- 1 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR FIRST APPEAL NO. 712 OF 2009 (INJ) BETWEEN: 1. KASIMSAB S/O PAKROOSAB SINCE DECEASED BY HIS LRS 1(a) NAJIBUNISA W/O LATE KASIMSAB AGED ABOUT 72 YEARS 1(b) RIZBBAN S/O LATE KASIMSAB AGED ABOUT 45 YEARS 1(c) ROSHAN S/O LATE KASIMSAB AGED ABOUT 42 YEARS 1(d) RESHMA W/O SHAFIULLA, AGED ABOUT 37 YEARS R/AT AT BOMMANAHALLI MANGANA PALYA BENGALURU. 1(e) AISHA W/O NIZAM AGED ABOUT 32 YEARS R/AT AT BOMMANAHALLI MANGANA PALYA BENGALURU. 1-a, TO 1-e ARE ALL R/AT NO.40, BYRASANDRA TANK AREA 4TH BLOCK, JAYANAGAR EAST Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 BANGALORE - 560 041. GHAZIKHAN SINCE DECEASED BY HIS LRS 2 SMT. BEGUM JAN W/O LATE GHAZIKHAN AGED ABOUT 42 YEARS 3. SHRI SHAFIULLA KHAN S/O LATE GHAZIKHAN AGED ABOUT 47 YEARS 4. SHRI ALLA BAKSH S/O LATE GHAZIKHAN AGED ABOUT 42 YEARS 5. SHRI WAHEB PASHA S/O LATE GHAZIKHAN AGED ABOUT 37 YEARS APPELLANT NO.2 IS THE WIFE AND APPELLANTS NO.3 TO 5 ARE ALL CHILDREN OF LATE GHAZIKHAN ALL ARE R/AT NO. 40, SWAGATH ROAD, TILAKNAGAR, BANGALORE - 560 041. 6. SMT AKTHAR JAN, D/O LATE GHAZIKHAN AGED ABOUT 44 YEARS R/O NO.141, BYRASANDRA TANK BUNDAREA, 4TH BLOCK, JAYANAGAR EAST BANGALORE - 560 041. &APPELLANTS (BY SRI. SUHAIB FAZEEL MADAR., ADVOCATE FOR A1 (A TO E) & A2 TO A6) AND: 1. THE COMMISSIONER - 3 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 BANGALORE DEVELOPMENT AUTHORITY BELLARY ROAD, BANGALORE. SMT. CHOTIMA SINCE DECEASED BY HIS LRS 2(a) SRI. MOHD. ANWAR AGED ABOUT 49 YEARS 2(b) SRI. MOHD. KHALEEL AGED ABOUT 39 YEARS 2(c) SMT. SHAHATHAJ W/O SRI. AHMED PASHA AGED ABOUT 46 YEARS 2(d) SMT. SHABANA W/O SRI. AHMED PASHA AGED ABOUT 43 YEARS 2(e) SMT. MUBEENA W/O SRI. AWEBA AGED ABOUT 41 YEARS ALL ARE CHILDREN OF LATE SMT. CHOTIMA AND LATE SRI. BASHA ALL ARE R/AT NO.40 BYRASANDRA TANK BUND ROAD, 4TH BLOCK JAYANAGAR EAST BENGALURU - 560 041. &RESPONDENTS (BY SRI. AJAY KUMAR M.,ADVOCATE FOR R1; SRI. R.B. SADASHIVAPPA., ADVOCATE FOR LRS OF R2) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED30.05.2009 PASSED IN OS.NO.7830/1997 ON THE FILE OF THE XXVII ADDL. CITY - 4 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT This appeal is by the defendant Nos.2 and 3 being aggrieved by the judgment and decree dated 30.05.2009 passed in O.S.No.7830/1997 on the file of XXVII Additional City Civil Judge, Bangalore, (hereinafter referred to as the Trial Court) in and by which, the trial Court has decreed the suit directing the defendant No.1/BDA to issue possession certificate and to execute lease-cum-sale agreement in respect of suit schedule property in favour of plaintiff as prayed for, by collecting the required stamp duty from her. It has further restrained the defendant No.1 from allotting the suit property or any portion thereof in favour of anyone. 2. Subject matter of the suit property is Site No.40, BTB area, IV East Jayanagar Block, bounded on: East by : Site No.41 West by : Site No.39 North by : Private Property - 5 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 South by : Road measuring East to West 20 feet and North to South 30 feet. 3. Above suit is filed by plaintiff one Chotima, w/o late Basha contending that her husband late Basha was allotted a site bearing No.174, 4th 'T' Block, Byrasandra Tank Bund Area, Jayanagar Extension, Bangalore by erstwhile City Improvement Trust Board (for short CITB) vide its resolution No.762 dated 12.02.1969. On receipt of the intimation of allotment husband of the plaintiff had deposited a sum of Rs.167/- with the then CITB on 20.06.1969. Thereafter, husband of the plaintiff deposited balance value of Rs.470/- on 24.07.1978. That the aforesaid site was situated in a slum area and there was a confusion with regard to allotment of sites, as site bearing No.174 which was allotted to the husband of the plaintiff was occupied by some other slum dwellers. As such, the husband of the plaintiff had requested the defendant No.1/BDA to allot site No.40 in the same slum area instead of site No.174 since plaintiff and her husband were living in the said site No.40 for over couple of years. - 6 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 3.1. In the meanwhile, husband of the plaintiff Sri.Basha passed away on 10.09.1989. Consequently, plaintiff approached the defendant No.1/BDA for change of allotment of site in her name which was allotted in the name of her husband. Pursuant to which the defendant No.1/BDA changed the name of allottee of the site from Basha to the name of plaintiff. On said change being effected upon direction issued by defendant No.1/BDA, plaintiff deposited Rs.1,000/- towards full and final value of the site in terms of remittance challan dated 10.01.1992. Thus, the plaintiff has been in possession and enjoyment of the site No.40 which is described in the suit schedule to the plaint (hereinafter referred to the suit property). 