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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF AUGUST, 2019

BEFORE

THE HON’BLE MR. JUSTICE H.P.SANDESH

R.F.A. NO.1006/2007 C/W R.F.A. NO.844/2007

IN R.F.A. NO.1006/2007

BETWEEN:

SRI. N. KRISHNAMURTHY SON OF LATE N.N. NAGAPPA AGED ABOUT 46 YEARS RESIDING AT NO.37, (401/37) 10TH CROSS S.P. EXTENTION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003. ... APPELLANT (BY SRI. S. CHANNARAYA REDDY, ADV.)

AND: 1. THE CORPORATION OF CITY OF BENGALURU REPRESENTED BY ITS COMMISSIONER N.R. SQUARE BENGALURU-560 001. 2. SRI. H. HEMACHANDRA SON OF LATE A.V. HEME GOWDA

R

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AGED ABOUT 56 YEARS 3. SMT. D.K. SAVITHRAMMA DAUGHTER OF LATE A.V. HEME GOWDA AGED MAJOR. 4. H. JAYAPRAKASH SON OF LATE A.V. HEME GOWDA AGED MAJOR 5. H. SHYAMAPRASAD SON OF LATE A.V. HEME GOWDA AGED MAJOR 6. H. SIRDHAR SON OF LATE A.V. HEME GOWDA AGED MAJOR 7. N. LATHA SON OF LATE A.V. HEME GOWDA AGED MAJOR 8. H. SHOBHA SON OF LATE A.V. HEME GOWDA AGED MAJOR

ALL ARE RESIDING AT NO.38 9TH CROSS, S.P. EXTENSION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003.

9. SRI. M. NARASIMHA @ NARASIMHAIAH DEAD REP. BY HIS LRS. 9A. SMT. NAGARATHNA WIFE OF LATE M. NARASIMHAIAH AGED ABOUT 51 YEARS

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9B. SRI. GOPAL SON OF LATE M. NARASIMHAIAH AGED ABOUT 32 YEARS 9C. SMT. VIJAYA KUMARI DAUGHTER OF LATE M. NARASIMHAIAH AGED ABOUT 29 YEARS 9D. SRI. MURALIDHAR SON OF LATE M. NARAISIMHAIAH AGED ABOUT 28 YEARS. ALL ARE RESIDING AT NO.97, NEW NO.61 2ND MAIN ROAD RAJAMAHAL GUTTAHALLI BENGALURU-560 003. ... RESPONDENTS (BY SRI. H.S. DWARAKANATH, ADV. AND SRI. AJIT KALYAN, ADV. FOR CAVEATOR 2,3-8 SMT. VIMALA V., ADV. FOR R9)

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2007 PASSED IN O.S.NO.1130/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH.12) DISMISSING THE SUIT FOR

DECLARATION.

IN R.F.A. NO.844 /2007

BETWEEN:

1. SRI. H. HEMACHANDRA SON OF LATE SHRI. A.V. HEME GOWDA AGED ABOUT 55 YEARS

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2. SMT. D.K. SAVITHRAMMA DEAD L.Rs. ALREADY ON RECORD CAUSE TITLE AMENDED VIDE ORDER DATED 19.06.2013 3. H. JAYAPRAKASH SON OF LATE A.V. HEME GOWDA AGED MAJOR 4. H. SHYAMAPRASAD SON OF LATE A.V. HEME GOWDA AGED MAJOR 5. H. SIRDHAR SON OF LATE A.V. HEME GOWDA AGED MAJOR 6. N. LATHA SON OF LATE A.V. HEME GOWDA AGED MAJOR 7. H. SHOBHA SON OF LATE A.V. HEME GOWDA AGED MAJOR ALL ARE RESIDING AT NO.38 9TH CROSS, S.P. EXTENSION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003. ... APPELLANTS (BY SRI. H.S. DWARAKANATH, ADV. AND SRI. AJITH KALYAN, ADV.)

AND: 1. SRI. M. NARASIMHA @ NARASIMHAIAH DEAD REP. BY HIS LRS.

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1(A). SMT. NAGARATHNA WIFE OF LATE M. NARASIMHA AGED ABOUT 51 YEARS 1(B). SRI. GOPAL SON OF LATE M. NARASIMHA AGED ABOUT 32 YEARS 1(C). SMT. VIJAYA KUMARI DAUGHTER OF LATE M. NARASIMHA AGED ABOUT 29 YEARS 1(D). SRI. MURALIDHAR SON OF LATE M. NARAISIMHA AGED ABOUT 29 YEARS.

ALL ARE RESIDING AT NO.97, NEW NO.61 2ND MAIN ROAD RAJAMAHAL GUTTAHALLI BENGALURU-560 003.

2. SRI. N. KRISHNAMURTHY SON OF LATE SHRI. N.N. NAGAPPA MAJOR

RESIDING AT NO.37, (401/37) 10TH CROSS S.P. EXTENTION SUDHEENDRA NAGAR MALLESHWARAM BENGALURU-560 003.

3. THE CORPORATION OF CITY OF BENGALURU REPRESENTED BY ITS COMMISSIONER N.R. SQUARE BENGALURU-560 001. ... RESPONDENTS

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(BY SRI. S. CHANNARAYA REDDY, ADV. FOR R2 SRI. S.N. PRASHANTH CHANDRA, ADV. FOR R3 RESPONDENTS 1(A) TO 1(D) ARE SERVED)

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.02.2007 PASSED IN O.S.NO.1130/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH.9) DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION, IN SO

FAR AS THE DIRECTION THAT CORPORATION SHOULD TAKE APPROPRIATE ACTION IN ACCORDANCE WITH LAW TO PROTECT THE SUIT PROPERTY AS PUBLIC PROPERTY FOR THE PURPOSE OF PUBLIC.

THESE APPEALS COMING ON FOR FINAL HEARING AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE

FOLLOWING:

J U D G M E N T

These two appeals are filed by the plaintiff and

defendant Nos.2 to 8 challenging the judgment and decree

of the trial Court dismissing the suit and directing the first

defendant to take appropriate action vide judgment dated

15.02.2007 passed in O.S.No.1130/1998 on the file of City

Civil Court (CCH-12), Bengaluru.

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2. The parties are referred in the original rank in

order to avoid confusion.

