IN

THE

HIGH

COURT

OF

KARNATAKA

AT

BANGALORE

(MEMORANDUM OF REGULAR FIRST APPEAL UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE) R.F.A.No. /2011

IN THE COURT OF THE XL ADDL.CITY CIVIL JUDGE AT, BANGALORE (CCH-41) O.S.NO.7331/1990 IN THE HIGH COURT OF KARNATAKA AT BANGALORE R.F.A.NO. Between 1.Sri Syed Azeem Since deceased by Lrs 2 to 4 2. Sri Syed Muyeed Ahmed Son of Late Syed Azeem Aged about 44 years 3. Syed Shaheed Ahmed Son of Late Syed Azeem Major 4. Smt.Syed Sannadian W/o of Late Syed Azeem Major Sl No.1 to 4 are residing at No.1, Susheela Road, First Cross, Doddamavalli Basavanagudi BANGALORE-560 004 5. Smt.Muniyamma W/o Late Ramanna Aged about 77 years 6. Smt.Sakamma W/o Late Chikkayellappa Aged about 67 years 7. Sri Nagaraja S/o Late Chikkayellappa Aged about 47 years Defendant No.6/ Appellant No.5 /2011 Rank of the Parties Trial Court/ High Court Defendant No.2/ Appellant No.1

Defendant No.3/ Appellant No.2

Defendant No.4/ Appellant No.3

Defendant No.5/ Appellant No.4

Defendant No.7/ Appellant No.6

Defendant No.8/ Appellant No.7

-28. Sri Sriram S/o Late Chikkayellappa Aged about 42 years 9. Sri Jagadish S/o Late Chikkayellappa Aged about 40 years 10. Sri Srinivas S/o Late Chikkayellappa Aged about 29 years Sl No.5 to 11 are residing at No.14, Sreenivasa Kalyanmantap 10th Cross, Someshwara Nagar road Wilson Garden BANGALORE-560 027 And 1. The Commissioner Bangalore City Corporation Bangalore 2. Smt.Sundarvathi Ammal Since deceased by her Lrs: a) Smt.Vijayarani D/o Late T.S.David Aged about 54 years b) Smt.Jayarani D/o Late T.S.Davidl Aged about 54 years Both LR 2 (a) & (b) are residing at No.204 II Floor, Erio Lake Breeze Apartments Coffee board Layout Hebbal, BANGALORE-560 0024. Defendant No.9/ Appellant No.9

Defendant No.10/Appellant No.10

Defendant No.11/Appellant No.11

Defendant No.1/ Respondent No.1

Plaintiffs LR (1a)/ Respondent No.2a

Plaintiffs Lr1(b) / Respondent No.2b

The Appellants in the above case submit before this Hon'ble Court as follows:1. The address of the Appellants for the purpose of service of

summons, notices, process etc., from this Honble court is as per the

-3above cause title. The Appellants may also be served through their counsel M/s.M.T.Nanaiah & Associates, No.14, 2nd floor, Mamatha A Apartment, No.201, 4th Main, Gandhinagar, Bangalore - 560 009. 2. The address of the respondents for the similar purpose is as per

the above cause title. 3. Being aggrieved by the Judgment and Decree dated 01.10.2010

passed in O.S No.7331/1990 on the file of the XL Additional City Civil Judge, Bangalore (CCH-41), Bangalore, as per Annexure- A & B respectively, decreeing the suit of the respondent-2 (a) & (b) /plaintiff in part with costs, the appellants are preferring this appeal. In the judgment it is declared that the plaintiffs are the absolute owners of the suit schedule property and further directed appellants 1 to 4 to deliver the vacant possession of suit schedule property to the plaintiffs. It is further directed to Respondent No.1/Defendant No.1 to revoke the conditional khatha made in favour of appellants 1 to 4 in respect of schedule property and to register the katha in the names of plaintiffs. Having regard to the circumstances of the case, appellants are directed to pay the costs of the suit. FACTS OF THE CASE IN BRIEF 4. Initially this suit was filed by plaintiff the deceased Sundarvathi

Ammal against defendants for the above said reliefs and in the meanwhile sole plaintiff named above died and her legal representatives are brought on record. According to the plaintiffs, deceased plaintiff Sundarvathi Ammal was the absolute owner of the suit property bearing Khata No.32, measuring East to West 59 ft and North to South 60 ft situated at Hosur Road, Arekempanahalli, Corporation Division No.54, more fully described in the plaint schedule having purchased the same under a registered sale deed dated 13.10.1951 for a sum of Rs.700/from one Sri C.Raghavachari and the said document was registered in her name. According to the plaintiffs the suit property was originally in Sy No.25 of Arekempanahally Village, measuring 1 acre to an extent and out of which the plaintiff Sundarvathi Ammal purchased the suit property referred above and after the purchase the land in Sy No.25 was

