KABC010048152020

IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,

BENGALURU (CCH-36)

DATED ON THIS THE 3rd DAY OF FEBRUARY 2025

Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,

XXXV Addl. City Civil & Sessions Judge, Bengaluru.

O.S.No.1300/2020

Plaintiffs : 1. Sri.B.S.Raghavendra Rao,

S/o.H.A.Subbarao,
Aged about 56 years,
R/at No.331,
Sreenidhi, 14th Cross,
2nd Block, R.T.Nagar,
Bangalore-560 032.

2. Sri.Bhaskar Rao,
S/o.H.A.Subbarao,
Aged about 51 years,
R/at No.26, Ist Floor,
7th Main, 10th Cross,
Vasanthappa Block,
CBI Road, Ganganagar,
Bangalore-560 032.
(By Sri/Smt.M.S.,Advocate)

-Vs-

Defendants : 1. Smt.Bhageerathi,
W/o.Late Nanjundappa,
Aged about 73 years.
2. Shanthamma,
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W/o.Late Sathya Prakash,

58 years.

3. Smt.S.Chandrika,
D/o.Late Sathyapraksh,
37 years.

4. Sri.S.Sudeendra,
S/o.Late H.N.Sathaya Prakash,
Aged about 34 years.

5. Sri.N.Nagabhushana,
S/o.Late Sathyaprakash,
Aged about 32 years.

Plaintiff No.2 to 5 are r/at No.46,

Chowdeshwari Nilaya, Jothi Layout,
Yelachenahalli, Kanakapura road,
J.P.Nagar Post, Bangalore-560 078.

6. Sri.H.N.Pushpanath,
S/o.Late Nanjundappa,
Aged about 62 years.

7. Smt.Padmavathi,
D/o.Late Nanjundappa,
Aged about 54 years.

8. Sri.H.N.Janardhana,
S/o.Late Nanjundappa,
Aged about 57 years.

9. Smt.N.Jayalakshmi,
D/o.Late Nanjundappa,
Aged about 52 years.

10. Sri.H.N.Ashwathnarayana,
S/o.Late Nanjundappa,
Aged about 53 years.
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11. Smt.N.Radha,
D/o.Late Nanjundappa,
Aged about 47 years.

12. Sri.H.N.Kuchela,
S/o.Late Nanjundappa,
Aged about 49 years.

13. Sri.H.N.Muralidhara,
S/o.Late Nanjundappa,
Aged about 46 years.
14. Sri.H.N.Sujatha,
D/o.Late Nanjundappa,
Aged about 44 years.

15. Sri.H.N.Nagesh,
S/o.Late Nanjundappa,
Aged about 41 years.

16. Smt.Asha,
D/o.Late Nanjundappa,
Aged about 40 years.
Defendant No.1 and 6 to 16 are
R/at Chunchagatta Village,
Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore-560 062.

17. S.N.Raja,
S/o.Late Srinivasaiah,
Aged about 83 years,
R/at Samathenahalli,
Hanumagondanahalli Hobli,
Hosakote Taluk,
Bangalore Rural District.
(Sri./Smt.M.D., advocate for defendant
Nos.1, 6, 8, 10 to 13, 15 & 16, defendant
Nos.2 to 5, 7, 8, 9, 11 & 14 – Exparte)
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Date of institution of the suit : 17-02-2020

Nature of the suit : Declaration & Possession
Date of commencement of : 07-12-2023
recording of the evidence
Date on which the judgment : 03-02-2025
was pronounced

Total duration : Years/s Month/s Day/s

04 11 16

(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru

JUDGMENT

The plaintiffs have filed this suit for declaration of their title,

possession and injunction in respect of ‘D’ schedule property

mentioned in the schedule.

2. After marshaling the fact, the gist of the case of plaintiffs is

that:-

The father of the plaintiffs is H.A.Subbarao, he had brother by

name Nanjundappa. The father of the plaintiffs has filed occupancy

rights in respect of Sy.No.10, measuring 2 acre 28 guntas, Sy.No.73

measuring 5 acre 20 guntas situated at Chunchagatta village,

Uttarahalli Hobli, Bengaluru South Taluk.

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According to the plaintiffs, one Sampangiramaiah is the

propositus of the family. He was Shanubhog of the village. He had

three sons by name Krishnappa, Venkatarayappa and Dasappa.

After the death of Sampangiramaiah, Venkatarayappa was

continued as Shanubhog of the village, thereafter, Nanjundappa

becomes Shanubhog of the village.

It is the case of the plaintiffs that on 15-09-1954, the

Government of Mysore has acquired 1 acre 30 guntas in 5 acres 20

guntas of Sy. No.73 for the purpose of extension of Village

Chunchagatta. The remaining 3 acre 30 guntas was equally divided

to H.A.Subbarao and Nanjundappa, in which each have got 1 acre

35 guntas.

According to the plaintiffs, there was a suit filed between

H.A.Subbarao and Nanjundappa in O.S.No.259/1963. In the said

suit, the compromise was arrived between both of them, wherein, in

land Sy. No.73, 1 acre 35 guntas including 3 guntas of road kharab

allotted to Nanjundappa and 1 acre 35 guntas allotted to the share of

Subbarao. The property belonging to Nanjundappa includes

dwelling house in South Eastern side.

