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2001 DIGILAW 380 (KAR)

B. N. JAYASURYA v. BANGALORE CITY CORPORATION

2001-04-20

CHANDRASHEKARAIAH

body2001
CHSNDRASHEKARALAH, J, J. ( 1 ) THIS appeal is by the plaintiffs in O. S. 2060/84 challenging the judgment and decree passed by the 15th Addl. City Civil Judge, bangalore City. The parties in this appeal are referred to as arrayed in the trial Court. ( 2 ) THE plaintiffs have filed a suit for permanent injunctionrestraining defendant No. 1 its employees, officials and workmen from interfering with their peaceful possession and enjoyment of the suit schedule land either by putting up fence on the suit property or putting up any construction or committing acts of tress pass or in any other manner. ( 3 ) THE averments of the plaint are as follows:-That one Ramaswamy lyengar son of Setlur Venkatachar was in absolute possession and ownership of the entire village known as ramaswamy Chetty Palya alias Thurukanapalya, Kethamaranahalli, yeshwanthpur Hobli, Bangalore North Taluk. The said Ramaswamy lyengar constructed a tank (which was bearing Sy. No. 27) at huge cost and he was maintaining the tank at his own expense attending to the repairs etc. and he was also the owner of all the achukattu lands of the said tank. The said Ramaswamy lyengar sold and transferred the entire village inclusive of the tanks, wells, tankbeds, kuntes etc of the said village in favour of Maddareddy, venkataramanappa and Kempegowda s/o. Sri Byrappa under a sale deed dated 19. 2. 1894. The said Maddareddy, Venkataramanappa and Kempegowda who were in enjoyment and possession of all the properties including the tanks etc sold the above said properties in favour of one Sri T. Byanna under registered sale deed dated 12,1. 1908. The said Byanna had four sons viz. Appaiah, Surappa, narayanaswamy and Jayaram and three daughters viz. Akkamma, janakamma and Jayalakshamma. The said Byanna had executed his last will and testament bequeathing his properties including thurukanapaiya Village to his children. The said Byanna died on 3. 10. 1909. After the death of Byanna his second son Surappa died unmarried. Appaiah, Narayanaswamy and Jayaram and three daughters succeeded to his estate including the properties of village thurukanapaiya. There was a partition among the remaining sons and daughters of Byanna as per the partition deed dated 2. 2. 1922. At the said partition the village Ramaswamy Chetty Palya alias thurukanapaiya was jointly allotted to the shares of Shri narayanaswamy and Sri Jayaram. There was a partition among the remaining sons and daughters of Byanna as per the partition deed dated 2. 2. 1922. At the said partition the village Ramaswamy Chetty Palya alias thurukanapaiya was jointly allotted to the shares of Shri narayanaswamy and Sri Jayaram. Thus Sri Narayanaswamy and sri Jayaram became the joint owners of the said village and they were in possession and enjoyment of the properties in the Village including the tanks and tank beds etc. The first plaintiff is the son of Sri Narayanaswamy while the second plaintiff is the son of Jayaram. Sri Jayaram, father of the second plaintiff, died in the year 1943 leaving behind his wife Smt. Sharadamma and two sons Sri J. Sreenivasa Reddy-second plaintiff herein and Shri J. Surendra Reddy. Sri Narayanaswamy father of the plaintiff herein died in the year 1946 leaving behind his wife smt. Bhagamma and two sons viz. Jayasurya-first plaintiff herein and Sri B. N. Madhusudana. It is averred that the plaintiffs are the owners of the properties in the said Ramaswamy Chetty Palya alias Thurukanapaiya which is now known as Subramanya Pura. In the said village Sy. No. 27 is the private tank known as "ramaswamy Tank" which was constructed and maintained by the plaintiffs predecessor in title. Sri Byanna was also attending to the repairs and maintenance of the said tank at his own cost. During the life time of Sri Narayanaswamy and Jayaram they were attending to the maintenance and upkeep of the tanks at their own cost. Thereafter the plaintiffs who succeeded to the estate of Narayanaswamy and Jayaram have also spent money for the maintenance and up keep of the tanks. It is stated that the property hearing Sy. No. 27 is the private tank belonging absolutely to the plaintiffs. The revenue and survey records have recognized the said tank as a private tank. The plaintiffs submits that to their knowledge even in the tank registers, the tank bearing Sy. No. 27 is not shown and it is therefore, clear that this is a private tank constructed and containained by the predecessors in title of the plaintiffs. The lands bearing Sy. Nos. 1 to 39 except Sy. No. 27 (the property in question) came to be acquired by the City Improvement Trust board for the purpose of formation of Rajajinagar II Stage Layout. The lands bearing Sy. Nos. 1 to 39 except Sy. No. 27 (the property in question) came to be acquired by the City Improvement Trust board for the purpose of formation of Rajajinagar II Stage Layout. After the acquisition, the properties have been- reconveyed to the plaintiffs and the alienees from them. It is stated that Sy. No. 27 had not been acquired and no award was passed and therefore, the said property continued to be in possession and