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2019 DIGILAW 1819 (KAR)

Muniyamma v. Jayaram

2019-08-05

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. The present appellants in their capacity as plaintiffs in the Court of the XXIV Additional City Civil and Sessions Judge, Bangalore City, (C.C.H.No.6) (hereinafter for brevity referred to as "Trial Court") arraigning the present respondent as defendant, had instituted an Original Suit in O.S.No.7298/1995, for the relief of declaration to declare that Survey No.32/3 of Gangenahalli Village, Bangalore North Taluk, extends even beyond existing drainage put up in Sy.No.32/3 to an extent of 3,950 sq.ft. equivalent to 03 guntas; to direct the defendant to deliver possession of the suit schedule property to the plaintiffs; to direct the defendant to remove the un-authorised construction put up in the suit schedule property and for the relief of permanent injunction. Challenging the said judgment, the plaintiffs in the Court below have preferred this appeal. 2. The summary of the case of the plaintiffs in the Trial Court was that, the original plaintiff-Smt. Muniyamma, W/o. late Vasanthappa had acquired several landed properties including land bearing Survey No.32/3 of Gangenahalli Village, Kasaba Hobli, Bangalore North Taluk, through a registered Sale Deed dated 22-06-1962. The land was to an extent of one acre. The plaintiffs had been in the continued lawful possession and enjoyment of the said property till the original plaintiff Smt. Muniyamma dispossessed a portion of it to the extent of 37 guntas by forming sites. The remaining 03 guntas were retained by the plaintiffs which is the suit schedule property. The defendant had purchased 08 guntas of land in Sy.No.37 under a registered Sale Deed dated 11-09-1974. However, he tried to cause interference with the suit schedule property. Therefore, a suit for injunction was filed against him. Initially, the suit was filed for permanent injunction, however, during the pendency of the suit alleging that the defendant had encroached into the suit property and started putting up construction, the plaint was amended to include the prayer for declaration and mandatory injunction also. 3. The defendant who appeared through his counsel had filed his Written Statement wherein, he contended that he is the absolute owner and in possession of the piece of land measuring to an extent of 140 ft. x 90 ft. which was a portion of land in Sy.No.37 of Gangenahalli Village, Kasaba Hobli, Bangalore North Taluk, having acquired the same under a Sale Deed dated 11-09-1974. x 90 ft. which was a portion of land in Sy.No.37 of Gangenahalli Village, Kasaba Hobli, Bangalore North Taluk, having acquired the same under a Sale Deed dated 11-09-1974. He contended that the plaintiffs unlawfully encroached upon the said land of the defendant approximately to an extent of 24 ft. x 28 ft. and put up two sheds of asbestos roofing and contended that the said portion of the land falls under Sy.No.32 of Gangenahalli Village, as such, it is their land. The plaintiffs refused to vacate the said portion despite the request made by the defendant. This made the defendant to file a suit in O.S.No.8681/1980 on the file of the Additional City Civil Judge, Mayohall, Bangalore, for declaration, possession and injunction in respect of the said encroached portion of his land. The said suit came to be decreed in favour of the plaintiff therein (defendant herein) and the same was confirmed in R.F.A.No.163/1987 by this Court. It is the further contention of the defendant that he has executed the decree since the case has reached its finality in R.F.A.No.163/1987 and the plaintiffs were ejected from the encroached portion of his property, as such, there exists no property as described in the schedule to the plaint. He further contended that the entire Sy.No.33 of Gangenahalli Village to an extent of one acre was acquired by the Bangalore Development Authority (BDA) in full and this fact has been admitted by the original plaintiff in her deposition in the suit filed by him in O.S.No.8681/1980. In the light of the said admission by the original plaintiff, the plaintiff is to be non suited. He also contended that after taking possession of the encroached portion of the land from the original plaintiff, he has been in real and lawful possession of the entire land to an extent of 140 ft. x 90 ft. which was a portion of Sy.No.37. The said land has also been assessed by the Corporation of the City of Bangalore and has been given a Municipal No.103, 10th cross, Ganganagar North, Corporation Division No.82 for which he has been paying taxes regularly. He has put up a multi-storied flat by obtaining all legal permissions required for the same. However, the plaintiffs being jealous with the defendant, have come up with the present false suit. He has put up a multi-storied flat by obtaining all legal permissions required for the same. However, the plaintiffs being jealous with the defendant, have come up with the present false suit. He contended that the present suit is hit by the 'principle of res judicata' and the 'rule of estoppel'. He further stated that the plaintiffs are not in possession of any portion of Sy.No.33, since Sy.No.33 itself is not in existence. The defendant denied all the averments made in the plaint. 4. Consequent to bringing the legal representatives of the deceased original plaintiff Smt. Muniyamma on record, the defendant filed his additional Written Statement and categorically denied that the alleged legal representatives of the original plaintiff are the legal representatives of deceased original plaintiff. Further, he denied that the alleged legal representatives of the third legal representative of the original plaintiff, i.e. Sri. V. Hanumanthappa, are the legal representatives of said deceased third legal representative of the original plaintiff. He contended that the alleged legal representatives are the strangers to the suit. 5. Based on the pleadings of the parties, the Trial Court framed the following issues and additional issues for its consideration:- "1. Whether the plaintiff proves that he is the owner of the suit schedule property? 2. Whether the plaintiff proves that he is in possession of the suit schedule property as on the date of suit? 3. Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant from interfering in his possession of the suit schedule property? Additional Issues: 1. Whether the plaintiff proves that defendant encroached the suit schedule property? 2. Whether plaintiff proves that defendant put up unauthorised construction such as compound and other construction on the suit schedule property? 3. Whether suit is properly valued and court fee paid is sufficient? 4. What order or decree?" In order to prove their case, on behalf of the plaintiffs, plaintiff No.4 Sri. V. Krishnappa was examined as PW-1 and documents at Exhibits P-1 to P-12 were got marked. The defendant got himself examined as DW-1 and documents from Exhibits D-1 to D-4 were got marked. Two Court Commissioners, viz. Sri. R. Ramanjaneya and Sri. A.V. Rudresh were examined as CW-1 and CW-2 respectively. A BDA Layout plan was marked as Exhibit C-1. 