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According to the plaintiffs, after enforcement of Mysore Village

Offices Abolition Act, 1961, all the village offices are abolished, the

lands attached to service inams vested with the Government. The

plaintiffs contended that Nanjundappa has filed application for re-

grant on 29-06-1966 in respect of Sy. No.73 measuring 1 acre 35

guntas in his name and 1 acre 35 guntas in the name of his brother

Nanjundappa. But the parties have granted total 5 acres 13 guntas

in Sy. No.73 and 2 acre 28 guntas in Sy. No.10.

The plaintiffs contended that H.A.Subbarao and Nanjundappa

have filed application, the defendant No.17 has influenced the

revenue officials to file the false report.

It is the case of the plaintiffs that H.A.Subbarao and

Nanjundappa have sold 20 guntas in Sy.No.73 in favour of

Puttamma. Accordingly, name of the father of the plaintiffs entered

to 1 acre 16 guntas, name of Nanjundappa entered to the extent of 1

acre 35 guntas. The land of Nanjundappa was renumbered as Sy.

No.73/2. The land Sy. No.73/1 was continued in the name of the

father of the plaintiffs. The plaintiffs stated that Subbarao died on

18-01-1999, names of the plaintiffs entered based on M.R.

No.8/2004-2005.
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The plaintiffs contended that Nanjundappa has filed Misc.

Application No.7/2005-2006 and the Special Deputy Commissioner,

Bengaluru , he allowed the Appeal on 2-3-2009.

The plaintiffs contended that they have filed W.P.No.11411-

11414/2009(KLR) before the Hon’ble High Court of Karnataka. The

Hon’ble High Court of Karnataka ordered for resurvey of land. The

plaintiffs contended that they have filed O.S.No.395/2009 before

Principal City Civil Judge, Bengaluru Rural District, wherein, they

have filed I.A. under Order 39 Rule 1 and 2 of CPC. It was

dismissed. The plaintiffs filed M.A.No.35/2009 before Addl Dist.&

Sessions Judge, Bengaluru Rural, in the said Appeal, the defendants

appeared and filed memo stating that they are constructing house in

an area of 40ft x 60ft, if any adverse order is passed in the Appeal,

they are ready to surrender it. Subsequently, the M.A was disposed

off.

According to the case of the plaintiffs, the revenue officials by

violating the injunction order and the order passed by the Hon’ble

High Court in the Writ Petitions created 4 phodes. Sy. No.73/1

measuring 1 acre 14 guntas allotted to the plaintiffs, Sy. No.73/2

allotted to Nanjundappa, the remaining 2 acre 8 guntas. Sy. No.73/3

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measuring 4 guntas allotted to Nanjundappa and Sy. No.73/4

measuring 1 acre 3 guntas was acquired to the extension of village.

The plaintiffs contended that the defendants have denied the

title in respect of ‘D’ schedule property which is measuring 14 guntas

of village Chunchagatta and they are in illegal possession of the

same. Therefore, they sought to declare their ownership and direct

the defendants to vacate and hand over the vacant possession of ‘D’

schedule property. Hence, they prayed to decree the suit.

3. The suit summons issued to the defendants. The

defendant Nos.2 to 5 were placed exparte on 16-03-2020, the

defendant Nos.7, 9 and 14 were placed exparte on 23-11-2021. The

defendant Nos.1, 6, 8, 10 to 13, 15, 16 were appeared through their

counsels.

4. The defendant No.13 has filed the written statement, he

admitted the relationship between the plaintiff and defendant Nos.1

to 16. The defendant No.13 also admitted the previous litigation took

place between the family members of H.A.Subbarao and

Nanjundappa.
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The defendant No.13 contended that the suit filed by the

plaintiffs bearing O.S.No.395/2009 was dismissed on 6-11-2019.

He took contention that Subbarao has sold 20 guntas to Siddamma

in his share. Sy. No.73/2 was converted into non agricultural land by

virtue of order dated 24-05-1976. H.A.Subbarao has sold 3 ¼

Guntas in the converted land. The defendant No.13 categorically

denied the encroachment made by them in ‘D’ schedule property.

The defendant No.3 also denied the fact that by encroaching ‘D’

schedule property, they have constructed house in ‘D’ schedule

property which is liable to be demolished and vacant possession to

be handed over to the plaintiffs.

The defendant No.13 contended that majority of the land Sy.

No.73 of Chunchagatta village was sold. Based on the documents

only, the ADLR has surveyed the land Sy. No.73 and created four

divisions. There is no illegality committed by the land survey office.

The plaintiffs have no right, title or interest over the ‘D’ schedule

property. Therefore, they prayed to dismiss the suit.

5. The defendant Nos.1, 6, 8, 10 to 12, 15 & 16 have filed

memo adopting the written statement filed by the defendant No.13.

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6. Based on the pleadings of the parties, My predecessor in

office has framed the following:-

1. Whether the plaintiffs prove that they

have acquired valid right, title and interest
over the suit schedule- ‘D’ property as
claimed in the plaint?

2. Whether the plaintiffs prove that

defendants are liable to vacate and
deliver vacant possession of suit
schedule ‘D’ property by demolishing the
structures constructed on schedule ‘D’
property as claimed in the plaint?

3. Whether the plaintiffs are entitle for the

reliefs as claimed in the plaint?

4. What order or decree?

7. The trial commenced. The plaintiff No.1 examined as

P.W.1. Exs.P.1 to P.43 marked on behalf of the plaintiffs and they

closed their side. The defendant No.6 examined as D.W.1. Exs.D.1

to D.38 were marked on behalf of the defendants and they closed

their side.

