Bangalore District Court
Sri.B.Gopala Reddy vs Vyalikaval House Building Co on 24 April, 2018
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 24th day of April 2018.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.25184/2007
Plaintiff: Sri.B.Gopala Reddy,
S/o.Late.Chinnamma Reddy,
Major, Hindu by Religion, No.6,
3rd Cross, Nanjarasappa Layout,
Bengaluru-560072.
(By Sri.N.Jaiprakash Rao, Advocate)
V/S
Defendants: 1. Vyalikaval House Building Co-
operative Society Ltd., No.7, 16th
Cross, Malleswaram, Bengaluru-
560055.
Rep. by its Secretary.
2. The Commissioner, Bengaluru
Development Authority, K.P.
West Extension, Bengaluru-
560020.
(By Sri.M.R.Harish, Advocate for deft.No.1)
(By Sri.K.S.Naga Reddy, Advocate for deft.No.2)
2 O.S. No.25184/2007
Date of institution of the suit 19.01.2007
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
Date of commencement of recording 18.09.2008
of the evidence
Date on which the Judgment was 24.04.2018
pronounced
Total duration Year/s Month/s Day/s
11 03 05
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking a relief of permanent injunction to restrain the defendants from either interfering or dispossessing the plaintiff from the suit schedule property and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All that piece and parcel of the immovable property bearing Corporation No.6 (old site No.72, Khata No.2310, Khaneshumari No.2460, Assessment No.47, situated at Nagarabhavi, Yeshwanthpur Hobli, Bengaluru North Taluk), situated at 3rd Cross Road, Nanjarasappa Layout, Bengaluru, Ward No.35, together with the building thereon comprising of ground, first, second and a portion of third floor, together with water, light and sanitation and including all rights, privileges and appurtenances thereto and the 3 O.S. No.25184/2007 site measuring: East to West: 21 Feet, North to South: 60 Feet, and bounded on:
East by: Property of Hanumanthappa;
West by: Property of Lakshmamma;
North by: Property of Hanumanthappa; and on
South by: Road.
3. Case of the plaintiff, in brief, is as below: -
The plaintiff has purchased the suit schedule property under a registered sale deed dated 19.08.1999 for valuable consideration; thereafter he has constructed a building. Earlier the schedule property was situated in the revenue pocket of Nagarabhavi; subsequently came within the jurisdiction of BBMP. The plaintiff is in lawful possession and enjoyment of the schedule property as an owner and khatha stands in the name of plaintiff and also the plaintiff has paid the taxes to the concerned department regularly and neither the defendants nor any other persons have any manner of right, title or interest in the schedule property. 1st Defendant is a Housing Co-operative Society and claims to have obtained the layout sanctioned by the 2nd defendant, which is the planning authority in respect of the lands situated in Kempapura Agrahara, 4 O.S. No.25184/2007 Yeshwanthpur Hobli, Bengaluru North Taluk and whereas the schedule property is situated in Nagarabhavi Village, Yeshwanthpur Hobli, Bengaluru North Taluk. The schedule property is situated in highly developed built up area and even the 2nd defendant has recorded that the schedule property and other adjacent properties are situated in a developed built up area. The 1st defendant with the assistance and instigation of the officials of the 2nd defendant, who has no manner of right, title or interest over the schedule property and in spite of the same, has been intentionally intimidating and interfering in the peaceful possession and enjoyment of the schedule property and that the plaintiff has constructed the schedule property by investing huge amounts and that the plaintiff does not own any other house. The 2nd defendant, which is the planning authority has not sanctioned any layout of the 1st defendant in Nagarabavi Village and whereas the schedule property falls within the jurisdiction of Nagarabhavi Village and in spite of the same, 1st defendant has been instigating the 2nd defendant's official to interfere in the plaintiff's peaceful possession and enjoyment of the schedule property. The 1st 5 O.S. No.25184/2007 defendant society has been black listed on several occasions, since the provisions of the Co-operative Act was being misused by allotting the sites to non-regular members and had created a dubious list of members for allotment and that the 1st defendant society is not well received in the Co-operative department. The 1st defendant has encroached upon several CA sites, parks and roads, which are to be provided in a layout approved by the Planning authority and after obtaining the planning authorities sanction, the 1st defendant in connivance with other officials of the 2nd defendant have been attempting to encroach upon the schedule property. The schedule property has been serviced with electricity and the plaintiff has deposited the amount for obtaining the water connection. The 1st defendant with the connivance of the officials of the 2nd defendant have been threatening to dispossess the plaintiff from the schedule property without any recourse to the court of law. As such, on 10.01.2007 the plaintiff had approached the jurisdictional police to register a complaint against the defendants; but, the police have refused to record the complaint as it is a civil dispute. Hence, this suit arose.6 O.S. No.25184/2007
4. After issuance of the suit summons and duly served upon them, the defendants No.1 and 2 appeared through their respective advocates Sri.M.R.Harish & Sri.K.S.Naga Reddy; thereafter the defendants No.1 and 2 have filed their independent WS.
