1. Heard the learned Counsel for the appellant and the respondent.
2. The parties are referred to by their rank before the Trial Court for the sake of convenience.
3. The appellant was the plaintiff before the Trial Court. The plaintiff was a charitable trust. It was a suit for a permanent injunction. The plaintiff’s case was as follows.-
The suit property was a portion of land bearing Survey No.25, on Thimmaiah Road, near Miller Tank Bund, formerly known as Venkatappa Garden, Bilekahalli. It was kharab land. The total extent of land was 1 acre and 10 guntas. The plaintiff claimed that this property originally belonged to one Venkataswamappa and that he had bequeathed the suit property to R. Narayanaswamy under a Will dated 10-12-1941 and Narayanaswamy had created a public trust on 24-10-1956 and the suit schedule property was given to the plaintiff-trust.
It was further contended that the suit property was in the possession and enjoyment of Venkataswamappa till his death. Thereafter, it had devolved on Narayanaswamy till he created a trust. The plaintiff had been put in possession of the property through its trustees and has been in enjoyment of the same by virtue of a registered trust dated 24-10-1956. It was further claimed that late Venkataswamappa has obtained a licence from the erstwhile Municipality, for constructing a building in a portion of the land in Survey Nos.18 and 25, but the building was not constructed and after his death, the entire land was being enjoyed by late Narayanaswamy till he made it over to the plaintiff-trust. it was further claimed that Narayanaswamy had applied to the concerned authorities in the year 1946, calling upon them to fix the boundaries of land in Survey Nos.16, 18 and 25. It is therefore claimed that by virtue of the proceedings dated 4-6-1946 and 12-4-1946, the boundaries were demarcated and that Narayanaswamy had obtained sanction from the erstwhile Municipality as also from the defendant, Bangalore City Corporation in the year 1953, for the construction of a building in a portion of the subject land. A copy of the approved plan was said to have been enclosed to the plaint and Narayanaswamy had even laid foundation to the building, but further construction had not progressed as there was a proposal by the authority to acquire the land. He had even fenced the land using stone pillars and barbed wire and remnants of the fence could be seen in the photographs enclosed to the plaint. Narayanaswamy had also construed a shed for the use of the watchman in a portion of the land. He had formed private roads in the suit land. He had laid a water pipeline running through the land in Survey No.25 leading upto premises No.324, Thimmaiah Road, which was situate in land in Survey No.18. The plaintiff, therefore, had applied to the defendant-Corporation for modification of the approved plan, which however, was not acted upon, as there was a proposal for acquisition of the land. There was no notice of acquisition issued against the proposed acquisition. The plaintiff had preferred an appeal on the refusal to modify the sanctioned plan. It is also the plaintiff’s complaint that the defendant has not made out khata in favour of the plaintiff, though an application was made at an earlier point of time and it is for this reason that the trust has not been in a position to pay taxes in respect of the suit property.
However, it was claimed by the plaintiff that the defendant had illegally granted lease of a portion of the land in Survey No.25 to M/s. Continental Exporters, No.45, Cavalry Road, Civil Station, Bangalore. In this regard, the plaintiff had filed a suit against the said M/s. Continental Exporters in a Civil Suit in O.S. No.312 of 1977 for permanent injunction. The plaintiff-trust had put up sign boards in the suit land. It was further claimed that in the year 1971, the plaintiff-trust demolished the aforesaid shed for the purpose of formation of a road and that they survey authorities had confirmed the right, title and interest of the plaintiff in respect of the suit land. A sketch was also produced. It was on these assertions that the plaintiff claimed as an absolute owner of the property and complained that the defendant-Corporation was trying to form a road in the suit property, without any acquisition proceedings preceding the same and hence, claimed that it would be put to irreparable injury and loss if the defendant was no restrained from interfering with the plaintiff’s possession.
4. The suit was resisted by the Corporation. It was denied that the suit property belonged to Narayanaswamy, after the death of its original owner Venkataswamappa. In fact, Narayanaswamy had no right in respect of the land and therefore, creation of a trust and handing over the property in favour of the plaintiff did not arise. It is claimed that the land in Survey Nos.18 and 25 had been purchased by the then Municipality and the present defendant being its successor-in-interest, had acquired the properties and the defendant had been in possession and enjoyment of the suit property. But, Narayanaswamy was never in possession of the suit property and the alleged laying of a road, or a private water line in the suit property was denied. It was also denied that the boundaries were fixed through the survey authorities. The allegation that the defendant had illegally granted the lands to M/s. Continental Exporters was denied as incorrect and the filing of a civil suit in O.S.No.312 of 1977 was not relevant and hence, claimed that the suit be dismissed. On the basis of the pleadings, the Court below had framed two issues namely, whether the plaintiff proved that it was in lawful possession of the suit property and whether the plaintiff was entitled to an order of temporary injunctions and answered both the issues in the negative.