enjoyment of the plaintiffs. Somewhere in the year 1960 a road came to be formed in sy. No. 27 with the leave and licence of the plaintiffs. it is stated that the defendant Corporation even though has no manner of right or interest in any portion of Sy. No. 27, the officials of the Corporation attempted to put up construction on a portion of the land in Sy. No. 27 of Thurukanapalya Village situated within the corporation limits. The officials and employees of the corporation when attempted to lay foundation on an area of 70ft. x30ft. in Sy. No. 27, the plaintiffs had filed a suit O. S. 1713/66 on the file of the then first Munsiff, Bangalore praying for decree for permanent injunction restraining the defendants and its employees from interfering with their peaceful possession and enjoyment of the said portion measuring 70' x 30' in the said Sy. No. 27. The defendant having admitted in the said suit that Sy. No. 27 had not been acquired by the City improvement Trust Board pleaded falsely that the defendant is in possession of the suit land from 6. 12. 1965. In the said suit the court held that the plaintiffs have proved lawful possession of the property (which is a portion of land in Sy. No. 27} and the plaintiffs are entitled for a relief of permanent injunction against the defendants. The Court also held that Sy. No. 27 is a tank bed area and not a government tank and the Government is nothing to do with the disputed tank. The Court further held that there is no proof of possession of the defendant with respect to the said property. The decision in the said suit rendered on 27. 11. 1973 has become final. No. 27 is a tank bed area and not a government tank and the Government is nothing to do with the disputed tank. The Court further held that there is no proof of possession of the defendant with respect to the said property. The decision in the said suit rendered on 27. 11. 1973 has become final. It is further stated that the plaintiffs are in possession and enjoyment of the said land and the defendant has no right or interest or title in the said survey number. It is stated that since the officials of the defendant Corporation has taken the law into their own hand and committed tress pass indulging in high handed and illegal acts, the plaintiffs have filed this suit for permanent injunction. ( 4 ) THE defendant Corporation in their written statement deniedthe averments made by the plaintiffs in their plaint. The case of the defendant is that the Defendant Corporation has exercised their statutory right over the lands in question and have formed a layout on the said land prior to 1960. It is further stated that an overbridge has also been constructed over the land in question linking 17th cross Malleswaram and Rajajinagar II stage 80 ft. road. The road and the bridge are meant for general public. The master plan prepared and published by the BDA under the provisions of the karnataka town and Country planning Act, 1961 discloses that the said land is earmarked as a civic amenity site. The said land is vested with the Corporation under Section 174 of the Karnataka municipal Corporation Act, 1966 and therefore, the Corporation is entitled to utilise the same for the public purpose. In the revenue records the land in question is shown as a Government land. The defendant Corporation denies the averment that Ramaswamy iyengar had purchased the entire village of Ramaswamy Chetty Palya alias Thurukanapalya. It has further denied the averment that the tank in Sy. No. 27 was constructed at huge cost by the said ramaswamy Iyengar and he was maintaining the tank. The defendant has further denied that the tank was being regularly maintained by successive purchasers such as Madda Reddy, venkataramanappa and Kempegowda and thereafter by Byanna, the grand father of the plaintiff followed by his sons Jayaram and narayanaswamy and thereafter by the plaintiffs. It is stated that the land in Sy. The defendant has further denied that the tank was being regularly maintained by successive purchasers such as Madda Reddy, venkataramanappa and Kempegowda and thereafter by Byanna, the grand father of the plaintiff followed by his sons Jayaram and narayanaswamy and thereafter by the plaintiffs. It is stated that the land in Sy. No. 27 of Thurukanapalya of katamanahalli Dakale i. e. the tank measuring 8, Acres 30 guntas was never a part of sale deed of the year 1894 and 1908. As such the contentions of the plaintiffs that their predecessors-in-title and themselves now were/are owner in possession and enjoyment having the title in respect of land in Sy. No. 27 is denied as false and incorrect. The further case of the defendant Corporation is that the suit schedule property never belong to either to the plaintiffs or to their predecessor in title at any point of time. The Specific case of the defendant Corporation is that the tank in Sy. No. 27 was never a private tank but on the other hand it is a government tank. The plaintiffs of other predecessors-in-title had at no point of time exercised any right of ownership or any other right whatsoever over the said property. The City Improvement Trust Board had not acquired the land in sy. No. 27 as the same belong to the Government though it had acquired the lands in Sy. No. 1 