Ashok Bhan, J.— This appeal by grant of leave has been filed by Defendant 2 (hereinafter referred to as “the appellant”) against the judgment and decree of the High Court of Karnataka at Bangalore dated 13-2-2003 in Regular First Appeal No. 388 of 1996 whereby and whereunder the High Court while setting aside the judgment and decree of the trial court decreed the suit filed by the plaintiff, the first respondent herein for declaration of ownership of suit property as well as for setting aside the sale deed dated 21-5-1983 executed by the City Improvement Trust Board (CITB) now Bangalore Development Authority (BDA), Respondent 2 herein. The High Court held the action of BDA in executing the sale deed in favour of the appellant as void and not binding on Respondent 1. Further, BDA has been restrained from interfering with the peaceful possession and enjoyment of the property by Respondent 1.
2. The plaintiff-Respondent 1 is proceeded ex parte since she has chosen not to enter appearance despite service of notice.
3. The plaintiff-respondent filed a suit seeking declaration that she is the owner of the site bearing No. 115, situated at Jabbar Block, Rajamahal Cuttahalli, Bangalore 560 003, hereinafter referred to as “the suit property” and for setting aside the sale deed dated 21-5-1983 executed by 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 BDA from interfering with her possession. In the suit, the plaintiff claims herself to be in possession of the suit property since 1940, same being allotted to her by the erstwhile CITB, now BDA vide possession certificate dated 27-1-1971 and actual possession being delivered to her on 6-5-1971. 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 2000 from one Krishnappa, who in place of mortgage deed, by cheating, got executed a sale deed. Later, Krishnappa fraudulently sold away the property to one Eramma who in turn sold the same to the appellant. That on an application filed by the appellant, BDA regularised the sale and executed the sale deed dated 21-5-1983 in her favour. That soon after coming to know about the sale made in favour of the appellant, a notice under Section 64 of the Bangalore Development Authority Act (“the Act”) was got issued on 4-6-1988 to BDA informing about the nature of wrong committed by it. It is her case that since BDA failed to take any action on the notice issued, the present suit was filed.
4. BDA in its written statement denied the receipt of the alleged notice dated 4-6-1988 issued under Section 64 of the Act. It was contended that the suit property was allotted to the plaintiff and on payment of the full value thereof a lease-cum-sale deed was executed in her favour on 8-1-1971 along with possession certificate dated 27-1-1971. That the plaintiff sold the suit property to one V. Krishnappa vide registered sale deed dated 13-1-1975 who in turn sold the same to one Eramma on 5-12-1979. Eramma, in turn, sold the suit property to the appellant on 17-5-1982. That on a representation made by the appellant, to grant a transfer of site from the name of the original purchaser to her name, suit property was transferred in her name on 30-3-1983. Sale deed was executed in favour of the appellant on 21-5-1983.
5. The appellant in her separate written statement denied the plaint averments contending that she is the owner of suit property having purchased the same and in view of the sale deed dated 21-5-1983 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 OS No. 1522 of 1984 and obtained a decree of injunction. That in the said suit, the plaintiff made an attempt to implead herself as a party but her application was rejected.
6. The trial court on the basis of the pleadings framed the following issues/additional issues:
1. Whether the plaintiff proves title to the suit property?
2. Whether the plaintiff proves that the sale deed executed by the first defendant in favour of the second defendant is null and void?
3. To what order and reliefs the parties are entitled?
Additional issues
1. Whether the suit is bad for want of notice under Section 64 of 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 suit schedule property?
5. Whether there is interference by the second defendant as alleged?
6. Whether the plaintiff is entitled to the perpetual injunction as sought for against the second defendant?
7. Parties led their evidence oral as well as documentary. The 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 17-11-1974 executed by the plaintiff and her son in favour of Krishnappa. That by virtue of Section 9 of the Bangalore Development Authority (Third Amendment) Act, 1993 (Karnataka Act 17 of 1994) the plaintiff cannot challenge the sale deed dated 21-5-1983 executed by BDA in favour of the appellant. It was held that the suit filed against BDA was not maintainable as the plaintiff-respondent had failed 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 not maintainable. It was also held that the plaintiff-respondent had failed to establish that the appellant was interfering with her lawful possession over the suit property.
8. Being aggrieved by the dismissal of the suit, the plaintiff filed RFA No. 388 of 1996. The 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 plaintiff-respondent with costs throughout. It was held that since BDA had failed to issue a notice to the plaintiff-respondent before executing the sale deed on 21-5-1983 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 Respondent 1 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 owner of the suit property. As per the Act, if the property is alienated within 10 years of the allotment, BDA is entitled to resume possession of the 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, BDA can allot it to eligible persons. No action whatsoever was taken in this regard by BDA. That BDA had not assumed possession of the suit property from Respondent 1. There is nothing to show that BDA had put the appellant in possession of the suit property in pursuance of sale deed dated 21-5-1983. That the appellant had failed to prove that she was in possession of suit property. That Respondent 1 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 64 of the Act had been duly issued by Respondent 1 to BDA and the sale deed dated 21-5-1983 executed by BDA in favour of the appellant was null and void.
9. Counsel for the parties have been heard at length.
10. 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 BDA to the plaintiff-respondent before executing the sale deed dated 21-5-1983 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 BDA before executing the sale deed in favour of 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 BDA was that Respondent 1 was present at the time when the sale deed was executed in favour of the appellant by BDA on 21-5-1983. DW 1, husband of the appellant has specifically deposed that Respondent 1 was a consenting party to all the transactions and had visited the office of BDA along with the appellant at the time of the execution of the sale deed dated 21-5-1983. The High Court has not given any reasons to discard the testimony of DW 1. 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 BDA did not issue a show-cause notice to the plaintiff before executing the sale deed in favour of the appellant.
11. Plea of adverse possession had been taken vaguely in the plaint. 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. Honnamma, the plaintiff in her 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.
12. The finding recorded by the High Court that the plaintiff-respondent had issued a valid notice under Section 64 to BDA before filing of the suit is contrary to the evidence present on record. This finding is also set aside.
13. This appeal is accepted, judgment and decree passed by the High Court is set aside and that of the trial court is restored. The suit filed by the plaintiff-respondent is dismissed with costs throughout.