Judgment:
R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF FEBRUARY, 2020 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.1585/2007 BETWEEN:
1. . SMT LAKSHMI BAI AGED63YEARS, W/O STATE JAGANNATHA RAO277 II FLOOR AKKI PET MAIN ROAD, BANGALORE53 2 . M G HANUMANTHA RAO66YEARS, 3, 15TH CROSS, KANAKANAGAR, R.T.NAGAR, BANGALORE32 3 . M G SHIVASHANKAR63YEARS, SINCE DEAD BY LRS3a) M.S.KALAVATHI W/O M.G.SHIVASHANKAR AGED ABOUT60YEARS R/A: LAKSHMI ROAD, BHARATHINAGAR, BELGAUM-590003 2 4 . N VIJAYALAKSHMI43YEARS, 13/1, I FLOOR, I CROSS HURIYOPET, BVK IYENGAR ROAD CROSS, BANGALORE-53. 5 . M A VASANTH KUMAR22YEARS,13/1, I FLOOR, I CROSS, HURIYOPET, BVK IYENGAR ROAD CROSS, BANGALORE-53. 6 . M.A.UDAYAKUMAR17YEARS, MINOR BY GUARDIAN-APPELLANT NO.4, VIJAYALAKSHMI RESIDING WITH HER AT131, I FLOOR, I CROSS, HURIYOPET BVK IYENGAR ROAD CROSS, BANGALORE -53. ..APPELLANTS (BY SRI K CHANDRANATH ARIGA, ADVOCATE) AND:
1. . STATE OF KARNATAKA BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE1 2 . THE BANGALORE DEVELOPMENT AUTHORITY BY ITS COMMISSIONER, KUMARA PARK WEST, BANGALORE20 ..RESPONDENTS (BY SMT.M.GEETHA, HCGP FOR R-1, SRI I.G.GACHCHINAMATH, ADVOCATE FOR R-2) 3 THIS RFA IS FILED UNDER SECTION96OF CPC AGAINST THE
JUDGMENTAND DECREE DATED0903.2007 PASSED IN O.S.NO.9426/1997 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL JUDGE, BANGALORE, CCH-10, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION. THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENTAppeal is directed against the Judgment and decree dated 09.03.2007 passed by the learned IX Additional City Civil Judge at Bengaluru in O.S.No.9426/97 wherein the suit filed by plaintiffs for declaration of title and for possession came to be dismissed. Being aggrieved by the said Judgment and decree plaintiffs have come in appeal.
2. The defendants are (1) The Chief Secretary, Government of Karnataka, Vidhana Soudha and (2) The Commissioner, Bangalore Development Authority (for short `BDA’). 4
3. In order to avoid confusion and overlapping the parties are addressed in accordance with the rankings held by them before the trial court.
4. Plaintiffs 1 to 4 filed a suit for declaration and injunction against the defendants, in respect of land bearing Sy.No.43 of Chikkamaranahalli, Kasaba Hobli, Bengaluru North Taluk, comprising of 26 acres and 10 guntas which is the suit schedule property.
5. Plaintiff No.4 – M.G.Anantha died and suit came to be represented by 4(a) to 4(c) as legal representatives of said Anantha. However 4(c) being a minor is further represented by his mother and natural guardian N.Vijayalakshmi. Plaintiff No.1 is a widowed daughter-in-law and plaintiffs 2 and 4 are the sons of late Narasu Bai wife of late M.H.Gangadhar. 5
6. Plaintiffs claimed to be legal heirs of Narasu Bai and as the owners with right, title and interest over land in Sy.No.43 mentioned in the schedule to the extent of 26 acres and 10 guntas.