6. The defendant got himself examined as DW-1 and documents from Exhibits D-1 to D-4 were got marked. Two Court Commissioners, viz. Sri. R. Ramanjaneya and Sri. A.V. Rudresh were examined as CW-1 and CW-2 respectively. A BDA Layout plan was marked as Exhibit C-1. 6. After hearing both side and considering the materials placed before it, the Trial Court by its impugned judgment and decree dated 16-11-2010 answered issue Nos.1 to 3 and additional issue Nos.1 and 2 in the 'negative' and additional issue No.3 in the 'affirmative' and dismissed the suit of the plaintiffs with costs. It is against the said judgment and decree, the plaintiffs have preferred the present appeal. 7. Lower Court records were called for and the same are placed before this Court. 8. Heard the arguments of the learned counsels from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 10. Learned counsel for the appellants/plaintiffs in his argument submitted that, even though the defendant has got a decree in O.S.No.461/1980 (new O.S.No.8681/1980), still, the present suit is not barred by res judicata, because, that decree does not say that the disputed portion of the property is Sy.No.32/3 and that the said suit was confined and confirmed only with respect to Sy.No.37. However, the Trial Court by not making out the said difference, has held that the suit was hit by the 'principle of res judicata'. He further submitted that the Commissioner's report says that, on the northern side of the drain, there is still property with Sy.No.32/3. It is the said property which is the suit property belonging to the plaintiffs, however, the defendant has encroached the said portion of the plaintiffs' property. Learned counsel for the appellants/plaintiffs further submitted that even though the land is notified for acquisition, till date, the possession of the property has not been taken over by the acquiring authority. As such, till date, the possession is with the plaintiffs. He submitted that, to complete the acquisition proceedings and to take over possession, the acquiring authority is required to draw a proper Mahazar and follow the procedure as per law, which the acquiring authority has not done in this matter. As such, till date, the possession is with the plaintiffs. He submitted that, to complete the acquisition proceedings and to take over possession, the acquiring authority is required to draw a proper Mahazar and follow the procedure as per law, which the acquiring authority has not done in this matter. He also submitted that Ex.D-3 is only an endorsement issued to the defendant, as such, it cannot be taken as a proof of taking of possession of the acquired land by the acquiring authority. In his support, the learned counsel for the appellants/plaintiffs relied upon two judgments of the Co-ordinate Benches of this Court which would be referred to at an appropriate stage, herein afterwards. 11. Per contra, learned counsel for the respondent/defendant in his arguments submitted that, the suit is hit by the 'principle of res judicata', since with respect to the very same property, the judgment passed in O.S.No.8681/1980 (old No.461/1980) has been decreed in favour of the present respondent and it has reached its finality, and the said decree was confirmed in R.F.A.No.163/1987 by this Court. As such, reconsidering the alleged encroachment of the same portion of the land with the same boundary on the southern side of the defendant's property which is the alleged northern side of the plaintiffs' property, would not arise. Learned counsel for respondent/defendant also submitted that, if according to the plaintiffs in this case, the suit schedule property is of 03 guntas, which is said to be located on the northern side of the BDA drain, then, the southern boundary of the suit schedule property ought to have been a BDA drain, but the schedule given to the suit schedule property does not mention so. He also submitted that the Commissioners' reports say that on the northern side of the drain, the property that remains outside the property of the defendant is to an extent of only 242 sq. ft. which is less than 1/4 gunta. Therefore, the land measuring 03 guntas is proved to be not in existence. Learned counsel for respondent/defendant further submitted that the defendant has shown drain as the southern boundary of his land in his Original Suit No.8681/1980. Since the said suit has been decreed and it is declared in favour of the present respondent/defendant, there cannot be any property of the plaintiffs on the northern side of the said BDA drain. Learned counsel for respondent/defendant further submitted that the defendant has shown drain as the southern boundary of his land in his Original Suit No.8681/1980. Since the said suit has been decreed and it is declared in favour of the present respondent/defendant, there cannot be any property of the plaintiffs on the northern side of the said BDA drain. As an alternative argument, learned counsel for the respondent/defendant submitted that, even if it is taken that on the northern side of the BDA drain, the piece of land which does not fall in Sy.No.37 is only to an extent of 242 sq.ft., since the said land has admittedly been acquired by the then City Improvement Trust Board (CITB) [present Bangalore Development Authority (BDA)], the plaintiffs cannot claim the said land as the land belonging to them. It is also for the reason that, the entire land falling in the said survey number has been acquired and taken possession by the BDA. Learned counsel for the respondent/defendant vehemently submitted that when there is no land in existence, much less 03 guntas, the plaintiffs who have already lost their land under acquisition cannot claim that they are the owners in possession of the suit schedule property. In his support, he relied upon few judgments of the Hon'ble Apex Court which would be considered at an appropriate stage. 