MANOJI RAOversusT. KRISHNA AND ORS.

A                                 MANOJI RAO
                                       v.
                              T. KRISHNA AND ORS.

                                 JANUARY 11, 2001

B             [S. RAJENDRA BABU AND K.G. BALAKRISHNAN JJ.]


            Code of Civil Procedure, 1908:

            Section 96-0riginal decree-Appeal from-Plaintiff filed a suit for
C declaration-Defendant claimed that he was residing in a portion of the suit
    property even prior to its allotment to the plaintiff-Trial court dismissed the
     suit-High Court held that mere residence did not confer title on the defendant
     and allowed the appeal-Correctness of-Held: The matter falls within the
     region of appreciation of material on record-Hence no interference is called
    for.
D
           The respondents-plaintiff filed a suit for declaration as to the ownership
    of the suit property. The appellant-defendant claimed that he was in possession
    of a portion of the suit property even prior to its allotment to the respondents.
    The trial court dismissed the suit.
E        The High Court allowed the appeal on the ground that no right would
    be conferred on the defendant although he was residing in a portion of suit
    property even prior to his allotment. Hence this appeal.

            Dismissing the appeal, the Court
F
          HELD: I. The matter falls within the region of appreciation of material
    on record. Though the trial court had taken a different view, on appreciation
    of the material the first appellate court took the view that the documents
    clearly establish the claim made by the plaintiffs and no documents were
    available with the defendant. 1328-FI
G
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 482 of
    2001.

          From the Judgment and Order dated 13.12.99 of the Karnataka High
    Court in R.F .A. No. 153 of 1994 ..
H                                         326
     x
     '



                             M. RAO v. T. KRISHNA [RAJENDRA BABU, J.)                       327

                     P.C. Jain and Balbir Singh Gupta for the Appellant.                            A
                     S.K. Kulkarni and Vijay Kumar for the Respondents.

                     The Judgment of the Court was delivered by

                     RAJENDRA BABU, J. Leave granted.                                               B

                       This appeal arises out of a suit [O.S. No. I 0579/89] filed in the court
               of First Addi. City Civil Judge, Bangalore. The respondents-plaintiffs sought
               for the relief of declaration as to the ownership of the suit site No. 20,
               measuring 20 ft. x 32.5 ft. at Ramakrishna Mutt Extension, Gavipuram,
               Guttahalli, Bangalore as described in detail in the schedule to the plaint.
                                                                                                    c

-"             They claimed that they have been residing in this site by putting up a hut
               and thereafter the C.l.T.B, the predecessors of the Bangalore Development
               Authority issued a letter of allotment dated 19.7 .1973 and a possession
               certificate was also given on 17.3.1981. Allegations against the appellant-
               defendants are that they had trespassed over a portion of the property and           D
               as regards rest of the property they were creating disturbance and thus the
               plaintiffs sought for declaration of right, title or injunction. The plaintiffs
               relied upon several documents such as the letter of allotment dated 19.7.1973
_,       Ji-   [Ex. P. l ]; a demand notice calling upon the plaintiffs to pay the value of the
               site as per Ex. P.2; the challans showing that amounts were remitted by the
                                                                                                    E
               plaintiffs [Ex. P.3 to P.5]; the possession certificate dated 18.3.1981 issued by
               the Bangalore Development Authority that the plaintiffs was given possession
               of site No. 20 with the measurements indicated in the plaint [Ex.P.6]; the
               certificate issued by the Bangalore Development Authority to indicate that
               the suit site stands in the name of the plaintiffs [Ex.P.7]; the licence issued
               by the Bangalore Development Authority for construction of building on site          F
               No. 20 [Ex.P.8] and the plan approved by the Bangalore Development Authority
               [Ex. P.9]. The trial court, however, took the view that the possession certificate
               dated 17 .3 .1981 cannot be taken to be a document of title which is only a
               possession certificate and no document conveying the title to the plaintiffs
               had been made available for the court and, therefore, the plaintiffs cannot be
                                                                                                    G
               declared to be the owner. Proceeding on this basis, the trial court dismissed
/        ~     the suit. It relied upon the circumstance that the defendants were in possession
               of a portion of the property and they were residing there at even prior to 1980.
               Therefore. the plaintiffs cannot seek a suit for ejection of the defendants on
               the basis that they had been allotted the site by the Bangalore Development
               Authority without obtaining any documents of title. When vacant possession           H
    328                    SUPREME COURT REPORTS                    [200 I] I S.C.R.

A has not been given to the defendants the plaintiffs had failed to prove their
    possession of the suit property and the question whether the defendants
    trespassed into the suit property illegally and encroached upon it by putting
    up structures would not arise for consideration. On that basis, the trial court
    dismissed the suit.

B        On appeal to the High Court, the learned single Judge, after noticing
  the various documents that have been filed in the case, held that the fact that
  the defendants were residing in a portion of the suit site even prior to the
  allotment would not confer any right upon them and DW. l had admitted in
  the course of his evidence that site No. 20 was allotted to the plaintiffs. In
C the absence of any title set up by the defendants or claimed by them and
  when the defendants have not only unequivocally admitted the title of the
  plaintiffs but also merely claimed that the application was pending
  consideration of the Government, the trial court ought to have decreed the
  suit and allowed the appeal granting the relief sought for by the plaintiffs.
  Hence this appeal.
                                                                                              -
D
         It is contended before us that in the course of arguments it had been
  submitted by the Advocate appearing for the plaintiffs that site No. 20 which
  is the subject matter of the dispute has been allotted to defendant No. I by
  the Bangalore Development Authority. But no clarification was made either            .ii(
  by production of any document before the Court in support of this contention.
E In the absence of any such material, we do not think it would be safe to
  assume that such allotment had been made in favour of defendant No. I and
  so the plaintiffs have become disentitled. On the other hand, when the High
  Court has taken into consideration all the documents available on record
  and on that basis holds prima facie that the plaintiffs have the possessory
F rights over the suit property and a declaration to that effect has been given,
  the matter falls within the region of appreciation of material on record.
  Though the trial court had taken a different view, on appreciation of the
  material the first appellate court took the view that the documents clearly
  establish the claim made by the plaintiffs and no documents were available
  with the defendants. We do not, therefore, think that there is any good reason
G to interfere with the order made by the High Court and we dismiss this appeal.
  No costs.

    V.S.S.                                                      Appeal dismissed.