to 39 of the said village. The defendant has denied the averment of the plaintiffs that they are in possession and enjoyment of the tank in question. Various public organisations and important citizens have opposed the illegal attempts of the plaintiffs in claiming the property in question as their own and have petitioned to the defendant to retain the land in question for civic amenity. In the written statement also the defendants has called upon to prove the very identity of the said property. It is further started that the formation of 80 ft. road running from east to west on Sy. No. 27 in the year 1975 by the defendant corporation reveals that the plaintiffs were not in possession of sy. No. 27 as alleged by them. The various acts, such as formation of mud road in 1960, construction of gymnasium and formation of 80 ft. road running from east to west on Sy. No. 27 in the year 1975 by the defendant corporation reveals that the plaintiffs were not in possession of sy. No. 27 as alleged by them. The various acts, such as formation of mud road in 1960, construction of gymnasium and formation of 80 ft. road in 1974-75, maintenance of tank prior to its breach are the instances which disclose that the defendants has been in possession of the schedule property and not the plaintiffs. It is further stated that the decree in O. S. No. 1713/1966 did not confer any title on the plaintiffs over the suit land as the subject matter of the said suit measures 70' x 30'. ( 5 ) ON the above said pleadings the trial Court has framed thefollowing issues:-1. Do the plaintiff prove that they are in lawful possession of the suit schedule property? ' 2. Do the plaintiffs further prove that the defendants has interfered with their possession and enjoyment of the suit property? 3. Does the defendant prove that the suit property is in its possession and enjoyment? 4. Do the plaintiffs prove that they are entitled to decree for permanent injunction? 5. To what order or decree?issue Nos. 1, 2 and 4 are answered in the negative. ( 6 ) NOW the question that arise for consideration by this Court is:"whether the trial Court is justified in dismissing the suit answering the issues referred to above in the negative" ( 7 ) BEFORE considering whether the plaintiffs have proved theirlawful possession of the suit schedule property I propose to consider the following contention raised by Sri Chalapathy, learned Counsel appearing for the appellants. It is submitted that the trial Court in O. S. 1713/66 has held that the tank in Sy. No. 27 is not a Govt. tank and as the said finding is binding on the defendant in a subsequent suit, it is not open for the defendant Corporation to dispute the title in respect of the tank in sy. No. 27 in view of Section 11 of CPC. No. 27 is not a Govt. tank and as the said finding is binding on the defendant in a subsequent suit, it is not open for the defendant Corporation to dispute the title in respect of the tank in sy. No. 27 in view of Section 11 of CPC. ( 8 ) THE learned Counsel for the defendant submits that theprinciples of Res Judicata under Section 11 of CPC have no application to the facts of this case and there is no estoppel for the corporation to plead that it is the Corporation which is the owner of the tank in Sy. No. 27 since it is vested with the Corporation under the provisions of the Karnataka Municipal Corporation Act. ( 9 ) FROM the pleadings of the suit, it is seen that O. S. 1713/66was filed for permanent injunction in respect of the land measuring 70ft x 30 ft. which is a part of Sy. No. 27. The subject matter of this suit is in respect of the entire Sy. No,27 which measures 8 acres 30 guntas. Sri Chalapathy, learned Counsel appearing for the appellants submits that though the earlier suit is in respect of a small bit of land the finding recorded in the earlier suit that the tank in Sy. No. 27 is not a Government tank is binding on the defendant Corporation in the subsequent suit i. e. the present suit. In reply of this submission the learned Counsel for the defendant Corporation submits that the earlier suit is for a bare injunction and in the said suit the issue of title is neither relevant nor decided and therefore, the principles of res judicata have no application. In order to appreciate this. rival contentions it is useful to extract Section 11 CPC which reads as follows:-11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. From the reading of the above said Section in order to apply the provisions of Res judicata the following conditions are to be proved- i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit. ii) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, iii) such parties must have been litigating under the same title in the former suit, iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. ( 10 ) LET me examine the case of the plaintiffs keeping in viewthe above said conditions:- ex. P2 is the judgment passed in O. S. 1713/66 and Ex. P. 3 is the decree in the said suit. The said suit is for permanent injunction in respect of a bit of land measuring 70ft x 30ft in Sy. No:27. The issues - framed in the above said suit are as follows:-I) Whether the plaintiffs proves that they are in lawful possession of the suit schedule property; ii) Whether the