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2023 DIGILAW 963 (KAR)

Navaneethamma v. Commissioner

2023-08-04

H.B.PRABHAKARA SASTRY

body2023
JUDGMENT 1. This is a plaintiffs' appeal. The present appellants as plaintiffs had instituted a suit against the present respondents, arraigning them as defendants in O.S.No.7842/2009, in the Court of the learned XVI Additional City Civil and Sessions Judge, Bengaluru City, (CCH.No.12), (hereinafter for brevity referred to as "the Trial Court"), seeking the relief of permanent injunction, restraining the defendants from interfering with their peaceful possession and enjoyment over the schedule property and to stop the construction work and such other reliefs. 2. The summary of the case of the plaintiff in the Trial Court was that, the original plaintiff - Smt. Naveneethamma is the owner of the suit schedule property having purchased the same under a registered Sale Deed dtd. 28/2/1981 from one Smt. Radha Varadarajan for a valuable consideration. The khata of the suit schedule property was made in her name and she has been paying the taxes to the Corporation in respect of the suit schedule property and enjoying the possession of the suit schedule property. It is the further case of the original plaintiff that though she had obtained an approved plan for putting up a construction on the suit land, however, due to the sad demise of her husband and due to the financial constraints, the same could not be materialised. That being the case, on the date 5/10/2009, through her daughter, she came to know that the defendant - Bruhath Bengaluru Mahanagara Palike (hereinafter for brevity referred to as "the BBMP") through its workers was carrying out the construction work. Though she gave a representation to the defendant No.1 - the Commissioner of the BBMP requesting the said authority to suspend the work, however, the same was not materialised. This constrained the plaintiff to file the present suit for the relief of permanent injunction against the defendants. 3. In response to the suit summons served upon them, the defendants appeared before the Trial Court through their counsel and filed their Written Statement. In the Written Statement, the defendants denied the title and possession of the plaintiffs over the suit schedule property. They contended that there is a playground area called as 'Tank area play ground' situated in Subrahmanya Nagar, measuring an extent of 25, 208 sq.ft. The said entire area is a vacant land belonging to the defendant - BBMP without any constructions there upon excluding the construction put up by the BBMP. They contended that there is a playground area called as 'Tank area play ground' situated in Subrahmanya Nagar, measuring an extent of 25, 208 sq.ft. The said entire area is a vacant land belonging to the defendant - BBMP without any constructions there upon excluding the construction put up by the BBMP. It is also contended that in the said playground area, the defendants are constructing a building on their own land, in an area measuring 70 ft. x 40 ft. and putting up a 'Public Library' and a 'Bangalore One Centre'. They denied that the plaintiff had obtained any sanctioned plan to put up construction on the alleged suit schedule property. The defendants further contended that the original plaintiff was directed to produce some documents after the defendant BBMP received the representation from her. However, the plaintiff failed to produce certain information and the required documents to show her alleged ownership over the suit schedule property. Even the plaintiff did not produce any document to show that her alleged vendor had title over the suit property. The defendants categorically contended that it is they who are in possession of the property and putting up a Public Library and Bangalore-One Centre on their own land, without encroaching upon any of the property in general and the alleged suit property of the plaintiffs in particular. The defendants also contended that since the suit was filed without issuing statutory notice, though they were required to be issued under Sec. 482 (1) of the Karnataka Municipal Corporations Act 1976, (hereinafter for brevity referred to as "the KMC Act"), the plaintiff was not entitled for any relief. With this, the defendants prayed for dismissal of the suit of the plaintiffs. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration: 1. Whether the plaintiff proves her lawful possession over the suit schedule property on the date of suit? 2. Whether the plaintiff proves the alleged interference and obstructions to such of her possession and enjoyment of the schedule property, by the defendants and their men and also the attempt of putting up of illegal construction in the schedule property by trespass and encroachment? 