7. Further claims are that Kilari Javanna was the Kodigidar of Chikkamaranahalli Tank, Bangalore North Taluk as the owner of Kodigi right. He was also taking the work of repairing tank as and when it was necessary and furnish proper security therefor. The Diwan to His Highness the Maharaja of Mysuru, by his order dated 11.07.1888 which is about 132 years, directed the then Deputy Commissioner of Bangalore District to recognize Javanna as Kodigidar. As such the said Javanna was recognized to be the owner and was maintaining the tank till his death on 17.11.1903. After his death his widow and other legal heirs 6 mortgaged the said tank and raised loan of Rs.500/- under a registered mortgage deed.
8. Mortgagee filed a suit for recovery of mortgage money in O.S.No.480/1904 in the court of the learned Munsiff, Bangalore. The said suit was decreed and the execution petition was filed in Ex.No.231/1910-11. In the court auction one Mallarappa purchased the property and got possession of the mortgaged property. Subsequently, Mallarappa the purchaser in court auction was maintaining the tank and exercising all rights of owner. He then sold the schedule land to one Gangadhar under a registered sale deed dated 22/23.01.1918. Said Gangadhar was in possession of the suit schedule property and exercising all rights of ownership. He borrowed loan from Pasumal Harbhagwandas, who filed suit against Gangadhar in O.S.No.147/1921-22 on the file of the Sub-Judge, 7 Bangalore and the same was decreed. In the Execution case No.1366/1926-27 the schedule property belonging to Gangadhar was sold in auction. He himself purchased the schedule property and obtained possession through court on 29.07.1931. Said Harbhagwandas sold the above property to M.H.Gangadhar (who is none other than husband of Narasu Bai) and Hanumanthappa under registered sale deed dated 27.07.1939. The purchasers were in physical possession and enjoyment of the suit schedule property. One Hirojappa who had purchased the rights of Hanumanthappa being represented through his legal heirs in turn sold such rights in the property to M.H.Gangadhar who was already co-owner for valuable consideration under a registered sale deed of the year 1951. 8
9. In the process the said M.H.Gangadhar became absolute owner of the entire extent of suit schedule property and was in possession and maintaining the tank till his death on 27.02.1955.
10. His widow Narasu Bai and sons who are respectively plaintiffs 2 to 4 are the absolute owners of the schedule property.
11. The said tank was at all material times remained to be a private one without any kind of relation to Government tank. It is claimed that by inadvertence the revenue authorities showed the same in the revenue records as Government tank. Narasu Bai who was eldest member of the family filed a petition to rectify the error in the revenue records and enter her name. On her petition, the Deputy Commissioner called for a report. 9
12. The Tahsildar in his report dated 28.12.78 stated that Sy.No.43 of Chikkamaranahalli was a Government tank measuring 26 acres 10 guntas.
13. The Faisal Patrika of this land was classified as tank bed and there is also an Achkat to the extent of about 50 acres and the tank is also known as `Kilari Javanna Tank’. The Special Deputy Commissioner refused to effect khatha in the name of Narasu Bai.
14. Subsequently Narasu Bai presented another petition before the Special Deputy Commissioner and her petition was forwarded to the Tahsildar, Bangalore North Taluk and a mahazar was drawn, it discloses that the tank was originally owned by Kilari Javanna and known as Kilari Javanna tank. Inspite of several official records, the Assistant Commissioner who was directed to enquire into the matter rejected the claim 10 of Narasu Bai on 02.11.1981, and appeal filed by Narasu Bai before the Special Deputy Commissioner was also rejected on 04.11.1982 against which Narasu Bai filed appeal in RSA No.28/83 before the Karnataka Appellate Tribunal.
15. The Karnataka Appellate Tribunal on 15.11.1985 allowed the appeal filed by Narasu Bai and set aside the orders of the Assistant Commissioner and of Special Deputy Commissioner and directed concerned revenue authority that necessary corrections has to be made in the relevant revenue records by entering her name. However said order was not challenged and no appeal was preferred by Government against said order. Despite, the revenue authorities did not comply with the directions passed by the Karnataka Appellate Tribunal. Narasu Bai filed W.P.No.13041/87 before the High Court and sought a writ of mandamus directing the Tahsildar to enter her name in the 11 revenue records. Said petition was allowed on 19.10.1987. The Tahsildar, Bangalore North Taluk was directed to enter the name of Narasu Bai in the relevant records pertaining the schedule property.