12. After hearing the arguments addressed from both side and perusing the materials placed before this Court, the points that arise for my consideration in this appeal are: (1) Whether the finding given by the Trial Court on issue Nos.1, 2, 3 and additional issue Nos.1 and 2 is erroneous? (2) Whether the suit is barred by principles of res judicata? (3) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?" PW-1 in his Examination-in-chief has iterated the contentions taken up by the plaintiffs in their plaint. He has stated that the suit schedule property which comprises 03 guntas of land in Sy.No.32/3 of Gangenahalli Village, Bangalore North Taluk was a piece of land out of the land in Sy.Nos.32/3 and 33 of the same village acquired by his mother-Smt. Muniyamma, under a registered Sale Deed dated 22-06-1962 for a valuable consideration from the erstwhile Smt. Yellamma and others. Ever since the date of acquisition, Smt. Muniyamma had the right, title, interest and possession upon the suit land which was in total, measuring 03 acres 27 guntas. Later on, some portion of it was disposed of by forming sites and the remaining portion was possessed by the original plaintiff Smt. Muniyamma. She had put up two residential sheds with asbestos sheet roofing, each measuring 12 ft. x 20 ft. in the suit schedule property. The RTC and other revenue records were standing in her name. The defendant just because is having a piece of land in the adjacent land bearing Sy.No.37, taking undue advantage of the illiteracy and lack of support to Smt. Muniyamma, had made attempts to grab the suit schedule property by way of illegal interference and dispossessed his mother from the suit schedule property with a mala fide intention. The defendant has made such an illegal act along with his henchmen on 29-10-1995 at 3:00 p.m. In that regard, though the original plaintiff-Smt. Muniyamma approached the jurisdictional Police, but, they failed to give any protection to her, since they were colluding with the defendant. The witness has further stated that the contention of the defendant that the suit is hit by the 'doctrine of res judicata' is perverse and incorrect as the issues arisen in the present suit had not directly arisen in the previous suit. The suit schedule property is in Sy.No.32/3 and not in Sy.No.37. 13. In his support, the witness got marked record of rights pertaining to the years 1966-67 to 1970-1971 at Ex.P-1; copy of the plaint and Written Statement pertaining to O.S.NO.461/1980 (New O.S.No.8681/ 1980; judgment, depositions and memo of instructions filed in O.S.No.8681/1980 at Ex.P-2; Exs.P-3 to P-5 are the photographs and Ex.P-6 consists of the negatives of the photographs, Ex.P-7 is the plan of Gangenahalli Village; Ex.P-8 is a Certified copy of the Sale Deed dated 22-06-1962 showing that the plaintiffs had purchased some immovable property in Sy.Nos.30/1, 32/1 and 33; Ex.P-9 is a plan issued by the Assistant Director of Land Records (hereinafter for brevity referred to as "ADLR") pertaining to Gangenahalli Village; Ex.P-10 is the Certified copy of the Revisional Settlement Aakaarband pertaining to Sy.No.32/3; Ex.P-11 is the sketch prepared by the ADLR; Ex.P-12 is the extract of reclassification Book pertaining to Sy.No.32. The witness was subjected to a detailed cross-examination wherein, he adhered to his original version. 14. The defendant was examined as DW-1, who in his Examination-in-chief has reiterated the contentions taken up by him in his Written Statement. He has stated that, the present Original Suit was initially filed by Smt. Muniyamma with respect to a land measuring 03 guntas in Sy.No.33 of Gangenahalli Village, Bangalore North Taluk. He has denied the very existence of the said property. Even other wise also, the said Muniyamma had no right, title and interest over the said property. He has further stated that a portion of his property in Sy.No.37 measuring 140 ft. x 90 ft. which was purchased by him in the year 1974 was encroached by the plaintiffs which he after filing O.S.NO.461/1980 (new O.S.No.8681/1980) had recovered in Execution Case No.10044/1990. He has stated that the decree passed in his favour in O.S.NO.8681/1980 was challenged by the plaintiffs before this Court in R.F.A.No.163/1987 which came to be dismissed. It is thereafter he executed the decree which had reached its finality. As such, the very same subject matter of the suit which was a portion of a land which the plaintiffs claim as the one falling under Sy.No.32/3 was already the subject matter of dispute between the same parties in O.S.No.8681/1980 and it has reached its finality, as such, once again, the very same property cannot be the subject matter of the present suit between the same parties. He also stated that the land in Sy.No.32/3 was originally belonging to one Sri. Feshulal Sait S/o. Kesharimal Sait to an extent of 02 acres 35 guntas. That entire land was acquired by the Government of the then Mysore State, under a Gazette Notification dated 07-07-1964 for formation of a Layout called "Hebbal and Gangenahalli Village", a copy of which has been produced at Ex.D-2. The endorsement issued by the competent authority dated 26-07-1980 shows that the entire land has been taken possession by the acquiring authority. As such, there is no suit property at all in existence after its acquisition by the Government from its previous owner. The copy of the register of lands notified for acquisition purposes and compensation paid has been produced at Ex.D-4, stating that, the acquisition proceedings has been completed, he denied that he has caused any interference in the alleged possession of the land by the plaintiffs. The copy of the register of lands notified for acquisition purposes and compensation paid has been produced at Ex.D-4, stating that, the acquisition proceedings has been completed, he denied that he has caused any interference in the alleged possession of the land by the plaintiffs. He has also stated that the Commissioners' report also goes against the original plaintiff -Smt. Muniyamma. The witness further contended that the suit is hit by the 'principle of res judicata'. The witness was subjected to a detailed cross-examination from the plaintiffs' side, wherein he adhered to his original version. 15. In the light of the above, the first point of argument of the learned counsel for the appellants/plaintiffs was that, the acquisition proceedings has not been completed, since there is no proof to show that the acquiring authority which was earlier City Improvement Trust Board (CITB)-the present Bangalore Development Authority (BDA) has taken possession of the acquired land. In his support, he relied upon two judgments of the Co-ordinate Benches of this Court. First, in the case of K.L. Ramesh Vs. Bangalore Development Authority, Bangalore and others, 2013 SCCOnline(Kar) 10299 and second, in the case of Ananda P. Vs. State of Karnataka, (2014) 3 LAWS(KAR) 301. With the said judgments in his support, the learned counsel for the appellants/plaintiffs submitted that since in the instant case, there is no material to show that the acquiring authority has drawn a Mahazar as required under the law, it cannot be held that the acquiring authority has taken possession of the acquired land. 16. Learned counsel for the respondent/defendant in his argument submitted that, the plaintiffs have not established that the land in Sy.No.32/3 was ever belonging to them. Admittedly, in the copy of the Sale Deed produced by them at Ex.P-8 dated 22-06-1962, there is no mention of the land at Sy.No.32/3. He further submitted that the very records produced by the plaintiffs as well the documents produced by the defendant would go to show that the acquisition proceedings has been completed and the acquiring authority has already taken possession of the suit schedule property and paid the compensation to the land owners. He further submitted that the very records produced by the plaintiffs as well the documents produced by the defendant would go to show that the acquisition proceedings has been completed and the acquiring authority has already taken possession of the suit schedule property and paid the compensation to the land owners. He further submitted that, if at all the plaintiffs assail that the acquisition proceedings has not been completed by taking its possession by the acquiring authority, then, the plaintiffs ought to have necessarily made the acquiring authority also as a party in the suit. In the absence of they making the acquiring authority as a party, it cannot be adjudicated as to whether the acquisition proceedings is incomplete as alleged by the plaintiffs. 