5. Case of the defendant No.1, in brief, is as below:-
Defendant No.1 contended in its WS that the suit is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that admittedly, this defendant is a Housing Co-operative Society registered under the provisions of the Karnataka Co-operative Societies Act. Apparently, this suit in the present form would not be maintainable, as no notice is issued under Section 125 of the Karnataka Co-operative Societies Act, as admittedly the business of the society is that of acquiring lands, forming layouts, allotting sites to its genuine members and this suit touches the business of the society. The question as to whether such a notice is required is no longer resintegra as there are umpteen number of judgments of the Hon'ble High Court following a Full Bench judgment, holding that a suit without notice as contemplated under Section 125 of the Act was not maintainable 7 O.S. No.25184/2007 against a Co-operative Society. Further it is contended that this suit is a mischievous endeavour on the part of the plaintiff to try to get into a portion of lands belonging to the 1st defendant at Kempapura Agrahara, which are lands allotted by the BDA in favour of the 1st defendant and of which the 1st defendant is in lawful possession and enjoyment of the same, where a full fledged layout has been formed; i.e., lands in Sy.Nos.377/2, 377/3, 377/4, 337/5, 377/6, 376/1, 376/2, 376/3, 375/1, 375/2, 374/1, 359/1, 359/2 totally measuring 20 guntas of Kempapura Agrahara, Yeshwanthpura Hobli, Bengaluru Taluk. The 1st defendant has also allotted sites in the layout so formed by the society in these lands to its members and many of the members have already constructed houses and are residing in the full fledged layout. The plaintiff mischievous endeavour appears to be trying to grab a portion of the said lands in the layout earmarked for CA sites and open space as per approved layout plan (as approved by the BDA/2nd defendant). Further it is contended that there arose no cause of action for the suit. The suit is not correctly valued, as the plaintiff has to seek appropriate relief of declaration of the very 8 O.S. No.25184/2007 existence of the schedule property and the right, title and interest of the plaintiff over the same by correctly valuing the subject matter of the suit; i.e., if the plaintiff claims that the schedule property is at Nagarbhavi, then by assessing the market value of the property of the same dimension at Nagarbhavi, Bengaluru. On the above said grounds the defendant No.1 prays to dismiss suit of the plaintiff with heavy costs.
6. Case of the defendant No.2, in brief, is as below:-
Defendant No.2 contended in its WS that the suit is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that at the outset the suit is not maintainable as against this defendant for want of issuance of requisite statutory notice under Section 64 of B.D.A. Act-1976. Sy.No.47 of Nagarabhavi Village, measuring 3 acres and 32 guntas of dry land (inclusive of 0-25 guntas of Kharab) including the schedule property have been legally acquired by this defendant authority for the formation of Nagarabhavi I Stage by publishing the preliminary notification vide No.A6/PR/SLAO/S/201/82-83 dated 19.08.1982 followed by Final Notification No.HUD 249 9 O.S. No.25184/2007 MNX 85 dated 07.11.1985 and the award of Rs.2,26,098.50 was passed and approved by the competent authority and the possession of the property was taken and handed over to engineering section on 08.04.1988. The compensation amount was also deposited to court on 14.05.1990. Therefore, the plaintiff have no manner of right, title and interest over the suit schedule property. Further it is contended that the sale transaction entered by the plaintiff is illegal and it is not binding on this defendant No.2. As per law this defendant have every right to pulled down the structures, which are put up illegally in the property belonging to defendant No.2. Mere payment of betterment charges and property charges does not confer any right over the schedule property; the alleged katha certificate, property taxes paid receipts, tax assessment orders are all fabricated and are not conclusive evidence of ownership. Further it is contended that the photographs which are produced by the plaintiff does not pertains to the schedule property. As admitted by the plaintiff the schedule property falls within the jurisdiction of Nagarabhavi limits curved out of Sy.No.47. There is cause of action for the suit and alleged one invented only for the 10 O.S. No.25184/2007 purpose of this case. The plaintiff by giving wrong property number with false boundaries filed a frivolous suit by creating concocted documents against this defendant only to knock off the valuable property of this defendant. On the above said grounds the defendant No.2 prays to dismiss suit of the plaintiff with heavy costs.
7. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff proves that they are in exclusive lawful possession of the suit schedule property as on the date of suit?
2. Whether the plaintiff proves the alleged interference?
3. What order?
8. On behalf of the plaintiff, affidavit evidence of plaintiff himself has been filed and he has been examined as P.W.1 and Exs.P.1 to P.11 documents have been got marked.
9. On the other hand, on behalf of the defendants also, affidavit evidence of the Secretary of the defendant No.1 Society by name Sri.H.Sreenivas has been filed and he has been examined as DW.1 and also affidavit evidence of the Sheristedar, SLAO 11 O.S. No.25184/2007 Section in BDA/2nd defendant by name Sri.H.L.Shivaramu has been filed and he has been examined as DW.2 and Ex.D.1 to D.10 documents have been got marked.
10. Heard, the learned advocates for the plaintiff and defendants and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered. Learned advocate for the defendant No.2 has submitted written arguments also and the same has been considered.
11. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Affirmative, Issue No.2: Affirmative, Issue No.3: As per final order, for the following:-
REASONS.
12. ISSUE Nos.1 & 2: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both 12 O.S. No.25184/2007 these issues for discussion at one stretch. In order to prove the case of plaintiff, the plaintiff by namely Sri.B.Gopal Reddy is got examined as a P.W.1 and submitted a sworn affidavit evidence, in which he has categorically reiterated the plaint averments. The plaintiff/P.W.1 has stated in his evidence that he has purchased the suit schedule property under a registered sale deed dated 19.08.1999 for valuable consideration; thereafter he has constructed a building. Earlier the schedule property was situated in the revenue pocket of Nagarabhavi; subsequently came within the jurisdiction of BBMP. The plaintiff is in lawful possession and enjoyment of the schedule property as an owner and khatha stands in the name of plaintiff and also the plaintiff has paid the taxes to the concerned department regularly and neither the defendants nor any other persons have any manner of right, title or interest in the schedule property. P.W.1 further stated in his chief-examination that 1st defendant is a Housing Co-operative Society and claims to have obtained the layout sanctioned by the 2nd defendant, which is the planning authority in respect of the lands situated in Kempapura Agrahara, Yeshwanthpur Hobli, Bengaluru North 13 O.S. No.25184/2007 Taluk and whereas the schedule property is situated in Nagarabhavi Village, Yeshwanthpur Hobli, Bengaluru North Taluk. The schedule property is situated in highly developed built up area and even the 2nd defendant has recorded that the schedule property and other adjacent properties are situated in a developed built up area.
P.W.1 further stated that the 1st defendant with the assistance and instigation of the officials of the 2nd defendant, who has no manner of right, title or interest over the schedule property and in spite of the same, has been intentionally intimidating and interfering in the peaceful possession and enjoyment of the schedule property and that the plaintiff has constructed a building of ground, first, second and a portion of third floor in the suit schedule property by investing huge amounts and except that the plaintiff does not own any other house. P.W.1 further stated in his chief-examination that the 2nd defendant, which is the planning authority has not sanctioned any layout of the 1st defendant in Nagarabavi Village and whereas the schedule property falls within the jurisdiction of Nagarabhavi Village and in spite of the same, 1st defendant has been instigating the 2nd defendant's official to interfere in the 14 O.S. No.25184/2007 plaintiff's peaceful possession and enjoyment of the schedule property. P.W.1 further stated that the 1st defendant society has been black listed on several occasions, since the provisions of the Co-operative Act was being misused by allotting the sites to non- regular members and had created a dubious list of members for allotment and that the 1st defendant society is not well received in the Co-operative department. The 1st defendant has encroached upon several CA sites, parks and roads, which are to be provided in a layout approved by the Planning authority and after obtaining the planning authorities sanction, the 1st defendant in connivance with other officials of the 2nd defendant have been attempting to encroach upon the schedule property. P.W.1 further stated that the schedule property has been serviced with electricity and the plaintiff has deposited the amount for obtaining the water connection. The 1st defendant with the connivance of the officials of the 2nd defendant have been threatening to dispossess the plaintiff from the schedule property without any recourse to the court of law. As such, on 10.01.2007 the plaintiff had approached the jurisdictional police to register a complaint against the 15 O.S. No.25184/2007 defendants; but, the police have refused to record the complaint as it is a civil dispute and prays to decree the suit.
13. On the other hand, the Secretary of the 1st defendant Society Sri.H.Sreenivas given his evidence as a D.W.1 by stating that as no notice is issued under Section 125 of the Karnataka Co- operative Societies Act, as admittedly the business of the society is that of acquiring lands, forming layouts, allotting sites to its genuine members and this suit touches the business of the society. The question as to whether such a notice is required as there are umpteen number of judgments of the Hon'ble High Court following a Full Bench judgment, holding that a suit without issuance of the notice as contemplated under Section 125 of the Act was not maintainable against a Co-operative Society. D.W.1 further stated in his chief-examination that this suit is a mischievous endeavour on the part of the plaintiff to try to get into a portion of lands belonging to the 1st defendant at Kempapura Agrahara, which are lands allotted by the BDA in favour of the 1st defendant and of which the 1st defendant is in lawful possession and enjoyment of the same, where a full fledged layout has been 16 O.S. No.25184/2007 formed; i.e., lands in Sy.Nos.377/2, 377/3, 377/4, 337/5, 377/6, 376/1, 376/2, 376/3, 375/1, 375/2, 374/1, 359/1, 359/2 totally measuring 20 guntas of Kempapura Agrahara, Yeshwanthpura Hobli, Bengaluru Taluk. The 1st defendant has also allotted sites in the layout so formed by the society in these lands to its members and many of the members have already constructed houses and are residing in the full fledged layout. The plaintiff mischievous endeavour appears to be trying to grab a portion of the said lands in the layout earmarked for CA sites and open space as per approved layout plan (as approved by the BDA/2nd defendant). D.W.1 further stated that there arose no cause of action for the suit. The suit is not correctly valued, as the plaintiff has to seek appropriate relief of declaration of the very existence of the schedule property and the right, title and interest of the plaintiff over the same by correctly valuing the subject matter of the suit; i.e., if the plaintiff claims that the schedule property is situated at Nagarbhavi, then by assessing the market value of the property of the same dimension at Nagarbhavi, Bengaluru. Therefore, the suit of the plaintiff is deserved to be dismissed and prays to dismiss the suit. 17 O.S. No.25184/2007