3. Whether the suit as brought is not maintainable for non-issuance of statutory notice under Sec. 482 of KMC Act? 4. 3. Whether the suit as brought is not maintainable for non-issuance of statutory notice under Sec. 482 of KMC Act? 4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? 5. What order or decree? During the pendency of the suit before the Trial Court, the original plaintiff was reported to be dead and her legal representatives were brought on record. 5. In support of her case, the plaintiff got examined one Sri.A.S. Subramani, her General Power of Attorney holder, as PW-1 and got marked documents from Exs.P-1 to P-22(a). On behalf of the defendants, one Smt. Chandrakantha, the Assistant Revenue Officer of the defendant - Corporation was examined as DW-1 and got produced and marked Exhibits D-1 to D-12. 6. After hearing both side, the Trial Court by its impugned judgment and decree dtd. 6/10/2016 while answering all the issues framed by it in the negative, dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiffs, who are the legal representatives of the deceased original plaintiff have preferred the present appeal. 7. The Trial Court records were called for and the same are placed before this Court. 8. The learned counsel for the appellants (plaintiffs) and learned counsel for respondents (defendants) are appearing physically before the Court. 9. Heard the arguments of the learned counsel for the plaintiffs (appellants herein) and the learned counsel for the defendants (respondents herein). 10. Perused the material placed before this Court including the impugned judgment, memorandum of Regular First Appeal and the Trial Court records. 11. For the sake of convenience, the parties herein would be henceforth referred to as per their rankings before the Trial Court. 12. Learned counsel for the plaintiffs (appellants) in his argument contended that, the Trial Court has not appreciated the evidence placed before it in its proper perspective. The Trial Court relied upon Ex.D-7, a letter by the Bangalore Development Authority, Bangalore (hereinafter referred to as "the BDA") and disbelieved the existence of the plaint schedule property without considering the other documents produced by the plaintiff including the khata certificate, tax paid receipt and encumbrance certificates. Learned counsel further submitted that though a Court Commissioner was appointed by the Trial Court, however, without waiting for the report of the said Commissioner, the Trial Court proceeded to dispose of the matter. Learned counsel further submitted that though a Court Commissioner was appointed by the Trial Court, however, without waiting for the report of the said Commissioner, the Trial Court proceeded to dispose of the matter. With this, he prayed that the appeal filed by the plaintiff deserves to be allowed and the suit of the plaintiff be decreed with costs. 13. Per contra, learned counsel for the defendants (respondents herein) in his argument submitted that, the defendants have, throughout, taken a contention that the suit schedule property was not at all in existence. The original plaintiff has utterly failed to establish the existence and identity of the suit schedule property. When the very existence of the suit schedule property is doubtful, the alleged possession of the suit schedule property by the plaintiff falls to the ground. Merely because the plaintiff is shown to have produced an endorsement and tax paid receipt, the same would not establish the existence of the suit schedule property. Learned counsel further submitted that the original plaintiff has failed to show that the suit schedule property was carved out of Sy.No.30 and that she had purchased the said property carved out in Sy.No.30. In the said background, a suit for bare injunction was not maintainable, as such, the Trial Court, by giving a detailed reasoning, has rightly dismissed the suit of the plaintiff. As such, the impugned judgment of the Trial Court does not warrant any interference at the hands of this Court. 