JUDGMENT : V.SRISHANANDA, J. 1. Heard Sri. Y.K. Narayana Sharma, learned counsel for the appellant and Sri. Pavan Kumar for Sri. H. Defendrappa, learned counsel for the respondents. 2. Unsuccessful plaintiffs are the appellants who have challenged the validity of the judgment passed in O.S.No.2792/2001. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1 Plaintiff filed a suit against the defendants with the following prayer in respect of the following property (hereinafter referred to as 'suit property'): PRAYER (a) Declare that the plaint schedule property does not form part of civic amenity Site No.1. (b) Issue a direction to the defendants to transfer the khata of the plaint schedule property first in favour of the first plaintiff and then in favour of the second plaintiff. (c) Grant such other reliefs and award cost of this suit. SCHEDULE Property bearing Site No.54, measuring 20' x 33' situated at 28 th Main, 9th Block, Jayanagar, Bangalore-560 094 and bounded on East by : Site No.53 West by : Road North by : Site No.55 South by : Road. 3.2 Suit property was sold by the defendant, Bengaluru Mahanagara Palike, in favour of one Smt. Rajeshwari, who is the vendor of the vendor of the plaintiff through a registered sale deed. 3.3 However, for reasons best known to them, there was no transfer of revenue entries in respect of the suit property. 3.4 Said Smt. Rajeshwari sold the property in favour of the vendor of the plaintiff by name Smt. Padvatammal on 25.08.1977. Plaintiff purchased the suit property from Smt. Padvatammal on 01.12.1981 and Smt. Padvatammal sold her 1/3 rd share of the property in favour of the first plaintiff. First plaintiff in turn sold the property on 30.06.1998 in favour of the second plaintiff. When the appellants applied for change of khata, the Corporation issued an Endorsement vide Exhibits P5 and P6 which reads as under: ENDORSEMENT - EXHIBIT P5 With reference to his/her application dated 7.6.84 requesting for Transfer or Khata of Khata of Pre.No.54/35 in 28 th Main, 9 th Block, Jayanagar, DVN. No.60, Bangalore, Sri. K.V. Suraynarayana Rao, residing at No.44, Maruthi Extension, palace Guttahally is hereby informed the Katha will be done after Court decision received." 3.5 Then, a notice came to be issued to the Joint Commissioner, Bangalore Corporation vide Exhibit P7 by first plaintiff Sri. No.60, Bangalore, Sri. K.V. Suraynarayana Rao, residing at No.44, Maruthi Extension, palace Guttahally is hereby informed the Katha will be done after Court decision received." 3.5 Then, a notice came to be issued to the Joint Commissioner, Bangalore Corporation vide Exhibit P7 by first plaintiff Sri. K.V. Suryanarayana Rao and another notice on 21.01.1998 vide Exhibit P7 and P8 and yet another representation vide Exhibit P9. When there was no change of khata in favour of the plaintiffs, plaintiffs were constrained to file the suit with the aforesaid prayer. 3.6 Defendants/Bangalore Mahanagara Palike filed written statement opposing the suit by contending that the suit site is a Civic Amenity Site, meant for commercial purposes and therefore the khata cannot be transferred in the name of the plaintiff as the vendors of the plaintiffs did not possess the khata in their names. 3.7 In view of the rival pleadings, learned Trial Judge framed following issues; (1) Whether the plaintiffs prove that the suit schedule property does not forms the part and parcel of civi amenity site No.1? (2) Whether the plaintiffs prove that they are entitled to have transfer of khata in their favour witht respect to the suit schedule property? (3) What decree or order? 3.8 In order to prove the case of the plaintiff, first plaintiff K.V. Suryanarayana Rao got examined as PW1 and placed on record 17 documents which were exhibited and marked as Exhibits P1 to P17 comprising of Letter dated 09.11.2001, certified copies of the sale deeds, Special notices, Endorsements, Representation letters, Certified copy of the Judgment in W.P. No.22711/1995, Certified copy of the Judgment in W.P.18220/1998, Notice, reply, and copy of the judgment in WA No.5632/ 1998, copy of the writ petition and map. 3.9 As against the evidence placed on record by the plaintiffs, Sri. N.S. Gundappa, an officer of the defendant was examined who marked Exhibit D1-plan. 3.10. On conclusion of recording of evidence, learned trial Judge heard the arguments of the parties and dismissed the suit of the plaintiff, holding that plaintiff failed to make out the title to the suit property. 