8. I heard the arguments of the learned counsel for the

plaintiffs and learned counsel for the defendants.

9. My findings to the above issues are as follows:-

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Issue No.1 : In negative

Issue No.2 : In negative

Issue No.3 : In negative

Issue No.4 : As per final order for the following:-

REASONS

10. Issue No.1:- The heavy and initial burden is on the

plaintiffs to prove that they are the owners of the ‘D’ schedule

property which is measuring 15 guntas bounded on East land Sy.

No.70, West land Sy. No.58, North land Sy. No.59 and South Sy.

No.73/2. After meticulous examination of the pleadings, documents

and the oral evidences of the parties, I could make out a case that

there is a dispute regarding the identity of the property. There are

few admitted facts that the father of the defendant No.1 was a

teacher, that father of plaintiffs was Shanubhog of Chunchagatta

village. It is also undisputed fact that there is no dispute regarding

the Sy. No.10, the dispute is only in respect of Sy. No.73. Both

parties have admitted that the total extent of Sy. No.73 was

measuring 5 acre 20 guntas. They have also admitted the fact that

after enforcement of Mysore Village Offices Abolition Act, 1961, the

land Sy. No.73 was taken to the possession of the Government and
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the re-grant application was filed by Subbarao and Nanjundappa. It

is also undisputed fact that entire 5 acre 20 guntas re-granted in

favour of Subbarao and Nanjundappa. It is not specifically denied

by the defendants that 20 guntas of land sold by Subbarao and

Nanjundappa in favour of Puttamma. Similarly, 20 guntas of land

sold by Subbarao in favour of Siddamma.

11. It is also admitted fact that the Government of Mysore has

acquired 1 acre 30 guntas on 15-09-1954 much prior to coming into

force of Mysore Village Offices Abolition Act, 1961. The allocation of

the acquired 1 acre 30 guntas, 20 guntas of property sold in favour

of Papamma, in favour of Puttamma is also not in dispute. With

these background, let me appreciate the oral and documentary

evidence of both the parties. I will not discuss the admitted

documents filed by both parties.

12. Ex.P.1 is the family tree, it is admitted documents. Ex.P.2

is the order passed by Spl.Deputy Commissioner, dated 23-05-1958.

The contents of the document reveals that name of H.A.Subbarao

shown as Shanubhog and 5 acre 12 guntas standing in the name of

H.A.Subbarao. Ex.P.3 is the certified copy of Register No. 8 ,

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wherein name of H.A.Subbarao is shown as owner to the extent of 5

acre 12 guntas. Ex.P.4 is the certified copy of the notification dated

15-09-1954 which shows that 1 acre 30 guntas was acquired by

Government of Mysore for extension of Village Chunchagatta.

Exs.P.5 & P.6 are the plaint and written statement copies in

O.S.No.259/1963 filed by the father of plaintiffs against the father of

the first defendant. The said suit was filed before the 2 nd Munsiff

Court, Bengaluru, wherein, it is clearly mentioned that the injunction

sought in respect of 3 acre 30 guntas in Sy.No.73, 1 acre 30 guntas

already acquired by the Government.

13. Ex.P.6 is the written statement filed by the father of the

first defendant A.Nanjundappa. He admitted that the plaintiff was the

Shanubhog of the village and Sy.No.73 was Shanubhog Inam land.

In para No.5 of the written statement, A.Nanjundappa stated that in

the second item, he was given western ½ portion it means, the

eastern portion was retained by the father of the plaintiff. The written

statement discloses that on 27-5-1958 there was a Panchayath

Palupatti effected between H.A.Subbarao and A.Nanjundappa. It is

also stated in the written statement that palupatti is in the

handwriting of Subbarao. In the written statement, father of the first

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defendant A.Nanjundappa contended that the house owned by the

plaintiffs of that case sold away and the defendant i.e.,

A.Nanjundappa soon after the partition has constructed tiled house

in the portion mutated to his share by investing an amount of ₹

1,000/- to ₹1,500/-.

14. It is also stated in the written statement that the defendant

is living in the said house. The plaintiffs i.e., father of the plaintiff

resided in the rented house. Portion of Sy.No.73 was acquired by

the Government, compensation was taken by the father of the

plaintiffs. The contents of the written statement reveals that father of

the plaintiffs misappropriated the Government funds and the said

amount was paid by the defendant. In this regard, the father of the

plaintiffs executed promissory note in favour of the defendant.

A.Nanjundappa has contended that he has saved Subbarao from

being prosecuted and also saved his service as Shanubhog by

paying money to the Government. Subsequently, this suit was ended

in compromise, as per the terms of the compromise, 1 acre 35

guntas each were shared between the plaintiffs and defendants, it

can be seen on perusal of Ex.P.8. Ex.P.7 is the Judgment passed in

Misc Appeal No.91/1963 by Civil Judge, Bengaluru on 21-10-1964.

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15. In page No.3 of the Judgment, the learned Judge has

clearly mentioned that the palupatti produced by A.Nanjundappa was

admitted by H.A.Subbarao. It means prior to entering into

compromise, as per Ex.P.8, here was a Panchayat palupatti

between A.Nanjundappa and Subbarao on 27-1-1958. Ex.P.8 is the

compromise petition in respect of Sy.No.10 and Sy.No.73. Sy.No.10

is not at all a disputed land in this case. Therefore, only Sy.No.73 is

taken into consideration for this litigation.

