Full Judgment
1. Heard learned counsel Sri. Shivakumar for the 1st respondent BDA and Sri. Jagadeesh Mundargi for the 2nd respondent. None appears for the petitioner and despite waiting for some time even after completion of the arguments by the respondents counsel. There was no indication of petitioners counsel appearing before this court. Under the said circumstances, no other option was left than to proceed with the matter.
2. At the outset, learned counsel Sri. Shivakumar for the BDA submitted that the relief sought, by the petitioner involves going to the factual aspect of the matter, in as much as though the petitioner has sought for a writ of mandamus to the 1st respondent BDA to execute the absolute sale deed in respect of the property/site bearing No.22-A situated at West of Chord Road, 1 Block. 3rd Stage. Rajajinagar measuring East to West 17 4 25 feet/2 feet North to South 60 test, a perusal of the documents filed by both sides and the stand taken in the objections by the BDA would go to show that number of suits were filed and the BDA had also issued a cancellation deed which became the subject matter of the writ petition before this court in W.P NO.22681/89 wherein this court had quashed the cancellation deed.
3. Apart from the aforesaid facts, it is also the specific stand of the BDA that, the site which the petitioner claims is a non existent one and this is also clear from the various suit proceedings. Referring to the suit filed by the petitioner himself in O.S.No. 1770/81, submission made is, the said suit was filed by the petitioner seeking for a declaration that the petitioner is the owner of the suit schedule property bearing site No.43-A in Sy.No 4/2 of Saneguruvanahalli village and also for the relief of mandatory injunction. In the said suit, apyrt from the 1st respondent EDA, 2nd respondent herein was also one of the defendants and the said suit came to be dismissed. Again, another suit was filed by the petitioner herein in O.S.No. 1653/82 against one D.Tbyagaraju and in the said suit an order of permanent injunction was granted in favour of the present petitioner against the 2ncl respondent herein. Learned counsel referred to the suit filed in O.S.No. 1653/82 wherein the parties were one and the same and as the court found that the identity of the property has to be found out by having a survey conducted, a Commissioner was appointed and the Commissioner was also not able to identify the suit property. Under all these circumstances, as the very existence of the site itself has become doubtful, this court in writ jurisdiction cannot go into this aspect of the matter.
4. Submission of Sri. Jagadeesh Mundargi for the 2nd respondent is that the cancellation deed issued by the BDA was called in question by the 2nd respondent in W.F.NJ.226S1 /89 and this court allowed the "aid writ petition and the deed of cancellation was quashed.
5. The respondent herein also filed writ petition before this court in W.P.No. 11128/08 and the 1st respondent - BDA herein were directed to execute the sale deed in favour of the 2nd respondent.
6. Having regard to the aforesaid factors, this is a mater where findings will have to be recorded on disputed question of facts and as such, this court cannot go into the said aspect of the matter in 1A writ jurisdiction.
For the aforesaid reasons, writ petition is dismissed.