K V JAGADISH Vs. NARAYANAPPA

JUDGEMENT

(1.) THIS revision petition under Section 115 of the Code of Civil Procedure, for short, 'cpc' arises from the judgment and order dated 23rd december, 1995, passed by (Sri A. Mohan Ram), 14th Additional City civil Judge, Bangalore, dismissing or rejecting the defendant 4's application under Section 151 of the CPC moved in original suit number O. S. 4223 of 1995, whereby the 4th defendant sought permission to complete the construction of the building in suit and to occupy the same.

(2.) THE facts of the case in the nutshell are that the plaintiff- respondent filed the suit for declaration of title as well as for perpetual injunction in respect of an area of 3 acres 6 guntas of land of Sy. No. 6/2, kempapura Village, Yelahanka Hobli. He also sought decree for recovery of possession. The decree has also been sought for partition by metes and bounds. Along with the suit, the plaintiff filed an application for temporary injunction, against defendants restraining them from alienating the suit schedule property, on 30th June, 1995 and also moved an application i. A. III for injunction restraining the defendant from making any construction of the building in the suit scheduled property. The plaintiffs claim to be the legal heirs (sons and daughters of Munishamappa), who is alleged to have died in 1969. Plaintiffs alleged that the suit property was acquired by Munishamappa by purchase from one Ramegowda vide sale deed dated 30th of October, 1916 and Ramegowda has, in his turn has purchased this property from one Kurubara Kamakka wife of Muniyappa during the year 1911. Munishamappa was alleged to have died intestate leaving his sons and daughters, who claimed 8th share in the property. Munishamappa's wife is also alleged to have died prior to him. According to plaintiffs, one Venkategowda described as the father of defendants 2 and 4 and husband of defendant 1, as per plaint allegations and defendants 3, 5 and 6 are described as the cousins of Venkategowda. Plaintiffs alleged that Venkategowda's father Muniswamegowda and father of defendants 3, 5 and 6 were brothers having been described as the brothers of Narayanamma, wife of Munishamappa. According to plaintiffs, Venkategowda was acting as the Manager of the family of the defendants. Thereafter, the partition deed took place and, according to plaintiffs, Venkategowda taking undue advantage of old age of munishamappa, got entered his name in the records of rights describing himself as auction purchaser and defendants are said to have divided the property amongst themselves, but plaintiffs alleged that the defendants had never purchased in any auction in sale and entries were manipulated. The plaintiffs came to know of the mischief, later on and filed the suit. The plaintiffs claim to be in possession of the suit property, the plaintiffs claim to be belonging to Munishamappa and to plaintiffs. The trial Court, no doubt granted interim injunction and, thereafter the interim injunction is yet continuing. The defendant has not applied either for vacation or for temporary injunction or its modification and, as admitted by the Counsel for the revision petitioner, no written statement in the suit has been filed nor any application for vacation of injunction. Instead the defendant 4 moved the application under Section 151 for being permitted to continue and to complete the constructions that were standing. The Trial Court did take into consideration the R. T. Cs entries filed by defendants from 1975-76, 1980-81, 1985-86 and 1987-88. It has also taken into consideration the endorsement of Tahsildar that it is not possible to give record of rights pertaining to property. The Court below mentioned that the plaintiffs have also filed the copies of the revenue revision and settlement register and copies of survey report. It observed that the xerox copies in the case have been produced, but there is nothing on record to show how this Venkategowda came to acquire the intestate. It is also mentioned that there is no document showing that defendant 4 has been authorised to make construction on suit property nor there is any document showing that survey number was alienated or converted for non-agricultural purpose. So it opined that mere construction of the building to certain level by defendant 4 will not be something of a consequence in the light of the circumstances to show that defendant has semblence of title. The Court below observed that, in absence of any permission having been obtained from the competent authority from making construction, that is, from the authority namely Bangalore Development Authority or any planning authority, the Court cannot on the basis of R. T. Cs' entries, grant permission to defendant 4 to construct or to continue the construction, particularly when he has not shown any semblence of title to the property which appears to have purchased by munishamappa's ancestors in 1960, considered and opined it would have not been in the interest of justice to grant the permission to construct or to put further constructions and rejected the application.

(3.) FEELING aggrieved by the order of the Trial Court rejecting the application for permission to complete the construction or put further constructions, the defendant 4 has come up in revision before this Court under Section 115 of the Code. I have heard Sri C. M. Nagabhushana, learned Counsel for the revision petitioner.