plaintiffs are entitled for a relief of permanent injunction; iii) To what relief are the parties entitled? from the reading of the above said issues it is seen that there is no issue relating to title in respect of the tank in Sy. No. 27. The present suit is also for bare injunction. The plaintiffs should have filed the suit for declaration of title as the defendant Corporation specifically pleaded the tank in survey number 27 is a Government tank in the earlier suit The question that arise for consideration in the suit for permanent injunction is whether the plaintiff is in lawful possession of the suit schedule property? The nature of possession may be lawful without having no title to the property. Therefore, no finding could be recorded on title in a suit for permanent injunction. No doubt, in order to ascertain whether the plaintiff is in lawful possession of the suit schedule property or not on the basis of title, the Court may make certain observations regarding title to the property. Therefore, no finding could be recorded on title in a suit for permanent injunction. No doubt, in order to ascertain whether the plaintiff is in lawful possession of the suit schedule property or not on the basis of title, the Court may make certain observations regarding title to the property. But, the said reasons or observations so made by the Court in a suit for injunction cannot be and could not be considered as a finding on title as the issue of title is irrelevant in a suit for permanent injunction. In the absence of any issue relating to title in a suit for permanent injunction the decree for permanent injunction does not operate as Res judicata in a subsequent suit filed for declaration of title. ( 11 ) SRI Chalapathy relying upon the decision in the case ofsulochana AMMA vs NARAYANAMMA submits that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in the suit between the same parties and therefore, the finding recorded on the said issue operates as Res judicata in a subsequent suit. The Supreme Court in the above said decision has held as follows; -. "sri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of Res judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The Civil Court found that K acquired life estate under the settlement deed executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in winch the issue was directly and substantially in issue and decided and attained finality would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. The appellant is a person deriving title from K who was a party in the former suit is also hit by the doctrine of lis pendens under Section 52 of the transfer of Property Act. "the Supreme Court no doubt in the said case has held that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata- But, in the case on hand, as stated earlier, that in an earlier suit the issue of title was not involved as there is no specific issue of title to the property. Further, in this suit also no issue relating to title has been framed since the suit is for bare injunction. No doubt, the trial Court on an earlier suit has made certain observation in respect of the tank in survey number 27. But, the reasons and the observations made in the judgment in the earlier suit cannot be construed as a specific finding recorded on an issue of title In Ex. No doubt, the trial Court on an earlier suit has made certain observation in respect of the tank in survey number 27. But, the reasons and the observations made in the judgment in the earlier suit cannot be construed as a specific finding recorded on an issue of title In Ex. P. 2 the learned Munsiff in O. S. 1713/66 has observed as follows:-"the suit being one for permanent injunction warrants the investigation of only lawful possession set up by the plaintiffs in respect of the schedule property". From that it is seen that the learned Munisff has investigated the matter only regarding lawful possession set up by the plaintiffs in the saia suit and not in respect of title. Therefore, any observation made with reference to the title is only with a view to ascertain whether the plaintiffs are in lawful possession or not. ( 12 ) THE decision of the Supreme Court in SULOCHANA AMMA'scase has been explained by the Supreme Court in case of sajjadanashinsayed vs MUSA DADABHAI UMMER AND others reported in as follows:-'before parting with this point, we would like to refer to two or more rulings. In Sulochana Amma vs Narayanan Nair 1994 2 scc 14 : ( AIR 1994 SC 152 ), this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High court in Selliamman Ayyanar Ithiva Somasundareswarar Temple vs Rajanga AIR 1965 Madras 355, held (see para 8 therein) that the previous suit was only for injunction relating to the crops. May be the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. These two decisions in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to corpus Juris Secundum (Vol. 50 para 735, page 229) Where a similar aspect in respect to findings on possession and incidental findings on title were dealt with. It is stated: where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title". In the light of the above said explanation I propose to consider whether the issue of title is really involved in O. S. 1713/66 or only a issue