-4phoded as Sy No.25/1a and 25/1b and the revenue authorities have given katha No.32 to the plaint schedule property referred above. According to the plaintiffs they have paid the property tax of the suit property as collected by the revenue authorities till 1968. Further according to the plaintiffs that the revenue authorities during the year 1955 have accepted the mutation No.8/1951-52 and khata was made in the name of Sundarvathi Ammal. It is averred that Sy No.24 is situated on the western side of Sy No.25/1B. That in the year 1967 the 1st respondent has included the suit property in the Corporation limits and they have also collected the tax to the property and on 16.11.73 by holding an enquiry as required under Section 145 of the Corporation Act of 1949. It is stated that the deceased plaintiff mortgaged the suit property on 29.11.73 in favour of one Syed Baba for a sum of Rs.5000/and the said mortgage was registered and was redeemed on 6.7.1988. It is averred that the deceased plaintiff continued her possession as absolute owner of the suit schedule property till her death and on her demise during pendency of this suit her legal representatives named above have succeeded and became owners of the property in question. 5. According to the plaint averments that on the western side of the

suit property, Sy No.24 property is situated which was originally belonging to one Ramanna and Chickkayellappa and it was totally measuring 1 acre 37 guntas and out of which 33 guntas has been acquired by Respondent No.1/ Corporation for formation of road and 25 guntas was left over with the owners of the property. After that the said Ramanna and Chickayellappa have formed 10 sites in that 25 guntas of land, out of which during 1972 they have sold 6 sites to Susheela Gopal Naidu, Nanjundaiah and Karigowda and others in Site No.1 to 6. Further according to the plaint averments earlier to 1972 itself site No.7 to 10 formed in Sy No.24 were occupied by the slum dwellers. Further according to the plaintiffs in the year 1976, Ramanna and Chicka Yellappa have filed a suit against plaintiff Sundarvathi Ammal for the relief of permanent injunction in respect of Sy No.24 to an extent of 25 guntas and the said suit came to be decreed on 12.10.1988. In that suit a Surveyor was appointed as Court Commissioner and he prepared a sketch pertaining to Sy No.24, which

-5was made as part of the proceedings in the said suit. According to the plaintiffs appellants 5 to 11 have sold the site No.7 to 10 in Sy No.24 in favour of appellants and on the strength of the sale deeds D2 to D5 wants to put up construction illegally on the suit property alleging that they have purchased the same though the suit property forms part and parcel of Sy No.25/1B, and the defendants have absolutely no right, title or interest over the same. 6. According to the plaintiffs the property bearing No.32 was

previously situated in Corporation Division No.37, then somewhere in the year 1985 or so it was changed over to Corporation Division No.53 again in the year 1988 because of some administrative problems, the properties which were in the Corporation Division No.53 were taken over to Division No.54. At the time of taking over of the properties from Corporation Division No.53 to 54, unfortunately, first respondent Corporation has given same katha number that of in Corporation Division No.53 to the defendants property also. Further according to the plaintiffs, they corporation authorities for the property held by Defendants 6 to 11 they have given khatha No.32 in Division No.32 and again it was changed to Division Mo.53, the same khatha No.32 has been given to their property when it was taken in Division No.54, again Corporation authorities have given the same khatha numbering Division No.54 also. Khatha number of the plaintiffs property is also 32 and whereas the property held by Defendants 2 to 5 was also 32, but the property of the plaintiff was in Division No.54 whereas the property of appellants 1 to 4 was in Division No.53, both properties are different since they are located in different divisions. During 1988 at the time of taking over the properties from Division No.53 to 54, the Corporation authorities ought to have given different khatha numbers to the properties of appellants 1 to 4, but unfortunately they did not do so and that is the problem which has been created between the parties. Further according to the plaintiffs appellants 1 to 4 purchased the property from appellants 5 to 11 are having eyes on the property of the plaintiff holding that they are the absolute owners of the property in khatha No.32 particularly they are trying to enter upon Sy No.25/1. Further according to the plaintiffs as on the date of purchase