14. In the light of the argument addressed by the learned counsels from both side and other materials placed before this Court, the points that arise for my consideration in this appeal are : i] Whether the original plaintiff has proved her lawful possession over the suit schedule property as on the date of the institution of the suit? ii] Whether the original plaintiff has proved the alleged interference in her alleged lawful possession and enjoyment of the suit schedule property by the defendants? iii] Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 15. One Sri.A.S. Subramani, S/o. Late A.S. Srinivasalu, as the General Power of Attorney (GPA) of the original plaintiff - Smt. Navaneethamma was examined prior to the death of said Smt. Navaneethamma, as PW-1. iii] Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 15. One Sri.A.S. Subramani, S/o. Late A.S. Srinivasalu, as the General Power of Attorney (GPA) of the original plaintiff - Smt. Navaneethamma was examined prior to the death of said Smt. Navaneethamma, as PW-1. The said witness, in his examination-in-chief, has reiterated the summary of the plaint averments even in his examination-in-chief also, filed in the form of affidavit evidence. He got produced and marked the General Power of Attorney shown to have been executed in his favour by the original plaintiff, at Ex.P-1. He produced the original registered Sale Deed dtd. 28/2/1981, shown to have been executed by one Smt. Radha Varadarajan as vendor in favour of the original plaintiff - Smt. Navaneethamma. According to PW-1, the suit schedule property was sold by the said Smt. Radha Varadarajan in favour of the original plaintiff - Smt. Navaneethamma. In the said Sale Deed, the vendor is shown to have stated that the suit schedule property came to her from one Sri. Narayanappa, under a registered Sale Deed dtd. 14/12/1971. However, the said Mother Deed has not been produced by the plaintiffs. He produced an endorsement shown to have been issued by the then Bangalore City Corporation (BCC) stating about the transfer of khata with respect to the suit schedule property in favour of the original plaintiff, at Ex.P-3. However, the witness has called the said document as 'Khata Certificate'. Ex.P-4 is the property tax receipt with respect to the suit schedule property shown to be for the years 1982 to 2008 and paid on the date 19/11/2009. Ex.P-5, though called by the witness as an endorsement issued by the Bangalore City Corporation, but it appears to be a calculation sheet with a rubber stamp of the defendant - BBMP. Ex.P-6 and Ex.P-7 are the two Encumbrance Certificates covering a period from 1/5/1971 to 8/10/2009. The said Encumbrance Certificates reflects the sale transaction said to be of suit schedule property between Smt. Radha Varadarajan and the original plaintiff - Smt. Navaneethamma on the date 28/2/1981. Ex.P-8 is a copy of the complaint shown to have been given by the original complainant - Smt. Navaneethamma to the first defendant - Commissioner of BBMP, bringing to his notice the alleged interference in the suit schedule property by the BBMP officials. Ex.P-8 is a copy of the complaint shown to have been given by the original complainant - Smt. Navaneethamma to the first defendant - Commissioner of BBMP, bringing to his notice the alleged interference in the suit schedule property by the BBMP officials. However, in the very same complaint, the original plaintiff has stated that the authorities of the defendant -BBMP had not collected tax with respect to the said property stating that in relation to the said property, there is a playground and there is opposition by the general public and hence they would collect the tax after some time. This clearly goes to show that from the date of her alleged purchase in the year 1981 till the filing of the suit in the year 2009, the original plaintiff had not paid the property tax and the defendant- BBMP had not received any tax by her stating that there was a dispute with respect to the suit schedule property and there was also a playground in relation to the suit schedule property. However, it is not known as to how come the very same defendant - BBMP has accepted the property tax for all the years in one stretch for the years 1980 to 2009 i.e. for a period of 29 years, just before few days to the filing of the suit by the original plaintiff. Still the fact remains that from the very first year after her purchase of the property till the filing of the suit, the original plaintiff was aware that there was an objection with respect to her title over the suit schedule property. 16. The original plaintiff through PW-1 has produced the photographs at Exs.P-9 to P-11 with their negatives at Exs.P-9(a) to P-11(a) and three more photographs at Exs.P-20 to P-22 with their negatives at Exs.P-20(a) to P.22(a), contending that the defendants, through their workmen were carrying on the construction activity in a site, which, according to them, was the suit schedule property. 