14. The Sheristedar, SLAO Section in BDA/2nd defendant Sri.H.L.Shivaramu given his evidence as a D.W.2 by stating that the suit is not maintainable either on law or on facts and it is fundamentally defective. D.W.1 further stated in his chief- examination that at the outset the suit is not maintainable as against this defendant for want of issuance of requisite statutory notice under Section 64 of B.D.A. Act-1976. Sy.No.47 of Nagarabhavi Village, measuring 3 acres and 32 guntas of dry land (inclusive of 0-25 guntas of Kharab) including the schedule property have been legally acquired by this defendant authority for the formation of Nagarabhavi I Stage by publishing the preliminary notification vide No.A6/PR/SLAO/S/201/82-83 dated 19.08.1982 followed by Final Notification No.HUD 249 MNX 85 dated 07.11.1985 and the award of Rs.2,26,098.50 was passed and approved by the competent authority and the possession of the property was taken and handed over to engineering section on 08.04.1988. The compensation amount was also deposited to court on 14.05.1990. Therefore, the plaintiff have no manner of right, title and interest over the suit schedule property. D.W.2 further stated that the sale 18 O.S. No.25184/2007 transaction entered by the plaintiff is illegal and it is not binding on this defendant No.2. As per law this defendant have every right to pulled down the structures, which are put up illegally in the property belonging to defendant No.2. Mere payment of betterment charges and property charges does not confer any right over the schedule property; the alleged katha certificate, property taxes paid receipts, tax assessment orders are all fabricated and are not conclusive evidence of ownership. D.W.2 further stated in his chief-examination that the photographs which are produced by the plaintiff does not pertains to the schedule property. As admitted by the plaintiff the schedule property falls within the jurisdiction of Nagarabhavi limits curved out of Sy.No.47. There is no cause of action for the suit and alleged one invented only for the purpose of this case. The plaintiff by giving wrong property number with false boundaries filed a frivolous suit by creating concocted documents against this defendant only to knock off the valuable property of this defendant and prays to dismiss the suit.
15. Advocate for both the defendants cross-examined to the P.W.1 in which, plaintiff stated in the cross-examination that prior 19 O.S. No.25184/2007 to purchasing of the suit schedule property from its original owner Hanumantharaya and he verified the title deeds, khatha, tax-paid receipts, betterment charges receipts, of his vendor standing in his name. It is further stated that except Ex.P.1 to P.11 in respect of the suit schedule property he is not having any other documents; the suit schedule property is situated in Sy.No.47 of the Nagarabhavi Village, in Yeshwanthpura Hobli. It is denied that there is no such Sy.No.47 is in Nagarabhavi Village and no any khatha was standing in the name of Hanumantharayappa. It is also stated that when he has seen the property for the first time during November 2001 it was a vacant site and it was a open site in the layout. It is also stated that the said layout was formed by the Hanumantharayappa; in turn he stated that he does not know who has formed the layout. It is admitted that layout has been formed by the Vyalikaval Housing Society; but, denied that he does not know the extent of land in which layout has been formed by the society. It is also admitted that a layout has been formed by the Vyalikaval House Building Society in 19 to 20 acres of land and allotted to its members. Further stated that he is not a income tax 20 O.S. No.25184/2007 assessee; he does not know in the month of November the suit schedule property was in whose possession when he visited to it. It is also stated that there is existed a sheet house, which has no floors in the suit schedule property. Further stated that he has obtained the plan to put up a sheet house in the suit schedule property; but, not produced the same in this court and Sy.No. is not mentioned in Ex.P.2 to P.4. It is denied that Ex.P.2 to P.11 are not pertaining to the suit schedule property and he is never in possession of the same. In total, he has stated that after the purchase immediately he was not residing in the suit schedule property; only he visited to said property. It is denied that the suit schedule property is not in existence as stated in the suit schedule and it is also denied that plaintiff is not having title, possession over the suit schedule property. In the cross-examination of the BDA advocate, he has stated that he does not know whether the suit schedule property has been acquired by the BDA by making a preliminary notification on 19.8.1982 and final notification on 7.11.1985 and further answered that he has purchased the suit schedule property from Hanumantharayappa and he does not know that from whom 21 O.S. No.25184/2007 Hanumantharayappa obtained a possession and who was in a possession earlier to his purchase, who handed over the document to him. It is also stated that he has not produced the such documents, which were given by his vendor. It is also stated that the land was not converted by Hanumantharayappa when it was sold to him; but, the khatha was in the name of Hanumantharayappa. It is further answered that he does not know if Vyalikaval House Building Society has formed layout and allotted sites to its members and the members have constructed a houses in their allotted sites. It is also stated that he does not know whether Sy.No.47 of Nagarabhavi Village is acquired by the BDA and it is in possession of the same; since the date of acquisition. It is also stated that he does not know whether the name of father of Hanumantharayappa is Nanja Arasappa or not and the said Nanja Arasappa had any brothers. It is also answered that he does not know whether in the preliminary notification dated 15.7.1982 at Sl.No.41 of the landlord Nanja Arasappa and Hanumantharaya has been mentioned and in final notification dated 16.8.1985 whether his vendor name is mentioned or not. It is denied that his vendor 22 O.S. No.25184/2007 received a compensation amount after passing the award by the BDA and BDA has been deposited in the