collaterally or incidentally considered by the Court. The facts in the case of SULOCHANAMMA's case are that one Kutty Amma executed a deed giving life estate to her husband Krishna Nair and vested remainder in favour of another, the person who had a revertionary right had filed a suit for injunction restraining holder of life estate from alienating properties and committed the acts of waste. The said suit was decreed. The real question that was considered by the Court for the purpose of granting injunction at the instance of revertionary right holder is whether the holder of life estate had any right to alienate properties and thereby committing acts of waste. The said suit was decreed. The real question that was considered by the Court for the purpose of granting injunction at the instance of revertionary right holder is whether the holder of life estate had any right to alienate properties and thereby committing acts of waste. Therefore, in the said suit the Court is required to consider whether life estate holder had any right to alienate the property and thereby committing acts of waste. The said finding is binding on the parties in any subsequent proceedings as the said issue was directly and substantially in issue. Whereas in the case of SELLIAMMAN ayyanar ITHIVA SOMASUNDARESWARAR TEMPLE vs rajanga3 referred to by the Supreme Court in the above said decision of the Supreme Court has held though in a suit for injunction relating to the crops, the questl on of title though not raised in the plaint, the said finding would not be Res judicata in the later suit on title. In the case on hand also the earlier suit is for a bare injunction. Though there are certain observations regarding tank in Sy. No. 27 the said observation or the finding could not be considered as Res judicata as in the earlier suit what was considered is an issue relating to lawful possession only. ( 13 ) SRI Chalapathy, learned Counsel for the appellant contendedthat the test of Res judicata is the identity of title in the two suits and not the identification of actual property involved in the two cases. In support of this contention he relied upon the decision of the supreme Court in the case of SMT. RAJ LAKSHM! DASI AND others vs BANAMALI SEN AND OTHERS and RAMA GOBINDA daw AND OTHERS vs SMT. H. BHATKTA BALA DASSI. ( 14 ) THE subject matter in the earlier suit relates to a small bit ofland measuring 70ft x 30ft. Whereas in the present suit, the subject matter concerning the entire land in Sy. No. 27. According to the learned Counsel for the appellant even though the earlier suit is in respect of a small bit of land the finding is in respect of the entire tank in Sy. No. 27 and therefore, the said finding is binding on the parties in ail subsequent proceedings. No. 27. According to the learned Counsel for the appellant even though the earlier suit is in respect of a small bit of land the finding is in respect of the entire tank in Sy. No. 27 and therefore, the said finding is binding on the parties in ail subsequent proceedings. The defendant in his written statement has no doubt asked the plaintiff to prove the identity of the subject matter of the suit schedule property. As stated earlier the issue of title was not involved in the earlier suit. Even in the present suit also no issue relating title has been framed since the suit is for bare injunction. Under these circumstances, the decisions relied upon have no application to the facts of this case. ( 15 ) NEXTLY it is contended on behalf of the appellant that thoughthe earlier suit is for bare injunction it has to be treated as a suit on the basis of title in respect of the tank in question. In support of this submission the learned Counsel relied upon the decision in the case of CORPORATION OF CITY OF BANGALORE vs M. PAPAIAH AND another. In the said case the Supreme Court reversed the judgment of the High Court pointing out several inconsistent observation and ultimately remitted the matter to the High Court for fresh decision. In the said decision the Supreme Court has held that the foundation of claim of plaintiff was title which was pleaded in earlier part of the plaint and for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion. The present suit by the plaintiff is for permanent injunction in respect of the land measuring 8 acres 30 guntas in Sy. No. 27. Whereas the earlier suit is for an injunction in respect of a small bit of land. In order to ascertain whether the earlier suit filed by the plaintiffs is on the basis of title the pleadings of the earlier suit has to be looked into in order to decide whether the decision in the" earlier case operates as Res judicata. In this suit the pleadings in the earlier suit have not been produced. In order to ascertain whether the earlier suit filed by the plaintiffs is on the basis of title the pleadings of the earlier suit has to be looked into in order to decide whether the decision in the" earlier case operates as Res judicata. In this suit the pleadings in the earlier suit have not been produced. As held by the Supreme Court in the above said case, the Court is required to read the entire plaint in order to ascertain whether the title is involved in the said suit. In the absence of such pleadings it is not