17. Ex.P-12 is the Encumbrance Certificate shown to have been issued with respect to the suit schedule property in favour of Sri. Narayanappa, said to be the alleged vendor to Smt. Radha Varadarajan, who is stated to be the vendor to the original plaintiff. Without explaining what those documents are about and what they depict, PW-1 has produced two certified copies of the alleged Sale Deeds dtd. Narayanappa, said to be the alleged vendor to Smt. Radha Varadarajan, who is stated to be the vendor to the original plaintiff. Without explaining what those documents are about and what they depict, PW-1 has produced two certified copies of the alleged Sale Deeds dtd. 3/4/1967 and dtd. 1/12/1971 which are in the form of a manuscript at Ex.P-13 and Ex.P-14. He has produced a letter shown to have been issued by the Chairman, City Improvement Trust Board, Bengaluru, (hereinafter for brevity referred to as "the CITB") dtd. 18/9/1964 at Ex.P-15. The said document shows that the CITB has asked one Sri.B.N. Jayasurya and Sri.J. Srinivasa Reddy to pay the layout charges, for a bit of land. However, the subject in the said letter is shown as re-conveyance of site No.118/B out of Survey No.30 of Ketamaranahalli village in Rajajinagar II Stage. The 'NIL' Certificate of Encumbrance on Property for the period from 1/10/1966 to 25/3/1967 is marked at Ex.P-16. The Possession Certificate dtd. 25/10/1980 shown to have been issued by then CITB (now BDA) in favour of the above mentioned Smt. Radha Varadarajan the alleged vendor to the original plaintiff is at Ex.P-17. Ex.P-18 is produced as the approved plan for construction of a building given in the name of said Smt. Radha Varadarajan. The plaintiff's alleged complaint dtd. 24/12/2009 to the Commissioner of Police, Bangalore, is at Ex.P-19. 18. The above documents produced by the plaintiff, which inter alia includes Sale Deed, khata endorsement, tax paid receipt, building plan, complaint to the Police, though prima facie gives an impression that the plaintiffs must have been in possession of the suit schedule property and defendants must have interfered in their alleged possession, however, the evidence of PW-1, both oral and documentary, requires a detailed analysis so also the consideration and analysis of defendants' evidence. 19. At the outset, the original plaintiff in her plaint has not stated that the suit schedule property was formed in Sy.No.30 of any place much less Kethamaranahalli Village. However, in the cross-examination through PW-1, she has, for the first time, stated that the suit schedule property was carved out in Sy.No.30 of Kyathamaranahalli Village and one Jayasuri Srinivasa Reddy has formed the Layout in Sy.No.30. Though she has stated that she has produced the Layout Plan, however, no such document called 'Layout plan' has been produced by her. However, in the cross-examination through PW-1, she has, for the first time, stated that the suit schedule property was carved out in Sy.No.30 of Kyathamaranahalli Village and one Jayasuri Srinivasa Reddy has formed the Layout in Sy.No.30. Though she has stated that she has produced the Layout Plan, however, no such document called 'Layout plan' has been produced by her. In fact, she has admitted in the cross-examination of PW-1 that, she does not have the approved plan. Therefore, at the outset, her contention that the suit schedule property was one among the ten sites carved out in Sy.No.30 by forming a Layout with a Layout plan stands un- corroborated and creates a serious doubt in the case of the plaintiff. Even though the plaintiff has stated that the Sale Deed at Ex.P-13 shows that the suit schedule property was in Sy.No.30, however, the said Sale Deed dtd. 3/4/1967 does not appear to be establishing the nexus between the suit schedule property as described in the plaint schedule to that of the property described therein. Further, there is no whisper in the pleading about formation of any sites in Sy.No.30 of Kethamaranahalli Village by anybody, much less by one Sri. Jayasuri Srinivasa Reddy and the very same property later being identified with the description as given in the schedule to the plaint. Therefore, Ex.P-13 and Ex.P-14 would be of no much avail to the plaintiff. 20. The Sale Deed dtd. 28/2/1981 at Ex.P-2 though shows that the plaint schedule property was sold by one Smt. Radha Varadarajan in favour of the original plaintiff - Smt. Navaneethamma, however, the Mother Deed in favour of Smt. Radha Varadarajan at Ex.P-14 and the Sale Deed in favour of the vendor to Smt. Radha Varadarajan which is at Ex.P-13 though mentions about the formation of a Layout plan, however, no such documents of any approved Layout plan is produced. As such, the alleged existence of the suit schedule property is only based upon a recital in the Sale Deed and the existence of which property the defendant - BBMP has seriously disputed. 21. According to the plaintiff, the property was re- conveyed to Sri.B.N. Jayasuri Srinivasa Reddy, however, admittedly, no Re-conveyance Deed has been produced by the plaintiff. As such, the alleged existence of the suit schedule property is only based upon a recital in the Sale Deed and the existence of which property the defendant - BBMP has seriously disputed. 