court. It is also stated that he does not know anybody obstructed to his possession or not and it is further stated that he has not obtained any sanctioned plan from BDA to put up a construction in the suit schedule property and he did not verified and enquired to his vendor as the suit schedule property was converted or not. It is also stated that he does not know whether he had received any notice from Corporation demanding any betterment charges or tax. It is also stated that there is a condition in Ex.P.4 that khatha will be cancelled; if there is any counter claim by anybody. It is denied that he is not in possession of the suit schedule property and Ex.P.2 to P.6 are not belonging to the suit schedule property. It is also stated that his vendor had shown a layout plan to him; but, he does not know the said layout plan is handed over to him or not. It is also denied that his vendor had not formed any layout and he was not in possession of the suit schedule property at the time of his purchase. It is also denied by the P.W.1 that Ex.P.8 to P.10, which are KEB bills and water bill and Ex.P.11 a endorsement issued by 23 O.S. No.25184/2007 BDA are not relating to the suit schedule property and the said documents are concocted documents.
16. The advocate for counsel for the plaintiff drawn attention of this court towards the cross-examination of D.W.1 in page No.11 and last 7 lines, wherein stated that he has produced the layout plan of Kempapura Agrahara and it is denied that 1st defendant society has encroached the land in Kempapura Agrahara and formed a layout. In turn, he answered that it may be true that the suit schedule property is situated in Sy.No.47 of Nagarabhavi and 1st defendant society has no right in the land situated in Nagarabhavi Village to which he visited one year back; then it is found that 200 houses have been constructed in a Nagarabhavi Village, which is opposite to Kempapura Agrahara Layout. It is denied that 1st defendant society tried to dispossess the plaintiff from the suit schedule property claiming it is a CA site. Though he has denied that suit schedule property as a part of Kempapura Agrahara Layout; but, it is stated that there is provided all basic amenities like water, electricity, road, street lights, to the suit schedule property. Ex.D.3 is pertaining to Kempapura Agrahara 24 O.S. No.25184/2007 Layout. Remaining a cross-examination of para No.2 of the page No.12 and page No.13 of his cross-examination are taken into consideration he has denied the entire case of plaintiff.
17. The counsel for the plaintiff has drawn the attention of this court towards the cross-examination of D.W.2, who is authorized person by designation Sheristedar of the SLAO Section Office, Bengaluru, in which page No.6 after four lines he stated that he has not seen Sy.No.47 being situated in Nagarabhavi Village and layout formed by the 1st defendant in Kempapura Agrahara. He has stated that he does not know whether the layout formed by the 1st defendant has been approved by the BDA or not and also he does not know the boundaries of the layout formed by the 1st defendant including the extent of land in which the layout has been formed by the 1st defendant. In page No.7 after 9 lines he stated that he does not know whether town planning authority has not formed any layout in Sy.No.47 of the Nagarabhavi Village and sites have not been allotted to any person in Sy.No.47 of Nagarabhavi Village. It is further stated that he does not know whether Engineering Section has prepared any report in respect of 25 O.S. No.25184/2007 Sy.No.47 and whether 350 buildings have been constructed in the said Sy. No. or not. Further the counsel for the plaintiff drawn attention towards the another portion of the cross-examination of the D.W.2, which is in page No.8 wherein answered that he does not know whether basic facilities like water and electricity connection has been provided for Sy. No.47 of Nagarabhavi Village by the BBMP and 1,500 people are residing in the said Sy.No. In the same page at the last portion stated that he does not know whether a bank colony is existing in the said Sy. No. and Nagarabhavi Layout; possession certificate is available for having handed over possession of Sy. No.47 of Nagarabhavi Village to the Engineering Section. It is also stated that he does not know whether buildings were already existing in Sy.No.47 of the Nagarabhavi Village for more than 20 years and also does not know whether BDA was aware of existing a buildings in Sy.No.47 of Nagarabhavi Village for more than 20 years. It is also stated that no letter from SLAO of BDA has been written to BBMP as not to provide basic amenities to the building situated in Sy. No.47 of Nagarabhavi Village and he does not know that whether BBMP 26 O.S. No.25184/2007 has taken any action against the plaintiff or not and he does not know whether plaintiff is paying a property tax in respect of the suit schedule property and whether the buildings existing in the said layout were demolished by the officials of the BDA. Further he stated that he does not know whether the officials of the BDA threatened to the plaintiff on the influence of 1st defendant to demolish the building situated in the suit schedule property. Further he does not know whether the officials of the BDA told to the plaintiff that the suit schedule property is in Kempapura Agrahara and they would demolish the building existing in the suit schedule property. It is denied that BDA has not proceeded with the acquisition proceedings through the final notification issued in the year 1985 and Sy. No.47 of Nagarabhavi Village is not included in the master plan of the Nagarabhavi Layout. Lastly he answered that he does not know whether the 2nd defendant officials had threatened to the plaintiff even after filing the suit and plaintiff is residing in the suit schedule property. Over all upon perusal of the entire cross-examination of the D.W.2 to each and everything being in dispute in between plaintiff and defendants simply he tried 27 O.S. No.25184/2007 to say that he does not know about the above discussed matters and a very technically stated that he does not know whether the plaintiff is in possession of the suit schedule property or not. Even for this also not clarified simply stated that he has not personally visited to the suit schedule property and seen the existence of the building etc.