16. During the pendency of these proceedings Government of Karnataka by its order dated 13.02.1985 granted this land on certain conditions to defendant No.2-BDA. It was on 07.03.1985 the Deputy Commissioner issued a Memorandum to give effect to the said order of Government. Narasu Bai came to know about this order and filed appeal No.272/88 to the Karnataka Appellate Tribunal and order of Deputy Commissioner was set aside. Against said order no civil suit was ever filed by the Government.
17. Narasu Bai died on 07.08.85, plaintiffs also in the capacity of legal heirs of Narasu Bai continued the 12 estate of Narasu Bai a vast land consisting of 26 acres 10 guntas at Chikkamaranahalli, Kasaba Hobli, Bangalore North Taluk. Plaintiffs also claimed that they have been in continuous possession of the schedule property. The rest is that plaintiffs allege interference by defendants 1 and 2 viz., The Chief Secretary, Government of Karnataka and the Commissioner, BDA. It was thereafter BDA filed W.P.No.24526/92 against the order of the Karnataka Appellate Tribunal which had earlier directed to enter the name of Narasu Bai or legal heirs in the documents pertaining to schedule property and said writ petition came to be dismissed on 03.08.94. Against said order, writ appeal was filed in W.A.No.2498/94 and said writ appeal was allowed on 22.02.96 and observation is as under: “It is made clear that this decision would not affect the right of Narasu Bai or her legal 13 representatives to institute a suit in a Civil Court seeking a declaration of her title to the suit property. In case, such a suit is instituted the Court will determine the title of the parties on the evidence which will be lead”.
18. It is made clear that this decision would not affect the right of Narasu Bai or her legal representatives to institute a suit seeking declaration of title over the suit schedule property. In case such suit is instituted the Court will determine the title of the parties on the evidence which will be lead and accordingly appeal was allowed and the order dated 03.08.94 delivered by learned Single Judge in W.P.No.24526/92 came to be set aside and relief sought for in prayer (a) and (b) of paragraph 10 of the writ petition were granted. 14
19. Thus, on the strength of the said observation by this court in writ appeal the plaintiffs filed the present suit O.S.No.9426/97 before the trial Judge seeking declaration, injunction and possession. Defendants 1 –The Chief Secretary, Government of Karnataka appeared before this court through D.G.P but failed to file written statement in time and it was taken as not filed. However defendant No.2 BDA filed its written statement and denied the claim of the plaintiffs. The contention of the defendant No.2 is no where rights were confirmed to the plaintiffs or ancestors. The schedule property was acquired by the Government for formation of RMV II Stage Layout neither Gangadhar nor other persons stated in the plaint secured any ownership over the schedule property. The orders of Karnataka Appellate Tribunal and other orders are contended to be not binding on defendant No.2. On the basis of material proposition asserted by 15 one and denied by the other, learned trial Judge framed the following issues:
1. Whether the plaintiffs prove that the suit schedule property was originally a Kodige Chouthai Tank of which one Kilari Javanna was the owner?.
2. Whether the plaintiffs prove that in pursuance of the mortgage by the heirs of Kilari Javanna, one Mallarappa became owner thereof under Court sale as averred in para-3 of the plaint?.
3. Whether the plaintiffs prove that M.H.Gangadhara became owner of the suit schedule property in the manner stated in paras 4, 5 and 6 of the plaint?.
4. Whether the plaintiffs prove that they are heirs and successors in interest of M.H.Gangadhara and that they are the owners of the suit schedule property?. 16 5. Whether the plaintiffs prove that Kodige Chothai Tank was at all materials times a private tank, over which the plaintiffs and their predecessor in title were exercising rights of ownership?.