3. Brief facts of the case.

The subject matter involved in dispute in the suit is

property bearing No.400/38, 10th Cross, Swimming Pool

Extension, Sudheendranagar, Malleswaram, Bangalore-560

003, measuring East to West 30 feet and North to South

35 feet which consisted of a dwelling room in an area of 6’

x 8’ which is morefully described in the schedule to the

suit.

4. The case of the plaintiff in the suit is that

originally, the suit schedule property was purchased by the

father of the plaintiff No.1 Late Sri Muniveerappa in the

year 1984 under a Registered Sale Deed dated 20.10.1948

from Sri Chikkanna in terms of Exhibit P.1. The plaintiff

No.1 is the only legal representative of late Muniveerappa

who died on 02.04.1980 leaving behind the plaintiff and

Muniveerappa’s wife Smt. Rajamma who also died on

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03.08.1991. Sri. Muniveerappa died intestate and the suit

schedule property was his self acquired property. Thus the

plaintiff No.1 succeeded to the estate of deceased

Muniveerappa.

5. Plaintiff No.2 is the General Power of Attorney

Holder of Plaintiff No.1 who is in charge of the suit

schedule property and hence he has been arrayed as

Plaintiff No.2. Plaintiff No.1 had constructed the room in

the suit schedule property at his cost. He had been

continued in possession and enjoyment of the suit

schedule property. At no point of time, the defendants

were in possession of the suit schedule property and they

have no manner of right, title and interest over the suit

schedule property.

6. The father of plaintiff No.1 Sri Muniveerappa had

sold several sites out of his property purchased under the

sale deed in the year 1948 and he had retained the suit

schedule property for himself. To evidence this, the

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plaintiffs have produced a copy of Agreement of sale dated

08.08.1955 by which late Sri. Muniveerappa had agreed to

sell away the suit schedule property in favour of the late

Sri. N.N.Nagappa the father of plaintiff No.2.

Unfortunately, late Muniveerappa could not execute the

sale deed in favour of father of plaintiff No.2 even though

he had received the entire sale consideration. It is

contended that as could be seen from the boundary

mentioned in the said agreement of sale, boundaries of

suit schedule property and the boundaries of the property

mentioned in the sale agreement are one and the same.

7. Plaintiff No.2 has purchased the schedule

property for valuable consideration under a registered sale

deed dated 15.05.2002 which was supplemented by a

rectification deed dated 26.07.2002. The power of attorney

executed in favour of plaintiff No.2 on 21.01.1997 was

registered. The suit schedule property was situate in Jodi

Ranganathapura village, Malleswaram. Subsequently the

said village is named as Swimming Pool Extension.

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Sy.No.6 was in Kasaba Hobli. Jodi Ranganathapura was

part of Bengaluru North Taluk. There were several

litigation between the Corporation of City of Bengaluru and

the site owners of Jodi Ranganathapura village in the Civil

Court as well as before the High Court of Karnataka.

Under the circumstances, the Corporation of City of

Bengaluru was reluctant to issue Khata in favour of the site

holders of Jodi Ranganathapura village. At one point of

time, the Corporation of City of Bengaluru claimed that the

sites in Jodi Ranganathapura village belong to the

Corporation of City of Bengaluru itself. The Corporation

cancelled the Khatha of several site owners alleging that

they were unauthorized occupants. Subsequently the

Government of Karnataka accorded sanction to the

Corporation to grant ownership to the person who have

constructed the building on payment of land costs. In this

regard, the Estate Officer of the Corporation of City of

Bengaluru reported that several persons were

unauthorized occupants of the sites in Jodi

Ranganathapura village.

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8. Under the circumstances, the father of the

plaintiff No.1 could not get khata transferred to his name

in respect of the schedule property. Plaintiff No.1 has

applied for change of Khata on 03.02.1997. Having

received the application, acknowledgment was issued.

Defendant No.1 called for production of certain documents

and the plaintiff No.1 furnished the same to the

Corporation of the city of Bengaluru. In spite of production

of such documents, the Corporation is reluctant to issue

Khata in favour of plaintiff No.1.

9. It is contended that Late Sri Muniveerappa was

the Ex-Corporator of the Corporation of City of Bengaluru

nearly for ten years. The Plaintiffs have produced a hand

sketch correctly locating the suit Schedule property that

the same belongs to plaintiff No.1. It is contended that it

appears late Sri. A.V. Hemegowda had filed

O.S.No.10548/1993 against the Corporation of City of

Bengaluru for restoration of Khata of the property

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mentioned in the schedule to the said suit claiming

ownership of premises bearing No.30, measuring 90’ East

to West and 35’ North to South. It is contended that

scrupulously the said A.V.Hemegowda had included the

suit schedule property belonging to plaintiff No.1 herein

also as the property belonging to A.V.Hemegowda. Plaintiff

No.1 or any of his family members were not parties to the

said suit. Recently, the plaintiffs have come to know about

the filing of the said suit. In the said suit, the Corporation

of City of Bengaluru had filed Written Statement on

30.05.1984 denying title of Late A.V. Hemegowda, to the

said extent of 35’ x 90’. During the pendency of the suit,

Sri A.V. Hemegowda passed away and defendants No.2 to

8 herein were brought on record. The said suit came to be

dismissed as withdrawn on 7.7.1994. Thus, defendants

No.2 to 8 have failed to establish their title to the said

extent of 35’ x 90’ of the property.

10. It is contended by the plaintiff that the property

described as PQRS in the sketch produced by the plaintiffs

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is the property of plaintiff No.1. Property No.2 in the said

sketch is the property of the defendants 2 to 8. While

claiming Khata, defendants No.2 to 8 had included the

property of the plaintiffs also. In spite of objections raised

by the plaintiffs before the Corporation of City of

Bengaluru, the Corporation has issued Khata to the entire

extent of 35 x 90’. Defendant No.1 was totally debarred

from issuing khata in favour of defendant No.2 in respect

of an extent of 35’ x 90’ which is clearly illegal. It is

contended that Defendant Nos.2 to 8 has colluded with

defendant No.1 who have obtained the sanctioned plan for

the purpose of construction in favour of Defendant No.2 to

the extent of 35’ x 90’ which includes the suit schedule

property. Hence, the plaintiffs have filed the present suit

for necessary reliefs.