18. The counsel for the plaintiff supporting to the case of the plaintiff by taking the help of the above discussed cross- examination of D.W.1 and D.W.2 submitted in his argument that the suit of the plaintiff is only for permanent injunction based on possessory title and who is in settled possession, which can be seen in the cross-examination answers of the D.W.1 and D.W.2, who have simply denied the possession of the plaintiff being in suit schedule property and both the witnesses have stated that they have not seen personally the suit schedule property and if any buildings are situated in it. Therefore, even for the sake of defence, if it is a property of the defendants when the plaintiff is in possession of the suit schedule property on the basis of the possessory title, then the defendant has to dispossess the plaintiff in accordance with law not 28 O.S. No.25184/2007 by using the force against them. Supporting to this contention he relied on following citations; 1) AIR 1972 Supreme Court 2299 in Civil Appeal No.713/1967, decided on 1.5.1972 in the case of M.Kallappa Setty -Appellant v/s M.V.Lakshminarayana Rao - Respondent, 2) AIR 1980 KERALA 224 in Second Appeal No.801/1979-C, decided on 6.2.1980 in the case of Karthiyayani Amma -Appellant v/s Govindan -Respondent, 3) AIR 2004 ANDRAPRADESH 315 in S.A. No.1125/2003, decided on 5.3.2004 in the case of Ganapuram Bramaramba and others - Appellants v/s Anneparthy Anantharamaiah and others - Respondents, 4) AIR 2004 SUPREME COURT 4609 in Civil Appeal No.7662/1997, decided on 15.12.2003 in the case of Rame Gowda (D) by L.Rs., -Appellant v/s M.Varadappa Naidu (D) by L.Rs. and another - Respondents, 5) AIR 2015 MADHYA PRADESH 8 in S.A. No.79/2014, decided on 2.9.2014 in the case of Gulab Singh & another v/s Brijbhan Singh & others, 6) 2014 ALLSCR (O.C.C) 230 decided on 15.12.2003 in the case of Rame Gowda (D) by LRs v/s M.Varadappa Naidu (D) by LRs and another, 7) ILR 2005 KAR 295 in the case of D.Narayanappa v/s 29 O.S. No.25184/2007 The State of Karnataka, by its Secretary, Housing and Urban Development Department, Bengaluru and others, 8) 1968 AIR (SC) 702 & 9) 1975 CrLJ 1479. Among the above stated citations, the counsel for the plaintiff given a more importance in support of case of the plaintiff for the citation AIR 2004 Supreme Court 4609 in the case of Civil Appeal No.7662/1997 dated 15.12.2003 Ramegowda (D) by LRs-Appellant v/s Varadappa Naidu (D) by LRs and another -Respondent, based upon the Section 38 of the Specific Relief Act - Injunction - Restraining defendant from interfering with the peaceful possession of the plaintiff - Failure by either party to prove title - Plaintiff in a 'settled possession' - It entitles him to protect his possession - Grant of injunction is proper.
The counsel for the plaintiff by relying upon the above said judgment of AIR 2004 Supreme Court 4609, he tried to convince to this court that ................. law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having a recourse to court.
30 O.S. No.25184/2007
In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title.
It is a settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner.