6. Whether the entries in the revenue records showing the suit schedule property as Government tank are illegal?.
7. Whether the suit is barred by limitation period?.
8. Whether transfer of the suit schedule property by the Government, without there being any acquisition is invalid?.
9. Whether the court fee paid to the plaint is sufficient?.
10. What decree or order?. The answers to the issues are as under: Issue No.1 to 7 – In the Negative 17 Issue No.8 – In the Affirmative Issue No.9 – Sufficient Issue No.10 – As per final order 20. Trial Judge was accommodated with oral evidence of PW-1 –M.G.Shivashankar and documentary evidence Exhibits P-1 – Extract of proceedings of Diwan to his Highness of Maharaja of Mysore dated 11.7.88, P-2- Certified copy of Mortgage Deed dtd:17.11.1893, P-3-Certified copy of the sale deed dt:
22. 1.1918, P-4- Certified copy of the decree passed in O.S.147/1921-22, P-5- Sale deed dtd:
27. 7.1939, P-6-Sale Deed dtd:
11. 10.1947, P-7-Sale Deed dtd:
28. 2.1952, P-8-Certified copy of the preliminary record issued by Tahsildar, Bangalore North Tq., P-9- Notice dated 29.10.1911 issued by Amildar, B’lore North Tq., P-10-Permit issued by Amildar, dtd:
10. 11.1948, P-11-Report of re-survey done by Land Record Authorities, P-12-Report of re- 18 classification done by Land Record Authorities, P-13- Certified copy of Khetwar statement of 1872-73 issued Tahsildar, B’lore North Tq., P-14- Order passed in RRT No.96/98-99 dtd:27.10.98, P-15-Certified copy of the order of the Asst. Commissioner, B’lore Sub-Divn. Dtd:2.11.1981, P-16- Certified copy of the Spl.Dy.Commissioner dtd:4.11.1982 in IRR-2/81-82, P-17-Certified copy of the Judgment in regular 2nd Appeal No.28/83, dt:15.11.85, P-18-Certified copy of the order dtd:19.10.87 in W.P.No.13041/87, P-19- RTC extract for the year 1966-67 to 1970-71, P-20- Xerox of Resolution dtd:
26. 6.1984 passed by BDA, P- 21-Copy of official memorandum dt:7.3.1985, P-22- Certified copy of the order dtd:
29. 11.91 in Appeal No.272/88 passed by KAT, B’lore, P-23-Certified copy of the order dtd:3.8.94 in W.P.No.24256/92, P-24 – Notice dtd:
5. 8.2002 issued by BDA, P-25- Office copy of notice dt:11.6.96 U/s 80 CPC and Sec.64 of BDA19Act issued to defendants, P-25(a) to (c)-Three postal endorsements for having served the original of Ex.P25 on behalf of the plaintiffs and oral evidence of DW-1- Sri Premkumar and documentary evidence Exhibit D-1 –Attested copy of final notification issued reg. acquisition of suit property. D-2 –Attested copy of Government order passed by Revenue Commissioner. D-3- Attested copy of the order in respect of land bearing Sy.No.43 on behalf of the defendants.
21. The title which the plaintiffs claim over the schedule property of 26 acres and 10 guntas of land at Chikkamaranahalli, Bengaluru, presently stated to be RMV II Stage Layout. The change of hands of the schedule property as stated above starting from Javanna thereafter Mallarappa, Haribhagawandas, M.H.Gangadhar, Hirojappa and Hanumanthappa. The question would be whether tank apparently belonged 20 to Government in all practical and legal realities to the extent of 26 acres 10 guntas of Chikkamaranahalli as it was called Kilari Javanna Tank at that time in the year 1888.