5. The Court below has taken note of the title suits pending in respect of land in Survey Nos.16, 18 and 25 in civil suits in O.S.Nos.10591 and 2399 of 1980 against the defendant-Corporation and therefore, has not chosen to discuss the merits and demerits of the title to the suit and has only addressed the question as to how far the plaintiff has been able to demonstrate lawful possession over the suit property as on the date of the suit.
6. The plaintiff was a trust created under a registered trust deed and that P.W.1, who had tendered evidence, was one of the trustees and has addressed the objection taken by the defendant as to the frame of the suit being incorrect and not being in accordance with Order 31, Rules 1 and 2 of the Code of Civil procedure, 1908. Though P.W.1 had claimed that he was authorised to represent all the trustees as required under the provision of law and had claimed that there was a resolution passed by the trustees in this regard, had not filed the resolution empowering him to file a suit and it was not in dispute that there were ten trustees in all. They were not parties to the suit and in the absence of a resolution authorising P.W.1, the very authority of P.W.1 to represent the trust, was taken away, which would be fatal to the plaintiff’s case. The Court has further noticed that the contention in the plaint as well as the evidence of P.W.1, was that the property belonged to one Venkataswamappa and he had bequeathed the properties to Narayanaswamy, the father of P.W.1, who in turn, had created a trust, under which, land measuring 1 acre 20 guntas in Survey No.25 was delivered to the trust. The creation of the trust, though was not doubted by the Court, the question whether the plaintiff was in possession from the year 1956 was addressed and on the basis of the plaint allegations itself, it was evident that the khata of the suit property was not in the name of the plaintiff-trust, and the defendant had created a lease in favour of M/s. Continental Exporters, in respect of a portion of the land in Survey No.25 and the plaintiff had questioned that in a separate suit and the defendant having leased out 26,000 square feet to M/s. Continental Exporters, is also a fact which is not denied by the defendant. It was also observed by the Court below that Survey No.19 is the Millers Tank land and a portion of Survey No.25 was acquired for the purpose of extension of Millers Tank. Therefore, it was held that the plaintiff concedes that the government has acquired some land in Survey No.25. P.W.1 however, has not spelt out the extent so acquired. It was also noticed that P.W.1 had declared that inspite of an order of temporary injunction, the defendant had proceeded to form a road over the suit property, though the said witness had not explained as to which portion of the property had been used for forming the road. Hence, the Court has concluded that the plaintiff had failed to prove physical and legal possession of the entire suit property and therefore, gram of the relief would itself be infructuous and has, accordingly, dismissed the suit. It is that which is the subject-matter of the present appeal.
7. Apart from attacking the judgment of the Court below on various grounds, running into 118 paragraph in 25 closely typed pages, one of the grounds urged is that the title suit in respect of the property was pending before the very court, which has rendered the impugned judgment, and that was decreed in favour of the plaintiff. Whereas, the present suit for bare injunction has been dismissed and therefore, would require reconsideration. As seen from the body of the judgment, the Court below has expressed that insofar as the title to the property is concerned, as it is a subject-matter of independent suits, it would not be proper to address the title with reference to the various documents, which are the subject-matter of the other suit that was pending and has proceeded to address the question of lawful physical possession of the sui
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t property by the plaintiff. As noticed from the bare facts narrated in the plaint itself and enlarged by the evidence of P.W.1, the Court below has rightly come to the conclusion that the plaintiff was never in possession of the suit property on the admitted facts and therefore, the suit for injunction having been rejected on that short ground, cannot be assailed. 8. Incidentally, insofar as the judgment and decree not in favour of the present plaintiff, but, in favour of one other, and an appeal having been preferred against the judgment and decree in O.S.No.10591 of 1982 by the defendant-Bangalore City Corporation in Appeal RFA No.820 of 1997, which has been separately disposed of by this Bench, allowing the appeal and negating the claim to title by the plaintiffs therein. Therefore, the above ground which is possibly the only ground which can be addressed in the present case, is to be held against the appellant. The other contentions raised in the appeal may not warrant consideration having regard to the facts and circumstances of the case. Therefore, the appeal stands dismissed.