11. It is contended that defendant No.2 also filed

W.P.No.28830/1996 and the same was disposed of on

02.06.1997 by this Court without passing any order on the

rights of the parties. Plaintiff No.1 also filed application for

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revocation of Khata made in favour of the defendant No.2.

Defendant No.1 has not taken any steps to revoke the

khatha. Hence, sought the prayer to declare that the

khatha issued in favour of defendant Nos.2 to 8 by

defendant No.1 is illegal null and void and also the sketch

measuring 35’ X 90’ in favour of the defendant. Plaintiff

also sought for relief of direction against defendant No.1 to

issue khatha in favour of plaintiff No.1 and also sought for

permanent injunction restraining defendant Nos.2 to 8 not

to interfere with the suit schedule property.

12. In pursuance of the suit summons defendant

Nos.2 to 8 have filed the written statement contending

that the suit is not maintainable on the ground of

misjoinder of cause of action and parties. Both the first

and second plaintiffs have mentioned the different

addresses and the relief sought in the suit are two

declarations. The first declaration sought is that khatha

issued by first defendant in favour of second defendant to

the extent of 35’ X 90’ shown in the sketch is illegal, null

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and void. The second declaration sought is that sanctioned

plan of the first defendant in favour of the second

defendant shown in the hand sketch is null and void. The

third direction is to issue khatha in favour of the plaintiff

and fourth relief is for the relief of injunction.

13. The property described in the suit schedule

bearing No.400/38 and the dimension given east to west

30 feet and north to south 35 feet. It is added before

demolition there was a room with asbestos sheet

measuring 6’ X 8’. The description mentioned in the suit

schedule property is not in existence and the relief sought

in the suit cannot be granted. It is clearly a case of

misjoinder of parties and cause of action. The plaintiff

should have filed two separate suits and should have

sought reliefs in the suit separately. The only common

thing for the plaintiffs in coming together against these

defendants in regard to the property in the absolute

ownership, physical possession and enjoyment of these

defendants is the enemity and hatred towards A.V.Hemae

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gowda. These defendants are the heirs of said

Hamegowda. The plaintiff does not disclose as to how the

plaintiffs are entitled to maintain one single suit against

the defendants. That ground alone, the suit is liable to be

dismissed.

14. The defendants, in the written statement, have

also denied the entire averments made in para Nos.1 to

20. It is contended that there is no property at all in

existence as is described in the suit schedule and hence,

prayed the Court to dismiss the suit as not maintainable.

It is also contended that suit is bad for misjoinder of

parties and there is no any cause of action. The second

plaintiff dragged the first plaintiff into the suit though the

first plaintiff had nothing to do with the said property. The

second plaintiff has no locus standi to maintain the above

suit and the very suit is wholly misconceived and not

maintainable.

15. The defendants 2 to 8 have also filed additional

written statement contending that defendants’ father had

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got title to the suit property under three sale deeds dated

20.2.1949, 13.12.1950 and 9.9.1954. As such, on the

death of the father of defendant Nos.2 to 8, defendants 2

to 8 are the absolute owners of the entire property as

described in item Nos.1 and 2 of the sketch produced by

the plaintiffs.

16. It is further contended that in the very sale deed

of Muniveerappa executed in favour of father of defendants

Nos.2 to 8, he has categorically stated that to the east

there is a road and to the west Hemegowda’s property. In

that view of the matter, it is impermissible for the present

plaintiffs claiming under very Muniveerappa to state that

they have any property to the east of the defendants’

property.

17. The other contention is that the transfer of title

by the first plaintiff in favour of the second plaintiff during

the pendency of the suit which did not belong to him,

cannot affect the rights of the defendants.

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18. The reliefs prayed in the plaint cannot be

granted as reliefs which expressly or impliedly barred by

the provisions of the Karnataka Municipal Corporation Act

and in view of deletion of the prayer for declaration of title,

when clearly cloud was thrown on title on the very

averments of the plaintiff, the present suit is not

maintainable.

19. It is also contended that suit is also barred

under the provisions of Sections 34 and 41 of the Specific

Relief Act. Even the plaintiff has not pleaded lawful

possession and that he is not in possession and that

defendants 2 to 8 are in lawful possession. The suit

without asking for declaration of title is not maintainable.

20. The first defendant-Corporation did not choose

to file any written statement before the trial Court.

21. Based on the pleadings of the parties, the Court

below has framed the following issues:

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“1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property on the date of the suit?

2. If so, whether they further prove

unlawful interference by the defendants 2 to 8?

3. Whether the plaintiffs prove that the

katha certificate issued by the 1st defendant in favour of the 2nd defendant to an extent of 35’ x 90’ shown in the sketch is illegal?

4. Whether the plaintiffs prove that the

plan sanctioned by the 1st defendant in favour of the 2nd defendant in respect of an extent of 35’ x 90’ as shown in the sketch is illegal?

5. Whether the plaintiff is entitled to a

declaratory decree as sought for? 6. Whether the plaintiff is entitled to a

decree of permanent and mandatory injunctions as sought for?”

22. In order to prove the case of the plaintiffs, the

second plaintiff got examined himself as P.W.1 and got

marked the documents Ex.P1 to P33. On the other hand,

second defendant has examined himself as D.W.1 and got

marked Exs.D1 to D42. The Court below, after having

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considered the evidence and documents, dismissed the

suit of the plaintiffs and further directed the first defendant

to take appropriate action, in accordance with law, to

protect the suit property as public property for the purpose

of the public. Being aggrieved by the judgment of the trial

Court, the second plaintiff has filed RFA No.1006/2007

before this Court.

23. In the appeal memorandum it is contended that

the Court below has committed an error in not

appreciating both oral and documentary evidence. The

Corporation has not filed any written statement and also

not contested the case and in spite of it, the Court below

dismissed the suit and given directions in favour of the

Corporation, which is wholly illegal and liable to be set

aside.

24. It is further contended that there was no issue

in the suit as to whether the property in question is a

public property, more so, no documents were produced

before the trial Court regarding title of the Corporation in

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respect of the suit schedule property. Merely because a

request letter was made to the Corporation to allot

adjacent pieces of property that by itself will not amount to

establishing title of the Corporation to the suit schedule

property. The learned trial Judge misdirected himself in

going into the question as to whether the suit schedule

property is a public property.