4. Being aggrieved by the same, plaintiffs are before this Court in this appeal on the following grounds: -The Learned Judge has not properly applied his mind to the facts and circumstances of the case and has not appreciated the evidence on record in accordance with law. 4. Being aggrieved by the same, plaintiffs are before this Court in this appeal on the following grounds: -The Learned Judge has not properly applied his mind to the facts and circumstances of the case and has not appreciated the evidence on record in accordance with law. -The Learned Judge has failed to note that the site was sold by the Respondent Corporation itself in favour of Smt. Rajeswari under registered sale deed dated 28.05.1977 (Ex.P2) and she was put in possession of the same by the Respondent. Hence, the Respondent is estopped from disputing the title and possession of the appellants in view of the subsequent registered sale deeds. -The Learned Judge failed to note that the Respondent has made khatha of the property in the name of Smt. Padvattammal, who purchased the same from Smt. Rajesweari under a registered sale deed dated 25.08.1977 (Ex.P3) and issued special notice dated 31.08.1977 (Ex.P4) assessing the Property for payment of tax and the Corporation has also collected tax in respect of the property and the Respondent was duty bound to transfer the khatha existing in the name of Smt. Padvattammal to the name of the first Appellant who purchased the property under registered Sale Deed dated 01.12.1982 and to the name of the second Appellant in view of the purchase of the property by the second Appellant under registered Sale Deed dated 30.06.1998. The Learned Judge failed to note that the relevant provisions of the Karnataka Municipal Corporation Act, 1976, regarding transfer of khatha of a property and thereby, committed illegality in dismissing the suit. -The Learned Judge failed to consider the admissions and the statements made by DW1 regarding there being a building existing on the suit property, the second Appellant carrying on business in the ground floor and residing in the first floor and the property of the school being to the east of the suit property and there being a different plan from Ex.D1 earlier regarding the said layout and the Learned Judge failed to consider the Letter of the B.D.A. dated 09.11.2001 marked as Ex. P1, confirming the existence of the suit property beyond the C.A. Site. -The appreciation of evidence by the Learned Judge is opposed to established under law. law and the procedure The contradictions in the statements of DW1 in examination-in-chief and in cross examination has not been considered by the learned Judge. P1, confirming the existence of the suit property beyond the C.A. Site. -The appreciation of evidence by the Learned Judge is opposed to established under law. law and the procedure The contradictions in the statements of DW1 in examination-in-chief and in cross examination has not been considered by the learned Judge. - The Learned Judge committed error of law in not framing proper issue in the case. - The scope of the suit and the dispute between the parties have not been properly appreciated and considered by the Learned Judge. - The Learned Judge failed to give sufficient opportunity to the Appellants to produce further evidence in the case. The Learned Judge failed to note that the original title deeds were produced in some other case and as there were several proceedings pending PW1 could not mention the number of the suit or proceedings. In fact, the original sale deed in fproduced in os5202/98 and the one in favour of the second appellant was before the Deputy Commissioner for determination under Valuation of Stamps as the same was referred to the said Deputy Commissioner by the Sub-Registrar and was not returned to the second Appellant. However, the said proceedings before the Deputy Commissioner have been concluded and additional stamp and charges have been paid by the second Appellant and the original sale deed is with the second Appellant. - The Learned Judge ought to have relied upon the certified copies of the sale deeds produced and he has committed error law in refusing to admit the certified copies in evidence, under the circumstances of the case. The Learned Judge failed to note that the registered sale deeds were not in dispute between the parties and the dispute between the parties was whether the property claimed by the appellant was part of C.A. Site No.1 or not. The Learned Judge committed error in not noticing the scope and nature of the suit and the dispute between the parties. - The Learned Judge failed to note that the Respondent Corporation has formed several sites to the west of the property allotted to the school and facing 28th