-6by appellants 1 to 4 absolutely there was no property remained in Sy No.24, since it was pre-occupied by slum dwellers, D2 to D5 on the pretext that they are the khata holders of No.32 they are trying to put up construction on the suit land in question. D2 to D5 after purchasing they have also obtained a conditional khatha from BCC in respect of khata No.32, factually the 1st defendant Corporation has created problem to the parties in giving double khatha numbers in the same division and on the strength of the sale deeds dated 15.4.88, D2 to D5 have also obtained licence and sanctioned plan from defendant Corporation and on coming to know the same, plaintiff filed objections before the corporation authorities in which she has questioned the issuance of licence and sanctioned plan and on the complaint of the plaintiff, the Administrator of BCC by his order dated 20.2.90 has suspended the licence issued by the Engineering Dept and also directed the subordinate to inquire the matter in detail by directing D2 to D5 not to put up construction on the suit property. In the meanwhile plaintiff also sought for cancellation of khatha which is standing in the name of D2 to D5 by issuing legal notice under section 482 of the Corporation Act, but in-spite of service of that notice, 1st respondent Corporation has neither replied nor complied with the said notice. It has been further pleaded in the plaint that on 6.7.89, 1st respondent Corporation has accorded permission to D2 to D5 to erect compound and to put up shed and consequently on 5.8.89 they trespassed into the suit property and put up compound wall and a shed on the suit property illegally and since then D2 to D5 are unauthorized possession of the suit property and even till today they are in possession as trespassers. The plaintiff has sought for damages of Rs.5000/- p.m. from D2 to D5 from the date of dispossession referred above till delivery of vacant possession. Hence on the above said cause of action plaintiff has brought the present suit for the relief of declaration, possession and mandatory injunction and for damages. 7. That in response to the suit summons, Respondent No.1 has

appeared by engaging its counsel and D2 to D11 have appeared by engaging their counsels. In fact, 1st Respondent Corporation has not filed any written statement. However, D2 to D5 have filed their joint -7-

written statement and D6 to D8 have filed separate written statement in joint and it has been adopted by D9 and 10. The main defence of the defendants D2 to D5 is that there is no such property in existence as claimed by the plaintiff and her statement that she is its absolute owner is false. The plaintiff is not owning and possessing any property towards western boundary of the Sy No.24 of Arekempanahalli Village. There is no property as described in the schedule of the plaint which was/is lying vacant towards the western side boundary of Sy No.24 of Arekempanahalli Village. Further it is contended that Sri Chikkayellappa and Ramanna have filed suit in OS No.1419//80 for protecting the possession and enjoyment of their property in Sy No.24 of Arekempanahalli against the plaintiff as she had earlier also attempted to trespass into Sy No 24. The said suit was contested by the plaintiff. The decree has become final and conclusive. The finding therein operates as Res-judicata and as such the present suit is liable to be rejected in limine. It is further contended that before sanctioning the plan and licence, the 1st respondent authorities made spot inspection, verified all the title deeds, measured the property in occupation and after following the procedure, stipulated under law, granted the licence and issued sanction plan in favour of D2 to D5 and in pursuant to which the compound and watchman shed were put up and they are remaining in possession of the same till today. It is further contended that the plaintiff is very well to do, influential person and she has the support of high ranking officials in the Karnataka Secretariat. Her own son-in-law is a Class-I officer and by making use of his office and through him, the plaintiff is maneuvering things by exercising the influence of the departmental officials and getting documents concocted to suit her convenience and make illegal claim on the properties absolutely belonging to the appellants. It is stated that appellants 1 to 3 are not in possession of the property allegedly belonging to the plaintiff and as described in the schedule of the plaint. Hence there cannot be any direction to deliver the possession of the same much less as consequential relief to the plaintiff. The suit is bad for mis-joinder of unnecessary parties and non-joinder of necessary and proper parties. The suit is even other wise barred by time and even without cause of action. It is not properly valued and the court fee paid is insufficient. The appellants 1 to 4 have also perfected their

-8title by adverse possession over the disputed property. Hence they sought for dismissal of the suit with costs. 8. The appellants 5 to 11 have contended in the written statement

that the suit is not maintainable and that the plaintiff has concocted records in connivance with revenue officials to suit her convenience. The mutation entries stated has no relevance. Appellants have also taken other defence as that of appellants 1 to 4. The appellants 5 to 11 contends that land was re-granted by the competent authority to Sri Ramanna and Chikkayellappa and the said property was held and enjoyed for the last several decades by the predecessors of these defendants and these defendants. It is denied that 19 guntas of land in Sy No.24 was acquired by the Corporation for formation of Road. It is stated that appellants 5 to 11 have validly conveyed their subsisting right, title and interest under the sale deeds dated 15.4.88 in favour of appellants 1 to 4 and put them in possession of their respective properties. With these and other averments defendants 2 to 11 sought for dismissal of the suit with costs. 9. On going through the pleadings of the parties the trial court has

framed 19 issues putting heavy burden on the plaintiff to prove the issues. There after respondent No.2/plaintiff examined Power of attorney holder by name R.Basavaraju, as PW1 and got marked certain documents. That the plaintiffs have examined one M.Krishnappa the Survey supervisor of City Survey office, Bangalore as PW2 and one witness by name Chandra as PW3. After that the plaintiff Smt.Sundaravathi Ammal herself has examined as PW4 on commission by appointing the court commissioner to given evidence. In support of plaintiffs case they have got marked the documents at ExP1 to 34 and closed their efvidence. On the other hand, on behalf of appellants, 2nd defendant/deceased Syed Azeem S/o Syed Kasim examined as DW1 and got marked the documents at Exd1 to D29 and closed their evidence. 10. After closure of evidence of both parties, the plaintiffs have filed -9-