3.2. After deposit of the amount, plaintiff has been approaching the defendant No.1/BDA seeking issuance of possession certificate and also for execution of lease-cum-sale agreement in respect of schedule property. But officials of defendant No.1/BDA went on postponing the same. Consequently, plaintiff caused issuance of a legal notice dated - 7 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 30.07.1997. As there was no response, plaintiff filed the suit seeking following reliefs; "(a) Direct the defendants to issue possession certificate in respect of schedule site and execute proper lease cum sale agreement in favour of plaintiff in respect of schedule site. (b) Restraining the defendants from allotting the schedule site or portion to any third person. (c) Grant such other relief or reliefs to the plaintiff in circumstances of the case. (d) Grant cost of the suit." 4. Defendant No.1/BDA filed written statement denying the plaint averments regarding husband of the plaintiff having been allotted site bearing No.174 by the CITB. It is also denied that the plaintiff and her husband were living in the entire site bearing No.40 and their entitlement of the entire site. It is contended that site No.40 has been in possession of three persons, namely, plaintiff to the extent measuring 6 feet X 10 feet, defendant No.2/ Sri.Kasimsab to the extent measuring 6 feet X 16 feet and defendant No.3/ Sri. Ghazikhan to the extent measuring 12 feet X 20 feet. They having put up small huts on the respective portions. That the suit site had been allotted to Sri.Ghazikhan which fact is known even to plaintiff and defendant No.3/Kasimsab who were also living on - 8 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 partitions of the suit site. That the defendant No.1/BDA took decision to confirm the allotment in favour of all the three persons vide resolution No.161/1997 dated 27.6.1997. That the plaintiff is neither the sole beneficiary nor sole owner of the suit site. That it was also proposed to leave 3 feet common passage to provide access to aforesaid three persons. That the claim of the plaintiff for execution of lease-cum-sale agreement has no merits. That suit in the present form was in-competent as the plaintiff was not entitled to compel the defendant No.1/BDA to issue possession certificate and to execute lease- cum-sale agreement. Hence, sought for dismissal of the suit. 5. Defendant No.2 filed written statement contending that he is the elder brother of plaintiff's husband Basha. It is he who has built the house on the site No.40 when they shifted from Sampangiramanagar Slum area about 40 years ago. Rear portion of the house of the defendant No.2 was given to plaintiff's husband after his marriage with the plaintiff. That the then CITB had allotted the site in the year 1968 but the endorsements fell at the hands of the local leaders who had distributed them according to their wishes. As such, they fell - 9 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 into the hands of many other persons and who are not the slum dwellers. Defendant No.2 did not get his allotment endorsement. It is contended that the plaintiff is claming that she had been allotted site No.40 in the year 1992 as per Annexures- D and C, but defendant No.3 who had been allotted site No.40 in the year 1990 and had paid the full value and had the better title than the plaintiff. As such, it is contended that the plaintiff is not entitled possession certificate or execution of lease-cum-sale agreement as claimed. 