Karnataka High Court
Sri V Babu S/O B K Veeraswamy vs The Commissioner Bangalore ... on 24 August, 2023
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NC: 2023:KHC:30380
RFA No. 937 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR FIRST APPEAL NO. 937 OF 2006 (DEC)
BETWEEN:
SRI. V. BABU
S/O B.K. VEERASWAMY
AGED ABOUT 53 YEARS
NO.4, SY NO.1
BLOCK NO.13, J.B. KAVAL
YESWANTHAPURA HOBLI - 560 022
BANGALORE NORTH TALUK.
...APPELLANT
(BY SRI: VINAYAKA B., ADVOCATE)
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
BANGALORE - 560 001.
Digitally
signed by 2. SRI. D.B. RANGAIAH
PAVITHRA S/O LATE BORE GOWDA
N MAJOR, R/O NO.459
Location: 6TH CROSS, 5TH BLOCK
High Court RAJAJINAGAR
Of BANGALORE - 560 010.
Karnataka
...RESPONDENTS
(BY SRI: RAVI G. SABAHIT, ADVOCATE FOR R1
VIDE ORDER DATED 28.09.2011, SERVICE HELD SUFFICIENT IN
R/O R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 17.12.2005 PASSED IN
O.S.NO.7589/96 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION AND INJUNCTION AS NOT MAINTAINABLE.
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NC: 2023:KHC:30380
RFA No. 937 of 2006
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in OS No.7589 of 1996 on the file of the learned XVI Additional City Civil and Sessions Judge at Bengaluru City (hereinafter referred to as 'the Trial Court' for brevity), is impugning the judgment and decree dated 17.12.2005, dismissing his suit for declaration and injunction, as the same is not maintainable.
2. For the sake of convenience, the parties are referred to as per their ranks and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the suit OS No.7589 of 1996, against defendant Nos.1 and 2 seeking permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the schedule property. Later, the plaint was amended to seek declaration of his title and possession of the schedule property by demolishing the unauthorized construction made by defendant No.2, with the help of defendant No.1. The schedule appended to the plaint describes the property bearing No.4, Sy.No.1, Block No.13, J.B.Kaval, Yeshwanthpura Hobli, -3- NC: 2023:KHC:30380 RFA No. 937 of 2006 Bengaluru North Taluk, measuring 30 x 40 feet i.e., 1.1 guntas in extent with the boundaries mentioned therein, which is referred to as the schedule property.
4. The plaintiff contended that he is the absolute owner of the schedule property as the same was purchased by him under the registered sale deed dated 12.09.1980 from his vendor N.Varadaraju and the revenue documents transferred in his name and he paid the tax. It is contended that the plaintiff after purchase of the schedule property, constructed a house and started residing in the same since 1981. He obtained electricity connection in the year 1993. The schedule property was never acquired by defendant No.1. The plaintiff or his vendor have not received any notice of acquisition of the property in question. Therefore, defendant Nos.1 and 2 are not having any right, title or interest over the schedule property and the plaintiff is in possession and enjoyment of the same.
5. It is stated that during 1993, the plaintiff filed Writ Petition No.22350 of 1993 seeking regularisation of the unauthorised construction. As the application filed by the plaintiff through Revenue Sites Owners' Association for -4- NC: 2023:KHC:30380 RFA No. 937 of 2006 regularisation of unauthorised construction was pending before the Screening Committee and also before defendant No.1, the said writ petition came to be allowed vide order dated 26.10.1994.
6. It is contended that the preliminary notification was issued by defendant No.1 to acquire 393.25 acres of land out of 519.37 acres of land in Sy.No.1 of Jarakabandekaval Village, Yelahanka Hobli, Bengaluru North Taluk for formation of Mahalakshmi layout (Nandini layout). Award was passed only in respect of 127.21 acres. The name of the vendor of the plaintiff was not notified for acquisition of the land in question. No award was passed in his favour in respect of the schedule property. The possession of the property was also not taken by defendant No.1. The vendor of the plaintiff formed revenue layout in Sy.No.1, Block No.13 of Jarakabandekaval Village, Yelahanka Hobli, Bengaluru North Taluk and alienated the said sites to various persons including the plaintiff. The purchasers have constructed building in the revenue sites. The Possession Certificate and the lease-cum-sale agreement said to have been issued by defendant No.1 in favour of defendant No.2 was not in respect of the schedule property. By mistaken identity, -5- NC: 2023:KHC:30380 RFA No. 937 of 2006 defendant No.2 started claiming the schedule property and trying to dispossess the plaintiff. Defendant No.2 has no manner of right, title or interest over the schedule property and therefore, he has filed the suit for permanent injunction restraining defendant Nos.1 and 2 from interfering with his peaceful possession and enjoyment of the property.