16. In para No.2 of the compromise petition, it is mentioned

that 1 acre 38 guntas towards western side including the house

property given to A.Nanjundappa. It means the eastern portion was

maintained by H.A.Subbarao. Both the brothers H.A.Subbarao and

A.Nanjundappa agreed that H.A.Subbarao can receive the

compensation awarded in LAC No.192/1964-65. Apart from this

land, he is also allowed to receive the compensation in respect of

Sy.No.92 of Vajarahalli Village.

17. Ex.P.9 is the application form for re-grant of service of

land. It was filed by the father of the first defendant for grant of 1

acre 35 guntas in Sy.No.73 to him. Ex.P.10 is the certified copy of

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Sale Deed, dated 20-03-1971. It was executed by Subbarao alone

in favour of Puttamma. Whereas, in the plaint, the plaintiffs

contended that it was jointly sold by H.A.Subbarao and

Nanjundappa, the stand taken by the plaintiffs in the plaint is

contrary to Ex.P.11. The contention can be seen on perusal of para

No.8 of the plaint which is contrary to Ex.P.11. The boundaries

mentioned in Ex.P.10 is also very important because, the identify of

‘D’ schedule property is at stake. Therefore, the boundaries

mentioned in the Ex.P.10 which is an undisputed point of time and

very important to locate ‘D’ schedule property. In Ex.P.10,

H.A.Subbarao clearly stated that he is selling 20 guntas of land in

favour of Puttamma W/o.Papanna. The said land is bounded on

East remaining property of Subbarao and the property of Papanna,

West the road leading to the lake, North backyard of lake and land of

Papanna. South the remaining land retained by Subbarao in

Sy.No.73.

18. Ex.P.11 is the RTC. It is not so relevant to ascertain the

identity of the schedule property. Ex.P.12 is the survey record in

respect of land Sy.No.73. It is clearly goes to show that Sy.No.73/1

is situated towards northern side and Sy.No.2 is situated towards the

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southern side. This Ex.P.12 is contrary to Ex.P.10 and contrary to

Exs.P.6, P.8, P.22, P.40, P.41, D.9 & D.10.

19. Ex.P.14 is the re-grant order passed by the Asst.

Commissioner in HOA(S) 351/1968-69. The date of passing of order

is not mentioned in Ex.P.14. But, it can be inferred from the initials

that it was passed on 2-6-1972. By the time this re-grant is passed,

Subbarao has sold 20 guntas of land in favour of Puttamma on

20-03-1971. This fact was not brought before the Asst.

Commissioner, Bengaluru. Further, the Asst. Commissioner,

Bengaluru was also not considered the fact that 1 acre 30 guntas

land was acquired for the purpose of extension of Village

Chunchagatta and erroneously passed re-grant order.

20. Ex.P.15 is the certified copy of the application filed by

A.Nanjundappa before the Tribunal, wherein, he sought to grant

Sy.No.73 and Sy.No.10 and also informed that he has paid six years

revenue before the Treasury. Exs.P.16 & P.17 are the RTCs and

M.R.No.8/2004-05. Those are he entries made in the year 2004-05

because the father of the plaintiffs died. The plaintiffs got mutated 3

acre 22 guntas which includes 1 acre 30 guntas acquired for the

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formation of village. Therefore, these two documents are not helpful

to the case of the plaintiffs. Ex.P.18 is the Appeal filed by the

Government of Karnataka A.Nanjundappa against each other. All

the appeals are clubbed and common order is passed by the Special

Deputy Commissioner, Bengaluru District. On 2-3-2009. In the

Order, the Special Deputy Commissioner, observed that as per the

index of land, 3 acre 26 guntas retained by the land owners. 1 acre

30 guntas acquired by the Government but it was not converted. It

has also mentioned that the father of the first defendant has

converted Sy.No.73/2, on 24-05-1976. But the sketch of the land is

not available. If this sketch is available, it would be very beneficial

for both parties to ascertain where exactly, the converted land is

situated and where the land of the plaintiffs is situated. Ultimately,

the Special Deputy Commissioner, observed that the technical

assistant and ex-officio DDLR has to survey the lands and fix the

boundaries according the possession and enjoyment of the parties.

21. Feeling aggrieved by the order passed by the Special

Deputy Commissioner, the plaintiffs of this case filed W.P.No.11411-

11414 of 2009 before the Hon’ble High Court of Karnataka. The

Hon’ble High Court of Karnataka confirmed the order passed by the

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Special Deputy Commissioner and ordered the survey parties to

conduct the survey encumbrance records.

22. Ex.P.20 is the memo filed by the D.W.1 in M.A.No.4/2009

undertaking hat if the plaintiffs of this case succeeded in

O.S.No.395/2009 filed by them, he would demolish the construction

put up in 40ft x 60ft site in Sy.No.73. He also undertook that he will

not put up any further construction. Ex.P.21 is the Judgment in

M.A.No.35/2009, it is based on merits, wherein, the Appeal filed by

the plaintiffs of this case on I.A.No.1 was dismissed and the Order

passed by the Trial Court in O.S.No.395/2009 is confirmed. Ex.P.22

is the Order passed by DDLR on 12-11-2010 wherein, at page No.3,

he mentioned that A.Nanjundappa the father of first defendant has

applied for conversion of land for industrial purpose in Sy.No.73/2.