IA 14 under order 26 Rule 9 CPC for appointment of the court

commissioner preferably the surveyor to measure the disputed property and also the neighboring properties and to submit his report. IA14 was allowed and the court Commissioner ADLR Bangalore was appointed and he has carried out commission work as per the memo of instructions submitted by both parties in the presence of their respective representatives and submitted his report dated 20.2.2004 and it is made part of the record. Upon hearing both sides, the trial court answered issue Nos.1,3,4,6,8,9,16 17 in the affirmative and issue Nos.2,5,7,10 to 15, 18 and additional issue No.1 in negative and consequently suit of the plaintiff is decreed in part with costs. It is declared that the plaintiffs are the absolute owner of the suit schedule property and defendants 2 to 5 are directed to deliver the vacant possession of the suit schedule property to the plaintiffs. Further D1 is directed to revoke the conditional khatha made in favour of D2 to D5 in respect of suit schedule property and to register the khata in the names of plaintiffs. Having regard to the circumstances of the case D2 to D5 are directed to pay the costs of the suit. Being aggrieved by the judgment and decree 1.10.2010 in O.S.No.7331/90 on the file of the XL Additional City Civil Judge, Bangalore (CCH-41), Bangalore, the appellants prefer this Memorandum of Regular First Appeal on the following grounds. GROUNDS 11. The Judgment and decree of the trial court is erroneous, bad in

law and the same is liable to be set-aside. 12. The court below has committed an error of law in passing a

decree even though the respondent/plaintiff utterly failed to establish her claim for declaration and possession. 13. The trial court has not at all looked into ExP2 sale deed produced

by the plaintiff which says that plot No.3 came to be sold to her by the vendor Sri.Raghavachadri as per sale deed dated 13.10.51. In fact the schedule mentioned in the plaint is quiet different, misconceived and lacks identification of the property. Despite the same the learned judge blindly records in the finding that the property purchased by the -10-

plaintiff was numbered as Sy No.25/1B and the remaining extent retained by the plaintiffs vendor was renumbered as Sy No.25/1A. 14. The learned judge by holding that none of the parties have filed

the objections to the commissioners report, relying on the sole commissioners report decreed the suit in favour of the plaintiff and the same is erroneous. In fact he has not compared the same with the earlier commissioners report produced in OS 1419/80 which was filed by the vendors of appellants 1 to 4 as against deceased plaintiff Smt.Sundarvathi Ammalvas. The certified copies of the same are marked as ExP28 and sketch at ExP28 (a). The suit in OS No.1419/80 came to be decreed on merits wherein the court has held that Sy No.25 is situated on the eastern side of this property as per the sketch and report given by the court Commissioner. 15. The learned judge erred in holding that the say of the DW1 to the

effect that they have no right, title or interest over any portion of land bearing No.25/1B, of Arekempanahally Village, itself will support the case of the plaintiff in proving her right over the same. 16. The court commissioner erred in mentioning in the sketch that

letters AQRSTUVA is altogether different land and it is not at all the portion of Sy no.24 of Arekempanahally Village. 17. The learned judge erred in holding that the property covered by

the compound wall and watchman shed put by appellants 1 to 4 (D2 to D5) includes the present suit schedule property shown in red colour by the court commissioner. 18. The learned judge erred in holding that even today the suit

schedule property is vacant land and it has not been used for any beneficial purpose and further holds that the D2 to D5 are in illegal possession of the suit property.

19.

The sketch produced along with the report by the commissioner -11-

has not been drawn on the spot and there is no signature obtained

from the parties/advocates concerned and hence it can be held that it is a made out document to support the claim of the plaintiff and the court cannot sole rely on the same to decree the suit. 20. The 2nd respondent has not produced any vital document to show

that she was in possession either after purchase of the suit property as per ExP2 or after the alleged discharge of mortgage EXP19 or in between them. 21. The learned erred in holding that as per the pleadings and

evidence on record the western side of Sy No.25/1b the present suit schedule property there exists the land in Sy No.24 owned by Ramanna and Chikkayellappa. 22. The learned judge erred in holding that the khata numbered 32

assigned by the 1st Respondent Corporation in Division No.36 of Hosur Road, Bangalore in 1973 pertains to suit property 23. Even though the learned judge held in para 15 of the judgment