25. It is further contended that if the suit schedule

property were to be the public property, there was no

question of transferring the khata in the name of the

defendant Nos.2 to 8 whose claim is based on three sale

deeds virtually claiming that the suit schedule property is a

private property. Hence, the approach of the Court below

to the facts and circumstances of the case is erroneous

and hence, the very judgment and decree is liable to be

set aside. The Court below has not at all appreciated the

documentary evidence produced by the plaintiffs, which

establish the absolute ownership of plaintiff No.2 over the

suit schedule property and also lawful possession thereof,

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and in spite of that has mechanically passed the judgment

and decree without application of mind.

26. It is further contended that the trial Court

having held that the suit schedule property does not

belong to defendant Nos.2 to 8 and in view of voluminous

documents to establish possession of plaintiff No.2 to the

suit schedule property, the lower Court ought to have

granted permanent injunction in favour of the plaintiffs

against defendant Nos.2 to 8 and the same has not been

done and as such, committed an error in appreciating both

oral and documentary evidence in a proper perspective.

Accordingly, prayed this Court to set aside the judgment

and decree and to allow the appeal.

27. The appellant has also filed an application under

Order XLI Rule 27(aa) and (b) r/w 151 of Civil Procedure

Code praying this Court to permit plaintiff No.2 to produce

additional documents i.e., original electricity bills in respect

of the suit schedule property (25 in number), original

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electricity paid receipts (27 in number) and certificate

issued by BESCOM for providing electricity supply to the

suit schedule property and photographs showing the

possession of the plaintiff No.2 and tax paid receipts

pertaining to the suit schedule property (11 in number).

28. In support of this contention, an affidavit is

sworn to by the appellant/plaintiff No.2 that the suit

schedule property is in his possession and he has let out

the same for parking purpose to about 7 tenants and also

obtained the electricity connection and for want of proper

knowledge and non availability documents, he could not

produce the documents before the Court below. It is

further sworn to that in order to decide the issue with

regard to possession, the documents produced by him

along with the application are necessary and since some of

the documents could not be produced before the Court

below and they are obtained recently, these documents

are necessary to decide the issue involved between the

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parties and hence, prayed this Court to permit the

appellant/plaintiff No.2 to produce those documents.

29. The defendant Nos.2 to 8 have also filed an

appeal in RFA No.844/2007 being aggrieved by the

judgment of the trial Court contending that very direction

given by the Court below against the defendant No.1 is

erroneous. It is contended that the Court below has

committed an error in coming to the conclusion that suit

schedule property is a public property. No such enquiry is

held and none of the parties were aware that such

question was involved in the suit and there was no any

issue in the said suit regarding the said aspect and in spite

of it, the impugned judgment was passed.

30. The trial Court has erred in not considering the

case of the appellants/defendants 2 to 8 that the property

belongs to them inspite of producing various documents in

that regard and it has committed an error in coming to the

conclusion that it is a public property.

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31. It is further contended that the trial Court erred

in not noting that the Corporation itself has not claimed

the property as belonging to the Corporation and such a

finding that it is a public property is without any basis.

There was no material whatsoever for the Court to come to

the conclusion that property belongs to the Corporation

and submission made in the light of the letters addressed

by respondent Nos.1 and 2 to respondent No.3 stating that

the property belong to Corporation would not make it the

property of the Corporation. Hence, the judgment of the

trial Court is liable to be set aside.

32. The trial Court erred in holding at page No.32 of

the judgment that the measurements as per the sale

deeds of the defendants is 30’x65’ while in reality it is

35’x73’ and the very judgment of the trial Court is

otherwise opposed to law and facts of the case and hence

it requires interference by this Court and the same is liable

to be set aside.

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33. The learned counsel appearing for appellant in

MFA No.1006/2007 in his argument, he vehemently

contended that the plaintiffs have filed the suit seeking for

the relief of declaration to declare that the katha made in

favour of defendant Nos.2 to 8 by the Corporation and also

the Sanction Plan issued in favour of defendant Nos.1 and

2 are null and void and illegal and also sought for an order

of injunction against the defendants. The Court below has

committed an error in dismissing the suit and hence,

plaintiff No.2 has preferred the appeal in RFA

No.1006/2007.

34. The learned counsel would submit that the

property was purchased by the father of plaintiff No.1 on

20.10.1948 under Ex.P.1 and during his life time, he has

executed a sale agreement in favour of plaintiff No.2 vide

sale agreement dated 08.08.1955, which is marked as

Ex.P.2. The entire sale consideration was received and

plaintiff No.2 was put in possession. The plaintiff No.1

could not execute the sale deed during his life time.

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Plaintiff No.1 has executed registered General Power of

Attorney in favour of plaintiff No.2 on 21.01.1997 in terms

of Ex.P.3 and so also, during the pendency of the suit, the

sale deed was executed on 15.05.2002 which is marked as

Ex.P.28. It is the contention of the appellant counsel that

layout was formed by Sri.Muniveerappa. In terms of

Exhibit P.1, he has derived title and there is no dispute

with regard to formation of layout by him. The suit

schedule property, which is numbered as No.400/38

measuring East to West 30 feet and North to South 35 feet

and the same was fenced and construction was made to

the extent of 6’ x 8’ feet. It is contended that the

defendants have filed suit in O.S.No.10548/1993 and the

same was dismissed as withdrawn and thereafter, obtained

the katha illegally in their favour. It is also contended that

W.P.No.28830/1996 was filed and only direction was given

to consider the representation and further, learned counsel

would contend that there was an interim order throughout

and the very defendants have filed an application

restraining the plaintiffs not to put up the construction and

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the same was dismissed. An application is filed to vacate

the interim order granted in favour of plaintiff and the

same was also dismissed. The defendants have also filed

an application under Order 7 Rule 11 of Civil Procedure

Code and the same also dismissed. In spite of it, the

Court below has committed an error in dismissing the suit

filed by the plaintiff.

35. The defendants have contended in the written

statement that they are the owners of the property in

question claiming right in respect of including the suit

schedule property and also other property, which has been

shown in the sketch which is marked as Ex.P.31 and no

dispute with regard to the execution of the sale deed and

Court below fails to consider the measurement and

committed an error in coming to the conclusion that the

property belongs to the Corporation. Even though there

was no any material is placed by the Corporation and even

the Corporation did not file any written statement and

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claimed any right in respect of the suit schedule property

and hence, it requires an interference by this Court.