22. Now contesting defendant states it is a big layout known as RMV II Stage wherein after acquisition and formation of layout, sites are allotted to various persons and many of them have even constructed houses. Thus, the change of hands including mortgagee buying, sold in court auction and all those things never were tested on the side of title. On the other hand the series of facts are unilateral insofar as claiming of title is concerned.
23. The litigation as stated above was started regarding the title of the plaintiffs who claimed to be the owners of the schedule property along with 21 others. In this connection the relevant aspects are already stated above.
24. Learned counsel for appellants Sri.K.Chandranath Ariga would submit that the title of the plaintiffs is clearly evidenced by Ex.P-1 wherein recognition of the title is made loud and clear. He would further submit that the ownership of the plaintiffs was recognized by the revenue authorities as well. Further the nature of title of the plaintiffs originated from Javanna stated to be kodigedar of the tank and it is also stated money was also received at various intervals for repairing tank right from the year 1888.
25. Learned counsel further submits that when the transaction in series spread over for more than 100 years it was not challenged and nobody questioned. When defendant No.2-BDA started forming layout and 22 started interfering with the schedule property suit came to be filed after following the necessary formalities as contemplated under Section 80 of CPC. First defendant –The Chief Secretary, Government of Karnataka did not even challenge the suit of the plaintiffs and it presupposes competent authority and the custodian of property was very much away from the title of the plaintiffs over the schedule property. On the other hand it is the BDA which is neither the custodian of records nor the competent authority which maintains the revenue records started denying the title of the plaintiffs over the schedule property. Thus, when the plaintiffs have not received any notice from BDA the contentions raised by BDA only deserve to be ignored.
26. The proceedings before the various revenue authorities right from primary level the Tahsildar, Assistant Commissioner, Deputy Commissioner, writ 23 petitions, writ appeals regular second appeal before the Karnataka Appellate Tribunal contextually show that the plaintiffs are absolute owners, and Narasu Bai enjoyed the full fledged ownership.
27. Regarding time limit or barred by limitation as contended by defendant No.2 learned counsel submits that the trial court though dismissed the suit has accepted that the suit is not barred by limitation. Learned counsel would further focus that the trial Judge never discussed about the evidentiary value of the documents filed by plaintiffs which by themselves concluded and projected plaintiffs as absolute owners of the schedule property. It was also submitted that there was no bargaining powers to the plaintiffs as BDA has maneuvered and obtained possession as the plaintiffs or persons claiming under Narasu Bai neither 24 handed over the possession of the schedule property nor the same was taken consequent to proceedings.
28. Learned counsel Smt.M.Geetha appearing on behalf of respondent No.1 would submit that the plaintiffs claim under Narasu Bai who has gone projecting herself as claiming under the original grantee meanwhile through intermediary persons like mortgagees, creditors purchasers and the related. However, finally landed into the hands of BDA as the same was acquired and the extent 26 acres and 10 guntas of Chikkamaranahalli in Sy.No.43 as it was called Kilari Javanna Tank at that time now known as RMV II Stage Layout wherein the full fledged layout was formed, sites were allotted and substantial number of persons have constructed houses. 25
29. Learned Government Advocate would further submit that the plaintiffs engaged into proceedings on a false note knowing fully well that either Narasu Bai or those persons under whom she was claiming clearly had no interest of any form be it possession, title or any manner. The documents get exposed of their falsity. Thus a calculated attempt was made by the plaintiffs to knock off the schedule property.
30. Learned counsel Sri I.G.Gachchinamath, appearing for respondent No.2-BDA submitted that suit is not maintainable and that as no notice was issued as contemplated under Section 64 of the Bangalore Development Act and even on the date of filing of the suit plaintiffs were not in possession nor had any rights over the schedule property nor claim was supported by relevant documents. 26
31. The claim starts from the year 1888 wherein plaintiffs claimed that one Kilari Javanna was given 26 acres 10 guntas of land which consisted of tank as Kodigedar and that he was looking after the tank and also was conducting repairs as and when there was leakage or other defects. Considering this the original grant was made by Maharaja of Mysore during the year 1888. It is also claimed that said Javanna was also paid amounts at regular intervals by the then Mysore King.