5.1. It is further contended that defendant Nos.3 and 2 are in possession of entire site but for a strip of land in the rear north western side measuring East to West: 6 feet and North to South:10 feet, which at present is in possession of plaintiff. The defendant No.2 is having his major portion of house measuring 8 feet X 16 feet, whereas the defendant No.3 is having his house measuring 12 feet X 22 feet. That Defendant No.1/BDA taking into consideration of the fact that in most of the sites 2 or 3 persons were having their houses, passed a resolution in the year 1993 and decided that wherever two persons are residing in a site, each would be allotted half a portion of the - 10 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 site. That considering the fact that the plaintiff is also in possession of rear portion of the suit property measuring 6 feet X 10 feet, defendant No.1/BDA had decided as per resolution No.160/1997 that all the 3 persons to be accommodated there itself. That defendant Nos.2 and 3 are abiding by the resolution of the defendant No.1/BDA. It is only the plaintiff who has filed the above suit obstructing the issuance of allotment intimation and possession certificate as per the resolution though she is not having any right or claim to the suit site. Hence, sought for dismissal of the suit. 6. Defendant No.3 in his written statement contended that husband of the plaintiff had been allotted site No.174 and he had paid the amount towards the said site No.174 and he could not get the possession certificate issued in his favour. The claim of the plaintiff of she and her husband living on site No.40 and same being allotted as per allotment intimation is denied. It is contended that plaintiff and her husband were not living in site No.40. plaintiff's house is situated in the middle of 4 sites, i.e., site Nos.39 and 40 on the southern side and site Nos.76 and 75 on the northern side. The area which she - 11 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 occupies in site No.40 is on the North Western corner, measuring East to West: 6 feet and North to South: 10 feet and the remaining portion of the house is site Nos.39,75,76. Whereas defendant No.2/Kasimsab is in possession of the South Western portion measuring East to West: 8 feet, North to South: 16 feet. As such she is not in possession of entire site No.40. 6.1. Defendant No.3 further claim that he was residing in site No.40 from the very inception of allotment in the year 1990 vide Annexure-A and the entire site value of Rs.667/- had been paid by defendant No.3 being first allottee of site No.40 and is having better right and entitlement over the suit site. That plaintiff conniving with the defendant No.1/BDA officials had got the allotment intimation in the year 1992. She could not get better right, title, interest over the site No.40 than the defendant No.3. Therefore, he sought for dismissal of the suit. 7. Based on the pleadings, trial Court framed the following issues and additional issue; "1. Whether the plaintiff proves the allotment of the suit schedule site No.40, BTB Area, 4th E Block, Jayanagar, Bangalore, by the 1st defendant? - 12 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 2. Whether the plaintiff further proves that in spite of allotment, the 1st defendant has not issued the possession certificate and lease- cum-sale agreement, as averred? 3. Whether the plaintiff further proves that the 1st defendant is attempting to allot the suit schedule property, to third parties? 4. Whether the plaintiff is entitled to directions as sought for? Additional Issue. 1. Whether the 3rd defendant proves that the suit site bearing No.40, has been allotted to him by the 1st defendant in the year 1990 and that he has paid the value of the site to the 1st defendant." 8. Plaintiff examined herself as PW.1 and produced 7 documents marked as Ex.P1 to Ex.P7. Two witnesses have been examined on behalf of the defendants as DW.1 and DW.2 and have produced 18 documents marked as Ex.D1 to Ex.D18. 9. On appreciation of evidence the trial Court answered issue Nos. 1 to 4 in the affirmative and additional issue in the negative and consequently decreed the suit as noted above. 