that the defendants 2 to 5 are the absolute owners and in possession of site Nos.7,8,9, and 10 formed out of Sy.No.24 of Arekempanahally Village which are covered with construction of compound wall around the sites with watchman shed with proper plan and licence, still decreed the same of the plaintiff and committed serious error. 24. The learned judge erred in holding that the total measurement in

terms of square feet is 3540 and this piece of property tallies with the measurements and boundaries given by the plaintiff in the plaint schedule. 25. When the plaintiff herself not able to identify her property with

documents how the court commissioner find out and locate the suit schedule property by holding that the red colour which is within the compound put up by D2 to D5 in property represented by the letters AQRSTUVA. 26. The learned judge has committed a serious error in holding that

the property shown in red colour by the Court Commissioner in his report and the sketch includes the present suit schedule property. -12-

27.

The judgment passed by the trial court is wholly perverse,

oppose to law and principles of nature justice. 28. The very approach of the court below in recording the findings on

the issues without considering the relevant evidence on mere services and conjectures is vitiated and unsustainable. 29. The court below has failed to draw a proper presumption from the

proved facts the finding on the issues and the finding recorded are contrary to the evidence on record and thus unsustainable in law. 30. The court below has acted illegally with materials irregularity in

passing the judgment and decree, even though the 2nd respondent has failed to prove and establish the suit claim. 31. Appellants crave leave of this Honble Court to urge or be heard in

support of any ground of objection not set forth in the memorandum of appeal at the time of admission/final hearing. 32. Viewed from any angles the findings arrived and the reasoning of

the findings are contrary to the facts and evidence on record and probabilities of the case, which can not be sustained in law. 33. No other appeal/revision or writ is filed on the same cause of

action or subject matter before any court or forum either past or present, is pending. LIMITATION 34. The suit came to be decreed on 1.10.2010. The appellants

applied for certified copy on 9.11.2010 and the certified copy came to be delivered on 7.12.2010 and hence the appeal is in time within the valid period prescribed under the law of limitation and there is no delay. VALUATION SLIP 35. The suit is for declaration and delivery of possession of the suit

property and for mandatory injunction to revoke the conditional katha -13-

made in favour of D2 o D5 and for costs. For the purpose of court fees and jurisdiction, the appeal is valued for Rs.89,250/- and the court fee of Rs.8,925/ has been paid in the court below. Accordingly the same is the value in this appeal and hence court fee of Rs 8,925/- is paid on this appeal memo under Section 49 of the Karnataka Court Fees and Suit Valuation Act. PRAYER WHEREFORE, it is humbly prayed that this Hon'ble Court be pleased to call for the records and set aside the Judgment and Decree dated 01.10.2010 (As per Annexure-A & B) passed in O.S No.7331/1990 ON the file of the XL Additional City Civil Judge, Bangalore (CCH-41), by allowing the appeal with costs and grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the above case, in the interest of justice and equity.

Bangalore Date: ADDRESS FOR SERVICE M/s.M.T.Nanaiah Associates, No.14, Mamatha A Apartment, No.201,2nd floor, 4th Main, Gandhinagar, Bangalore- 560 009

Advocate for Appellants

IN THE HIGH COURT OF KARNATAKA AT BANGALORE RFA No. /2011 Rank of the Parties Trial Court/ High Court Defendant No.2/ Appellant No.1

Between 1.Sri Syed Azeem Since deceased by Lrs 2 to 4 2. Sri Syed Muyeed Ahmed Son of Late Syed Azeem Aged about 44 years 3. Syed Shaheed Ahmed Son of Late Syed Azeem Major 4. Smt.Syed Sannadian W/o of Late Syed Azeem Major Sl No.1 to 4 are residing at No.1, Susheela Road, First Cross, Doddamavalli Basavanagudi BANGALORE-560 004 5. Smt.Muniyamma W/o Late Ramanna Aged about 77 years 6. Smt.Sakamma W/o Late Chikkayellappa Aged about 67 years 7. Sri Nagaraja S/o Late Chikkayellappa Aged about 47 years 8. Sri Sriram S/o Late Chikkayellappa Aged about 42 years 9. Sri Jagadish S/o Late Chikkayellappa Aged about 40 years

Defendant No.3/ Appellant No.2

Defendant No.4/ Appellant No.3

Defendant No.5/ Appellant No.4

Defendant No.6/ Appellant No.5

Defendant No.7/ Appellant No.6

Defendant No.8/ Appellant No.7

Defendant No.9/ Appellant No.9

Defendant No.10/Appellant No.10

10. Sri Srinivas S/o Late Chikkayellappa Aged about 29 years Defendant No.11/Appellant No.11 Sl No.5 to 11 are residing at No.14, Sreenivasa Kalyanmantap 10th Cross, Someshwara Nagar road Wilson Garden BANGALORE-560 027