32. Thus the claim of Javanna which is the starting point of the title to the plaintiffs. The series of change of hands through sale or mortgage, court sale, execution in one way or the other the title of the schedule property went on changing hands and finally it came to plaintiffs and plaintiffs are claiming under Narasu Bai. Thus, reference of plaintiffs includes Narasu Bai and persons claiming under her. Insofar 27 as participation of Narasu Bai is concerned her husband M.H.Gangadhar who is stated to be co-owner also purchased the rest half and became the absolute owner. Thus, the entire extent of schedule property was in possession of M.H.Gangadhar who was maintaining the tank till his death on 27.02.1955. This date also assumes significance. The suit is filed during 1997. His widow Narasu Bai and her children plaintiffs 2 to 4 as exclusive legal heirs were enjoying ownership of schedule property with possession. Meanwhile Deputy Commissioner called for the details and the existence of schedule property along with its records. Tahsildar submitted the report on 28.12.78 stating that the land in Sy.No.43 of Chikkamaranahalli is a Government tank. In local language it is called `Kere’. The Faisal Patrika of this land is classified as tank bed and there is also Achkat to the extent of about 50 acres and the tank is also known as `Kilari 28 Javanna Tank’. The Special Deputy Commissioner refused to effect khatha on the application of Narasu Bai in respect of schedule property. Narasu Bai presented another petition for effecting change of khatha in her name before the Special Deputy Commissioner. It was forwarded to the Tahsildar, Bangalore North Taluk and mahazar was drawn and it was disclosed and claimed that tank was originally owned by Kilari Javanna. The Assistant Commissioner was directed to enquire into the matter. Thus Assistant Commissioner on perusing the revenue records rejected the said claim of Narasu Bai over the schedule property as per the order dated 02.11.81. Against this order Narasu Bai filed appeal before the Special Deputy Commissioner that was also rejected on 04.11.82. After losing before the Special Deputy Commissioner Narasu Bai filed RSA No.28/83 before the Karnataka Appellate Tribunal. On 15.11.85 the 29 Tribunal allowed the appeal filed by Narasu Bai and set aside the orders of Assistant Commissioner and Special Deputy Commissioner and directed necessary corrections to be effected in revenue records. At this stage it is necessary to mention that the revenue records came to be entered in the name of Narasu Bai in the RTC of 1966 as per the orders of Karnataka Appellate Tribunal as the revenue authorities were directed to enter the name of plaintiffs in the revenue records. But they did not act to enter the name of Narasu Bai in the revenue records pertaining to schedule property and she filed a writ petition No.13041/87 under Article 226 of the Constitution of India seeking a writ of mandamus as she claimed the duty was cast on the revenue authorities to effect the revenue entries in the name of Narasu Bai. It was not complied with and sought a direction by this court to revenue authorities to enter the revenue records and 30 writ petition came to be allowed on 19.10.87. Operative portion of the writ petition is as under: “In the result, petition is allowed, and third respondent is directed to enter the name of the petitioner as owner in the concerned records in respect of the said land within two months from today.
33. During the pendency of these proceedings Government of Karnataka by its order dated 13.02.85 granted this land on certain condition to defendant No.2-BDA. To mean thereby land was acquired for the formation of layout as claimed by defendant No.2- BDA. On 07.03.85 Deputy Commissioner issued a Memorandum to the said effect of the grant of land to BDA-defendant No.2.