10. Learned counsel for the appellants/defendants taking this Court through the records submitted; - 13 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 (a) that admittedly Basha the husband of the plaintiff was allotted site No.174 which is evident from Ex.P1. Ex.P2 which are the receipts issued in favour of Basha. Ex.P3 is the demand notice/challan issued by defendant No.1/BDA to said Basha in respect of site No.174. (b) That when the Basha deceased husband of the plaintiff was allotted the site No.174 and in the absence of any other site being allotted, the defendant No.1/BDA is not justified in issuing the allotment letter at Ex.P5 in respect of site No.40, which was allotted to the defendant No.3 on 02.09.1968. (c) He refers to the application in I.A.No.1/2019 filed by him under Order 41 Rule 27 (aa) of CPC seeking production of additional document in terms of which he has sought to produce the following document; 1. Letter of allotment dated 2nd September 1968 along with covering letter dated 16th November 2019 issued by BDA. (d) He further refers to Ex.D3 which is the office notes of the defendant No.1/BDA in which site No.40 is shown to be - 14 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 in possession of plaintiff/Chotima, defendant No.2/Kasimsab and defendant No.3/Ghazikhan to the extent of 6 feet X 10 feet, 6 feet X 16 feet and 12 feet X 22 feet respectively. (e) He submits that when the Defendant No.1/BDA vide its resolution at Ex.D3 has recognized the possession of plaintiff and defendant Nos.2 and 3, the trial Court could not have entertained the suit to undo the resolution passed by the defendant No.1/BDA. Thus, judgment suffers from illegality warranting interference at the hands of this Court. 11. Learned counsel for the respondent No.1/BDA supplementing the submissions made by the learned counsel for the appellants reiterated the contents of Ex.D3 and submits that as long as said document which is an order of the Commissioner is valid and subsisting and untill and unless same is set aside the plaintiff or any person who are in possession could not claimed to have been the allottee in respect of entire suit site. Thus, he submits that the trial Court has not only failed to appreciate the evidence placed on record but has also exceeded the jurisdiction. - 15 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 12. Counsel for the respondent No.2/plaintiff vehemently submitted that the property being claimed by the respondent No.2/plaintiff is different from the property being claimed by the appellants/defendant Nos.2 and 3. It is submitted that though the plaintiff's husband was initially allotted site No.174, for non availability of the said site, plaintiff was allotted site No.40 which is suit property situated at Byrasandra Tank Bund Area, 4th 'T' block, Jayanagar. The property being claimed by the defendant Nos. 2 and 3 is different from the one claimed by the respondent No.2/plaintiff. It is contended that defendant Nos.1 and 2 has not contested the suit. It is only defendant No.3 who is the appellant herein is disputing the claim of the plaintiff over the entire extent of site No.40. Site No.40 being claimed by the plaintiff and defendant No.3 are distinct and different. Referring to deposition of DW.2 who is the officer of Defendant No.1/BDA, learned counsel submits that the said witness has categorically admitted that he having not personal knowledge with regard to Ex.D1 to Ex.D3 which are the office notes, report of the Defendant No.1/BDA. Thus, she submits that the said evidence has no value in the eye of law and the same requires to be discarded. The Trial - 16 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 Court, she submits that having taken into consideration factual aspect of the matter, has come to just conclusion warranting no interference. Hence, seeks for dismissal of the appeal. 13. Heard. Perused the records. 14. The points that arise for consideration is; "(i) Whether the plaintiff prove that she has been allotted site No.40 exclusively? (ii) Whether the plaintiff is in possession of entire extent of site No.40? (iii) Whether the plaintiff is entitled for direction as sought for? (iv) Trial Court is justified in passing the decree?" 