupied by the defendants and for injunctory reliefs, as well as damages. The suit was resisted by the defendants denying the plaint averments and disputing the ownership of the plaintiff and claimed that the defendants had put up the residential house in the suit property in the year 1960, in an area measuring 10 feet by 15 feet and that they have been in possession ever since, along with their children. Therefore, as they were claiming adversely to the plaintiffs, they had become owners of the property and had produced documents in support of their claim to continuous undisturbed possession. On the basis of the above pleadings, the Court below had framed the following issues:

(3.) INSOFAR as the contention that the plaintiff having purchased the property in the year 1972 when there was no right in his vendor to sell the property may not be a tenable contention. Though this may have been in violation of the terms of allotment by the CITB or the Bangalore Development Authority, which ultimately executed the sale deed in favour of the vendor of the plaintiff. It did not preclude the said authorities from revoking the allotment for violation of such terms of allotment. This circumstance had not come about. Hence, the plaintiffs vendor having been conferred with title, it would certainly enure to the benefit of the plaintiff. In any case, it is not open for the defendants to question the validity of the title of the plaintiff.