36. The learned counsel would also in support of his

argument in respect of the application filed under Order 41

Rule 27 would submit that along with the application, he

has produced the electricity bills and receipts for having

made the payments and also the photos which could not

be produced before the Court and some of them have been

secured recently and some of them were misplaced.

Hence, he could not produce the same before the lower

Court and hence, those documents are necessary. The

learned counsel would contend that the trial Judge did not

consider the Exs.P.31 to 33 i.e., Bank Pass Book and other

documents to establish the possession of the plaintiff and

hence, it requires the interference of this Court.

37. On the other hand, the learned counsel

appearing for respondents/defendants would submit that

the Court below has considered the evidence of plaintiff

No.2 who has been examined as P.W.1 before the lower

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Court and categorically discussed that the measurement,

which the plaintiff claims 30x35 is vacant site and also

discussed in para Nos.10 and 11 of the judgment. Plaintiff

No.2 claiming the right in terms of Ex.P.28 which was

executed during the pendency of the suit. The learned

counsel also would contend that Exs.D.33 and 34 discloses

that the properties have not been retained while selling the

property and in both sale deeds on the southern side of

the properties which is mentioned as properties of

Sri.A.V.Hemegowda and so also in Exs.D.2 and 3 on the

south it is mentioned as Sri.A.V.Hemegowda’s properties.

38. The duty of the plaintiff has to identify the

property in which he claims the relief as envisaged under

Order 7 Rule 3 and the same has not been done and the

Court below rightly comes to the conclusion that the

plaintiffs are not entitled for the relief as claimed in the

plaint. However, the Court below has committed an error

in directing the Corporation to take action in respect of the

suit schedule property. The learned counsel would contend

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that being aggrieved by the direction of the trial Court in

favour of Corporation, appeal RFA No.844/2007 is filed by

the defendants. It is contended that the said direction is

erroneous and Corporation has not claimed any right in

respect of the said property. There was no any pleadings

and also the Corporation did not choose to file any written

statement. In the absence of any pleadings and in the

absence of any right claimed by the Corporation, the trial

Judge ought not to have given such direction. Hence, the

said appeal is filed against the said findings. It is also

contended by the learned counsel that the plaintiff did not

seek any relief of declaration to declare that they are the

absolute owners and in the absence of that pleadings, the

trial Court ought not to have discussed with regard to the

title of the properties and the relief sought in the plaint

also cannot be granted, unless the suit is filed for the

better relief i.e., for declaration in the absence of

declaratory relief. The very suit itself is not maintainable.

32

39. In support of his arguments, the learned counsel

appearing for appellant in RFA No.844/2007 and also

defendants No.2 to 8, relied upon the judgment reported

in the case of Gulabrao Balwantrao Shinde and others

vs. Chhabubai Balwantrao Shinde and others reported

in AIR 2003 SC 160, the learned counsel relying upon

this judgment brought to my notice paragraph No.7 of the

judgment, the Apex Court in its judgment held that in the

absence of any pleadings and evidence to the effect that

the Balwantrao Shinde had given the property to

Chhabubai in lieu of maintenance, the High Court has

erred in recording a finding that the property in possession

of Chhabubai was in lieu of maintenance which could be

enlarged into full ownership rights on her. The learned

counsel relying upon this judgment would contend that the

trial Judge ought not to have proceeded to consider the

title of the parties in the absence of declaratory relief.

40. The learned counsel also relied upon the

judgment reported in the case of Devi Sahai Palliwal vs.

33

Union of India (UOI) and others reported in AIR 1977

SC 2082 and brought to my notice para No.6 of the

judgment. In this judgment, the Apex Court held that the

respondent did not deliver vacant possession in accordance

with the contract and therefore the respondent is liable for

manse profits. The High Court found that there was no

enforceable contract and the appellant was not entitled to

rely on it. The High Court was correct in holding that there

is no allegation in the plaint to support any pleadings

under Section 70 of the Indian Contract Act. It is opined

that in the absence of proper pleadings under Section 70

of the Indian Contract Act should not be entertained. The

learned counsel referring this judgment would also contend

that in the absence of any pleading with regard to the

claiming the ownership, the trial Judge ought not to have

considered the same with regard to the ownership.

41. The learned counsel also relied upon the

judgment in the case of Union of India (UOI) vs.

Ibrahim Uddin and others reported in

34

MANU/SC/0561/2012 and brought to my notice in

paragraph No.20 of the judgment that admission is the

best piece of substantive evidence that an opposite party

can rely upon, though not conclusive, is decisive of the

matter, unless successfully withdrawn or proved

erroneous. The learned counsel relying upon this judgment

would contend that the plaintiff has admitted in the plaint

itself that there is a cloud on his title and hence, ought to

have sought for declaratory relief to declare him as

absolute owner of the property that has not been done and

also brought to my notice paragraph No.63 of the

judgment wherein held that in absence of any factual

foundation of the case, based on Will, the first appellate

Court committed a grave error taking into consideration

the said Will. The learned counsel also brought to my

notice paragraph No.69 of the judgment wherein held that

the Court cannot travel beyond the pleadings as no party

can lead the evidence on an issue/point not raised in the

pleadings and in case, such evidence has been adduced or

a finding of fact has been recorded by the Court, it is just

35

to be ignored. Though it may be a different case where

inspite of specific pleadings, a particular issue is not

framed and parties having full knowledge of the issue in

controversy lead the evidence and the Court records a

finding on it.

42. The learned counsel relying upon the judgment

in the case of Mohammad Mustafa Vs. Abu Bakar and

others reported in AIR 1971 SC 361 has brought to my

notice paragraph No.5 of the said judgment wherein it is

held that, ‘the finding having been reached without proper

pleadings and necessary issues the same cannot bind any

of the parties to the suit though it does indicate the serious

injustice that is likely to happen to the appellant because

of his defective pleadings’ and submits that in the case on

hand also there was no pleading with regard to the title

and no relief was sought for declaration. The finding

reached by the trial Court without proper pleadings and

necessary issues cannot bind any of the parties, which

indicates serious injustice.

36

43. The learned counsel further relied upon the

judgment in the case of Mohd. Amin and others Vs.