17. When the original plaintiff-Smt. Muniyamma filed the present Original Suit in the year 1995, the suit schedule property was shown as the land bearing Survey No.33. However, during the pendency of this suit, on 27-05-2005, an amendment was permitted to be carried out at the application of the plaintiffs amending the said Survey Number of the suit schedule property to 32/3, as such, initially the plaintiffs contended that their alleged residue land was bearing Survey No.33 only. 18. Pw-1 in his Examination-in-chief though has stated that the suit schedule property measuring 03 guntas bears the Survey No.32/3 of Gangenahalli Village, but, in his cross-examination has stated that, he does not know from which documents he came to know about the said Survey Number. According to the plaintiffs, the suit schedule property was purchased by the original plaintiff Smt. Muniyamma, under a registered Sale Deed dated 22-06-1962, a Certified copy of which document they have produced and got marked the same as Ex.P-8. The said Sale Deed shows that the property said to have been sold to the original plaintiff Smt. Muniyamma was bearing Sy.No.30/1, measuring 01 acre 23 guntas, the property bearing Sy.No.32/1, measuring 01 acre 34 guntas, property bearing Sy.No.32/2 and Sy.No.33 and in total measuring 03 acres 27 guntas. Thus, none of the properties purchased by the original plaintiff under the registered Sale Deed dated 22-06-1962 at Ex.P-8 bears Sy.No.32/3. Though it bears Sy.No.33, but, in view of the amendment made by the plaintiffs to the plaint as aforesaid, the Survey No.33 was amended to Sy.No.32/3. Thus, none of the properties purchased by the original plaintiff under the registered Sale Deed dated 22-06-1962 at Ex.P-8 bears Sy.No.32/3. Though it bears Sy.No.33, but, in view of the amendment made by the plaintiffs to the plaint as aforesaid, the Survey No.33 was amended to Sy.No.32/3. In this regard, a suggestion was made to PW-1 in his cross-examination suggesting to him that Ex.P-8 does not reflect Sy.No.32/3. Though the witness has not admitted the said suggestion as 'true', but the document itself speaks that the said Ex.P-8 does not show in it the land bearing Sy.No.32/3 as the land that was purchased by the original plaintiff Smt. Muniyamma. 19. Secondly, in the very same cross-examination of PW-1, it was suggested to the witness at several places that none of the documents produced by the plaintiffs reflects Sy.No.32/3. Even though the witness has denied the said suggestion, but he has not shown as to which are the documents that reflect the suit schedule property i.e. Sy.No.32/3 and standing in the name of the original plaintiff-Smt. Muniyamma. It was also suggested to PW-1 in his cross-examination that, in the previous Original Suit, Smt. Muniyamma had stated the Survey Number of her property as Sy.Nos.32/2 and 33, measuring 03 acres 27 guntas. However, the witness while denying the said suggestion, volunteered to say that, by mistake it was written like that. That means, the witness has admitted that, in the previous suit, Smt. Muniyamma had stated that her property was bearing Sy.No.32/2 and Sy.No.33 measuring 03 acres 27 guntas. Even Ex.P-8, as observed above, shows that among the three properties purchased by her, one of the properties bears the Survey No.32/2 and had measured in total an area of 03 acres 27 guntas. Still, the plaintiffs as PW-1 contended that reflecting of the said two Survey Numbers in the previous suit was by mistake, that means, the said witness himself is not standing by the recital of the Sale Deed at Ex.P-8, which he himself has produced as the very first and basic document to show the title of the original plaintiff-Smt. Muniyamma with respect to suit schedule property. Therefore, at the outset, the plaintiffs could not able to establish either by oral or documentary evidence as to when and how the original plaintiff Smt. Muniyamma acquired the suit land bearing Sy.No.32/3. 20. Therefore, at the outset, the plaintiffs could not able to establish either by oral or documentary evidence as to when and how the original plaintiff Smt. Muniyamma acquired the suit land bearing Sy.No.32/3. 20. It is the case of the plaintiffs that, the suit schedule property was purchased by Smt. Muniyamma under the very same Sale Deed at Ex.P-8 dated 22-06-1962. However, as observed above, the said Sale Deed does not bear the Sy.No.32/3 which is the suit schedule property as the subject matter of sale under the said document. It is the contention of the plaintiffs that, out of 03 acres 27 guntas purchased by Smt. Muniyamma, under a registered Sale Deed at Ex.P-8, a portion of the land was sold by forming sites and some portion was retained by Smt. Muniyamma for herself where she had put up two residential sheds, each measuring 12 ft. x 20 ft. Neither the plaintiffs in their plaint nor PW-1 in his evidence or even through documents, have given any details as to how many sites were formed and how many of them were sold and what exactly was the extent of land alleged to have been retained by the original plaintiff which can be identified with the boundaries in their comparison with the boundaries of the sites formed by them in the said survey number. As such, the very description of the suit schedule property with its boundary remains unsupported with any documents. Though they have described the suit schedule property with its boundary on the northern side with a land bearing Sy.No.37 belonging to the defendant, but, as observed above, there are no documents to arrive at a conclusion that the boundary given to suit schedule property in the plaint has got any documentary support for it. 21. In the absence of any specific document to show that the suit schedule property bearing Sy.No.32/3 was part of the property purchased by original plaintiff-Smt. Muniyamma under Ex.P-8, still, assuming that the original plaintiff Smt. Muniyamma had acquired the said land bearing Sy.No.32/3 and proceeded with, then, it is required to be seen as to whether the land to an extent of 03 guntas was retained by the original plaintiff-Smt. Muniyamma in Sy.No.32/3 as contended by her. In that regard, no specific document produced by the plaintiffs as Exhibits