21. According to the plaintiff, the property was re- conveyed to Sri.B.N. Jayasuri Srinivasa Reddy, however, admittedly, no Re-conveyance Deed has been produced by the plaintiff. Except the intimation shown to be issued by the CITB on the date 18/9/1964 asking the said Sri.B.N. Jayasurya and Sri.J. Srinvisa Reddy to pay the layout charges, however, there is no evidence of any sort whatsoever to show that such a Layout charge was paid or that the site was re-conveyed or that any sites were formed in the alleged Layout and re-conveyed to the intended purchasers. All these doubts remain un- answered, both in the plaint and in the evidence of the plaintiff. The so-called Sale Deeds at Ex.P-13 and Ex.P-14 and the letter at Ex.P-15 including the alleged sanctioned plan at Ex.P-18 are all with respect to a property described as site No.118/B, II Stage (Milk Colony), Rajajinagar, Bangalore, whereas the suit schedule property is described with site No.118/B/88/2 in 'A' Block, Milk Colony, II Stage, Rajajinagar, Bangalore. Thus, going by the description of the property mentioned in the documents mentioned above to that of the description of the suit property in the plaint schedule, they are shown to be different properties. There is no material to show as to how come the property/Site NO.'118/B' in Ex.P-13, Ex.P-14, Ex.P-15, Ex.P-16 and Ex.P-17 became property/site No. 118/B/88/2', with the introduction of 88/2' and a block by name 'A' Block, in the description of the suit schedule property in the plaint. 22. In addition to the above, the evidence of DW-1 and the documents produced on behalf of the defendants as exhibits from Exs.D-1 to D-12 further creates a doubt about the existence and possession of the suit schedule property by the plaintiff. The defendants, through DW-1, throughout, have taken a contention that the suit schedule property does not exist and is not identifiable, as such, a specific contention was taken by the defendants at the earliest point of time and a question was also put to PW-1 in his examination-in-chief and specifically contended by DW-1 in her evidence. DW-1 in her examination-in-chief has reiterated the contentions taken up by the defendants in their Written Statement. DW-1 in her examination-in-chief has reiterated the contentions taken up by the defendants in their Written Statement. Among the twelve documents produced by them, Ex.D-7 is a letter by the BDA in favour of the defendant BBMP and dtd. 4/1/2011, stating that the site with number 118/B' was not found existing in Rajajinagar II Stage. Further, the defendant - BBMP also vide its letter/endorsement dtd. 8/12/2009 at Ex.D-8 has written to the original plaintiff in response to her complaint of the alleged interference in the suit schedule property by the defendants, requesting her to produce any letter/endorsement by the BBMP calling upon the plaintiff to pay the property tax in respect of her alleged suit property, since the said property was falling in Tank Bund, which has been used as a playground by the general public and that the said matter was required to be decided, as such, the collection of property tax was deferred. Further, in the same letter, the plaintiff was also requested to produce the document with respect to any Sale Deed by the BDA in favour of Smt. Radha Varadarajan who is the alleged vendor to the plaintiff and the sketch of the property, if any. The said documents were sought for by the BBMP giving the reason that the plaintiff has relied upon the Possession Certificate with respect to site No.118/B shown to have been issued by the BDA to her vendor Smt. Radha Varadarajan. 23. Despite the above query by the defendant BBMP (erstwhile Corporation) and calling upon the plaintiff to produce those documents, there is nothing on record to show that the plaintiff has complied the request made to her by producing the documents she was called for. Thus, it can be inferred that the plaintiff did not possess those documents at all to substantiate the alleged flow of title to her with respect to the suit property. 24. Thus, it can be inferred that the plaintiff did not possess those documents at all to substantiate the alleged flow of title to her with respect to the suit property. 