Vakil Ahmed and others reported in AIR 1952 SC 358

and referring to paragraph 23 of the said judgment would

contend that the High Court has committed an error in

awarding mesne profits though same had not been claimed

in the plaint. Referring to the principles laid down in the

said judgment, he would contend that there was no prayer

for the relief of declaration to declare ownership in the

plaint and the Court below has committed an error in

considering the same.

44. The learned counsel further relied upon the

judgment reported in the case of Anathula Sudhakar Vs.

P.Buchi Reddy (Dead) by LRs., and others reported in

AIR 2008 SC 2033 and referred to paragraphs Nos.10

and 11 of the judgment regarding the points raised for

consideration wherein in paragraph No.11 with regard to

the general principles as to when a mere suit for

permanent injunction will lie, and when it is necessary to

37

file a suit for declaration and/or possession with injunction

as a consequential relief, the Apex Court in paragraph

No.11.3 has held that ‘where the plaintiff is in possession,

but his title to the property is in dispute, or under a cloud,

or where the defendant asserts title thereto and there is

also a threat of dispossession from defendant, the plaintiff

will have to sue for declaration of title and consequential

relief of injunction. Where the title of plaintiff is under a

cloud or in dispute and he is not in possession or not able

to establish possession, necessarily the plaintiff will have

to file a suit for declaration, possession and injunction’.

45. Further, with regard to the application under

Order XLI Rule 27 of CPC seeking permission to produce

additional evidence, learned counsel relied upon the

judgment of this Court in the case of Punny Akat Philip

Raju Since (dead) by his LR’s and others Vs. Dinesh

Reddy reported in 2016 (2) Kar.L.J 425 and brought to

my notice paragraphs 41 to 47 of the said judgment

regarding the scope of Order 41Rule 27 of CPC and as to

38

when it has to be entertained and it is observed that,

Order 41 Rule 27 of CPC enables the appellate Court to

accept additional evidence only in exceptional

circumstances.

46. Having heard the arguments of the learned counsel

for appellant/plaintiff No.2 and also the learned counsel for

appellants/defendants 2 to 8 and also considering the

grounds urged in both the appeals, the points that would

arise for my consideration before this Court are:-

(i) Whether Court below has committed an error in answering issue Nos.3, 4 and 5 in negative in

coming to the conclusion that suit against the first defendant is not maintainable in view of the

statutory provisions of KMC Act?

(ii) Whether Court below has committed an error in answering issue Nos.1, 2 and 6 in the negative

that plaintiffs are not in possession of the suit schedule property and also declining grant of

permanent and mandatory injunction as sought in

the plaint?

(iii) Whether Court below has committed an error in entertaining the suit without seeking better

prayer for the relief of declaration of title?

(iv) Whether the appeal filed by the appellant/plaintiff No.2 deserves to be allowed?

39

(v) Whether the appeal filed by the

appellants/defendants Nos.2 to 8 deserves to be allowed?

(vi) Whether the appellant/plaintiff No.2 in RFA

No.1006/2007 has made out a ground to allow the application filed under Order 41 Rule 27 of

CPC?

Point No.1:

47. Plaintiffs have filed the suit before the Court

below seeking four prayers. First prayer is against

defendant No.1 to declare that the khata issued by

defendant No.1 in favour of defendant No.2 to an extent of

35’x90’ shown in the sketch produced by the plaintiffs is

illegal, null and void and further prayers are for the relief

that the plan sanctioned in favour of defendant No.2 by

defendant No.1 to an extent of 35’x90’ shown in the hand

sketch is illegal and for a direction against defendant No.1

i.e., Corporation to issue khata in favour of plaintiff No.1 in

respect of the suit schedule property.

48. The Court below while considering the prayer

sought in the plaint in connection with issue Nos.3, 4 and

40

5, has discussed in detail at paragraph Nos.10 to 13 of the

judgment regarding the statutory provisions. At paragraph

No.12 referring to the provisions of Section 482(1) and (1-

A) of the KMC Act, it forms an opinion that defendant No.1

is a statutory body and it cannot be prevented from

discharging its official duties in effecting khata or any

rejection to do so. Further referring to the provisions of

Section 114A of the KMC Act has observed that an

aggrieved party can approach the higher authorities of the

Corporation i.e., Standing Committee to get redressal.

But in the case on hand, plaintiffs never approached the

competent authorities under the KMC Act by challenging

the order passed by the defendant No.1 and that there is a

statutory bar to file the suit against defendant No.1. It is

further observed that though plaintiffs have sought

declaratory relief and an issue was framed in that regard,

as per the request of the plaintiffs themselves same was

deleted by order dated 4.2.1998 and accordingly, it is held

that the relief of declaration declaring that the plaintiffs are

the absolute owners of the suit schedule property cannot

41

be granted in view of the discussions made above. Since

the plaintiffs have not complied with the statutory notice

under Section 482 of the KMC Act and also sought for

deleting the prayer with regard to declaration and there

was a bar under Section 114A of the KMC Act to approach

the Civil Court and did not redressal the grievance before

the appropriate forum and hence, I do not find any

reasons to interfere with the order of the trial Court in

answering issue Nos.3 to 5 in the negative since it is

forbidden under law. Accordingly, I answer point No.1 in

the negative.

Point Nos.2 and 3 :-

49. The contention of the appellant in RFA

No.844/2007 that there was no pleading and also issue

was not framed with regard to the considering the title of

the parties and there was a cloud on the title of the

plaintiff and the defendants also asserts title in respect of

the suit schedule property and there is also a threat of

dispossession as narrated in the plaint and when such

42

being the case, the plaintiff ought to have sought the relief

of declaration. Hence, the very approach of the trial Court

is erroneous.

50. Before considering the contention, I would like to

mention the very pleadings of plaintiff in the plaint. I

would like to extract the very pleadings of the plaintiff

which has been narrated in para Nos.10 and 11 of the

plaint, which reads as follows.

10. It appears that, late Sri. A.V. Hemegowda

had filed O.S.NO.10548/1993 against the

Corporation of City of Bangalore for

restoration of Khata of the property

mentioned in the schedule to the said suit,

surprisingly, in the said suit, the said A.V.