7. It is stated that during the pendency of the suit, the defendants have demolished the house of the plaintiff and thereafter, the plaint came to be amended to contend that even though temporary injunction was issued by the Trial Court against the defendants, in violation of the said order, the defendants demolished the house belonging to the plaintiff. Therefore, both the defendants are bound to restore the building and to hand over possession of the schedule property to the plaintiff. Accordingly, the plaintiff prayed for declaration of his title and for possession of the schedule property.
8. Defendant No.1 filed its written statement denying the contentions taken by the plaintiff. It is contended that the plaintiff has not issued statutory notice as required under Section 64 of the BDA Act. Hence, the plaint is liable to be -6- NC: 2023:KHC:30380 RFA No. 937 of 2006 rejected. It is contended that the land measuring 127.29 acres in Sy.No.1 of Jarakbandekaval Village including the suit schedule property, have been acquired by defendant No.1. Preliminary notification was issued on 16.11.1977. The final notification was on 30.08.1979. The award was passed by the Land Acquisition Officer on 19.09.1986. Accordingly, possession of the said land was also taken by defendant No.1 on 31.10.1986. Defendant No.1 formed layout and allotted the sites to various persons. The suit schedule property has been allotted to defendant No.2 and since then, he is in lawful possession and enjoyment of the property. The plaintiff has no manner of right, title or interest over the same and he is not entitled for either declaration or possession of the same. In view of the acquisition of property by defendant No.1, the plaintiff even if had any right, had lost the same.
9. It is contended that defendant No.1 is not a necessary party to the proceeding as the property in question is already allotted in favour of defendant No.2, who is in possession of the same. Therefore, defendant No.1 prayed for dismissal of the suit.
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10. Defendant No.2 filed written statement denying the contentions taken by the plaintiff and also contending that the suit of the plaintiff is not maintainable. It is stated that the plaintiff had filed a similar suit in OS No.2005 of 1990 seeking similar reliefs and the said suit came to be dismissed as withdrawn and therefore, the present suit is hit by principles of res-judicata. The suit of the plaintiff is not maintainable as he has suppressed the material facts and approached the Court with unclean hands.
11. It is contended that during 1986-87, defendant No.2 had applied for allotment of a site with defendant No.1 and accordingly, site No.4, I block, J.B.Kaval Layout, measuring 30 x 40 feet was allotted in his favour as per the allotment letter dated 02.11.1987. Defendant No.2 paid sital value to defendant No.1 and got lease-cum-sale agreement executed in his favour and was put in possession of the same as per the Possession Certificate dated 22.08.1989. Thus, defendant No.2 is in peaceful possession and enjoyment of the schedule property. He got the khata in respect of the same in his name and paying revenue. He applied for licence and obtained -8- NC: 2023:KHC:30380 RFA No. 937 of 2006 sanction plan. Accordingly, constructed the house and residing there.
12. It is contended that the plaintiff had filed the suit OS No.2005 of 1990 against the BDA seeking permanent injunction restraining the BDA officials from demolishing the alleged shed situated in site No.4, block No.13 of J.B.Kaval layout. On 09.04.1990, the plaintiff obtained an order of temporary injunction against the BDA. By taking advantage of such interim order of temporary injunction, the plaintiff attempted to put up illegal and unauthorised structure over the site belonging to defendant No.2 on 12.04.1990. Defendant No.2 immediately filed the complaint with the police and with defendant No.1 and prevented the plaintiff from putting up any such unauthorised construction. However, the plaintiff managed to put up a small shed, measuring 8 x 8 feet by taking advantage of the temporary injunction obtained by him.
