Holding

The Supreme Court held that the plaintiff had neither pleaded nor evidenced the non‑issuance of notice or adverse possession, rendering the High Court’s reversal erroneous; the sale deed stands and the suit is dismissed.

Summary

The plaintiff, B. Leela Vathi, claimed ownership of a property alleging that the Bangalore Development Authority (BDA) had executed a sale deed in favour of the appellant, Honnamma, without issuing a show‑cause notice under Section 64 of the BDA Act and that she had acquired title by adverse possession since 1940. The trial court dismissed her suit, holding that Section 9 of the BDA Act barred her from challenging the sale deed and that she had not proved the required notice. The Karnataka High Court reversed, finding the sale deed void for lack of notice and holding that the plaintiff had perfected title by adverse possession. The Supreme Court allowed the appellant’s appeal, observing that the plea of non‑issuance of notice and the claim of adverse possession were neither pleaded nor supported by evidence, and therefore the High Court’s findings were erroneous. Consequently, the High Court judgment was set aside, the trial court’s decision restored, and the suit dismissed with costs.

Issues considered

Whether the failure to issue a show‑cause notice under Section 64 of the Bangalore Development Authority Act before executing the sale deed renders the deed void.
Whether the plaintiff’s claim of title by adverse possession was properly pleaded and proved.
Whether the plaintiff proved the issuance of a valid notice under Section 64 prior to filing the suit.
Whether Section 9 of the Bangalore Development Authority Act bars a challenge to the sale deed.

Subjects

adverse possessionshow‑cause noticesale deedBangalore Development Authority ActSection 64Section 9property ownershipcivil suitdeclaration of titleinjunction

Judgment

B. LEELA VATHI v. HONNAMMA 147
. suit on the similar line. The suit was dismissed by the trial court holding A
that by virtue of s.9 of the Act respondent No. 1 could not challenge the
sale deed executed by the BDA and the suit was not maintainable for non-
'• issuance of notice by plaintiff to BDA u/s 64 of the Act. The plaintiff filed
an appeal before the High Court, which decreed the suit holding that since
the BDA did not issue any show-cause notice to the plaintiff before
executing the sale deed in favour of the appellant, the sale was bad in law B
and that the plaintiff had perfected her title by way of adverse possession.
Aggrieved, the transferee filed the present appeal.
':
Allowing the appeal, the Court

HELD: 1. Plea of non-issuance of show cause notice by the BOA
c
before executing the sale deed in favour of the appellant was neither
pleaded nor raised before the tri~I court. It was raised for the first .time
before the High Court. No issue had been framed in this respect. The
plaintiff did not lead any evidence on this point. On the contrary, the case
of the appellant and the BDA was that respondent No. 1 was present at D
the time when the sale deed was executed in favour of the appellant by
the. BDA. This was primarily a question of fact and in the absence of any
pleadings and evidence on this point, the High Court has erred in holding
. · that the BDA did not issue a show cause notice to the plaintiff before
-1: executing the sale deed in favour of the appellant. [151-E, F, G]
E
2. Plea of adverse possession had been taken vaguely and no
categorical stand on this point was taken in the plaint. No issue had been
framed and seemingly the same was not insisted upon by the plaintiff-
respondent. Adverse possession is a question of fact which has to be
specifically pleaded and proved. No evidence was adduced by the plaintiff-
respondent with regard to adverse possession. In the absence of any plea
F
and evidence on the point High Court erred in holding that the plaintiff-
respondent had perfected her title by way of adverse possession'.
[151-H; 152-A, BJ

3. The finding recorded by the High Court that the plain*iff- G
respondent had issued a valid notice under s.64 to the BDA before filing
of the suit is contrary to the evidence on record. This finding is also set
I aside. [152-C)
I

.., 4. Judgment and decree passed by the High Court are set aside and
those of the trial court restored. [152-D i H
148 SUPREME COURT REPORTS-[2005] SUPP. l S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7034 of2003.

From the Judgment and Order dated 13.2.2003 of the Karnataka High
Court in R.F.A.No. 388 of I 996.

G.V. Chandrashekhar for P.P. Singh, for the Appellant.
B
M. Gireesh Kumar for Kh. Nobin Singh, for the Respondent No.2.