Hemegowda, claimed ownership of premises

bearing No.30, measuring 90’ East to West

and 35’ North to South. At this juncture, it

is relevant to state here that, scrupulously

the said A.V. Hemegowda had included the

suit schedule property belonging to plaintiff

No.1 herein also as the property belonging

to A.V. Hemegowda. To the said suit, the

43

plaintiff No.1 or any of the wife and children

of Plaintiff No.1 were not parties. Recently,

the plaintiff have come to know about the

filing of the said suit. In the said suit, the

Corporation of the City of Bengaluru had

filed Written Statement on 30.05.1984

denying title of late A.V. Hemegowda, to the

said extent of 35’ x 90’. A copy of the

Written statement filed by the Corporation

of the City of Bengaluru in

O.S.NO.10548/1983 is annexed herewith.

The Corporation of City of Bengaluru had

specifically taken-up a contention that, late

A.V. Hemegowda had no title to the said

extent of property and he has miserably

failed to prove his title to the said extent of

site. During the pendency of said suit, it

appears that Sri. A.V. Hemegowda, died and

defendants 2 to 8 herein were brought on

record. The said suit came to be dismissed

as withdrawn by a memo filed by the

defendants 2 to 8 on 07.07.1994. Thus, it

is clear that the defendants 2-8 failed to

establish their title to the said extent of 35’

x 90’ of the property.

44

11. The property described as PQRS in the

sketch produced by the plaintiffs is the

property of plaintiff No.1. Property No.2 in

the said sketch is the property of the

defendants 2 to 8. While claiming khata it

appears that the defendants 2 to 8 had

included the property of the plaintiffs also.

Several objections were raised by the

plaintiffs before the corporation of city of

Bengaluru in this regard for having given

khata to the defendant No.2 to the entire

extent of 35’ x 90’. The corporation of the

City of Bengaluru did not notice the said

objections. Having already stated, that the

defendants 2 to 8 have no manner of right,

title and interest over the entire extent of

35’ x 90’ of property, the defendant No.1

was totally debarred from issuing khata in

favour of Defendant No.2 in respect of an

extent of 35’ x 90’ which is clearly illegal

and Arbitrary. The plaintiffs have got reason

to believe that the Defendant No.1 has

colluded with the other defendants and for

extraneous consideration Khata has been

made over to the defendant No.2 in respect

of the said extent. Further, the defendant

45

No.1 has also appears to have sanctioned a

plan for the purpose of construction in

favour of Defendant No.2 in the extent of

35’ x 90’ which includes the suit schedule

property belonging to the plaintiff No.1.

Under the circumstances, the plaintiffs are

constrained to present suit for necessary

reliefs.

51. On perusal of the pleadings in para Nos.10 and 11

of the plaint, it is clear that the father of the defendants

A.V.Heme Gowda claimed ownership of the premises

bearing No.30 to the extent of 90 feet x 35 feet in

O.S.No.10548/1993. It is specifically contended that the

said A.V.Heme Gowda scrupulously had included the suit

schedule property belonging to plaintiff No.1 as the

property belonging to A.V.Heme Gowda. On perusal of

para No.11 of the plaint also, it is stated that defendant

Nos.2 to 8 had included the property of the plaintiff also

and several objections were raised by the plaintiffs before

the Corporation of City of Bengaluru in respect of the

extent of 35x90 feet.

46

52. Having considered the pleadings of the plaintiff, it

is clear that the defendants have made the claim in

O.S.No.10548/1983 in respect of the suit schedule

property. When the pleading has been made in the plaint

that the defendants have claimed and asserts their title in

respect of the suit schedule property, the plaintiff ought to

have sought the relief of declaration to declare that the

plaintiff is the absolute owner and the same has not been

done and the relief sought only to declare the katha made

in favour of defendants is illegal. The very pleadings

discloses that there is a cloud on the title of the plaintiff

and when such being the case, the plaintiff ought to have

sought the better relief of declaration of title and the

consequential relief of injunction. It has to be noted that

the judgment of the trial Court is appears to be under

confusion. The Court below while answering issue Nos.3, 4

and 5 as held in para No.14 that the prayer of declaration

was deleted at the instance of the plaintiff vide order dated

04.02.1998. The Court below while considering the other

issues with regard to the possession and injunction in para

47

No.17 has formed an opinion after discussing the material

on record, an observation is made that without any

hesitation, the Court held that the plaintiffs have utterly

failed to prove their lawful possession over the suit

schedule property. As on the date of the suit and also held

that the plaintiffs are not entitled for any declaratory relief

either against defendant No.1 or against defendant Nos.2

to 8 and further held that the plaintiffs are not entitled for

the relief of permanent injunction or mandatory injunction

as prayed in the plaint. It has to be noted that when the

plaintiffs did not seek for the better relief of declaration,

the trial Court ought to have held that the very suit itself is

not maintainable when there was a cloud on the title of the

plaintiffs. The judgment relied upon by the learned counsel

for defendants, which was in the case of Anathula

Sudhakar vs. P.Buchi Reddy (dead) by LRs and

others reported in MANU/SC/7376/2008, wherein the

Apex Court while answering issue with regard to between

the parties, whether considering the facts of the case, the

plaintiffs ought to have filed a suit for declaration of title

48

and injunction, considering the said issue in para No.11.3

and it is held that where the plaintiff is in possession, but

his title to the property is in dispute, or under a cloud, or

where the defendant asserts title thereto and there is also

a threat of dispossession from defendant, the plaintiff will

have to sue for declaration of title and the consequential

relief of injunction. Where the title of plaintiff is under a

cloud or in dispute and he is not in possession or not able

to establish possession, necessarily the plaintiff will have

to file a suit for declaration, possession and injunction.

It is further observed that the prayer for declaration will be

necessary only if the denial of the title by the defendants

are challenged to plaintiffs. Title raises a cloud on the title

of the plaintiff to the property. The cloud said to raise

over a person title when some approved difficult in his title

to the property or some prima-facie right of third party

over. It is made out to shown an action for declaration is

the remedy to remove the cloud on the title to the

property.

