RADHAMMA Vs. LAKSHMAMMA K MURTHY

JUDGEMENT

(1.) This appeal raises an interesting issue which has been very vigorously contested and which may briefly be summarised as follows. It has become quite prevalent in several of the acquisitions undertaken in and around the City of Bangalore for parties to represent to the concerned authorities that for a variety of reasons the acquired properties be reconveyed to them. Without commenting on either the propriety or the wisdom involved in many of these decisions, quite apart from the public interest angle where it is presumed that the original acquisition was a responsibly well considered action on which considerable amount of public finance has been expended; the issue that really arises is the question as to whether such acts of reconveyance are to be construed as conferring enforceable rights. That issue has directly arisen in this appeal insofar as the dispute which concerns a plot of land or better described as a site No. 3971 which is situated at 17th 'E' Cross, 3rd Main, Banashankari II Stage, Bangalore was acquired by the B.D.A. and the acquisition process was completed. This was in the year 1964-65. It was contended that one H. Muddappa had earlier purchased this property and that after the acquisition he made certain applications and representations to the B.D.A. asking for reconveyance of that property. The record indicates that no order for reconveyance was passed pursuant to those applications. Sometime after his death, the present respondent who is the wife of the son of deceased Muddappa filed an application to the B.D.A. to the effect that she is a widow, she is a heir of the deceased Muddappa, that she has 3 children and that consequently, the B.D.A. should allot the site in question to her. The B.D.A. did in fact allot the site to the respondent who thereafter completed certain formalities that were required of her. It is her case that the defendant 1 along with defendants 2 and 3 who are her sons, are alleged to have encroached on the site in question and are alleged to have prevented her from constructing a house on that site for which she had made the requisite preparations. She therefore filed O.S. No. 10462 of 1988 before the Bangalore City Civil Court asking for reliefs inter alia to the effect that she should be granted possession of the site and that the defendants be injuncted from disturbing her possession, use and occupation of that site.

(2.) The defence pleaded by the defendants to the original suit(who are the appellants before me) was principally to the effect that they have been residing in a structure on the suit property, that deceased Muddappa had applied for reconveyance principally because possession had never been taken over by the B.D.A. and thirdly and more importantly they contend that if any reconveyance was to be granted, that it had to be pursuant to the application made by deceased Muddappa in which case all his legal heirs would derive proportionate rights in respect of that property. The learned Trial Judge in a considered judgment has rejected the defence and has decreed the suit and it is against this judgment and order that the present appeal has been directed. As indicated by me earlier, the principal controversy in this case centres around the issue as to whether the applicant in a case for reconveyance or for that matter his or her legal heirs derive rights if the property is restored, or not. The appellants' learned Advocate, in support of this submission filed two applications before this Court supported" by certain documents because he contended that for purposes of agitating this issue additional evidence was absolutely necessary. He made a grievance to the effect that even if the B.D.A. had been served a summons to produce the relevant documents, that they did not produce the material which, after a lot of difficulty his clients have now been able to get copies of and that it was crucial that this material must be taken into consideration by the Court. His submission was that the non-production of this material was not due to any default on the part of the appellants and that in these circumstances, this was one of the cases where an appeal Court must permit the production of additional evidence and for this purpose, that it was very necessary to set aside the order and remand the matter for the production of this evidence and a fresh decision on the basis of the altered record. The respondents to the appeal have opposed these I.As. principally on the ground that it is only in exceptional cases that additional evidence is permitted and that the facts of the present case would not justify it.

(3.) I shall deal with the issue concerning additional evidence presently but the aspect regarding rights if any in relation to the peculiar practice prevailing in this State of reconveying once acquired properties, gives rise to the demand that has been made in this petition, that reconveyance can be claimed as a matter of right. The subsidiary argument canvassed was that if the party who is entitled to claim reconveyance as of right has died, that in the event of reconveyance all the legal heirs are entitled to claim shares in that property.