15. There is no dispute of the fact that the plaintiff's husband late Basha was allotted site No.174, 4th 'T' Block, Byrasandra Tank Bund Area, Jayanagar extension. That upon the demise of said Basha, defendant No.1/BDA allotted the site bearing No.40, Byrasandra Tank Bund Area, 4th 'E' Block, Jayanagar, Bengaluru, in favour of the plaintiff as per Ex.P5. The dispute is arose in view of the said site No.40 being claimed by defendant Nos.2 and 3 as well. - 17 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 16. According to defendant No.3/Ghazikhan, site No. 40 was allotted in his favour. However, the said site has been occupied jointly by the plaintiff, defendant Nos. 2 and 3 and have continued to occupy till date as such. Ex.D5 is a communication issued by defendant No.1/BDA addressed to defendant No.3 intimating the payment of sital value in respect of site No.40, IV 'T' Block, Sevanagar Community, Center Jayanagar. Ex.D6 is the payment details. Ex.D18 is the ration card of the defendant No.3 reflecting the address as No.40, 3rd Cross, BTB area. Ex.D1 is unofficial note issued from the office of the Commissioner-BDA which reads as under; No. BDA/DS-197-93/ Office of the Commissioner, Bangalore Development Authority, Bangalore, dated 16.11.1997. U.O. NOTE Sub-Report in respect of site No.39 & 40 Jayanagar, IV "E" B.T.B The Authority vide its Resolution No. 161/97 dt 27.6.1997 has resolved to confirm site No.40 In BTB area, Jayanagar, Jointly in favour of Messrs (1)Chotima (2) Ghazi Khan and (3) Khasim Sab in accordance with the above Resolution, allotment intimation has to be issued. In the meanwhile, it has been ascertained that the adjacent site holder of site No.39 has alleged about the encroachment of her site by site holder of site No.40. Hence, the Commissioner has desired to inform the E.E, South to visit the spot and Inspect these sites. After demarcation of the boundaries, a report may be - 18 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 sent immediately to this Office to enable this office to submit the file for the orders of the Commissioner. This may be treated as most urgent. Sd/- Deputy Secretary-II To, The Executive Engineer, South, BDA, Bangalore-01. 17. Ex.D2 is the site measurement report, which reads as under;
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Î ¾ ¸ÀASÉå: AEE-2(S)To/89/96-97 ¢£ÁAPÀ: 25.4.96 Îݾ¬® ¿!Î ¬Q® ¬-Î M¾­¾a4G¾P; Sd/- Assistant Executive Engineer, Sub division (South) Bangalore Development Authority, Bangalore. eÁÕ¥À£À ¢£ÁAPÀ: /4/96-97 ¸ÀASÉå : 40/dAiÀÄ£ÀUÀgÀ DqÀ½vÀ «¨sÁUÀzÀ G¥À PÁAiÀÄðzÀ²ðAiÀĪÀjUÉ ªÀÄÄA¢£À PÀæªÀÄ vÉUÉzÀÄPÉƼÀî®Ä gÀªÁ¤¹zÉ. ¸À»/- PÁAiÀÄð¤ªÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ zÀQët «¨sÁUÀ, ¨ÉA C ¥Áæ ¨ÉAUÀ¼ÀÆgÀÄ. 18. Ex.D3 is the office noting of the defendant No.1/BDA in respect of confirmation of site No.40, Jayanagar - 20 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 4th BTB Layout in favour of three persons. The said report reads as under; NOTE FOR THE AUTHORITY MEETING Sub: Confirmation of site No.40, Jayanagar IVth BTB Layout in favour of three persons. 181. Site No.40 in BTB area, Jayanagar IV Block, measuring 20'x 30' had been allotted to one Sri Raju on 15.4.1969. Subsequently, this site was again allotted to one Smt Balammal on 18.12.1973. Since, both the parties were not living in the said site, the allotments had been cancelled 182. Subsequently, this site had been allotted to one Shri Ghazi Khan who was living in this site. Allotment intimation had been given to him on 2.9.1968. Similarly, another person by name Smt.Chotima had been again allotted this site by the Authority on 14.11.1991 as per the orders of the then Commissioner. In addition to the above two person, one more person by name Sri Khasimsab is also living by putting up a dwelling hut in the said site. 183. The Hon'ble Minister Sri R.Roshan Baig and the Chief Minister's Secretariat have forwarded the representations of these persons to the Authority for confirming the same to their name. 184. In this connection, it may be stated that the Authority vide its Resolution No. 170/93 has resolved to confirm allotment in favour of a person who is living in one site so also, allotment can be confirmed in favour of two persons who are living in the same site. Similarly, in case of corner sites, there families could be given confirmation the Authority Resolution states. As such, the spot had been got inspected by the concerned EE, Town Planner member has opined that small hutments are put up in addition to a - 21 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 building on the site creating a unhealthy environment. It has also been reported by him that a portion of 8 ft. land has been encroached from site No.39 by the occupants of site No.40. The Executive Engineer has submitted his report along with a C.D report which indicates the portion of site occupied by these persons. It is as follows. Name Portion occupied. 