Main Road of 9th Block Jayanagar and has allotted the sites to several slum dwellers and persons belonging to weaker sections of the society in view of shifting the slum dwellers near Kalasipalyam in 1977. - The Learned Judge failed to note that DW1 himself has admitted that there was an earlier plan of the layout earlier to Ex.D1 and in that earlier plan the area marked as Ex.D1(a) were shown as shop sites and not C.A. Sites. Thus, admittedly, the suit property is not part of C.A. Site and the Respondent had formed the sites and sold the same to the different persons including Site No.54 in favour of Smt. Rajeswari. - The Respondent is a party in an earlier suit O.S.No.1971 of 1996 filed by one Perumal against the Respondent in the City Civil Court seeking injunction in respect of Site No.57 which near by to the suit schedule property and the said suit has been decreed by a judgment and decree dated 03.07.2007. There are other owners of sites in the same area where the sites have been sold to different persons by the Respondent itself and the buildings are situate on the said properties. The first Respondent has suppressed the Judgment and Decree dated 03.07.2002 in the earlier proceedings in O.S. No. 1971 of 1996 filed by Sri. M. Perumal regarding site No.57. All these circumstances have not been appreciated by the Learned Judge while deciding the dispute. - The Judgment of the Learned Judge is opposed to proved facts and circumstances of the case and the decisions of this Hon'ble Court and of the Hon'ble Supreme Court of India and the judgment and decree are liable to be set aside. 5. Sri. Y.K. Narayana Sharma, learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum vehemently contend that when the suit property was allotted by the then City Improvement Trust Board and sale deed came to be executed by the then Bangalore City Corporation. Thereafter the property was sold by the original allottee in favour of Smt. Rajeshwari having sold the property in favour of Smt. Padvatammal. Smt. Padvatammal in turn selling the property in favour of the first plaintiff and first plaintiff selling the property in favour of the second plaintiff, it should not lie in the mouth of the Bangalore City Corporation that the suit property is a Civic Amenity Site. Therefore Khata cannot be affected on the ground that there was no khata transferred in the name of the vendors of the vendors of the plaintiff is per se incorrect. 6. Therefore Khata cannot be affected on the ground that there was no khata transferred in the name of the vendors of the vendors of the plaintiff is per se incorrect. 6. He would further contend that the learned trial Judge did not understand the scope of the prayer made in the plaint inasmuch as that it is not the ownership of the plaintiff that was disputed as the Bangalore City Corporation itself is the vendor in favour of Smt. Rajeshwari. Therefore, what was sought for is that the suit property did not form the portion of the alleged civic amenity as per Exhibit D1 and therefore, dismissal of the suit has resulted in miscarriage of justice and sought for allowing the appeal. 7. He also contended that the Corporation itself has issued a special notice and assessing the suit property for taxes and therefore the Corporation cannot turn around and say that the suit property is a civil amenity site. 8. Per contra, Sri. Pavan Kumar, learned counsel for respondent/Bangalore Mahanagara Palake, supports the impugned judgment by contending that there is a specific mention in Exhibit D1 that the suit property is the civic amenity site and therefore, the suit was rightly rejected and sought for dismissal of the appeal. 9. Having heard the arguments of both sides, this Court perused the material on record meticulously. 10. On such perusal of the material on record, the following points would arise for consideration : (i) Whether, the appellants have made out a case that they are entitled for the declaration that the suit property does not form the part of the alleged civic amenity site as per Exhibit D1? (ii) If so, whether the appellants are entitled for effect of transfer of khata in the name of second appellant? (ii) Whether the impugned judgment is suffering from legal infirmity or perversity? (iv) What Order? 