would come to their rescue. In that regard, no specific document produced by the plaintiffs as Exhibits would come to their rescue. Ex.P-1 which is the certified copy of the Record of rights Certificate (RTC) for the years 1966-67 to 1970-71, would only go to show that the total extent of land in Sy.No.32/3 was measuring 02 acres 35 guntas. PW-1 in his further cross-examination has admitted a suggestion as 'true' that the land bearing Sy.No.32/3 measuring 02 acres 35 guntas was notified by the Government of Karnataka as per Gazette Notification. The said Gazette Notification has been produced by the defendant at Ex.D-2. It shows that the total extent of land in Sy.No.32/3 which was then standing in the name of one Sri. Feshulal Sait S/o. Sri. Keshari Mal Sait, was measuring 02 acres 35 guntas and that the entire land measuring 02 acres 35 guntas was notified for acquisition. As such, according to acquisition Notification at Ex.D-2, the entire land was notified for acquisition which falsifies the contention of the plaintiffs that 03 guntas of land was retained by them from out of the alleged acquisition. When a suggestion to that effect was made to PW-1, in his further cross-examination, the witness has not admitted the said suggestion as 'true'. However, the fact remains that the plaintiffs could not able to produce either oral or documentary evidence to show that after the alleged acquisition of 02 acres 35 guntas of land by the Government in Sy.No.32/3, still, there remained 03 guntas of land in the said survey number which is the suit schedule property. 22. According to the learned counsel for the appellants/plaintiffs, even though the Government has passed Preliminary and Final Notifications for acquisition of the land bearing Sy.No.32/3, but the possession of the said land has not been taken by the acquiring authority. In that regard, he relied upon the decisions of the Co-ordinate Benches of this Court in the case of K.L. Ramesh Vs. Bangalore Development Authority, Bangalore and others (supra) and in the case of Ananda P. Vs. State of Karnataka (supra). 23. In Ramesh's case (supra), learned counsel for the appellants/plaintiffs drew the attention of this Court to paragraph 12 of the judgment which reads as follows:- "12. Bangalore Development Authority, Bangalore and others (supra) and in the case of Ananda P. Vs. State of Karnataka (supra). 23. In Ramesh's case (supra), learned counsel for the appellants/plaintiffs drew the attention of this Court to paragraph 12 of the judgment which reads as follows:- "12. A perusal of Annexure-R3 discloses that it is in a cyclostyled form while blanks are filled up in handwritten stating that on 27.03.1999 possession was taken over by the Revenue Inspector in the presence of five signatories whose names and addresses are not forthcoming against the column for recording the same. In the absence of the names and addresses of the so called witnesses to the mahazar, the identity of those persons is not established. Therefore, it cannot be said that the mahazar Annexure-R3 said to have been drawn in exercise of the jurisdiction under Section 16 of the Land Acquisition Act, 1894 by the Revenue Inspector satisfies the requirement of the principles laid down in Prahalad Singh's case. Yet again it must be noticed that neither Annexure-R3 nor the pleadings disclose notices issued to the petitioner calling upon him to deliver vacant possession of the acquired property nor the signature of the petitioner on Annexure-R3 against the column "Owners Signature". In fact against that column is affixed the signature of the Assistant Executive Engineer, No.3, South Sub-Division, Bangalore Development Authority, BDA Shopping Complex. Undoubtedly, the signatory is not the owner of the land in question and the signature of the Assistant Executive Engineer against the column is of no consequence. Strangely though the surveyor attached to the Special Land Acquisition Officer having affixed his signature to Annexure-R3 records the date as 25.08.2000. Moreover, Annexure-H3-the RTC Phani discloses the name of the petitioner as 'the owner even during the year 2009-2010 and does not disclose BDA having been in possession'. Against the column 'nature of cultivation', it is shown as 'Self', hence, belies the contention that BDA is in possession of the lands. The submission that the positive photographs at Annexures-R7 and R8 to the statement of objections discloses that BDA has taken up civil works of forming a layout of sites in Survey No.44/2, is far from being acceptable evidence of a fact. The negatives of the photographs and the Bill of Costs involved, nor the affidavit of the person who took the photographs are not forthcoming. The negatives of the photographs and the Bill of Costs involved, nor the affidavit of the person who took the photographs are not forthcoming. The plan of the proposed layout Annexure-R6 is neither approved nor sanctioned. Thus, Annexures-R6 to R8 are not in the direction of establishing a fact, prima facie, of possession." 24. In Anand's case (supra), expressing similar view as that of in Ramesh's case (supra), a Co-ordinate Bench of this Court was pleased to observe that, issuance of Notification under Section 16(2) of the Land Acquisition Act, 1894 would arise only if it is demonstrated that the actual physical possession was taken pursuant to the acceptable evidence produced before this Court. The only document which can possibly establish this would be the Mahazar drawn on the date of the alleged taking of possession of the land in question. Relying upon the above two judgments of the Coordinate Benches of this Court, learned counsel for the appellants/plaintiffs submitted that in the case on hand also, in the absence of production of any Mahazar drawn by the acquiring authority, it cannot be held that, possession of the acquired land has been taken over by the acquiring authority, as such, the acquisition proceedings remains incomplete and thus, the possession of the land continues with the plaintiffs. But the said argument of the learned counsel for the appellants/plaintiffs is not acceptable for the following reasons:- Admittedly, in both the cases referred to by the learned counsel for the appellants/plaintiffs, the Bangalore Development Authority (BDA) / State of Karnataka was a party. As such, any Mahazar alleged to have been drawn by the acquiring authority, would have been in their possession and since they failed to produce the said document, the Court opined that there was no drawing of Mahazar before taking possession of the acquired land. Whereas in the case on hand, admittedly, neither the State nor the acquiring authority including CITB or present BDA are parties. Therefore, in the absence of those parties, it cannot be concluded that no Mahazar while taking the possession of the property was drawn by the acquiring authority. Whereas in the case on hand, admittedly, neither the State nor the acquiring authority including CITB or present BDA are