A stray of trespass or a possession which has not matured in settled possession, can be obstructed or removed by the true owner even using necessary force. The Hon'ble Supreme Court clarified that it is a difficult to lay down any hard or fast food as to when the possession of the trespasser can mature into settled possession, which is required to be effective, undisturbed, to the knowledge of the owner. With the help of the gist of the above said citation the plaintiff counsel compared the above said judgment with the judgment of Bettaswamy Case v/s Commissioner of BDA reported in 2008 (1) KCCR 178 by submitting that it is clear that no law has been lay down in the case of M.B.Bettaswamy and settle possession has not been discussed in the plethora of cases referred on the question of settled possession, which is applicable not only to the individual; but also to the State. 31 O.S. No.25184/2007
19. Further the counsel for the plaintiff tried to reply to the judgment of our own Hon'ble High Court of Karnataka reported in ILR 2017 KAR Page No.1319 in the case of BDA v/s Sri.Bhagavandas Patel. It is a submission of the plaintiff counsel that in the Bhagavandas case there was a relief prayed by the plaintiff to declare him as a absolute owner; i.e., a title against the BDA, which is admittedly not maintainable in the above cases, the plaintiff of this suit in hand have not sought any relief of declaration of title, only sought for relief of permanent injunction against the BDA on the ground of settled possession and the law lay down in the above stated judgment of the Hon'ble Supreme Court and the same is referred in the judgment reported in ILR 2005 KAR 295 in the case of D.Narayanappa v/s The State of Karnataka by its Secretary, Housing and Urban Development, Bengaluru and others, a judgment rendered by the Hon'ble Justice Gopala Gowda, wherein defined the law on the point of settled possession and the limitation of even for the State, which has to follow the rule of not to seek the possession from the unauthorized occupants, or from trespasser who is in a settled 32 O.S. No.25184/2007 possession over the considerable length of time. The counsel for the plaintiff replying to the judgment ILR 2017 KAR 1319, he tried to canvas and convince in his argument to this court relating to the present case in hand by relying upon the point of the settled possession, which is following the gist of reported judgment of AIR 2004 Supreme Court Page No.4609 and another reported judgment of our own Hon'ble High Court of Karnataka reported in ILR 2005 KAR Page No.295 of the D.Narayanappa case. It is total submission of the advocate for plaintiff that the plaintiff of this case has not sought any declaratory relief against the BDA, only seeking a permanent injunction to get protect the possession of the plaintiff as provided and defined in the above said judgments of the Hon'ble Supreme Courts and Hon'ble High Court of Karnataka. Further it is his submission that if the BDA is intended to evict the plaintiff from the suit schedule property, in which property acquired by the BDA under the preliminary and final notification, the plaintiff is in possession of the suit schedule property. When the BDA though acquired the suit schedule property; but not formed layout for a longer period more than 5 years, which goes to 33 O.S. No.25184/2007 in operate the acquisition proceedings as per Section 27 of the BDA Act, which speaks like that authority to execute the scheme within 5 years .............. fails to execute the scheme substantially, the scheme shall lapse and provision of Section 36 shall become inoperative. Section 36 of the BDA Act which speaks that; provisions applicable to the acquisition of land otherwise than by agreement: 1) The acquisition of land under the Act otherwise than by agreement within or without Bengaluru Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894. 2) For the purpose of sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the Local Authority concerned. 3) After the land vests in the Govt. under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer of land to the Authority, and the land shall there upon vests in the authority. Thus it is a argument of the plaintiff advocate that 34 O.S. No.25184/2007 once the BDA within the period of 5 years from the date of acquisition of the land, if layout is not formed the above said Section 36 provisions provided for the BDA become inoperative. Even in the present case in hand also the same is happened; i.e., after the acquisition under final notification the BDA authority has not formed the layout in a suit Sy. No. wherein the plaintiff is in possession of the suit schedule property; therefore, this court may be looked into the said points of law and a dictum of Hon'ble Supreme Court and Hon'ble High Court of Karnataka to decide the matter on merit. The suit of the plaintiff, which is filed for permanent injunction against the defendant BDA authority may be decreed on condition that the BDA shall not be dispossessed the plaintiff from the settled possession of the suit schedule property without due process of law.
20. The counsel for the defendant No.2 in his written argument stated that admittedly as per the plaintiff, the plaintiff purchased the suit schedule property on 19.08.1999 after issuance of the notification for the land in Sy.No.47 of Nagarabhavi Village by the BDA. Therefore, the documents produced by the plaintiff 35 O.S. No.25184/2007 cannot be looked into for any purposes, much less for the legal purposes to pass any order by this court; much less permanent injunction against the defendant authority. It is also submitted that the plaintiff shall claim her remedy elsewhere not before this court as reported in several cases decided by the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India on the basis of Section 9 of CPC. In the verdict of reported decision in ILR 2017 KAR page No.1319 discloses that civil suit is not maintainable. Any evidence adduced by the plaintiff and documents produced by them cannot be looked into