The Judgment of the Court was delivered by

BHAN, J. This appeal by grant of leave has been filed by defendant
C no.2, (hereinafter referred to "the Appellant") against the judgment and decree
of the High Court of Kamataka at Bangalore dated I3.02.2003 in Regular
First Appeal No.388 of I 996 whereby and whereunder the High ~ourt while
setting aside the j~dgment and decree of the trial Court decreed the suit filed
by the plaintiff, I st respondent herein for declaration of ownership of suit
property as well as for setting aside the sale deed dated 21.05. I 983 executed
D b_y the City Improvement Trust Board (CITB), now Bangalore Development
Authority (BDA) respondent no.2 herein. The High Court held the action of
the BDA in executing the sale deed in favour of the appellant as void and
\not binding on respondent no. I. Further, the BDA has been restrained from
interfering with the peaceful possession and enjoyment of the property by
E respondent no. I. /

Plaintiff-respondent no. I is proceeded ex-parte since she has chosen
not to enter appearance despite service of notice.

Plaintiff-respondent filed a suit seeking declaration that she is. the
F owner of the site bearing· No. l I 5, situated at Jabbar Block, Rajamahal
Cuttahalli Bangalore 560 003, hereinafter referred to as "the suite property"
and for setting aside the sale deed dated 21.05.1983 executed by the BDA in
favour of the appellant being illegal, null and void and not binding on her.
She also sought for an order of permanent injunction restraining the BDA
from interfering with her possession. !n the suit, plaintiff claims herself to be
G in possession of the suit property since 1940, same being allotted to her by
erstwhile CITB, now BDA vide possession certificate dated 27.0l.l 97I and
f
actual possession being delivered to her on 06.05. I 971. It was averred that
she had perfected her title to the suit property by virtue of adverse possession.
That she created a charge on suit property and borrowed Rs.2,000/- from one
H Krishnappa, who in place of mortgage deed, by cheating, got executed a sale
B. LEELA VA THI v. HONNAMMA [BHAN, J.] 149
deed. Later, Krishnappa fraudulently sold away the property to one Eramma A
who in tum sold the same to the appellant. That on an application tiled by
the appellant, the BDA regularised the sale and executed the sale deed dated
21.05.1983 in her favour. That soon after coming to know about the sale

·- made in favour of the appellant, a notice under Section 64 of Bangalore
Development Authority Act, ('the Act') was got issued_ on 04.06.19.88 to
BOA informing about the nature of wrong committed by it. It is her case that
B

since the BOA failed to take any action on the notice issued, the present suit
was filed.

BOA in its written statement denied the receipt of alleged notice dated
04.06.1988 issued under Section 64 of the Act. It was contended that the suit C
property was allotted to plaintiff aad on payment of the full value thereof a
lease-cum-sale deed was executed in her favour on 08.01.1971 along with
possession certificate dated 27.0l.1971. That plaintiff sold the suit property
to one V. Krishnappa vide registered sale deed dated 13.01.1975 who in tum
sold the same to one Eramma on 05.12.1979. Eramma, in turn, sold the suit
property to the appellant on 17 .05 .1982. That on a representation made by D
the appellant, to grant a transfer of site from the name of original purchaser
to her name, suit property was transferred in her name on 30.03.1983. Sale
deed was executed in favour of the appellant on 21.05.1983.

Appellant in her separate written statement denied the plaint averments E
contending that she is the owner of suit property having purchased the same
and in view of the sale deed dated 21.05.1983 executed in her favour. That
one Bajappa and his supporters tried to interfere with her peaceful possession
and enjoyment of the property against which she filed O.S. No.1522 of 1984
and obtained a decree_ of injunction. That in the said suit, plaintiff made an
attempt to implead herself as a party but her application was rejected. F
Trial Court on the basis of the pleadings framed the following issues/
additional issues:-

I. Whether plaintiff proves title to the suit property?

2. Whether plaintiff proves_ that the sale deed executed by the 1st
G
defendant in favour of the 2nd defendant is null and void?

"
.). To what order and reliefs the parties are entitled to?

Additional Issues
H
l. Whether the suit is bad for want of notice under Section 64 of
150 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A the Bangalore Development Authority Act.?

2. Whether the court fee paid is sufficient?

3. Whether the plaintiff is entitled to the declaration sought for?
-~
4. Whether the plaintiff proves she is in lawful possession of the
B suit schedule property?

5. Whether there is interference by the 2nd defendant as alleged?
6. Whether the plaintiff is entitled to the perpetual injunction as
sought for against 2nd defendant?