Based on the conversion documents, the hissa phodies are created

in Sy.No.73, wherein, Sy.No.73/1 measuring 1 acre 14 guntas

standing in the name of the father of the plaintiffs, Sy.No.73/2, 73/3

measuring 2 acre 8 guntas and 4 guntas respectively standing in the

name of he father of the defendant No.1 and Sy.No.73/4 is shown as

land acquired for extension of Chunchagatta village.

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23. The learned counsel for the plaintiffs argued that there

was no specific order by the Hon’ble High Court or by the Special

Deputy Commissioner to divide the Sy.No.73 into four parts. But,

both the orders which are already referred above clearly mentioned

that Sy.No.73 has to be measured in accordance with the records

and possession of the parties. Therefore, the contention of the

advocate for plaintiffs is not sustainable. Ex.P.23 is the report dated

25-03-2010 filed by the Officer of Regional Commissioners, Revenue

Department based on the complaint filed by the defendant No.17.

Ex.P.24 is the application filed by the defendant No.17 seeking the

certified copies of Order passed in H.O.A.(S) 351/1968-69. That

document was not available with the office of the Revenue

Department. Exs.P.25 to P.28 are not relevant for this dispute.

Ex.P.29 is the RTC of survey No.73/1 to 73/4. These entries are

carried out as per the order passed as per Ex.P.22. Ex.P.31 is the

certified copy of M.A.1/2014 filed by the present plaintiff against the

defendant Nos.1 to 16 for modification of the extent of Subbarao.

Ex.P.32 is the objection filed by the D.W.1 of this case. Ex.P.23 is

the Order on I.A.No.1 passed in O.S.No.395/2009 on 24-04-2009,

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wherein, the Trial Court has dismissed the I.A.No.1 filed by the

plaintiffs of this case.

24. In para No.11 of the order, the Trial Court mentioned that

A.Nanjundappa was entitled only for 1 acre 38 guntas but he

obtained conversion order with respect to 2 acre 4 guntas. But, at

the time of passing the conversion order, the plaintiffs or their father

Subbarao has not objected to A.Nanjundappa. The compromise in

O.S.No.259/1963 was arrived prior to coming into the force of

Mysore Village Offices Abolition Act,1961, the re-grant order was

passed subsequently. The re-grant order is accepted by both

Subbarao and S.Nanjundappa by paying the revenue and the fixed

rate by Special Deputy Commissioner. Thus, they have accepted the

fact that 2 acres 12 guntas allotted to A.Nanjundappa, 3 acre 8

guntas including 1 acre 34 guntas acquired to the village. Therefore,

the observation of the Trial Court is lack of information and lack of

application of mind. Since the re-grant order is subsequent it prevails

upon the compromise petition. Apart from it, soon after the

enforcement of the Mysore Village Officers Abolition Act, all the

lands which are treated as Service Inam Lands vested with the

Government free from all encumbrances. It means till the date of

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passing of Ex.P.14, whatever the earlier transactions are nullified.

Therefore, the observations made by the II Addl.Prl. Civil Judge in

O.S.No.395/2009 is not helpful for the plaintiffs.

25. In Ex.P.31 while passing the order, the Presiding Officer

clearly mentioned that Western site belongs to Nanjundappa,

Eastern side allotted to Subbarao. Ex.P.35 is the rough sketch map

prepared by the defendant No.17 who is stated to be the trouble

creator to the plaintiffs and defendants, though he has made as a

party, he has not appeared. Since it is private sketch and it is

contrary to Ex.P.10 and also contrary to the other documents filed by

the plaintiffs, therefore it is not helpful for the plaintiffs. Ex.P.36 is the

RTC of survey No.73, 3 acre 8 guntas were standing in the name of

H.A.Subbarao i.e., the father of plaintiffs. Exs.P.37 and P.38 are the

Judgment and Decrees passed in O.S.No.395/2009 wherein, the suit

filed by the present plaintiffs dismissed.

26. In para No.24 to 26 of the Judgment, the Court observed

that the plaintiffs are not in possession of the suit property.

Therefore, the suit came to be dismissed. The said suit was filed in

respect of 3 acre 22 guntas in Sy.No.731. By the time, this Judgment

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is passed, the phodes are created as per Ex.P.22. This fact was not

brought to the notice of the said Court.

27. Ex.P.40 is the Lease Deed executed by plaintiff No.2 in

favour of the plaintiff No.1, dated 15-05-2017. In page No.5 of the

Lease Deed, the plaintiff No.2 clearly stated that 1 acre 38 guntas

allotted to Nanjundappa remaining land is allotted to his father share

as per compromise arrived in O.S.No.259/1963. The entire case of

the plaintiffs spinning around the compromise arrived in O.S.No.

259/1963. At the cost of repetition, this compromise has no

relevance because subsequently re-grant order was passed as per

Ex.P14. By the time the re-granted order is passed, the land is

vested with the Government. Therefore, in my opinion, the

compromise arrived in O.S.No.259/1963 has no significance at all.

28. Ex.P.41 is the deposition of the defendant No.17 of this

case in O.S.No.395/2009 produced by the plaintiffs to derive the

advantages in cross-examination. But, D.W.1 in page No.5 para

No.3 categorically denied the fact that 1 acre 30 guntas was

acquired by the Government in the South Eastern portion of entire

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survey No.73. The witness further states that 1 acre 30 guntas

acquired towards Southern side of entire Sy.No.73.