49

53. Having considered the principles laid down in the

judgment, which has been summarized in para No.17 of

the above judgment, the issue which has been answered in

the said matter. This Court has to analyze the facts and

circumstances of the case. I have already pointed out in

para Nos.10 and 11 of the plaint, the plaintiff has

categorically stated that the defendants have claimed their

title in respect of the suit schedule property including the

same in the suit filed by the father of the defendants in

O.S.No.10548/1983 and it was the contention of the

defendants that the said suit was compromised between

the defendants and the Corporation and no document is

placed before the Court, whether it was compromised or

dismissed as withdrawn as contended by the plaintiff in the

plaint. Both the parties have not placed any document

whether it was withdrawn or compromised. Hence, it is

clear that there was a threat to the title of the property in

spite of it, the plaintiff did not seek for the relief of

declaration and instead of that, he sought only the relief to

declare the khata made in favour of defendant Nos.2 to 8

50

is illegal and sought direction against defendant No.1

to issue katha in favour of plaintiffs. The pleadings is very

clear that there is a cloud on the title of the plaintiffs.

Hence, the plaintiff’s ought to have sought for the relief of

declaration.

54. The Court below also while answering other issues

comes to a conclusion that the defendants are claiming

right based on that Exhibits D.2 to 6. It has to be noted

that the defendants at the 1st instance, in the written

statement claimed except claiming right based on the suit,

which was filed earlier against the Corporation. But, in the

additional written statement claimed the title in respect of

the suit schedule property based on the sale deeds Exs.D.4

to 6 dated 20.04.1941, 13.12.1950 and 09.09.1954. The

Court below discussed with regard to the documents of the

plaintiffs in respect of Exs.P.1 to 4 and also Ex.P.28 and

also considered the Exs.D.1 to 6 measurement and formed

opinion that both of them have not proved their claim.

The same ought not have been considered by the trial

51

Court, that too in a suit for bare injunction and also there

was a specific pleading in the plaint that there was a cloud

on the title of the plaintiffs and defendants asserts their

right in respect of the very same property. When such

being the case, the trial Court ought not have proceeded to

consider the case of the plaintiffs and also the defendants

in the absence of declaratory relief. Apart from that, in

order to seek for declaratory relief also, the plaintiff has to

pay the Court Fee and the same has not been done.

Hence, I am of the opinion that the Court below ought to

have dismissed the suit of the plaintiff as not maintainable

as there was a cloud on the title of the plaintiff. In the

absence of better relief of declaration as held by the Apex

Court, the principles laid down in the judgment referred by

defendant Nos.2 to 6, are aptly applicable to the case on

hand, since there was no any pleading and prayer in the

plaint for declaration and no necessary issues with regard

to title and claim of the defendants the trial Court also

ought not to have considered the claim of both plaintiffs

and defendants in the absence of declaratory suit. Hence,

52

I answer both point No.2 as negative and point No.3 as

affirmative that in the absence of declaratory relief, the

Court below committed an error in entertaining the suit

which is not maintainable.

Point Nos.4 and 5 :-

55. In view of the discussions made above to point

Nos.2 and 3, the very contentions of both appellants in

these appeals cannot be considered and this Court has

already formed an opinion that in the absence of

declaratory suit for better relief, the issue between the

parties ought not to have been considered by the trial

Court and mere injunction suit is not maintainable and

ought to have filed a suit for relief of declaration. When

the defendant also asserts the title in respect of the suit

schedule property but also there is a dispute to the

property in respect of the schedule property. Both of them

are claiming the right and title in respect of the very suit

schedule property. The contention of the defendants that

in all the sale deeds on the south, there is a mention that

53

same is A.V.Hemegowda property cannot create any right

on the defendants and the Court below also observed in

the order while passing the order and referred Exs.D.2 to 6

and 33 and 34, the rights of the defendants also in the suit

filed for the relief of injunction cannot be ascertained also.

56. The appellants in RFA No.844/2007 being aggrieved

by the judgment and direction given against the

Corporation preferred the appeal and learned counsel

would contend that the Court below ought not to have

given such direction. On perusal of the impugned

judgment, the Court below has formed an opinion that the

property belongs to Corporation. It has to be noted that

the Corporation has not filed the written statement also

and not made any claim in respect of the right of the suit

schedule property and when such being the case the Court

below ought not to have given such direction. However, it

is made clear that the very plaintiff in the suit itself has

contended that the Corporation is claiming the right in

respect of the swimming pool extension property. Hence,

54

the Government of Karnataka accorded sanction to the

Corporation to grant ownership to the person who have

constructed the building on payment of land cost. In this

regard, the estate officer of the Corporation of City of

Bengaluru reported that several persons were

unauthorized occupants of the sites in Jodi

Ranganathapura Village. There is no dispute that the suit

schedule property was situated within the Swimming Pool

Extension and it is specifically pleaded in para No.6 that

suit schedule property was situate in Survey No.6 of Jodi

Ranganathapura Village, Malleswaram, Bengaluru and

subsequently, the said village is named as Swimming Pool

Extension, Survey No.6 was in Kasaba Hobli, Jodi

Ranganathapura was part of Bengaluru North Taluk. There

were several litigation between the Corporation of City of

Bengaluru and the site owners of Jodi Ranganathapura

Village in a Civil Court as well as before this Court. Under

the circumstances, the Corporation of City of Bengaluru

was reluctant to issue khata in favour of the site holders of

Jodi Ranganathapura Village. When such being the

55

pleadings on the part of plaintiff, the very plaintiff and also

the defendant both of them who asserts their rights in

respect of the suit schedule property as belongs to them

to seek for better relief. Under the circumstances, the

direction given by the trial Court, defendant No.1 to take

action since the same is a public property could not make

any differences. Hence, on that ground, the appeal cannot

be allowed as contended. Hence, I am of the opinion that

the appeals filed by both the plaintiffs as well as the

defendants also cannot be entertained in the absence of

declaratory relief. Hence, I answer Point Nos.4 and 5 as

negative.

Point No.6 :-

57. The learned counsel for appellant in RFA

No.1006/2007 and also filed an application under Order 41

Rule 27 of CPC., seeking permission of this Court for

production of additional documents. In view of answering

Point No.2 as negative and Point No.3 as affirmative, this

Court has come to a conclusion that the very injunction

56

sought is not maintainable without seeking the relief of

declaration, the question of considering the additional

documents also does not arise. When this Court found

that in the absence of declaratory relief, the Court cannot

consider the issue involved between the parties. The

additional documents also not required. Hence, answered

the above point as negative.

In view of the discussions made above, I proceed to

pass the following;

ORDER

Both appeals are dismissed.

Sd/-

JUDGE

Akc/bkp/nbm