parties. Therefore, in the absence of those parties, it cannot be concluded that no Mahazar while taking the possession of the property was drawn by the acquiring authority. In such a case, when the plaintiffs have chosen not to implead the acquiring authority as a party to the suit, then, it is for the plaintiffs who contend that, possession was not taken as per procedure, to substantiate the said contention to the satisfaction of the Court. In that regard, the appellants/plaintiffs has not put any effort except producing the Sale Deed at Ex.P-8, which as already observed above, does not even refer to the suit schedule property with its Survey No.32/3. Therefore, this Court cannot come to a conclusion that, the possession of the acquired property has not been taken over by the acquiring authority. On the other hand, the defendant has produced a copy of the Gazette Notification dated 16-07-1964 as a part of Ex.D-2 and a copy of register of lands notified and acquired and the compensation paid thereof also as a part of Ex.D-2. Those two documents not only show that a Final Notification was passed with respect to the acquisition of the land, but also show that with respect to land bearing Sy.No.32/3, the erstwhile owner-Sri. Feshulal Sait S/o. Keshari Mal Sait was paid with compensation for the entire land measuring 02 acres 35 guntas. Further, the endorsement dated 26-07-1980 issued by the Office of the Special Land Acquisition Officer, Bangalore Development Authority, Bangalore which is at Ex.D-3 shows that the said Office has given an endorsement stating that, Sy.Nos.32/1, 2, 3 and 33 of Gangenahalli Village have been acquired by them for formation of a Layout vide Final Notification dated 07-07-1974. The award was passed and approved for particular sums and possession of the land was taken on 24-02-1965, 10-12-1968, 09-08-1965 and 24-02-1965 as per the Land Acquisition Case Register of that Office. Though the learned counsel for the appellants/plaintiffs vehemently argued that the said endorsement cannot be believed and acted upon, since it is a mere information alleged to have been given by some Authority, but, in the light of the documents produced at Ex.D-2 and the discussion made above, there is no reason for disbelieving Ex.D-3. Though the learned counsel for the appellants/plaintiffs vehemently argued that the said endorsement cannot be believed and acted upon, since it is a mere information alleged to have been given by some Authority, but, in the light of the documents produced at Ex.D-2 and the discussion made above, there is no reason for disbelieving Ex.D-3. Further, Ex.D-4 which is an extract of Register of lands notified and acquired for the purpose of acquisition and compensation paid therefor, a copy of which was also a part of Ex.D-2 further confirms that, for having acquired the entire land bearing Sy.No.32/3, the compensation was disbursed to the above erstwhile owner-Sri. Feshulal Sait C/w. Keshari Mal Sait. Therefore, once the entire land has been duly acquired and possessed by the acquiring authority, the question of the plaintiffs retaining any portion in it would not arise. The finding of the Trial Court on this point, as such, cannot be called as an erroneous finding. 25. In this case, on two occasions, the Court Commissioner was appointed for local inspection of the disputed property and to submit their report. At the first instance, the Assistant Director of Land Records was appointed as a Commissioner (CW-1), who as per the Memo of instructions visited the spot, prepared a sketch and has given his report. The said Commissioner has stated that in Sy.Nos.32/3 and 32/2, there exists a drainage and the defendant is in possession of 11 1/4 guntas. After the said drainage towards the northern side, there exists an area measuring 234 sq.ft. only which falls in Sy.No.32/3. 26. The other Commissioner CW-2 who was the Deputy Director of Land Records who visited the spot along with the surveyor from Bangalore Development Authority as Commissioners have also given a detailed report. In their report, they have stated that the defendant is in possession of 11 1/2 guntas though his Sale Deed reveals that he was the owner of a land to an extent of 08 guntas. They have also stated that on the northern side of the drain, there exists a bit of land with Sy.No.32/3, however, it is measuring only 240 sq.ft. 27. Both these Commissioners have reiterated the contents of their Reports in their Affidavits. They have also stated that on the northern side of the drain, there exists a bit of land with Sy.No.32/3, however, it is measuring only 240 sq.ft. 27. Both these Commissioners have reiterated the contents of their Reports in their Affidavits. Nothing could be elicited in favour of the plaintiffs in their cross-examination, except to the effect that, on the northern side of the drainage, there still exists very small bit of land bearing Sy.No.32/3. Thus, from the evidence of CW-1 and CW-2 and by their Reports, what could be gathered is that, on the northern side of the drain and before the defendant's property in Sy.No.37 begins, there remains a very small bit of land in an irregular shape measuring 234 sq.ft. or 240 sq.ft. in Sy.No.32/3. Therefore, even the Commissioners' report also falsifies the contention of the plaintiffs that there exists three guntas of land in Sy.No.32/3 on the northern side of the drain. Even though both the Commissioners have observed that the documents of the defendant would go to show that he is the owner of the property measuring 08 guntas in Sy.No.37, however, he is in possession of 3 1/4 to 3 1/2 guntas of land in excess, i.e. 11 1/4 to 11 1/2 guntas in total. However, even according to the Commissioners and their local inspection, the alleged excess land would not fall in Sy.No.32/3. Therefore, when the specific contention of the plaintiffs is that the alleged remaining land of 3 guntas was in Sy.No.32/3 and that the same was encroached by defendant, but the same is not supported by the Commissioners' reports. As already observed, even though the defendant appears to have been in possession of excess land, since the same is not established that the alleged excess land falls in Sy.No.32/3, the plaintiffs cannot put their stake in the said land. The above view is supported by one more reason that even if it is taken that the defendant is in excess of more than 03 guntas of land than what actually he owns under his title deed, still, the plaintiffs having failed to establish that they are the owners of the said alleged excess land, they cannot claim the said land. Since it is observed that the adjoining and adjacent land in Sy.No.32/3 in its entirety has been acquired by the State through CITB (now BDA), then, it is for the State or the BDA to question the same and take steps in accordance with law for recovery of the alleged excess land from the defendant. 