29. The learned counsel for the plaintiffs also referred para

No.4, page No.6 to P.41, wherein, the defendant No.17 of this case

admitted that 1 acre 35 guntas each took by Nanjundappa and

Subbarao in O.S.No.259/1963. At the cost of repetition, this

compromise has no relevance after the land is vested to the

Government free from all encumbrances.

30. The learned counsel for the plaintiffs also referred para

No.1 of cross-examination of defendant No.17 in this case, dated 18-

12-2018, wherein, he stated that Nanjundappa has converted

Sy.No.73/2 and there was no boundaries and map at the time of

conversion. Normally whenever a person applies for the conversion

of land, survey has to be conducted according to the Karnataka Land

Revenue Rules and Survey Manual. His evidence is contrary to the

Act and Rules. He was elaborately cross-examined in

O.S.No.395/2009. All the cross-examinations dated 18-09-2019 was

highlighted by the learned counsel for the plaintiffs and argued that

the plaintiffs are in possession of ‘D’ schedule property. In all

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Exs.P.1 to P.41, there is no any clear document to show that ‘D’

schedule property mentioned in the plaint is in existence within the

boundaries mentioned in the plaint. The oral evidence of P.W.1 is

adduced, wherein, he reiterated that his father was granted with 3

acre 22 guntas in Sy.No.73 and the defendants are in illegal

possession of ‘D’ schedule property. He categorically denied the fact

that ‘D’ schedule property is not in existence. Both the parties have

suppressed the several facts in the previous litigation as well as in

this case also.

31. Ex.P.42 is the order passed by the Deputy Commissioner

dated 24-05-1976 for conversion of Sy.No.73/2 measuring 2 acres 4

guntas. While ordering for conversion, the Deputy Commissioner

laid certain conditions but the survey records pertaining to the

Ex.P.42 are not traceable. As per Ex.P., Western ½ portion in

Sy.No.73 is allotted to Subbrao and Eastern ½ portion is allotted to

Nanjundappa. In Ex.P.10, 20 guntas sold to Papamma by Subbarao,

wherein, he mentioned that towards Eastern is remaining property

Western side lake, Northern side property of husband of Papamma

and Souther side, the remaining property of him. Therefore, during

the lifetime of Subbarao, by executing Ex.P.10. clearly admitted that

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his allotted portion is towards the Western side of entire Sy.No.73.

Now, the ‘D’ schedule property is entirely different from Ex.P.6, P.8,

P.10, P.22, P.40 and P.41. Boundaries mentioned in those

documents are not tallying with the plaint schedule. During the

lifetime of Subbarao he sold 3 guntas of land as per Ex.P.22,

wherein also, he clearly stated that his property is situated in the

Western side of entire Sy.No.73. In Ex.P.40, for the first time,

Sy.No.73/2 is shown towards the Western of the Sy.No.73. It is the

document inter se between the plaintiffs. The recitals are not binding

on the defendants.

32. In Ex.P.8 also, 1 acre 38 guntas allotted to Nanjundappa

which is on the Western side of entire Sy.No.73. At the cost of

repetition, this Ex.P.8 has no relevance. Because after the re-grant

order, the situation of the property is changed.

33. The defendants have produced Ex.D.1, the plaintiffs have

also produced the same document which is marked as Ex.P.41.

Therefore, it need not be discussed again. Ex.D.2 is also produced

by the plaintiff and marked as Ex.P.2. Ex.D.3 is the certified copy of

mahazar drawn on 26-09-1971 by the Revenue Officer in presence

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of the villagers. Several villagers have signed Ex.D.3, wherein, it is

mentioned that the land Sy.No.73 measuring 5 acre 20 guntas was

granted by the Land Tribunal in favour of H.A.Subbarao and

A.Nanjundappa. At the time of drawing the mahazar, it is not

brought to the notice of the Revenue officers that 1 acre 30 guntas

acquired for the extension of Chunchagatta Village. Ex.D.4 is the

certified copy of statement of Subbarao and Nanjundappa, wherein,

it is mentioned that Sy.No.73 was enjoyed by the father of the

plaintiffs and father of the first defendant.

34. According to the compromise arrived in O.S.No.259/1963.

In page No.2 of Ex,D.4, both H.A.Subbarao and Nanjundappa stated

that 2 acre 12 guntas in Sy.No.73 was cultivated and enjoyed by

Nanjundappa and remaining portion is enjoyed by the Subbarao.

This again goes to show that from the year 1971, the father of the

plaintiffs categorically admitted that 2 acre 12 guntas was cultivated

by Nanjundappa. Since it is a joint statement, signed by

Nanjundappa and Subbarao, it is binding on the plaintiffs. Based on

the order passed by the Asst. Commissioner, M.R.No.1/1972-73 was

effected as per Ex.D.5.

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35. Ex.D.6 is the undertaking given by Subbarao having paid

the premium amount to the revenue department. Ex.D.7 is the

endorsement signed by the father of the plaintiffs stating that he has

paid the premium amount. Ex.D.8 is the conversion order in respect

of 2 acre 4 guntas of land held by Nanjundappa. On 24-5-1976, the

land was converted into non agricultural purpose but the sketches

are not traced in spite of best efforts made by both the parties. If the

sketches of 2 acre 4 guntas is available, it will help the Court to

ascertain that whether ‘D’ schedule property is in existence within

the boundaries mentioned in the plaint.