-2And 1. The Commissioner Bangalore City Corporation Bangalore 2. Smt.Sundarvathi Ammal Since deceased by her Lrs: a) Smt.Vijayarani D/o Late T.S.David Aged about 54 years b) Smt.Jayarani D/o Late T.S.Davidl Aged about 54 years Both LR 2 (a) & (b) are residing at No.204 II Floor, Erio Lake Breeze Apartments Coffee board Layout Hebbal, BANGALORE-560 0024. IA No.I/11 Between Syed Azeem since deceased by LRs and others Appellants And: The Commissioner Bangalore City Corporation Bangalore and others

Defendant No.1/ Respondent No.1

Plaintiffs LR (1a)/ Respondent No.2a

Plaintiffs Lr1(b) / Respondent No.2b

..

Respondents

APPLICATION UNDER ORDER XLI RULE 5 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE : That for the reasons sworn to in the accompanying affidavit, it is humbly prayed that this Honble Court be pleased to grant an order of stay of further proceedings and execution of the judgment and decree dated 01.10.2010 passed in OS No.7331/1990 on the file of the XL Addl.City Civil Judge, Bangalore (CCH-41), Bangalore, pending disposal of the above appeal, in the interest of justice and equity. Bangalore Date:

Advocate for Appellants

IN THE HIGH COURT OF KARNATAKA AT BANGALORE R.F.A.NO. Between Syed Azeem since deceased by Lrs and others And: The Commissioner Bangalore City Corporation Bangalore and others AFFIDAVIT I,Syed Muyeed Ahmed, Son of Late Syed Azeem, Aged about 44 years, r/at No.1, Susheela Road, First Cross, Basavanagudi, Bangalore4, do hereby solemnly affirm ad state on oath as follows :1. I am the 2nd appellant and I know the facts of the case. I am /2011

Appellants

..

Respondents

authorized to swear to this affidavit by other appellants and hence I am swearing to this affidavit. The grounds urged in the appeal may be read as part and parcel of this affidavit. 2. I submit that the suit in OS No.7331/1990 which was filed by the

2nd respondent herein on the file of the XL Addl.City Civil Judge, Bangalore (CCH-41) came to be decreed on 1.10.2010 in part with costs, directing us to deliver the vacant possession of suit schedule property to 2nd respondent. Further 1st respondent/corporation is directed to revoke the conditional katha made in our favour and to register the katha in the names of the plaintiffs. Being aggrieved by the said judgment and decree we have preferred the above appeal challenging the same. 3. I submit that though the respondent has not proved the suit claim

of declaration and possession, on the basis of the alleged Exp2 & P3 i.e., sale deed and mutation register extract, and when there are materials to disprove the case, the trial court ought to have dismissed the suit instead of decreeing the same. 4. I submit that the trial court solely relying on the commissioners

report decreed the suit instead of dismissing the same. In fact the plaintiff has not been established or identified her property with cogent

-2documents. However, the court decreed the suit and thereby it has caused great injustice to us to hold our property situated in Sy No.24 of Arekempanahalli Village, Bangalore. 5. From facts and material evidence on record I say that the 2nd

respondent has not proved her case for declaration and possession as well as mandatory injunction. I say that we are not liable to vacate the premises in our possession since the same has been in our use and occupation since the year 1989-90 which is part and parcel of Sy No.24 and not Sy 25/1b. We have put up compound wall and shed after obtaining proper plan and licence and the same is being used to store parts of goods vehicle. 6. I submit that if the 2nd respondent is allowed to put the decree in

execution, we will be put to greater hardship, injury and loss. On the other hand the 2nd respondent/plaintiff will not be put to any kind of hardship and injury if the same is stayed till disposal of the appeal. 7. I say that taking advantage of the decree the plaintiff is making all hectic efforts to take possession of the property in our occupation to defeat our legal right, title and interest over the same and it will create multiplicity of proceedings. 8. I submit that we have a good case on merits as well as vital

grounds to urge in the appeal. 9. If the accompanying application is not allowed great hardship,

injury and irreparable loss will be caused to the appellants and on the other hand, no prejudice will be caused to the respondent in allowing the application. 10. In the above facts and circumstances, it is just and necessary that

that this Honble Court be pleased to grant an order of stay of further proceedings and execution of the judgment and decree dated 1.10.2010 passed in OS No.73312/1990 on the file of the XL Addl.City Civil Judge, Bangalore (CCH-41), Bangalore, pending disposal of the above appeal, in the interest of justice and equity. Wherefore I pray for orders as prayed in the application.