28. The only point that remains for consideration is, whether the present suit is hit by the 'doctrine of res judicata'?. The contention of the respondent/defendant is that, the suit is hit by the principle of 'res judicata'. A similar contention was taken up by them even in the Trial Court also. Though the Trial Court has opined that the same issue was involved between the same parties in O.S.No.8681/1980, however, it has not specifically used the word 'res judicata'. Section 11 of the Code of Civil Procedure, 1908 which speaks about 'res judicata' reads as below:- "11. Res Judicata: No court shall try any suit or issue in which the matter directly and substantially in issue has been 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." 29. Learned counsel for the respondent/defendant has relied upon the following judgments on the point in his support. In the case of Sulochana Amma Vs. Narayana Nair, (1994) AIR SC 152, at para-8, the Hon'ble Apex Court was pleased to observe as below:- "The pleading 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 would not be tenable in the contention. 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. 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 the instant 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 reminder 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 which 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." 30. In the case of Bhanu Kumar Jain Vs. Archana Kumar and another, (2005) AIR SC 626, the Hon'ble Apex Court was pleased to observe that 'res judicata' debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the 'doctrine of estoppel' is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceedings. 31. In the case of Swamy Atmananda and others Vs. Sri. Ramakrishna Tapovanam and others, (2005) AIR SC 2392, the Hon'ble Apex Court was pleased to observe at para-43 of the judgment that, if the parties went to trial knowing fully well the real issues involved and adduced evidence in such a case without establishing prejudice, it would not be open to a party to raise the question of non-framing of a particular issue. From the above judgments, it is clear that even in the absence of a specific issue regarding 'res judicata', still, if the parties knew the real issues advanced and evidenced in such a case without establishing prejudice, it would not be open to a party to raise the question of non-framing of a particular issue. 32. From the above judgments, it is clear that even in the absence of a specific issue regarding 'res judicata', still, if the parties knew the real issues advanced and evidenced in such a case without establishing prejudice, it would not be open to a party to raise the question of non-framing of a particular issue. 32. In the instant case, even though the Trial Court had not specifically framed an issue regarding 'res judicata', however, both the parties have led the evidence in such a manner as though such an issue was also included or involved in the suit. It is for the reason that a detailed evidence with respect to the defendant filing a previous suit in O.S.No.461/1980 (new O.S.NO.8681/1980) was led by both side, wherein it was contended from the defendant's side that the said suit in O.S.No.8681/1980 had involved the similar question of alleged encroachment of the property and it was held that the defendant was the owner in possession of the property upto the BDA drainage on the southern side of his property in Sy.No.37. 33. It is relying upon the said judgment passed in O.S.No.8681/1980, the pleading and certified copy of the judgment of which are produced and marked at Ex.P-2, it was contended by the learned counsel for the defendant that, the said issue as to whether the present defendant (the plaintiff therein) is the owner of the suit property which property extends upto the BDA drainage on its southern side was decided in favour of the present defendant (plaintiff therein), as such, the present suit is hit by the 'principle of res judicata'. 34. The said O.S.No.8681/1980 was filed by the present defendant against the present original plaintiff Smt. Muniyamma under Order VII Rule 1 of Code of Civil Procedure, 1908, initially for the relief of permanent injunction. Later, the prayer in the said suit was amended so as to include the relief of declaration to declare that the plaintiff therein(defendant herein) was the owner of a portion of the plaint schedule property marked and shown as 'CDEF' in the annexure to the plaint. The plaintiff also had sought for mesne profit. Later, the prayer in the said suit was amended so as to include the relief of declaration to declare that the plaintiff therein(defendant herein) was the owner of a portion of the plaint schedule property marked and shown as 'CDEF' in the annexure to the plaint. The plaintiff also had sought for mesne profit. The suit schedule property therein was shown to be a vacant land at Sy.No.37, Division No.46 of Gangenahalli village, measuring 08 guntas and bounded on the East by 'halla', West by private house, North by Balakrishna's vacant land and South by BDA drain. 35. In the present suit, the northern boundary of the suit schedule property is shown as the land bearing Survey No.37. As such, it is the contention of the learned counsel for the defendant that since the southern boundary of the plaintiffs in the said Original Suit No.8681/1980 extends upto BDA drain, which is Sy.No.37 and the present suit schedule property's northern boundary is Sy.No.37, it clearly goes to show that the land bearing Survey No.32/3 ends at the edge of the BDA drain on its northern side and immediately thereafter it is the property bearing Sy.No.37 of the defendant which falls. Therefore, the question of whether the defendant is the owner of the property upto the said BDA drain on the southern side of Sy.No.37 since has already been adjudicated and decided in O.S.No.8681/1980 in favour of the present defendant (the plaintiff therein) and the same was further confirmed in R.F.A.No.163/1987 by this Court, the same has reached its finality, as such, the present suit is hit by 'res judicata'. 36. Admittedly, the issues framed in the present suit do not include or involve any specific issue on the point of 'res judicata'. However, a reading of the evidence led by the parties would go to show that both parties have led their evidence on O.S.No.8681/1980 and also R.F.A.No.163/1987 and also about the description of the property mentioned in the said Original Suit. 37. Pw-1 himself in his Examination-in-chief has stated that the contention of the defendant that the present suit is hit by 'principle of res judicata' is incorrect. He has stated that issues arisen in the present suit were not directly arisen in the previous suit. In his cross examination, some more details were elicited from PW-1 with respect to the previous suit in O.S.NO.8681/1980. He has stated that issues arisen in the present suit were not directly arisen in the previous suit. In his cross examination, some more details were elicited from PW-1 with respect to the previous suit in O.S.NO.8681/1980. He has admitted a suggestion as 'true' that the defendant had instituted the said suit against his mother Smt. Muniyamma. However, he volunteered to say that, the said suit was with respect to two sheds situated in the suit schedule property, but not against the entire land. Still, he admitted a suggestion as 'true' that the old suit was filed in respect of the suit schedule property. He also stated that when the old suit was filed, they had only 03 to 04 guntas of land. By stating so, he has impliedly admitted that the said old Original Suit No.8681/1980 was also involved in it the disputed 03 guntas of land which is the subject matter of the present suit. The plaintiffs themselves have produced the copies of the plaint, written Statement and judgment in O.S.No.8681/1980 at Ex.P-2. 