13. It is stated that defendant No.1 issued preliminary and final notification and acquired the land measuring 127.29 acres. Award was also passed. Defendant No.1 formed the layout. The schedule property was allotted in favour of -9- NC: 2023:KHC:30380 RFA No. 937 of 2006 defendant No.2, who is in possession of the same. Later, plaintiff withdrew the suit OS No.2005 of 1990 on 08.07.1993. He filed Writ Petition No.22350 of 1993 for regularisation of his unauthorised construction. Defendant No.2 got himself impleaded in the said writ petition and it came to be disposed of vide order dated 26.10.1994, directing the Screening Committee to dispose of the application of the plaintiff filed for regularisation of his unauthorised construction. Accordingly, the Screening Committee of BDA rejected the application filed by the plaintiff as per the order dated 13.06.1996. Challenging the said rejection, the plaintiff filed Writ Petition No.18861 of 1996 without making defendant No.2 as party in the said proceeding. However, defendant No.2 after coming to know about the writ petition, got himself impleaded. The said writ petition came to be dismissed vide order dated 08.08.1996. Thereafter, the plaintiff vacated the premises by removing the temporary shed put up over the property. It is only thereafter, defendant No.2 obtained licence and sanction plan and constructed the house. Since then, he is in possession and enjoyment of the property. However, when defendant No.2 started to put up the foundation, the plaintiff tried to stop him
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NC: 2023:KHC:30380 RFA No. 937 of 2006 from proceeding further and thereafter, filed the suit seeking injunction, even though he was not in possession of the property in question.
14. It is contended that since the property in question was already acquired by BDA in the year 1977-78 and the claim of the plaintiff for regularisation of his possession was rejected by the Screening Committee and the order was confirmed by this Court, the plaintiff has no manner of right, title or interest over the same. Defendant No.2 raised huge loan for constructing the same. Therefore, he prays for dismissal the suit with exemplary cost.
15. On the basis of these pleadings, the Trial Court framed the following issues and additional issue for consideration:
"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?
2. Whether the plaintiff proves interference?
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3. Whether the suit property has been acquired by B.D.A. and therefore the present suit is not maintainable?
4. Whether plaintiff is entitled to the relief of injunction?
Additional Issue:
1. Whether the plaintiff is entitled for the possession of the suit schedule property as prayed?"
16. The plaintiff examined himself as PW1 and examined PW2 and got marked Exs.P1 to P6 in support of his contention. The defendants examined DWs.1 and 2 and got marked Exs.D1 to D6 in support of their defence. The Trial Court after taking into consideration all these materials on record and considering issue No.3 as the preliminary issue, answered the same in the affirmative and held that, the suit schedule property has been acquired by BDA and therefore, the suit of the plaintiff is not maintainable.
17. Being aggrieved by the same, the plaintiff is before this Court in the present appeal.
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18. Heard Sri B Vinayaka, learned counsel for the appellant and Sri Ravi G Sabahit, learned counsel for respondent No.1. Perused the materials including the Trial Court records.
19. Learned counsel for the appellant contended that the schedule property was never acquired by BDA. The name of the plaintiff or his predecessor in interest was never notified either in the preliminary notification or in the final notification, nor any award was passed in their favour. Under such circumstances, it cannot be contended that the schedule property is the subject matter of the acquisition by defendant No.1. When defendant No.1 contends that it has acquired the schedule property, the burden lies on it to establish the same. It has failed to prove acquisition of the land in question. If at all there was acquisition of the schedule property, the plaintiff or atleast his vendor should have been awarded with compensation. In the absence of any such formality, it cannot be held that the schedule property was acquired by defendant No.1.
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20. It is further contended that Sy.No.1 of Jarakabandekaval Village, Yelahanka Hobli, Bengaluru North Taluk, totally measures 519.37 acres. Defendant No.1 issued preliminary notification proposing to acquire 393.26 acres. But the final notification issued and award was passed only in respect of 127.21. The final notification is dated 30.08.1979 and the award is dated 19.09.1986. In none of these proceedings, the name of the vendor of the plaintiff appears. When defendant No.1 has not proved his contention that he had acquired the schedule property, the Trial Court could not have dismissed the suit of the plaintiff on preliminary issue. Unless it is proved by defendant No.1 that the schedule property was already acquired, it cannot be held that the suit of the plaintiff is not maintainable. The Trial Court has not assigned any valid reasons to answer issue No.3 which has held as preliminary issue, in the affirmative. Therefore, the impugned order is bad under law and prays for setting aside the same by allowing the appeal and decreeing the suit of the plaintiff, declaring that he is the absolute owner and to restore possession of the schedule property.