possible to hold that the issue that was involved in the earlier suit operate as Res judicata in the subsequent suit. Therefore, the decision relied upon by the learned counsel for the appellant has no application to the facts of this case. ( 16 ) FROM the written statement and also from the evidence I findthat the land in question is meant for general public since it has been notified as a civic amenity site in the master plan published by the BDA under the provisions of the Karnataka Town and Country planning Act 1961. Therefore, in view of public interest involved in this case the Court must take into consideration all the relevant facts and the evidence to ascertain whether in fact the issue of title is decided in an earlier suit after affording an opportunity to lead evidence by framing an issue regarding title. If the case of the plaintiffs is accepted, the road formed in the land in survey number no. 27, assuming that it was formed with the consent of the plaintiff, no public could use the said road as it has been included in the boundaries given in the plaint schedule property. At the cost of repetition I say that in an earlier suit no issue of title was framed, no opportunity was afforded to the Corporation to prove whether the said property is not the property of the plaintiffs. ( 17 ) EX. P. 4 is the sale deed executed by Ramaswamy lyengar infavour of Venkataramanappa and others. From the above said sale deed it is seen that several lands including Sy. No. 27 was sold. In the said sale deed land in Sy. No. 27 is described as a dry land. ( 17 ) EX. P. 4 is the sale deed executed by Ramaswamy lyengar infavour of Venkataramanappa and others. From the above said sale deed it is seen that several lands including Sy. No. 27 was sold. In the said sale deed land in Sy. No. 27 is described as a dry land. Though there is reference to certain tanks, in the sale deed no where it is stated that there is a tank in Sy. No. 27. If that is so, the plaintiffs cannot claim that the land in Sy. No. 27 is a tank when it is specifically described as a dry land in the said sale deed . No doubt in the partition deed the land in Sy. No. 27 is allotted to two sharers. As per the partition deed 8 acres 39 guntas in Sy. No. 27 was allotted to one sharer and 8 acres 30 guntas was allotted to another sharer. In all, according to the partition deed the total extent of the tank is 17 acres 29 guntas whereas the total extent of land even according to the plaintiffs in survey number 27 is 8 acres 30 guntas. The revenue map of the village is produced as Ex. P. 1. This revenue map was prepared in the year 1958. As per the map the land in Sy. No. 27 is shown as a tank. Preparation of the map necessarily after reclassification. In the reclassification if it is shown as a tank then it is only a Government tank. If the tank is shown as a tank in the village map, necessarily every public is entitled to use or utilise the said tank. ( 18 ) THEREFORE, I am of the considered view that the observationor finding if any recorded in the earlier suit has no binding effect on the defendant Corporation and therefore, the principles of Res judicata has no application to the facts of this case. ( 19 ) THE next issue that arise for consideration is whether theplaintiffs have proved that they are in lawful possession of the suit schedule property. The plaintiffs have examined only PW-1 who is one of the LRs of the first plaintiff P. N. Jayaram. In his deposition he has stated that the tank in Sy. No. 27 of Thurukanapalya was owned by Ramaswamy lyengar. The plaintiffs have examined only PW-1 who is one of the LRs of the first plaintiff P. N. Jayaram. In his deposition he has stated that the tank in Sy. No. 27 of Thurukanapalya was owned by Ramaswamy lyengar. It is further stated that the maintenance and repairs was done by his father Narayanaswamy. He admits that the then CITB formed a road passing through Sy. No. 27 with their consent, in order to show that they have consented for formation of road, no material or document has been produced by the plaintiffs except the oral say. In the cross examination he deposed that he has got documents to show that Ramaswamy lyengar had in fact constructed the tank. But, he has not produced any document to show that Ramaswamy lyengar was maintaining the tank. In the cross examination he has stated that there is no document to show that his grandfather Byanna was in possession of the tank and was maintaining the same. Though he has stated in the cross examination that there are revenue records to show that the plaintiffs are in possession of the tank, no revenue records are produced before the court below to show that they are the owners in possession of the tank in Sy. No. 27. It is stated in the cross examination that he was paying tax till 1959-60, thereafter, his cousin has been paying the tax. Admittedly, in Ex. P. 4 sale deed, the land in Sy. No. 27 is described as a dry land. Though PW-1 says that he was paying tax no receipts have been produced to show that they were paying tax in respect of the land in Sy. No,27. He admits in the cross examination that the citb formed a-road in the middle of the tank bearing Sy. No. 27 and that road connects 17th cross Malleswaram and 80ft. Rajajinagar, II