34. Narasu Bai after coming to know about the grant of land to BDA filed an appeal No.272/88 to Karnataka Appellate Tribunal against the order of Deputy 31 Commissioner and order was set aside on 29.11.91. The plaintiffs assert that against this order of Karnataka Appellate Tribunal no further agitation in the form of any proceedings before the Civil Court or other court was initiated by the Government. After the death of Narasu Bai her legal heirs continued to enjoy possession and ownership of the schedule property. The second defendant –BDA came into possession of the land in question by virtue of its claim as it was acquired and allotted to it. Thus the BDA represented by its Commissioner filed W.P.No.24526/92 before this court challenging the order of the Karnataka Appellate Tribunal dated 29.11.91.
35. Writ petition came to be dismissed on 03.08.94 and writ appeal No.2498/94 came to be filed against the order passed by learned Single Judge in W.P.No.24256/92. However this court in writ appeal 32 Bench presided by the Hon’ble Chief Justice allowed the appeal and order of the learned Single Judge was set aside.
36. However an observation was made by the Bench that the right to institute the suit in a Civil Court seeking declaration of title is not effected and it is exactly this observation or order is claimed to be cause of action by the plaintiffs for filing the present suit in O.S.9426/97 to counter the plea of barred by limitation by defendant. As stated earlier it is only the BDA that filed the written statement and contested the suit. The Chief Secretary, Government of Karnataka for reasons best known to its wisdom did not file written statement or led oral evidence. The claim of plaintiff is that on 11.07.88 Maharaja of Mysore directed the Deputy Commissioner, Bangalore to recognize Javanna as Kodigedar and he was rightful 33 holder with ownership and possession over the schedule property.
37. Under these circumstances presuming that the plaintiffs trace back their title to 11.07.88 when the land as claimed by plaintiffs was granted to Javanna the point is whether the ownership over the land was transferred to plaintiff.
38. Defendant No.2 –BDA in the course of contesting the matter claims that the schedule property was acquired by Government for the purpose of formation of layout (RMV II Stage) and to the effect of acquisition Ex.D-1 final notification, D-2 –Government order passed by Revenue Commissioner go to show that land was granted to BDA for formation of layout (RMV II Stage). 34
39. Now the question of Kodigedar it is also contention of contesting defendant No.2 that entitlement of money for repair of tank at regular intervals would not confer title. The matter assumes interest as the claim of the plaintiffs that the land was granted to Javanna besides money also given at regular intervals for repairing the tank. Kodigedar right if it is not in respect of land does not require payment of money as it does not grant land followed by payment of money for its maintenance.
40. The land after acquisition, layout is formed known as RMV II Stage. In the deposition plaintiff concedes that at the time of filing of suit houses were existing in the said layout. Allotment of sites and construction of house does not impair their right and plaintiffs are not given any compensation for Government land under Ex.D-1 which is final 35 notification for acquisition. It is necessary at this stage to detect the matter of compensation to the person provided he or she is the owner of such property and her title is evidenced by records and it is seen that in the relevant revenue records in Sy.No.43 of Chikkamaranahalli it is mentioned as tank bed. Thus, when the final notification was issued that was conclusive part, even sending message that plaintiffs neither entitled for land nor compensation, as it was not their land.
41. In this connection Ex.P-19 RTC of the year 1966 became significant wherein Sy.No.43 is stated as Government Tank. Similarly Ex.P-8 index of land it is described as `Kere Angala’ which means tank front yard. Ex.P-11 another document filed by plaintiff to evidence that Government has spent Rs.1,000/- for repairs of tank. Khethuvaru Patrike –Ex.P-13 shows it is Sarkari Dakal and Ex.P-19 it is clearly shown that it 36 is Government tank as well as Kharab land. In this connection the land when defined as Kharab would gain significance in case it is agricultural land as the word `Kharab’ means useless or spoil. Insofar as Kharab land is concerned it means unfit for land or agriculture may be rock area, road and other which makes agriculture as not possible. The plaintiffs claim their right on the basis of Ex.P-1. The said document is stated to be proceedings before K.Sheshadri Iyer who was Dewan to His Highness the Maharaja of Mysore and precisely on 11.07.88. The contents are as under: The Deputy Commissioner, Bangalore District, was directed to recognize petitioner Javanna, Kodagidar of the tank at Chikmaranahalli, Bangalore Taluk, as the owner of the Kodagi hak and to pay him the arrears of Kodagi now due to him if he would either at once undertake to execute all the necessary repairs to the tank or 37 furnish proper security therefor within a stipulated time.