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21. Alternatively, learned counsel for the appellant contended that, if for any reason, this Court finds that there is lack of materials either to accept the contention of the plaintiff or defendant No.1, the matter may be remanded back to the Trial Court for fresh disposal permitting both the parties to lead fresh evidence. Accordingly, he prays for allowing the revision petition.
22. Per contra, learned counsel for respondent No.1 opposing the appeal submitted that the land in question was acquired by respondent No.1 by issuing the preliminary and final notification as per Exs.D1 and 2 and award was passed granting compensation to the owner of the land towards loss of their land. Ex.D3 is the copy of award which squarely discloses that the vendor of the plaintiff had accepted compensation amount for the land that was acquired from his possession. There is absolutely no cross examination in that regard. Therefore, it is to be concluded that after acquisition of land by respondent No.1, plaintiff purchased the said land from his vendor. Therefore, no title is passed on to the plaintiff and the suit is not maintainable in the Civil Court.
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23. Learned counsel further submitted that the plaintiff has filed the suit and writ petition in respect of the schedule property and he has failed in all his attempts and finally, he has filed the present suit against the defendants. Taking into consideration all these facts and circumstances of the case, the Trial Court has proceeded to dismiss the suit as devoid of merits. There is no merit in the contention taken by the plaintiff. Hence, he prays for dismissal of the appeal with costs.
24. In view of the rival contentions urged by the learned counsel for the parties, the point that would arise for my consideration is:
"Whether the impugned judgment and decree passed by the Trial Court suffers from any infirmities and calls for interference by this Court?"
My answer to the above point is in the 'Negative' for the following:
REASONS
25. It is the contention of the plaintiff that he has purchased schedule land from his vendor under the registered
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NC: 2023:KHC:30380 RFA No. 937 of 2006 sale deed marked as per Ex.P1. Since then, he is in possession of the same and the defendants are interfering with the peaceful possession and enjoyment of the same. Subsequently, the plaint came to be amended seeking declaration of his title and for possession of the property. It is the specific contention of the plaintiff that even though he is the absolute owner in possession of the schedule property, the defendants forcibly taken the possession from him on 26.12.1997. Therefore, he is entitled for declaration and possession of the schedule property.
26. On the other hand, it is the specific contention taken by the defendants is that, the land in question was acquired by issuing preliminary and final notification as per Exs.D1 and D2 and the award was passed as per Ex.D3. Learned counsel for respondent No.1 drew the attention of this Court to Sl.Nos.136 and 137 in Ex.D4, according to which, N Varadaraju S/o Naik was one of the awardee of compensation under the notification which is as per Exs.D1 and 2. Ex.P1 is the sale deed in which the plaintiff is said to have purchased the schedule property from his vendor. As per the sale deed, name of the vendor is N Varadaraj S/o Nayar. Therefore,
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NC: 2023:KHC:30380 RFA No. 937 of 2006 prima facie, it is the contention taken by the defendants that the land in question was acquired from the vendor of the plaintiff and award was passed in his favour, is to be accepted.
27. Learned counsel for the appellant has no reasonable explanation to reject the claim of the defendants in that regard. It is to be noted that none of these documents were controverted by the plaintiff. Once the defendants are successful in proving their contention that the land in question was acquired, layout was formed and the property in question was allotted in favour of defendant No.2, the suit for declaration and possession filed by the plaintiff before the Trial court is not maintainable. Therefore, the plaintiff is not entitled for any reliefs.
28. I have gone through the impugned judgment and decree passed by the Trial Court. The Trial Court on proper appreciation of the materials on record arrived at a right conclusion and dismissed the suit. I do not find any reason to interfere with the same. Hence, I answer the above point in the Negative and proceed to pass the following:
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RFA No. 937 of 2006
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 17.12.2005 passed
in OS No.7589 of 1996 on the file of the learned XVI Additional City Civil and Sessions Judge at Bengaluru City, is hereby confirmed.
Registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE PN & *bgn/-