1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.408 OF 2015 (DEC/INJ) BETWEEN 1 . SMT. LAKSHMAMMA W/O JAGADISHWARAIAH, AGED ABOUT 58 YEARS, R/AT NO.22, 5TH CROSS, SAPTHAGIRI LAYOUT, CHIKKASANDRA VILLAGE, YESHWANTHPURA HOBLI, BANGALORE NORTH TALUK - 7. 2 . SMT. MANJULA, W/O SRI. BALAKRISHNA, AGED ABOUT 55 YEARS, R/AT 31, 7TH CROSS, CHIKKSANDRA, BANGALORE - 73. ...APPELLANTS (BY SRI. SUNIL S. RAO, ADVOCATE FOR SRI. T. SHESHAGIRI RAO, ADVOCATE) AND 1 . SMT. ANUSUYA, W/O CHIKKAHANUMANTHA RAJU, AGED ABOUT 37 YEARS, R/AT NO.177, CHIKKASANDRA COLONY, HESARGHATTA ROAD, BANGALORE - 560 073. 2 2 . SMT. PUSHPA, W/O LATE NARAYANASWAMY, R/AT NO.23, GIRIDARSHINI, D/O THIMMARAYAPPA, OPP. TO KALI TEMPLE, SUBEDAR PALYA, YESHWANTHPURA, BANGALORE - 560 022. 3 . ULAGANATHAN (SINCE BY HIS LRS) A) SMT. USHA, D/O LATE ULAGANATHAN, B) SRI. JAI S/O LATE ULAGANATHAN, AGED ABOUT 49 YEARS, C) SMT. UMA, LATE ULAGANATHAN, AGED ABOUT 46 YEARS, RESPONDENTS 3 (A) TO 3(C) ARE R/AT NO.801, GOKUL STAGE, TRIVENI ROAD, YESHWANTHAPURA, BENGALURU - 560 022. (AMENDMENT CARRYOUT AS PER ORDER DATED 19.12.2024) ..RESPONDENTS (BY SRI. K. S. MALLIKARJUNAIAH, ADVOCATE FOR R-1; SRI. SRINIVAS BHAT, ADVOCATE FOR R-2; R3(A) TO R(C) ARE SERVED AND UNREPRESENTED) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SEC.96 OF CPC., PRAYING TO CALL FOR THE RECORDS FROM THE COURT OF XXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.6) IN O.S.NO. 4827/2006; B) TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.12.2014 ONE PASSED BY THE XXIV ADDL. CITY CIVIL 3 AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.6), IN O.S.NO.4827/2006 AND FURTHER PASS APPROPRIATE ORDER TO DECREE THE SUIT ONE FILED BY THE APPELLANTS HEREIN BEFORE THE TRAIL COURT. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the plaintiffs under Order 41 Rule 1 read with Section 96 of CPC for setting aside the judgment of dismissal of the suit in OS No.4827/2006 dated 12.12.2014 on the file of XXIV Addl. City Civil and Sessions judge, Bangalore. 2. Heard the arguments of learned counsel for the appellants and learned counsel for the respondents. 3. The appellant No.1 was the plaintiff and the respondents were the defendants before the Trial Court and the ranks of the parties are retained for convenience. RESERVED FOR ORDERS ON: 03.02.2025 PRONOUNCED ON 25.04.2025 4 4. The case of the plaintiffs before the Trial court is that they have filed the suit for declaration to declare that item No.2 of suit schedule property is road and to direct the defendants to remove the obstruction i.e. the compound wall put up by the defendants, which is shown as ABCD in the sketch and also for permanent injunction for the plaintiffs, who have ingress and egress. 5. It is contended by the plaintiffs that the plaintiffs are having common interest in the subject matter and hence, they have jointly filed the suit. It is alleged that the plaintiff No.1 is the absolute owner of site No.22 formed in Sy.No.7 and 8 measuring East to West 40 ft., North to South 40 ft, which is described as item No.1 (A) of the schedule, which was acquired by sale deed dated 27.09.2002, purchased from GPA holder one M.M. Patel. The M.M. Patel acquired the title on 09.01.1990. It was the defendant No.3, who sold the schedule property to the plaintiffs as a GPA holder. 5 6. The plaintiff No.2 has contended that he is the owner of site No.31, measuring 40x40 ft., purchased under the sale deed dated 21.02.2004 executed by defendant No.3 through his Power of Attorney holder, which is described as plaint schedule item 1(B). 7. It is further contended that the defendant No.3 formed 56 sites in Sy.No.7 and 8 of Chikkasandra village. The site Nos.22 and 33 were formed and sold in favour of the plaintiffs. The defendant No.3 sold site Nos.23 and 30 in favour of one Danappa and C.M.Izaz. The Location of the site numbers 22, 23, 30 and 31 can be gathered from layout map. 8. It is further contended that the site Nos. 22, 23, 30 and 31 are corner sites. On the northern side of Sy.No.22 and 31 and to the southern side of site No.23 and 30, there is existence of a road measuring East to West 25 ft, which runs North to South. 