36. Ex.D.9 is the certified copy of sale deed, dated 17-6-1971.

It is the property sold by Subbarao measuring 50ft x 38ft in the year

1971. The boundaries mentioned in Ex.D.9 are quite importance

because Subbarao sold the site by mentioning the boundaries as

East remaining land belonging to him, West remaining land

belonging to him, North land of Puttamma, south remaining land. If it

is considered, it is clearly goes to show that the western ½ portion in

Sy.No.73 was allotted to Subbrao.

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37. Ex.D.10 is also certified copy of Sale Deed dated 17-12-

1975. It is in respect of another site measuring East to West 45ft,

North to South 60ft executed by Subbarao. In the said document

also, the boundaries are very important. The vendor Subbarao

stated that the property referred above is bounded on East

remaining land belonging to him, West site of Muniyappa, North site

of Patel Muniyappa and South road.

38. Even if this Ex.D.10 is taken into consideration, in all the

possible properties, the western half portion is allotted to Subbarao.

Ex.D.11 is the M.R.No.6/1984-85 which shows that 20 guntas of land

is sold by Subbarao in favour of Puttamma. Ex.D.12 is the order

passed by the Special Deputy Commissioner in the Appeals filed by

the Government of Karnataka, the same documents are filed by the

plaintiffs and it is already discussed. Ex.P.13 is the sketch prepared

by the Revenue Officers in respect of Sy.No.73, wherein, Sy.No.73/1

stands in the name of Late Subbarao, 73/2, 73/3 standing in the

name of Nanjundappa totally measuring 2 acre 12 guntas. 73/4 is

acquired for the purpose of extension of the village.

39. The plaintiffs contended that the land acquired for the

purpose of extension of the village situated on northern side of the

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Sy.No.73, whereas, the survey shown 73/4 towards southern side.

73/2 and 73/3 are shown towards the western side. According to

him, these properties are already converted and sites are formed.

But, this Exs.D.13 to 15 are contrary to the Exs.P.6, P.8, P.10 and

P.20. But the burden is on the plaintiffs to show that ‘D’ schedule

property is situated within the boundaries mentioned in the plaint.

Ex.D.17 is the certified copy of M.R.H.11. It shows that the phodi

was conducted and Sy.No.73 was divided into four parts. 73/2 jointly

shown in the name of the plaintiffs and A.Nanjundappa.

40. Exs.D.18 to D.21 are the plaint, written statement and

Judgment in O.S.No.395/2009. The same documents are filed by

the plaintiffs. These documents are already discussed. Ex.D.23 is

the certified copy of order sheet in O.S.No.6883/2013 filed before

13th Addl.City Civil & Sessions Judge. It is filed by the family

members of the defendants against each other for partition and

separate possession. It was ended in compromise, wherein, the

sites are distributed among the family members of the defendants.

41. Based on the compromise arrived in the said suit,

Exs.D.24 to D.37 are issued. Those are standing in respective

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names of D.W.1 N.Nagesh, N.Kuchela, Achyuta, Radha,

Muralidhara, Nagesh etc., The encumbrance certificate produced by

the defendants makes it clear that majority of the sites formed in

Sy.No.73/2 and 73/3 are sold by the family members of the

defendants. The plaintiffs never objected for the conversion order

and sale of the sites. The evidence of D.W.1 is also reveals that the

sites are formed in Sy.No.73/2 and Sy.No.73/3. D.W.1 also admitted

that the compromise was arrived in O.S.No.259/1963 but he

contended that after the lands are re-granted, the compromise

arrived in O.S.No.259/1963 has no relevance.

42. After careful examination of the oral and documentary

evidence lead by both parties, the existence of ‘D’ schedule property

appears to be doubtful within the boundaries mentioned in the plaint.

Accordingly, I answer issue No.1 in negative.

43. Issue No.2:- The plaintiffs have sought recovery of

possession of ‘D’ schedule property from the defendants. The

plaintiffs failed to prove their ownership and existence of ‘D’

schedule property, therefore, they are not entitled for he recovery of

 32
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possession of ‘D’ schedule property. Accordingly, I answer issue

No.2 in negative.

44. Issue No.3:- The plaintiffs failed to prove their ownership

and previous possession over the ‘D’ schedule property, date of

dispossession, boundaries of ‘D’ schedule properties are not proved

by the plaintiffs. Therefore, the plaintiffs are not entitled for any

reliefs claimed in the plaint. Accordingly, I answer issue No.3 in the

negative.

45. Issue No.4:- In view of my findings to the above issues, I

pass the following:-

ORDER

Suit of the plaintiffs dismissed with costs.

Draw decree accordingly.

(Dictated to the Judgment-Writer, transcribed and typed by her and then

corrected and pronounced by me in the open court on this the 3 rd day of
February 2025)

(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
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ANNEXURE

WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF.

P.W.1 : Sri.B.S.Raghavendra Rao

WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS.
D.W.1 : Sri.H.N.Pushpanath

DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF.