38. Similarly, the defendant as DW-1 in his Examination-in-chief has given a detailed account of O.S.No.8681/1980, R.F.A.No.163/1987 and Execution Case No.10044/1990 and stated that, with respect to the disputed suit schedule property, he already has a decree passed in his favour in O.S.NO.8681/1980 and the same was confirmed by this Court in R.F.A.No.163/1987 which has reached its finality. He has also stated that he has recovered possession of the property in Execution Case No.10044/1990. In his support, he has also produced a certified copy of the judgment passed by this Court in R.F.A.No.163/1987. The said evidence of the witness has not been denied in the cross-examination of the said witness. 39. Dw-1 has further in the same Examination-in-chief has specifically stated that in view of the previous suit, i.e. O.S.No.8681/1980 included the present disputed land and since the said suit has already been decreed in his favour, the present suit is not maintainable. Thus, he has shown that the suit is hit by the 'principle of res judicata'. 40. In the said suit in O.S.No.8681/1980, the Trial Court had framed the following issues for its consideration:- " 1. Does plaintiff proves his lawful possession of the suit site? 2. Does plaintiff further prove the illegal construction by the defendant on the suit site? 3. Is plaintiff entitled for injunction sought for? 4. What order? Addl. 40. In the said suit in O.S.No.8681/1980, the Trial Court had framed the following issues for its consideration:- " 1. Does plaintiff proves his lawful possession of the suit site? 2. Does plaintiff further prove the illegal construction by the defendant on the suit site? 3. Is plaintiff entitled for injunction sought for? 4. What order? Addl. Issues 4. Does plaintiff prove his title to the suit property marked CDEF in the plaint sketch? 5. Does he prove that defendant is in wrongful possession of the same? 6. Is plaintiff entitled to declaration, possession and future mesne profits? " 41. As already observed above, the schedule of the property in the said suit though was shown as the land in Sy.No.37 of Gangenahalli Village and measuring 08 guntas, its southern boundary was shown as BDA drain. In the case on hand, the northern boundary is shown as the property of the defendant with Sy.No.37. Therefore, the subject matter of the land in O.S.No.8681/1980 was extending upto the BDA drain on its southern side with respect to which drain, the present plaintiffs have contended that the same is within their land bearing Sy.No.32/3 and that their alleged retained land extends beyond the said BDA drain on its northern side. The decree passed in O.S.NO.8681/1980 which was confirmed by this Court in R.F.A.No.163/1987 and which decree was subsequently executed by the defendant in Execution Case No.10044/1990 would go to show that, the present defendant who was the plaintiff in the said Original Suit No.8681/1980 was declared as the owner of the suit schedule property having its southern boundary upto BDA drain. That being the case, the pleading and the evidence placed by both side on the said suit, in fact, included that portion of the property on the northern side of the BDA drain also which according to the present plaintiffs is 03 guntas of land bearing Sy.No.32/3. Therefore, both parties have understood what exactly the disputed suit property and had led their evidence contending their ownership on the said piece of disputed land, which according to the present plaintiffs is 03 guntas in Sy.No.32/3. 42. Therefore, both parties have understood what exactly the disputed suit property and had led their evidence contending their ownership on the said piece of disputed land, which according to the present plaintiffs is 03 guntas in Sy.No.32/3. 42. The issues framed in O.S.NO.8681/1980 also covers the dispute of alleged illegal construction said to have been made by the present defendant in the said disputed portion of the land and which construction, the present PW-1 in his evidence has called it as two sheds put up by the original plaintiff-Smt. Muniyamma measuring 12 ft. x 20 ft. 43. The Trial Court in O.S.No.8681/1980 has held that the plaintiff therein has proved all the issues including his title over the disputed land marked as 'CDEF' in the sketch annexed to the plaint. Therefore, the question of title with respect to the said disputed land which is also the subject matter of the present suit since has already been decided between the present plaintiffs and defendant in the said O.S.No.8681/1980, the present plaintiffs cannot now, once again, file a similar suit with respect to a portion of the land i.e. 03 guntas of land which had already been included and decided by the competent Court in O.S.No.8681/1980. However, since the two Commissioners' reports which are referred above, have revealed that a land to an extent of 234 Sq. ft. to 240 Sq. ft. in Sy.No.32/3 still exists on the northern side of the said BDA drain and in view of the fact that the said entire survey number has already been acquired, it is for the said acquiring authority (presently BDA) to challenge the alleged possession of the defendant on the said portion of the land and to claim its possession, if it desires so. As such, the present plaintiffs cannot seek for possession of the said portion of the land from the defendant. 44. Since the Trial Court after considering the materials placed before it in its entirety has arrived at a proper conclusion and dismissed the suit of the plaintiffs, I do not find any error in it, as such, there is no scope for interference in the judgment and decree under appeal. 44. Since the Trial Court after considering the materials placed before it in its entirety has arrived at a proper conclusion and dismissed the suit of the plaintiffs, I do not find any error in it, as such, there is no scope for interference in the judgment and decree under appeal. Accordingly, I proceed to pass the following: ORDER [i] The appeal is dismissed; [ii] The judgment and decree dated 16-11-2010 passed by the learned XXIV Additional City Civil and Sessions Judge, Bangalore City, (C.C.H. 6) in O.S.No.7298/1995, is hereby confirmed; Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.