6 9. The defendant No.3 after formation of layout and describing the northern boundary as road, has sold site Nos.22 and 31. Though, the southern boundary of site Nos.23 and 30 is shown as road. Similarly, item No.2 of the plaint schedule property soon after the formation of the layout was vested with the local authority. The defendant No.3 while conveying road, in favour of the first and second defendant assigned the site numbers as 22(A) and 31(A). In fact, there was no site having site Nos.22(A) and 31(A) in the layout map. Defendant No.3 also sold the portion of the road to defendant Nos.1 and 2. Therefore, the said defendant Nos.1 and 2 do not acquire right, title or interest over the said property. 10. Defendant nos.1 and 2 closed the road shown as ABCD in the sketch by putting up compound wall on 24.04.2006. Hence, the plaintiffs have filed the suit. 7 11. Defendant No.1 as well as defendant No.2 filed similar written statements contending that the plaintiffs have no locus standi to file the suit. Defendants have purchased the sites under the sale deeds by paying the consideration and denied the averments that site No.22 and 31 are the corner sites and both side there is a road. It is further contended that even if the item No.2 of the item plaint schedule property is shown as the road in the layout plan, there is no impediment or prohibition for defendant No.3 to convert it as site and assigning the numbers as 22(A) and 31(A). No fault can be found from the act of defendant No.3 and the plaintiffs concealing the facts have filed false suit against them. If, there is any violation of municipal law, they have to approach the appropriate authority and they specifically denied that there is a road on the eastern side of site No.22 and 31, but, it is stated that site Nos.22(A) and 31 (A) was sold to the defendants. 8 12. Defendant No.3 filed written statement by denying all the averments made in the plaint and the existence of road on the eastern side of site No.22 and 30. He further contended that there was no road, but, it was vacant place and therefore, he has renumbered and sold to defendant Nos.1 and 2 by renumbering site Nos.22(A) and 33(A). He contended that there is no public road and it is not approved layout. Hence, prayed for dismissing the suit. 13. Based upon the pleadings, Trail Court framed 6 issues as under: “1. Do plaintiffs prove that item No.2 of plaint schedule is a road as claimed in the plaint? 2. If plaintiff No.1 owner of site No.22 and plaintiff No.2 owner of site No.31 described in plaint and schedule? 3. Did defendants construct compound wall on the road portion? 4. Is the said compound wall liable to be demolished? 5. Do plaintiffs have right to use plaint item No.2 as road. If so did defendants cause obstruction? 6. What decree or order?” 9 14. To support their case, second plaintiff examined himself as PW-1 and got marked 25 documents and subsequently, defendant No.3 is examined as DW-3 and marked 27 documents. Defendant No.3 subsequently died and legal heirs of defendant No.3 are brought on record. But, no evidence is adduced by them. The Trial Court answered issue Nos.1, 3 to 5 in negative, issue No.2 in the affirmative and finally dismissed the suit of plaintiffs. Being aggrieved by the same, both plaintiffs have filed the appeal before this Court. 15. During the course of arguments, appellant No.2 i.e. second plaintiff said to have sold site No.31 to some other person namely Smt. Manjula. Hence, based on the application filed by appellant, the said Smt. Manjula is substituted as appellant No.2 in the place of R. Mohan, the second plaintiff. 10 16. Having heard the arguments, perused the records. The point that arises for my consideration is as under: “1)Whether the plaintiffs prove that site Nos.22(A) and 31(A) are the adjacent sites of plaint schedule item No.1 and 2, shown as ABCD in the sketch is a public road? 2)Whether judgment of the Trail Court calls for any interference?” 17. On perusal of the records, admittedly, the plaintiffs said to be the owners of item No.1 and 2 of schedule property, which was purchased from defendant No.3 thorough GPA holder M. M. Patel. The sale deed of first plaintiff is 27.09.2002 and sale deed of second plaintiff is dated 21.02.2004. The said sale deeds and ownership of plaintiff Nos.1 and 2 were not seriously disputed by the defendants. Ex.P-1 and P-5 are the sale deeds, Ex.P-2 is the GPA, Ex.P-3 and 4 are the affidavit and sale deed of original owner. It is also not in dispute that defendant No.3 being owner of the land, said to have formed private layout and 11 sold it to various persons. Defendant No.3 also sold site No.22(A) and 31(A), which is on the eastern side of the suit schedule property of the plaintiff. 