24. The original plaintiff, through the cross- examination of PW-1 has made the following statements in the relevant pages: At internal page No.7: "Suit property comprises in Sy.No.30 of kyathamaranahalli village" At internal page No.8: " My property is not situated within the tank bund area" "It is true to suggest that the tank bund is a playground" "I claim the schedule property in the playground." The above statements of the plaintiff through PW-1 are contradictory to each other, inasmuch as, at one place, he says that the plaintiff's property is not situated in tank bund and admits that the tank bund is a Playground area and in the same breath, he says that the plaintiff is claiming schedule property in the Playground. Thus, it means that the plaintiff is claiming an area in the tank bund, where even according to her, her property is not situated. Further, in page No.8 of the cross-examination of PW-1, the witness has stated as below: "Playground might be measuring 25, 208 sq. feet. It is true to suggest that the said measurement property belongs to the Defendants. It is true to suggest that we are not claiming any portion in the Playground. The Playground is situated in Sy.No.27. My claim is in respect of Sy.No.30 land." These statements made by the plaintiff through PW-1 are again contradictory to each other and supports the case of the defendants rather than the plaintiff's case, because, she does not dispute that the measurement of the Playground was in total 25, 208 sq. feet which is also the case of the defendants both in their pleading as well in their evidence through DW-1. She clearly admits that the said measurement property belongs to the defendants. She also admits that she does not claim any portion in the Playground. She concedes that the tank bund is a Playground and has categorically stated that her property is not situated within the tank bund area. Therefore, her own contradictory statements made through PW-1 has put her case more in chaos and rather supports the contention of the defendants that the defendants' property is in tank bund, which is being used as a Playground with 25, 208 sq. Therefore, her own contradictory statements made through PW-1 has put her case more in chaos and rather supports the contention of the defendants that the defendants' property is in tank bund, which is being used as a Playground with 25, 208 sq. feet situated in Sy.No.27 of Kethamaranahalli Village. Thus, the plaintiff, who has at different places stated that her suit schedule property is in Sy.No.30, has herself conceded through PW-1 that the tank bund and Playground area are in Sy.No.27 with respect to which property, she has no claim whatsoever. 25. In addition to the above, the plaintiff through PW-1 in his cross-examination at page.8 has admitted a suggestion as true that the defendants are constructing a building in Sy.No.27. Though she stated that the defendants are also putting up a construction in Sy.No.30, however, she has failed to produce any piece of evidence to show the existence of the suit schedule property and the said suit property is a portion of the land bearing Sy.No.30. She categorically admitted through PW-1 in his cross-examination at page.9 that the suit schedule property is not coming in Sy.No.27. A suggestion made to the witness that the plaintiffs are claiming portion of Sy.No.27 as Sy.No.30 was denied by PW-1. 26. PW-1 in his further cross-examination admitted a suggestion as true that, the Sale Deed at Ex.P-2 shown to have been standing in favour of the original plaintiff does not reveal the suit schedule property as carved out of Sy.No.30 and that it does not even reveal as to in which survey number, the suit property was carved out. Though PW-1 in his cross-examination has stated that the property was re-conveyed to Smt. Radha Varadarajan by the BDA in the year 1980, however, as observed above, except a Possession Certificate at Ex.P-17, no other piece of document evidencing the re-conveyance of the suit property in favour of Smt. Radha Varadarajan has been produced by the plaintiff. 27. PW-1 in his further cross-examination has attempted to give the boundary of the playground of the defendants and that of the suit schedule property. In the said process, PW-1 has stated that the playground is bounded on the East by BDA property and the plaintiff's property and the plaintiff's property is bounded on the West by a playground. Whereas the plaint schedule shows that the suit schedule property is bounded on the West by a Road. In the said process, PW-1 has stated that the playground is bounded on the East by BDA property and the plaintiff's property and the plaintiff's property is bounded on the West by a playground. Whereas the plaint schedule shows that the suit schedule property is bounded on the West by a Road. Though PW-1, at a later point of time, attempted to show that the plaintiff's property and the BDA property is divided by a Road, however, that is clearly an attempt of a patch-up to overcome the discrepancy. Had really there was a Road on the Western side of the suit schedule property, PW-1 should not have stated in his cross- examination that the defendants' playground was bounded on the East by the plaintiff's property, rather he would have stated that it was bounded with a road at its Eastern side. 28. In addition to the above, PW-1 in his cross- examination at page No.11, has admitted a suggestion as true that the plaintiff's property is not demarcated. However, the very same witness in his further cross- examination, on the next date of hearing, has stated that the plaintiff's suit schedule property has been demarcated and taken the report of the Surveyor. Thus, his own statements are contradictory to each other. 