11. Regarding Points No.1 to 3 From the perusal of material on record, it is crystal clear that suit property was under the control of the then City Improvement Trust Board, Bangalore (now BDA). The property was allotted in favour of Smt. Rajeshwari by the then CITB. However by the time, the regular sale deed was required to be executed by the CITB in favour of Smt. Rajeshwari. The property was allotted in favour of Smt. Rajeshwari by the then CITB. However by the time, the regular sale deed was required to be executed by the CITB in favour of Smt. Rajeshwari. Property had come within the jurisdiction of the then Bangalore City Corporation (BCC, now BBMP and recently Greater Bangalore Authority, Bangalore South Division). Therefore, sale deed was executed by the Officer of the then Bangalore City Corporation in favour of Smt. Rajeshwari. Smt. Rajeshwari in turn sold the property in favour of Padvatammal by a registered sale deed. 12. Special Notice came to be issued by the Bangalore City Corporation vide Exhibit P4. The contents of the special notice would go to show that the Revenue Officer has assessed the suit property for payment of taxes. 13. If it is the case of the defendants that the suit property is the civil amenity site and therefore the khata cannot be effected as per endorsement by Exhibit P5 and Exhibit P6, Exhibit P4 would not have come into existence at all. 14. No explanation whatsoever is forthcoming for the probative value of Exhibit P4 which has been originated in the natural course, that too arising from the defendant's office to Smt. Padvatammal, the vendor of the first appellant. 15. The writ petition and the writ appeal orders would make it clear that whether the suit land was part of the civil amenity land or not has to be decided by the Civil Court after considering the evidence on record and therefore the writ appeal filed by the first appellant namely Sri. K.V. Suryanarayana Rao was disposed off. 16. In the teeth of the Special notice issued by the defendant in favour of Smt. Padvatammal on 30.08.1977, the Endorsement at Exhibit P5 in the year 1984 and Endorsement at Exhibit P6 on 17.07.1990 have no meaning at all and per se incorrect. 17. K.V. Suryanarayana Rao was disposed off. 16. In the teeth of the Special notice issued by the defendant in favour of Smt. Padvatammal on 30.08.1977, the Endorsement at Exhibit P5 in the year 1984 and Endorsement at Exhibit P6 on 17.07.1990 have no meaning at all and per se incorrect. 17. Further, when the sale deed of Smt.Rajeshwari by allotment by the then City Improvement Trust Board and sale deed executed by the then Bengaluru City Corporation who is the defendant was not questioned and Smt. Rajeshwari in turn having sold the suit property in favour of Smt. Padvatammal and it has been brought to the notice of the defendant that Padvatammal purchased the property from Smt. Rajeshwari and the property was sought to be assessed for taxes, the defendant cannot turn around and then contend that the suit property is belonging to the civic amenity site. 18. Exhibit D1 is placed on record to show that the suit property is part of the civic amenity site. But, admittedly DW1 is not the author of Exhibit D1. 19. Defendant did not choose to examine the officials of the Bangalore Development Authority (earlier CITB) to establish that the suit property is part of civic amenity sites. As such, the CITB had no power to allot the suit property in favour of Smt. Rajeshwari. 20. At least, at the time of execution of the sale deed, Officer of the Bangalore City Corporation (now the defendant) should have exercised the necessary discretion to find out as to he is not executing the sale deed in favour of Smt. Rajeshwari in respect of a land which is a part of civic amenity site. 21. Therefore, when there is a valid sale deed in favour of Smt. Rajeshwari, who sold the property in favour of Smt. Padvatammal, who in turn sold the property in favour of first appellant, is thus valid. The only power that the defendants can exercise is to assess the property for payment of taxes and they have no other power under the under the Bangalore City Corporation Act (now Greater Bangalore Act) to enquire into the title of the property. 22. More so, when they themselves have issued special notice at an undisputed point of time, to Smt.Padvatammal vide Exhibit P4. 23. 22. More so, when they themselves have issued special notice at an undisputed point of time, to Smt.Padvatammal vide Exhibit P4. 23. Thus, the trial Judge dismissing the suit has resulted in not only miscarriage of justice, but has also resulted in perversity. 24. In view of the same above, Point Nos.1 to 3 in the 'affirmative'. 25. Regarding Point No.4: In view of the finding of this Court on Points No.1 to 3 as above, following order: ORDER (i) Appeal is allowed. (ii) Impugned judgment and decree dated 31.10.2008 passed in O.S.No.2792/2001 is is set-aside. (iii) Suit is decreed as prayed for. (iv) No order as to the costs.