stage. It is further stated that there is a over bridge in Sy. No. 27. PW-1 in his cross examination has stated that the plaintiffs have no other documents to show that they have exercised the ownership rights over the suit land. Defendant-1 examined three witnesses such dw 1,2 and 3. DW-1 in his deposition has stated that the tank in sy. No. 27 in the above said village belong to the Government. He has also stated that the defendant Corporation was maintaining the tank. Defendant-1 examined three witnesses such dw 1,2 and 3. DW-1 in his deposition has stated that the tank in sy. No. 27 in the above said village belong to the Government. He has also stated that the defendant Corporation was maintaining the tank. In the examination in Chief he has deposed that Sy. No. 27 measures 8 acres 30 guntas. The BDA has constructed two gymnasiums in a portion of Sy. No. 27 and has formed about 8 to 10 sites in the northern portion of the said site and they have been alioted to some persons. The defendants have produced akarabund marked as Ex. D. 4 record of right as Ex. D-5, the index of the land as Ex. D-6, extract of 'prathi1 as Ex. D-7 and tippani copy as Ex. D-8. These revenue records clearly show that the tank in Sy. No. 27 as a government tank. Ex. D-9 is the tender notification calling for tender for the formation of road in Sy. No. 27. Ex. D-10 is the register relating to the property maintained by the Corporation. It is in evidence that the Corporation has formed roads in Sy. No. 27 and has provided street lights, water supply line and constructed drains etc. The plaintiffs have not elicited anything which is useful to them in the cross examination. DW-2 is the Asst. Director of Land Records. In his deposition he has stated that the total extent of land in Sy. No. 27 is 8 acres 30 guntas. In his examination in Chief he has stated that second reclassification was conducted in the year 1958. As per the reclassification the entire land in Sy. No. 27 is a karab land. Ex. P-1 which a village map as. stated earlier is prepared pursuant to the reclassification in the year 1958. From this Ex. P-i the tank in sy. No. 27 is a Government tank and not a tank belonging to any private individual. DW-3 is the Asst. Revenue Officer who also spoke to the fact that the tank'in Sy. No. 27 is now maintained by the corporation. All these materials clearly show that the plaintiffs are not in possession of any bit of land in Sy. No. 27 at any point of time. Futher the plaintiffs have not produced any material to show that they are in possession of the suit schedule land as on the date of suit. No. 27 is now maintained by the corporation. All these materials clearly show that the plaintiffs are not in possession of any bit of land in Sy. No. 27 at any point of time. Futher the plaintiffs have not produced any material to show that they are in possession of the suit schedule land as on the date of suit. Therefore, I am of the considered view that the plaintiffs filed to establish that they are in possession of the suit schedule property as or, ths date of suit and therefore that they are not entitled for a decree for permanent injunction. ( 20 ) THE learned Judge of the trial Court has considered all theevidence and documents produced before him and recorded a specific finding that the plaintiffs failed to establish that they are in possession of the suit schedule property his finding in my opinion does, not call for any interference by this Court. ( 21 ) THE plaintiffs have filed two applications one for amendmentof plaint and another for producing additional documents. In support of She application filed for additional evidence the plaintiffs have produced certain correspondence. From this correspondence it is seen that the land in Sy. No. 27 is a tank constructed by Sri ramaswamy Chetty. The specific case of the plaintiffs is that the tank was constructed by one Ramaswamy lyengar. Therefore, no useful purpose would be served to allow the plaintiffs to produce the said additional evidence as it is inconsistent with the pleadings of the plaintiffs. Further, it is not the case of the plaintiffs that those documents were not available at the time of trial before the trial court Therefore, the plaintiffs have not made out a case for adducing additional evidence. Therefore, the application filed for adducing additional evidence is liable to be dismissed. The application filed for amendment is also to be rejected because the amendment sought for is in so far as furnishing boundaries taking into consideration the formation of road in the middle of the land in Sy. No. 27. Since I have held that the entire land was a Government land and later on came to be vested with the Corporation, no useful purpose would be served by allowing the said application for amendment. No. 27. Since I have held that the entire land was a Government land and later on came to be vested with the Corporation, no useful purpose would be served by allowing the said application for amendment. ( 22 ) IN the result, I pass the following order:i) Appeal is dismissed with cost; ii) The judgment and decree of the trial Court is confirmed; iii) The applications filed by the plaintiffs for amendment and for additional evidence are also rejected. --- *** --- .