-3-

I, the deponent do hereby verify and declare that what stated above are true and correct to the best of my knowledge, information and belief. Identified by me Advocate Deponent Sworn to before me Bangalore Date:

/Typed certified copy of decree/ Decree In Original Suit (O.20, R.6,7) Form No.1. IN THE COURT OF THE CITY CIVIL JUDGE AT BANGALORE CITY. O.S.NO.7331/90 CCH.No.41 Plaintiff/s:Smt.Sundaravathi ammal Since deceased by Lrs (a) Smt.Vijayarani, D/o Late T,S.David, W/o Late Basavaraju 54 years (b) Smt.Jayarani D/o Late T.S.David 44 years, Both R/o No.204, II floor Brio dlake Breeze Apartments Coffee board Layout Hebbal Bangalore-24 Defendants: 1. The Commissioner Bangalore City Corporation, Bangalore 2. Sri Syed Azeem, S/o Kasim, Major 3. Syed Muyeed Ahmed, Son of Syed Azeem, 24 years 4. Syed Shaheed Ahmed, Son of Syed Azeem, Major 5. Smt.Syed Sannadjan, W/o Sri Syed Azeem, Major 2 to 5 R/o No.1, Susheela Road, 1st Cross Doddamavalli, Basavanagudi, Bangalore-4. 6. Smt,Muniyammam W/o Late Ramanna, 57 years 7. Smt.Sakamma, W/o Chikkayellappa, 47 years 8. Nagaraja, Son of Chikkayellappa, 27 years 9 Sriram, Son of Chikkkayellappa, 22 years 10. Jagadish, Son of Chikkayellappa, 20 yers 11. Srinivas Son of Chikkeyellappa, 9 years.

-2Defendants 6 to 11 R/o No.15, Sreenivasa Kalyansmantap, 10th Cross, Someshwara Nagar Road, Siddapura, Wilson Garden, Bangalore-27. SUIT CLAIM:- Suit was filed on 19.12.90 and prays for judgment and decree: (a) To pass a judgment and decree declaring that the plaintiff is the absolute owner of the suit schedule property (b) To pass a judgment and decree against the defendants 2 to 5 directing them to deliver possession of the suit property to the plaintiff as a consequential relief. To pass a judgment and decree for mandatory injunction against the defendant No.1 directing him to revoke the conditional katha made in favour of defendants 2 to 5 in respect of suit property entered in page 254 of the house and vacant sites demand register extract maintained in Division No.54, of Bangalore City Corporation. (d) And to pass a judgment and decree against defendants 2 to 5 directing them to pay the damages at the rate of Rs..500/- (Five hundred) per month from 5th August 1989 till they deliver possession of the suit property to the plaintiff and to grant such other relief or reliefs. This suit coming on this day for final disposal before Sri S.C.Maradi, XL Additional City Civil Judge Bangalore City, in the presence of Sri.T.Seshagiri Rao, Advocate for the plaintiff and Sri LGSA for D1, D2 to 11 MRK. It is ordered and decreed that suit filed by the plaintiffs against the defendant is decreed partly with costs. It is further ordered and decreed and declared that the plaintiffs are the absolute owner of the suit schedule property. It is further ordered and decreed that the defendants 2 to 5 are directed to deliver the vacant possession of suit schedule property to the plaintiffs. Further D1 is directed to revoke the conditional khata made in favour of D2 to D5 in respect of suit schedule property and to register the khata in the names of plaintiffs. It is further ordered and decreed that D2 to D5 are directed to pay the costs of this suit. And that a sum of Rs.14,938/- be paid by the defendants 2 to 5 to the plaintiff/s on account of the cost of this suit. Given under my hand and the seal of the court, this, the 1st day of October 2010 -3-

For the purpose of court fee and jurisdiction the suit is valued at Rs.89,250/-and court fee of Rs.8925/- was paid. SD/Deputy Registrar City Civil Court, Bangalore COSTS OF THE SUIT ________________________________________________________ By the plaintiff/s By the defendant/s RS. RS. Stamp paid on plaint 8925-00 Stamp paid for Power 2-00 9-00 Stamp on I.A.S 40-00 . 8-00 Service of process 169-00 Pleaders fee(Fc Filed) 3802-00 Paper Publication Charges Commissioners fee 2000-00 ------------------------------------------------------------------------------Total Rs. 14,938-00 Rs17=00 ------------------------------------------------------------------------------SD/Deputy Registrar City Civil Court Bangalore

SCHEDULE Property bearing katha No.32, situated in Corporation Division No.54, Hosur Road, Measuring east to West 59 feet and North to South 60 fee, and bounded on: East by West by North by South by Portion of Sy No.25/1a Portion of Sy No.24 Bangalore Housr Road Portion of Sy No.25/1b, retained by Vendor of the property

SD/Deputy Registrar City Civil Court Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE R.F.A.NO. Between Syed Azeem since deceased by Lrs and others And: The Commissioner Bangalore City Corporation Bangalore and others /2011

Appellants

..