C Parties led their evidence oral as well as documentary. Trial Court on
appraisal of the entire evidence dismissed the suit filed by the plaintiff-
respondent. It was observed that sale deed executed by the plaintiff in favour
of Krishnappa was not the outcome of fraud or misrepresentation. The said
sale deed was executed with consensus•ad·idem amongst parties as the same
was preceded by an agreement of sale dated. 17.J!l.1974 executed by the
D plaintiff and her son in favour of Krishnappa. That by virtue of Section 9 of
Bangalore Development Authority (3rd Amendment) Act, 1993 (Karnataka
Act No.1711994) plaintiff cannot challenge the sale deed dated 21.05.1983
executed by the BDA in favour of the appellant. It was held that the suit filed
against the BDA was not maintainable as the plaintiff-respondent had failed
E to prove the issuance and service of the notice on BDA under Section 64 of
the Act which was mandatory in nature. In the absence of such a notice the
suit was riot maintainable. It was also held that the plaintiff-respondent had
failed to e.stablish that the appellant was interfering with her lawful possession
over the suit property.

F Being aggrieved by.the dismissal of the suit, plaintiff filed R.F.A. No.388
of 1996. High Court by making out an altogether new case which had not
been even pleaded and on which no evidence had been led by either of the
parties set aside the judgment and decree passed by the trial Court and decreed
the suit filed by the p!aintiff-respondent with cos~s throughout. It was held
G that since the BDA had failed to issue a notice to the plaintiff-respondent
before executing the sale deed on 21.05.1983 in favour of the appellant, the
sale made in favour of the appellant was bad in law. Further, it was held that
the plaintiff had perfected her title by adverse possession. It was held that the
respondent no. I did not acquire full ownership rights as only a lease-cum-
sale deed had been executed in her favour. That BDA continued to be the
H owner of the suit property. As per Act, if the property is alienated within IO
8. LEELA VA THI v. HONNAMMA [BHAN, J.) 151
years of the allotment, the BOA is entitled to resume possession of the A
property by issuance of show cause notice to the allottee calling upon him to
explain as to why the lease-cum-sale deed and possession certificate be not
cancelled. After issuance of such notice and cancellation of the lease-cum-
sale deed, BOA can allot it to eligible persons~ No action whatsoever was
taken in this regard by BOA. That BOA had not assumed possession of the
suit property from respondent no. I. There is nothing to show that BOA had B
put the appellant in possession of the suit property in pursuance of sale deed
dated 21.05.1983. That the appellant had failed to prove that she was in
possession of suit property. That respondent no. I continued to be in
uninterrupted possession of the property and therefore, had perfected her title
by way of adverse possession. It was further held that notice under Section C
64 of the Act had bee11 duly issued by the respondent no. I to BOA and the
sale deed dated 21.05 .1983 executed by BOA in favour of the appellant was
-, null and void.

Counsels for the parties have been heard at length.
D
In our considered view, the High Court has erroneously set aside the
judgment and decree passed by the trial Court on the ground of non-issuance
of notice by the BOA to plaintiff-respondent before executing the sale deed
dated 21.05.1983 in favour of the appellant and that the plaintiff-respondent
had perfected her title by way of adverse possession. Plea of non-issuance of
show cause notice by the BOA before executing the sale deed in favour of E
the appellant was neither pleaded nor raised before the trial Court. It was
raised for the first time before the High Court. No issue had been framed in
this respect. The plaintiff did not lead any evidence on this point. On the
contrary, the case of the appellant and the BOA was that respondent no.I was
present at the time when the sale deed was executed in favour of the appellant F
by the BOA on 21.05.1983. DWI, husband of the appellant has specifically
deposed that the respondent no. I was a consenting party to all the transactions
and had visited the office of the BDA along with the appellant at the time of
the execution of the sale deed dated 21.05.1983. The High Court has not
given any reasons to discard the testimony of DWI. This was primarily a G'
question of fact and in the absence of any pleadings and evidence on this
point, the High Court has erred in holding that the BDA did not issue a show
cause notice to the plaintiff before executing the sale deed in favour of the
appellant.

Plea of adverse possession had been taken vaguely in the plaint. No H
152 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A categorical stand on this point was taken in the plaint. No issue had been
framed and seemingly the same was not insisted upon by the plaintiff-
respondent. Adverse possession is a question of fact which has to be
specifically pleaded and proved. No evidence was adduced by the plaintiff-
respondent with regard to adverse possession. Honamma the plaintiff in her
B own statement did not say that she is in adverse possession of the suit property.
We fail to understand as to how the High Court in the absence of any plea
of adverse· possession framing of an issue and evidence led on the point could
hold that the plaintiff-respondent had perfected her title by way of adverse
\possession.

c had issued
The finding recorded by the High Court that the plaintiff-respondent
a valid notice under Section 64 to the BDA before filing of the
-
suit is contrary to the evidence present on record. This finding is also set
aside.

This appeal is accepted, judgment and decree passed by the High Court
D is set aside and that of the trial Court is restored. The suit filed by the
plaintiff-respondent is dismissed with costs throughout.

R.P. Appeal allowed.