1. Smt Chotima 6x10.0" (a small hut) 2. Shri Ghazi Khan 12 x 22' -do- 3. Sri Khasim Sab. 06' x 16' -do- 185. It has been proposed to leave a three feet passage to give access to these three persons by way of a common passage and by demarcating site Nos.39 and 40. 186. Hence, the subject is placed before the Authority for taking a decision in the matter to confirm site No.40 in favour of these three persons since this site is surrounded by a slum which is already in existence for many years and to issue LCSA agreements to these persons by limiting the extent of site occupied by them excluding the common passage. 187. Sd/- Sd/- Deputy Secretary II Secretary, Finance Member Engineer Member Town Planner Member Commissioner. Chairman BDA ¾¾¼® ¼*ί ¾ 27.6.97 )¿¯ ¼î-Î. 161/97. ¾¾¼® ¼*ί ®ÍAzÉ ®K¼S¾® 4®aY¯¬ÍQ ®6:ÝR¼S¾d¬Í. IeÎ9¯ £ÀAvÀgÀ 2¯¬¼ 4 ÎÝ
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ο¼Í. 19. The said report is signed by Deputy Secretary, Finance Member, Town Planner Member, Secretary, Engineer Member and Commissioner, BDA. Ex.D1 to D3 has been duly marked through one Sri. T.H. Veerabadraiah who is FDA of respondent No.1/BDA examined as DW.1. The said witness has filed his affidavit in lieu of his evidence confirming the contents of the said documents, more particularly, Ex.D3 which confirms the possession of plaintiff, defendant Nos.2 and 3 to the extent of the measurements shown therein. 20. The cross-examination of the said witness by the plaintiff, is as under; Cross-examination by Sri.R A. R Advocate for plaintiff 2. When the witness is confronted with the acknowledgement issued by BDA dated 30.7.1997, witness has admitted the same to the effect that it was issued for having received the notice at Ex. P-7. The said acknowledgement is now marked as Ex P8. I cannot say exactly as to whether Ex P1 has been issued by our office. It is true that Ex P2 has been - 23 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 issued by BDA. It is true that Ex P3 the challan for having remitted the amount to BDA account. It is true that Ex P5 has been issued by BDA. It is true that as per Ex P5, the name of Sri Basha is struck down due to his death and his wife's name has been entered. It is true that Ex P5 is the allotment order in the name of plaintiff. It is true that as per Ex P6, the amount remitted to the bank by the plaintiff to the BDA account. It is true that the order of allotment as per Ex P5 is not cancelled. Witness volunteers to say that same has been modified. It is true that no intimation is given to the plaintiff about modification of the allotment order. Witness volunteers to say that as stay order from the court has been received by the BDA such intimation is not given to the plaintiff. 3. We have not produced any documents to show that subsequently the suit site was allotted in the name of Sri Gazi Khan. I do not that as the previous clerk in BDA office after receiving the required amount from the plaintiff, fail to execute lease-cum-sale deed and fail to issue possession certificate it necessitated the plaintiff filed the present suit. 4. I do not know personally that Sri Gazi Khan and 3rd defendant are in possession of the suit schedule property. 21. The said witness is also cross-examined by defendant Nos.2 and 3 and further cross-examined by the plaintiff which is as under; - 24 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 "Cross Examination by Sri K.S.R. Adv. for D2 & D3 and LRs of D2. 5. It is true that when the allotment letter was issued in the name of the plaintiff in respect of suit schedule property, defendants 2 and 3 were already in possession of the suit schedule property. It is true that for that purpose, we obtained report from the engineering section. When the witness is confronted with the said document, witness has already admitted that the same has been issued by BDA. It is now marked as Ex D1. When the witness is confronted with the report issued by BDA, witness has admitted the same as true. It is now marked as Ex.D2. When the witness is confronted with the copy of resolution passed by BDA, witness has admitted the same as true. It is also marked as Ex.D3." 