B LEELAVATHI versus HONNAMMA AND ANR.

Citation: [2005] SUPP. 1 S.C.R. 146 · Decided: 06-05-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

B. LEELA VA THI 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 B 
executing the sale deed in favour of the appellant, the sale was bad in law 
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- F 
respondent with regard to adverse possession. In the absence of any plea 
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. 
B 
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. 
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 sui
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