Respondents

VERIFYING AFFIDAVIT I,Syed Muyeed Ahmed, Son of Late Syed Azeem, Aged about 44 years, r/at No.1, Susheela Road, First Cross, Basavanagudi, Bangalore4, do hereby solemnly affirm ad state on oath as follows :1. I am the 2nd appellant and I know the facts of the case. I am

authorized to swear to this affidavit by other appellants and hence I am swearing to this affidavit. The grounds urged in the appeal may be read as part and parcel of this affidavit.
2. I submit that the averments made in pares 1 to 35 are true and

correct. I have produced the certified copy of the judgment and decree dated 1.10.2010 at Annexure-A & B, for the kind perusal of this Honble Court. I, the deponent do hereby verify and declare that what stated above are true and correct to the best of my knowledge, information and belief. Identified by me

Advocate Bangalore Date:

Deponent Sworn to before me

IN THE HIGH COURT OF KARNATAKA AT BANGALORE R.F.A.NO. Between Syed Azeem since deceased by Lrs and others And: The Commissioner Bangalore City Corporation Bangalore and others /2011

Appellants

..

Respondents

SYNOPHSIS 19.12.90 .. Suit filed by the deceased plaintiff/2nd Respondent for declaration, consequential relief of possession, mandatory injunction for revoking of katha WS came to be filed by appellants Recording of evidence commenced. Judgment rendered as per Annexure-A By the trial court decreeing the suit of the plaintiff in part and declared that the plaintiff are the absolute owners of the suit schedule property. Further defendants 2 to 5 are directed to deliver vacant possession of the suit schedule property to the plaintiff. Further D1 is directed to revoke the conditional khata made in favour of D2 to D5 in respect of suit schedule property and to register the khata in favour of the plaintiffs, which is under challenge in this appeal by the Appellant.

04.06.92 17.01.95 01.10.10

.. .. ..

BRIEF FACTS The appellant claiming to be the absolute owner of the suit property bearing khata No.32, measuring East to West 59 ft and North to South 60 ft situated at Hosur Road, Arekempanahally, Corporation Division No.54 filed the suit that she purchased the property under registered sale deed 13.10.51 from its owner C.Raghavachari. According to the plaintiff she mortgaged the suit property on 29.11.73 in favour of one Syed Baba for a sum of Rs.5,000/- and after that said mortgage was redeemed on 6.7.88 and after discharge of the said mortgage she continued her possession as absolute owner of the suit 2-

property till her death and on her demise during pendency of this suit her legal representatives have succeeded and became owners of the property in question. According to the plaintiff that property of her was in Division no.54 and the property of D6 to D11 was in Division No.53, both properties are different since they are located in different divisions. During 1988 at the time of taking over the properties from Division No.53 to 54, the Corporation authorities ought to have given different khatha numbers to the properties of D6 to D11, but unfortunately they did not do so and that is the problem which has been created between the parties. It is the case of the plaintiff that on 6.7.89 1st respondent Corporation has accorded permission for D2 to D5 to erect compound and to put shed and consequently on 5.8.89 they trespassed into the suit property illegally and since then D2 to d5 are in unauthorized possession of the suit property and even till today they are in possession as trespassers. Hence the plaintiff brought the suit for declaration, consequential relief of possession and mandatory injunction for revoking of katha and for damages. Though the D2 to D11 filed their written statement contending that the plaintiff herself does not know where the property lies and not able to identify the same. In fact they are in possession of their property as per sale deeds 15.4.88 and they put up compound and watchman shed in their property covered in Sy No.24 of Arekempanahalli Village. Despite the fact, the court below decreed the suit solely depending on the commissioners report and sketch. Hence the appeal. Bangalore Date: Advocate for appellants.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

RFA No. Between Syed Azeem since deceased by Lrs and others And: The Commissioner Bangalore City Corporation Bangalore and others I N D E X Sl No. 1 2 Description Synophsis Memorandum of Regular First Appeal under Section 96 of the Code of Civil Procedure Verifying Affidavit Annexure-A-Certified copy of Judgment 1.10.2010 in OS No.7331/90 Annexure-B-Certified copy of Decree dated 1.10.2010 Typed copy of decree Vakalath ____________________________ Application Under Order XLI Rule 5 R/W Section 151 of The Code of Civil Procedure for Stay Pages CF Paid /2011

Appellants

..

Respondents

3 4 5

Bangalore Date:

Advocate for Appellants