22. In the further cross examination by the plaintiff there is no denial in any manner whatsoever with regard to Defendant No.1/BDA issuing Ex.D1 to D3. Except the suggestion about the personal knowledge of the said witness nothing is suggested. Though it is suggested that the said documents were concocted, the same is denied. 23. Plaintiff who has examined herself as PW1 during her cross examination was confronted with the photographs produced at Ex.D1 to D3 which were marked through her as - 25 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 Ex.D1 and D2. In the said deposition the plaintiff has admitted as under: "It is true that I am residing in the rare portion of the house. There is passage in between my house and the house of 2nd defendant&&&.. It is true that about two years ago I got my house repaired. It is true that a portion of my house has not been repaired&& 2nd defendant and his wife are seen in the photo shown to me now. House of the 2nd defendant and 3rd defendants are seen in the said photo. Photo shown to the witness is marked Ex.D1. I am seen in the other photo shown to me now. Photo shown to the witness is marked as Ex.D2." 24. The aforesaid unambiguous admission of plaintiff to the contents of photographs produced at Ex.D1 and D2 read in the light of Ex.D3 which is confirmation of site No.40 in favour of plaintiff and defendants 2 and 3 would prove beyond any reasonable doubt that the suit site being in joint occupation of plaintiff and defendants 2 and 3. 25. Ex.D2 is the report of measurement of suit site No.40. The extent in occupation of plaintiff, defendants 2 and 3 is depicted in the sketch found at the over page of the said document in which, portion of the property in possession of the plaintiff is shown on the rear side even as admitted by her in - 26 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 her deposition. The said sketch is scanned here for immediate reference: - 27 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 26. Ex.D3 gives the specific measurement in occupation of plaintiff and defendants 2 and 3 which is as under: Name Portion occupied (1) Smt.Chotima (plaintiff) 6'.0" ftx10'.0" ft (a small hut) (2) Shri.Ghazi Khan 12'ftx22' ft (a small hut) (3) Shri.Khasim Sab 06' ft x16' ft (a small hut) 27. Khasim Sab, Defendant No.2 admittedly is the brother of husband of plaintiff. Therefore, it also probabilize the fact that said Khasim Sab is occupying the front portion of the suit site while plaintiff is occupying the half of rear portion, while defendant No.3 is occupying 12ft x22ft almost entire half of the portion. 28. As rightly pointed out by learned counsel for the defendant No.3 and defendant No.1/BDA while defendant No.1/BDA has exercised its power under the statute in allotting the site identifying and confirming the occupation and extent in occupation of the parties. In the absence of the said order of defendant No.1/BDA having been set at naught or set aside in a competent proceedings, trial Court ought not to have - 28 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 entertained the matter for adjudication. The trial Court, as rightly pointed out by learned counsel for appellants/Defendant No.3 and Defendant No.1/BDA, has lost sight of this aspect of the matter while decreeing the suit. The Judgment and decree passed by the trial Court therefore suffers from non application of mind. 29. Application filed by learned counsel for appellant I.A.No.1/2019 seeking production of additional document is rejected inasmuch as documents found on record is sufficient to dispose of the matter. 30. Accordingly, the following: ORDER 1. Appeal is allowed. 2. Judgment and decree dated 30.05.2009 passed in O.S.No.7830/1997 by the trial Court is set aside. 3. Parties are found to be in possession of the property to the extent mentioned in Ex.D2 and D3. 4. Parties are at liberty to approach the Defendant No.1/BDA to seek issuance of documents of title to the - 29 - HC-KAR NC: 2026:KHC:13045 RFA No. 712 of 2009 extent of property in their possession pursuant to documents at Ex.D2 and D3, in such an even Defendant No.1/BDA shall proceed to issue necessary documents of title taking into account the Ex.D2 and Ex.D3 as expeditiously as possible. Sd/- (M.G.S. KAMAL) JUDGE RU/SBN List No.: 1 Sl No.: 40