29. Added to that, though PW-1 has stated that the Surveyor's report is produced before the Court, however, the Court record does not find any such report. 30. Lastly, PW-1 in his further cross-examination at page No.13, has categorically stated that, the plaintiffs are not in possession of any part in Sy.No.27 and the land in Sy.No.27 might have remained as a playground. Therefore, when the plaintiff herself through PW-1 has stated that the tank bund is used as a playground and the plaintiff's property is not in tank bund and the said playground is situated in Sy.No.27 and that she has not claimed any right with respect to property bearing Sy.No.27 and further when conceded the construction of a Library building in Sy.No.27, it falsifies the entire case of the plaintiff that the suit schedule property is in existence and identifiable and further that it is in possession of the original plaintiff (later by her legal representatives). 31. DW-1 who deposed on behalf of the defendants has categorically and specifically stated that the suit schedule property is not in existence. 31. DW-1 who deposed on behalf of the defendants has categorically and specifically stated that the suit schedule property is not in existence. The entire construction activity which the plaintiff calls as interference is the construction of a 'Library building' and 'Bangalore One Center' by the defendant - BBMP in the land bearing Sy.No.27 of Kethumaranahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, which is a Government Tank, measuring 08 Acres 30 Guntas. To substantiate the same, the defendants have produced the copies of the RTCs at Ex.D-1 and Ex.D-2, which RTCs, though initially shown that the said property in Sy.No.30 was in possession of Sri. Jayasurya and Sri. Srinivasa Reddy, later came to be in possession of one Sri.K. Narayana S/o. Venkataraju, however, the property throughout has been identified as a Government Tank and later the said property is shown to have been acquired by the CITB (now BDA). Thus, as on the date of purchase by the vendor to the plaintiff, it remained no more as a property belonging to either the previous vendor of Smt. Radha Varadarajan, i.e. Sri. Narayanappa or the other persons, i.e. Sri. Jayasurya and Sri. Srinivasa Reddy. The revision settlement extract called as Akaarband by the City Survey Department at Ex.D-3, certified copy of Tippani by the City Survey Department at Ex.D-4, khata extract of the playground area/tank area which was later shown to be given a Municipal number as 19' and measurement of area as 25, 208 sq. ft., shows that they stand in the name of the defendant - BBMP (earlier called Bangalore City Corporation-BCC). Thus, it further rules out the existence of the suit schedule property with the description given by the plaintiff in her schedule to the plaint as on the date of the institution of the suit. 32. Even though the plaintiff has not produced the alleged Re-conveyance Deed between CITB and her vendor - Smt. Radha Varadarajan, however, the defendants have produced a certified copy of the agreement dtd. 9/2/1976 and its Rectification Deed dtd. 16/11/1976 at Ex.D-11 and Ex.D-9 respectively. The description of the property given there does not tally with the description of the plaint schedule property. 9/2/1976 and its Rectification Deed dtd. 16/11/1976 at Ex.D-11 and Ex.D-9 respectively. The description of the property given there does not tally with the description of the plaint schedule property. Thus, the contention of the defendant - BBMP, expressing its doubt about the existence and identity of the suit schedule property further stands corroborated by the oral evidence of DW-1 and stands established by the documentary evidence produced by the defendants. Therefore, the very existence and identity of the suit schedule property is in serious doubt. 