Corporation of City of
Bangalore Vs. Zulekha by & Ors  INSC 488 (24 March 2008)
Dr. Arijit Pasayat & P.
Sathasivam & Aftab Alam
CIVIL APPEAL No. 1299 OF 2002 With Civil Appeal No. 1300 of 2002 Dr. ARIJIT
1. Challenge in these appeals is to the order passed by a learned Single
Judge of the Karnataka High Court allowing the First Appeal filed under Section
96 of the Code of Civil Procedure, 1908 (in short the 'CPC'). The respondent
No.1 was the plaintiff and was appellant before the High Court. The case set
out in the plaint is as follows:
2. The plaintiff is the absolute owner of the suit schedule property, having
purchased it from M.N. Rudrappa under registered sale deed dated 9-2-1981 and
is in possession of it since that date. The schedule property is the joint
family of the plaintiff's vendor and the suit property fell to the share of the
plaintiff's vendor's family who are not alive, plaintiff's vendor became a
co-parcener and in that capacity he sold the suit property to plaintiff on 9-2-1981,
and the khata is not changed to his name. Now, the plaintiff, with an intention
to erect compound around the suit property has stocked stone slabs, but
defendants 2 and 3 at the instance of the first defendant are trying to prevent
the plaintiff from entering in to the schedule property and erecting stone
slabs and on 20-11-1982, defendants 2 and 3 with gundas tried to trespass into
the suit schedule property and interfered in the peaceful possession and
enjoyment of the property by plaintiff, trying to remove the stone slabs
stocked therein and this was resisted by the plaintiff and well wishers. It is
the contention of plaintiff that, he being the absolute owner and in possession
of the suit property has got prima facie case.
3. The respondent No. 2 was the defendant No. 2 and his stand was as
Plaintiff is not the owner of the scheduled property and that, neither
plaintiff nor his vendor Rudrappa had any manner of right, title and interest
over the schedule property.
It is denied that the plaintiff's vendor had the property under the
partition deed dated 26-01-1946 as alleged. Defendant has pleaded ignorance
with regard to the application of plaintiff dated 24-04-1980 to change khata.
It is denied that the plaintiff has stocked stone slabs to erect compound with
the schedule property, with the help of goondas. It is contended that, the
plaint schedule is mis-leading and the sale deed produced does not disclose any
number of the property and there is no existence of such property as described
in the plaint. It, is the specific case of second defendant that the vast
vacant land belongs to the Corporation and he had applied to the Corporation
for lease of the land and after obtaining sanction of the Government,
Corporation granted lease of Plot No. 15 measuring 226.6 Sq Yards in Siddaiah
Road bounded on the East by Corporation land granted to third defendant, West
by land granted to M.A. Krishnamurthy, North by Corporation Road and South by
Corporation Plot No. 14 and he has complied with all terms and conditions of
the lease. It is contended that, when he tried to enclose the property with
stone slabs, husband of the plaintiff Kustaq Ahmed obstructed the work and
threatened to remove the slabs under imaginary rights, that there is no cause
of action for the suit and she prayed for dismissal of the suit with costs.
4. Similarly the third defendant and the 4th defendant also filed written
statement contending that plaintiff was not the owner of the suit land and had
no right, title and interest. The following issues were framed by the trial
Whether plaintiff proves that suit property belongs to M.N. Rudrappa and
that she has deprived title to it by the sale deed executed by him?
Whether plaintiff is in lawful
possession of suit property?
Whether the suit has been property
Whether 4th defendant is not a
necessary party to this suit?
Whether the plaintiff is entitled to
relief of declaration and injunction prayed?
To what reliefs are parties entitled?
Ultimately the suit was dismissed by
the trial Court and as noted above First Appeal was filed by the respondent
It appears that the High Court
referred to the various stands, it was concluded that the documents produced by
the appellant did not prove its title. The ultimate conclusions were as follows:
"The documents referred to above are definitely not prove the title of
Therefore, the above documents are rejected as not valid for want of clarify
and the property mentioned therein has not been identified at all. The
Corporation as a mighty Public Body after all would have produced the register
of property or the present plan after the Municipal Corporation Act has come
Not aa single attempt has been made by the Corporation to prove the title if
they are really entitled to claim. It is un-fortunate that by the negligence of
the Corporation, the Courts are not able to find out whether the property
claimed by the plaintiff is a public property or private property of the other
persons under whom, the property is claimed to be purchased by the plaintiff.
Therefore, I have no hesitation to .reject the evidence of Corporation the 1st
respondent herein as neither useful for the Corporation nor useful to the case.
The mere facts that the Corporation leased out that the property to
defendants-2 and 3, it is seen ipso- facto prove that they are having got the
title to the property, no proof is forthcoming in respect thereof."
There are several infirmities in the High Court's judgment and a few need
to be highlighted. The High Court in para 10 concluded that since the appellant
was claiming title in respect of suit property, it was for the Corporation to
prove the title by production of document in their possession. This conclusion
is not sustainable because it is the plaintiff who has to prove her title. It
is to be noted that the Corporation referred to various documents i.e. Exh. D1
to D9 to prove that the Corporation was the owner of the property.
It has been rightly pointed out by learned counsel for the appellant that
there was no Khata extract or tax paid receipt produced by the plaintiff to
substantiate her claim for title over the property.
Further the High Court referred to Exh. P6 which was an acknowledgment
purported to have been issued from the office of the Assistant Revenue Officer,
Bangalore City. The High Court concluded that the same established that the
plaintiff's- vendor had got title over the property.
The conclusion is clearly without any
foundation in law.
It is to be noted that the learned Single Judge himself noted that Exh. P6
is the acknowledgment issued for having received application from plaintiff by
the Corporation on 24.4.1981 and the same was returned on 15.6.1981 requiring
the plaintiff to submit further information and to show the spot to the Revenue
Inspector and to produce the plan. By no stretch of imagination same can be
considered to be a document proving title over the property. The fallacies in
the conclusions of learned Single Judge are too numerous to be referred to in
Since the First Appeal has been
disposed of in the most casual manner, we deem it appropriate to set aside the
impugned judgment and remit the matter to the High Court for a fresh
consideration in accordance with law.
The appeals are allowed but without
any order as to costs.
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