Ex.P.1 : Certified copy of the ‘G’ Tree
Ex.P.2 : Certified copy of the Order dated 23-05-1958
Ex.P.3 : Certified copy of Register No.8
Ex.P.4 : Certified copy of Notification,
dated 15-09-1954
Ex.P.5 : Certified copy of plaint
Ex.P.6 : Certified copy of written statement
Ex.P.7 : Certified copy of Judgment in Misc.Appeal
91/1963
Ex.P.8 : Certified copy of compromise petition in
O.S.No.259/1963
Ex.P.9 : Certified copy of application for re-grant

Ex.P.10 : Certified copy of Sale Deed,

dated 20-03-1971
Ex.P.11 : Certified copy of RTC in respect of property
Sy.No.73
Ex.P.12 : Certified copy of survey record in respect of
property in Sy.No.73
Ex.P.13 : Certified copy of Report of
Asst.Commissioner
Ex.P.14 : Certified copy of re-grant Order passed by
Asst.Commissioner in HOA(S)351/68-69
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Ex.P.15 : Certified copy of Application submitted

S.Nanjundappa
Ex.P.16 : Certified copy of M.R.No.8/2004-05
Ex.P.17 : Certified copy of RTC of property in respect
of Sy.No.73/1
Ex.P.18 : Certified copy of Order dated 02-03-2009 by
Spl.Deputy Commissioner
Ex.P.19 : Certified copy of Judgment in W.P.No.11411-
11414/2009
Ex.P.20 : Certified copy of memo filed in M.A.4/2009
Ex.P.21 : Certified copy of Judgment passed in
M.A.35/2009
Ex.P.22 : Certified copy of the Order dated 22-11-2010
passed by DDLR
Ex.P.23 : Certified copy of the Report
dated 25-03-2010
Ex.P.24 : Certified copy of the Letter
dated 06-12-2006 of Asst. Commissioner
Ex.P.25 : Certified copy of applications (4)
dated 27-07-2007 submitted by S.N.Raja
Ex.P.26 : Certified copy of Letter dated 25-11-2011
Ex.P.27 : Certified copy of application filed by S.N.Raja
Ex.P.28 : Certified copy of Letter of Asst.
Commissioner, dated 22-07-2010
Ex.P.29 : Certified copy of RTC Extracts
Ex.P.30 : Certified copy of Order
Ex.P.31 : Certified copy of Appeal Memo in M.A.1/2004
Ex.P.32 : Certified copy statement of objections filed in
M.A.1/2014
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Ex.P.33 : Certified copy of Order passed on I.A.Nos.1

and 2 in O.S.No.395/2009
Ex.P.34 : Certified copy of Order passed on I.A.No.9 in
O.S.No.395/2009
Ex.P.35 : Certified copy of rough sketch of properties in
Sy.No.73
Ex.P.36 : Certified copy of RTC Extracts (8)
Ex.P.37 : Certified copy of Judgment in
O.S.No.395/2009
Ex.P.38 : Certified copy of Decree in O.S.No.395/2009
Ex.P.39 : Certified copy of Report of Revenue
Inspector along with the typed copy
Ex.P.40 : Certified copy of registered release Deed,
dated 15-05-2017
Ex.P.41 : Certified copy of deposition of S.N.Raja in
O.S.No.395/2009
Ex.P.42 : Certified copy of acquisition order of
H.A.Subbarao mentioned as owner of the
Sy.No.73.
Ex.P.43 : Certified copy of Conversion Order,
dated 24-05-1976

DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS.

Ex.D.1 : Certified copy of evidence of S.N.Raju in

O.S.No.395/2009
Ex.D.2 : Certified copy of Order passed by
Asst.Commissioner dated 07-06-1973
Ex.D.3 : Certified copy of Mahazar drawn on
26-09-1971
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O.S.No.1300/2020

Ex.D.4 : Certified copy of statement of Subbarao and

Nanjundappa in H.O.A(S) 351/68-69
Ex.D.5 : Certified copy of MR.1/72-73
Ex.D.6 : Certified copy of Bond executed by
H.J.Subbarayappa on 28-09-1973
Ex.D.7 : Certified copy of Bond executed by
H.J.Subbarayappa on 20-09-1973
Ex.D.8 : Official Memorandum dated 24-05-1978
Ex.D.9 : Certified copy of Sale Dee
dated 17-06-1971
Ex.D.10 : Certified coy of Sale Deed
dated 17-12-1975
Ex.D.11 : Certified copy of MR.6/84-85
Ex.D.12 : Certified copy of Order of D.C., Bangalore,
dated 02-03-2009
Ex.D.13 : Certified copy of Pakka Book
Ex.D.14 : Certified copy of Survey Sketch
Ex.D.15 : Certified copy of investigation report dated
25-03-2010
Ex.D.16 : Certified copy of Order dated 22-11-2010

Ex.D.17 : Certified copy of MR H11/2011-12

Ex.D.18 : Certified copy of plaint in O.S.No.395/2009
Ex.D.19 : Certified copy of written statement filed by
defendant No.2 in O.S.No.395/2009
Ex.D.20 : Certified copy of written statement filed by
defendant No.13 in O.S.No.395/2009
Ex.D.21 : Certified copy of Judgment and Decree in
O.S.No.395/2009
Ex.D.22 : Certified copy of Compromise petition filed
in O.S.No.6883/2013
 37
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Ex.D.23 : Certified copy of plaint in O.S.No.6883/2013

Exs.D.24 : Certified copy of ‘B’ property Register
to D.26 Extracts
Exs.D.27 : Certified copy of tax paid receipts
to D.36
Ex.D.37 : Encumbrance Certificate
Ex.D.38 : Certificate under Section 65B of Indian
Evidence Act

(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru

Digitally signed
by JEEVAN
KULKARNI
JEEVAN
Date:
KULKARNI 2025.02.07
16:37:45
+0530