33. Our Hon'ble Apex Court in the case of NAHAR SINGH Vs. HARNAK SINGH AND OTHERS reported in (1996) 6 Supreme Court Cases 699, which judgment was relied upon by the learned counsel for the defendants (respondents herein), was pleased to observe in paragraph 6 of its judgment that, it is well settled that unless the property in question for which the relief has been sought for is identifiable, no decree can be granted in respect of the same. Thus, the plaintiff is also required to overcome the contention of the defendants and establish the identify of the suit schedule property, which in the instant case, the plaintiffs have failed to do. 34. The learned counsel for the plaintiffs (appellants herein) contended that the Trial Court proceeded to dispose of the matter, before the Commissioner appointed for local inspection could submit his report, as such, the impugned judgment deserves to be remanded. 35. During the pendency of this appeal, the appellants though were required to file additional documents, if any, through an interlocutory application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, (hereinafter for brevity referred to as "the CPC"), however, have filed a memo, along with a document in the form of a certified copy of the order sheet of the Trial Court in O.S.No.7892/2009, from which suit the present appeal has arisen. A perusal of the said order sheet would go to show that, at the instance of the defendants in the Trial Court who had filed an interlocutory application under Order 26 Rule 9 of the CPC, a Court Commissioner came to be appointed by allowing the said application. A Surveyor of the City Survey Department, Bangalore, was appointed as the Court Commissioner. A warrant of the Court Commissioner for executing the commission work was also issued. The said process took nearly nine months. A Surveyor of the City Survey Department, Bangalore, was appointed as the Court Commissioner. A warrant of the Court Commissioner for executing the commission work was also issued. The said process took nearly nine months. However, vide letter dtd. 6/7/2013 and as noticed in the order sheet dtd. 31/7/2013, the Court Commissioner returned the warrant and also the memo of instructions as he had not received the Sale Deeds pertaining to Sy.No.27 and Sy.No.30, khata, tax paid receipts and the memo of instructions of the plaintiff. As such, the Court Commissioner returned the warrant un-executed. Thus, due to the non-co-operation of the plaintiff to execute the Commissioner's work including the non-production of the Sale Deed, khata certificates, tax paid receipts, memo of instructions, the Commissioner had to return the warrant, without executing the Commissioner's work. The plaintiff, at whose fault, the Commissioner's work could not continue and complete has not even filed any application seeking to recall the Commissioner and for a direction to the Commissioner to proceed with the Commissioners' work. As such, when the plaintiff herself has not allowed the Commissioner to proceed with the Commissioner's work which has resulted in the Commissioner returning the warrant to the Court, now the very same plaintiff, by her legal representatives as the appellants in this appeal cannot contend that the Trial Court ought not to have proceeded further without there being any Commissioner's report. Thus the said point of argument addressed by the learned counsel for the plaintiffs is also not acceptable. 36. Resultantly, since as analysed above, the plaintiffs have utterly failed to establish the existence and identity of the alleged suit schedule property and their possession over the suit schedule property, the question of the alleged interference by the defendants in the suit schedule property does not arise. 37. Even though the photographs at Exs.P-9, P-10, P-11 and their negatives at Ex.P-9(a), P-10(a) and P-11(a) and the photographs at Exs.P-20 to P-22 and their negatives at Exs.P-20(a) to P-22(a) shows the progress of some construction work, but the defendants have stated that the said construction work is exclusively within the land bearing Sy.No.27, which, even according to the plaintiffs, is the property which does not belong to them and that the plaintiffs do not dispute that it belongs to the defendant - BBMP (then Corporation). As such, the alleged interference also in the alleged suit schedule property by the defendant - BBMP also has stood not established/proved by the plaintiffs/appellants. 38. Since it is considering the materials placed before it in their proper perspective, the Trial Court has answered the issues framed by it in the negative, resulting in dismissal of the suit of the plaintiffs, I do not find any error or irregularity in it, warranting an interference at the hands of this Court. As such, I proceed to pass the following: ORDER [i] The Regular First Appeal filed by the plaintiffs (appellants) stands dismissed as devoid of merit; [ii] The impugned judgment and decree dtd. 6/10/2016 passed by the XVI Additional City Civil and Sessions Judge, Bengaluru City (CCH.No.12), in O.S.No.7842/2009, stands confirmed. Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Trial Court, immediately.