18. It is contended by the plaintiffs that the suit properties are corner sites and on the eastern side there is a road and on the other side are site Nos.23 and 30, which are also corner sites. So, in between those 4 sites there is a road as per the map. Whereas the defendant Nos.1 and 2 purchased the site, which is adjacent to plaintiffs’ property as site No.22(A) and 31(A). These two sites are situated between site Nos.22, 30 and 23, 31. The sale deed of the plaintiffs, though depicts as road, but, it is a private layout and not a public road as per the contention made by defendant No.3 and according to him, he has left some space and later, he has given number and sold to first and second defendant. The defendant No.3 is the GPA holder, who sold the property. The defendant Nos.1 and 2 have purchased the property and said to obtained electricity connection and put 12 up compound wall. Admittedly, the layout was unapproved layout and they cannot say it is a public road. 19. The evidence of DW-1 to 3 also reveals the same. The documents of defendants reveal that they have purchased the property and the photographs are also produced. Therefore, it is undisputed that the plaintiffs were the owners of site Nos.22 and 30 and in view of selling the property by defendant No.3 to defendant Nos.1 and 2, they are in possession of property. It is not an approved layout and not declared as public road by any of the authorities. 20. Now, the question is whether the plaintiffs prove that the said site No.22(A) and 31(A) are only ingress and egress to plaintiffs’ property and there is no other way. But, on perusal of the records and admission made by plaintiff, the site belongs plaintiffs said to have two roads, according to the sale deed. Only the one side of the schedule property, the sites of the defendants are situated. On the other side, especially, on the eastern side as well as western side, there 13 is a road and it is available for the plaintiffs for ingress and egress to the main road. Therefore, the question of declaring the property of the defendants as road and declaring the plaintiffs as having ingress and egress to their property does not arise. 21. During pendency of appeal, plaintiff No.2 sold the property and it was not brought to the notice of this Court and subsequent purchaser Smt. Manjula, purchased the property and put up construction and is residing there. The said fact was brought to the notice of this Court by defendant counsel and subsequently, the appellant counsel filed application to substitute the subsequent purchaser. The plaintiff No.1/Smt. Laxmamma, has not led any evidence in the Trial Court. Only plaintiff No.2 is examined as PW-1 and she has not shown any interest to prosecute the matter. The plaintiff No.2 R. Mohan, though contested the matter, during pendency of the suit, he has sold property to third party and he has lost his interest. Selling the property was brought to the notice of this Court by respondent counsel during the 14 stage of arguments and thereafter, appellant counsel filed application to implead the subsequent purchaser as appellant No.2 under order 22 Rule 10 of CPC. For the limited purpose the application was allowed and permitted the appellant No.2 to contest the matter. The appellant No.2 purchased the property on 24.06.2014, where as the judgment was delivered by the Trial Court on 12.12.2014. Plaintiff No.2 lost the interest over the property and almost for 10 years he has contested the matter, suppressing the fact of selling the property. The subsequent purchaser has also not shown any interest to prosecute the matter either in the Trial Court or before this Court. 22. Such being the case, I am of opinion that the plaintiff has failed to prove that the site No.22(A) and 31(A) are the road, which is shown as ABCD in the sketch. In view of above, the plaintiffs are not entitled for any declaration or mandatory injunction as sought by them. 15 23. The Trial Court by considering the evidence on record has rightly dismissed the suit, which do not call for any interference. 24. Accordingly, the appeal filed by the appellant is dismissed. Sd/- (K.NATARAJAN) JUDGE NJ CT:SI