42. Proceedings indicate that the Deputy Commissioner was directed to recognize Javanna, Kodigedar of tank at Chikkamaranahalli, Bangalore Taluk as the owner of Kodagi Hak and pay arrears of Kodagi then due to him he would either at once undertake to execute all the necessary repairs to the tank or furnish proper security within stipulated time. It squarely means contextually no domain of ownership or in all its incidence is given to Javanna. On the other hand Kodagi Hak that means right for effecting repairs. After payment of money either he has to effect repairs or execute security for performing his obligation that gave raise to pecuniary obligation. By passage of time, it was stated to be land that was granted to Javanna and inherited, changed several hands finally Narasu Bai and plaintiffs 2 to 4. Sum 38 and substance only indicate limited right of repairs of tank culminating arrears does not mean that property was given and also money in the form of remuneration for repairing. The land has been identified as kere, kere angala –Government tank in all respects it means owner of land is Government. It is necessary to mention that office of Sub-Registrar does not create title unless the transferor has marketable title in him, what comes to Sub-Registrar is sale deed and not title. Person who conveys his title as such intermediary, mortgagee itself or court auction they do not create title when the transferor is titleless. When the land undergoes the process of court auction no additional fragrance is added to confer validity and on the other hand court sale is another way where persons claimed to be owner if they are under clutters and fetters or any other defect 39 court sale cannot validate the validity, title and this refers the process of change of property.
43. In this connection as change or otherwise firstly as a mortgagee he files a suit for foreclosure and another creditor files suit against debtor and suit was decreed and thereafter creditor himself purchased the property. Thus, rightlessness of the plaintiffs over the schedule property is spoken loud and clear right from the documents filed by plaintiffs even mahazar, Ex.P- 12 reassures that the plaintiffs had no right. Ex.P-15 order of Assistant Commissioner confirmation, thereafter Ex.P-16 order of Deputy Commissioner confirmation in favour of Government. Again appeal before the Karnataka Appellate Tribunal had to undergo two phases of proceedings before this court in writ petition and writ appeal wherein writ petition filed by plaintiff was dismissed. However writ appeal 40 was allowed. The substance of writ appeal No.2498/94 though it was allowed in favour of Government, rights of plaintiff to agitate in Civil court was kept open. Thus, khatha, revenue documents other proceedings if any represented by plaintiffs will be of no avail to the plaintiffs in the matter of possession to the plaintiffs. If the plaintiffs or anybody claim ownership or possession over the suit schedule property, it is only of sheer misreading of the records. No grant letter, sound certificate nor the circumstances whisper if not mentioning about the claim of the plaintiffs are forth coming. Neither Narasu Bai or persons claiming under her have established possession at any point of time or glimpse of ownership over the same.
44. Government property being a public property, the title or possession over the same cannot be 41 allowed to get eroded to a private individual more particularly when a claim is made without original enabling documents or the certified copies. Further I find twisting of facts are seen in the pleadings and no precise pleading, oral evidence and documents are seen for locating the title of the plaintiff over schedule property.
45. In this connection the decision rendered in the case of R.Hanumaiah Vs State of Karnataka reported in (2010) 5 SCC203is referred wherein it is held as under: “Any loss of Government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.” (para
19) 42 For the reasons morefully stated above, I find there is no irregularity, illegality, infirmity or perversity in the Judgment and decree dated 09.03.2007 passed by trial court in O.S.No.9426/97. Appeal is dismissed with costs throughout. Sd/- JUDGE SBN