and cannot be considered. Admittedly defendants are statutory authority formed and developed a layout in Bengaluru City provided basic infrastructure as plaintiff admitted the suit schedule property is coming in part and parcel of land Sy.No.47 of Nagarabhavi Village, which comes in I Stage Layout measuring 3 acres 32 guntas land, which will comes in the preliminary notification. It is also submitted in the written argument that the above said matter is disclosed in the evidence of both side, upon perusal of the oral and documentary evidence, defendant BDA authority proved that it had taken the possession of 36 O.S. No.25184/2007 the suit schedule property as per the plaintiff's documents, which are disclosing that prior to filing of the suit, the suit schedule property was a vacant site and this defendant has proved its possession over the same. The 2nd defendant authority examined to its officer and he has specifically stated about the possession and provisions of law attracting to the property in dispute. Accordingly, defendant authority are having a right, interest, and title over the suit schedule property, which are meant for protecting interest of general public/allottees of the authorities. On the basis of the said argument submits that, the suit of the plaintiff is not maintainable. Supporting to the argument of the defendants, 2nd defendant advocate relied on the following citations; 1) AIR 1995 SC 1955 in the case of State of Bihar v/s Dhirendra Kumar and others, 2) 2013 AIR SCW 2378 in the case of Commissioner, B.D.A. and another v/s Brijesh Reddy, 3) 2008 (1) KCCR 178, & ILR 2007 KAR 5121 in the case of M.B.Bettasway v/s The Commissioner, Bengaluru Development Authority and another, 4) AIR 2010 SC 1143 in the case of Sita Ram Bhandar Society, New Delhi v/s Lt. Governor, Government of N.C.T. Delhi and others, 5) 37 O.S. No.25184/2007 AIR 1996 SC 540 in the case of Sneh Prabhu v/s State of U.P., 6) AIR 196 SC 1170 in the case of U.P.Jal Nigam Lucknow v/s M/s.Kalra Properties (P) Ltd., and 7) ILR 2017 KAR 1319 in the case of Bengaluru Development Authority v/s Sri.Bhagavandas Patel. Among them a citation 2008 (1) KCCR 178 & ILR 2007 KAR 5121 in the case of M.B.Bettasway v/s The Commissioner, Bengaluru Development Authority and another, held; "When the land is acquired and the possession is taken, the land vests in the State. Even if the Plaintiff puts up un-authorised construction, he does not have any legal right to remain in possession based on the illegal structure and it cannot be termed as a Settled Possession- A person who un-authorized squatting on the public property, has no right to remain in possession. However, the Trial court extending the Sympathy, directed the BDA to issue notice and evict the plaintiff in accordance with law. Such Sympathy will harm the public interest, as there are several persons legally waiting for lawful allotment". Another citation AIR 2010 SC 1143 in the case of Sita Ram Bhandar Society, New Delhi v/s Lt. Governor, 38 O.S. No.25184/2007 Government of N.C.T. Delhi and others, held; "Even if the earlier owner of the property (under the provisions of BDA Act and Land Acquisition Act) re-entered or continued in possession of the property, it is purely an act of trespass and not legal possession. Hence, such person is not entitled for order of injunction against the person in whom title vests under the provisions of Land Acquisition Act, 1894".
21. Supporting to the case of plaintiff he has produced the Ex.P.1 a original registered absolute sale deed executed by one Sri.Nanja Arasappa, S/o.Late.Muniyappa, 90 years, No.29, situated in Sy.No.47, behind the Canara Bank Colony, Nagarabhavi Village, Yeshwanthapura Hobli, in favour of plaintiff B.Gopala Reddy in respect of site No.72, Khata No.2310, Khaneshumari No.2460, coming in Sy.No.47 of Nagarabhavi Village, Yeshwanthapura Hobli, Bengaluru North Taluk, which is measuring East to West: 21 Feet, North to South: 60 Feet, for sale consideration of Rs.1,72,000/- and the said property bearing No.72, was came to Nanja Arasappa under the sale deed dated 27.02.1960 executed by Sri.B.V.Srinivasa Shetty, which is bounded by East: 39 O.S. No.25184/2007
Property of Hanumanthappa; West by: Property of Lakshmamma; North by: Property of Hanumanthappa; South by: Road and also produced the KEB bills and water bill Ex.P.8 to P.10 relating to the suit schedule property, which is paid by the plaintiff B.Gopala Reddy to the BESCOM & BWSSB. Plaintiff has produced the Exs.P.2, 3 & 6, which are the tax-paid receipts relating to property of B.Gopala Reddy from the year 2000-01 to 2006-07 in which it is mentioned that he has paid a tax for the property measuring East to West: 21 feet, North to South: 60 feet; in total Rs.12,548/-. Ex.P.5 is a khatha certificate issued by the BBMP, Revenue Officer, Govindarajanagara Circle, to the plaintiff B.Gopala Reddy for property khatha No.6 situated in Ward No.35, 3rd Cross, Nanja Arasappa Layout, coming in Govindarajanagara, Bengaluru. Ex.P.7 is disclosing that the plaintiff is stood in front of his house. Ex.P.11 is produced by the plaintiff, which is issued by the Asst. Executive Engineer, Western Sub Division-II, BDA, to the original owner of the plaintiff by name Hanumantharayappa, which the document is also marked as Ex.P.9 in another suit O.S. No.25296/2007, in which it is written that a property coming in 40 O.S. No.25184/2007 Sy.No.47, I Phase of the Nagarabhavi Village, which is acquired by the BDA therein not formed any layout issued on 2.3.2010. Through the above said documents Ex.P.1 to P.11 plaintiff is claiming that he is in possession of the suit schedule property and obstruction of the both defendants causing to his peaceful possession and interference may be prevented by granting a permanent injunction against the defendants. On the other hand, the defendants produced Ex.D.2 the certified copy of Official Memorandum of 1st defendant society dated 4.12.1992 in which Sy.No.47 of Nagarabhavi Village is not mentioned as the same is acquired by the 2nd defendant and handed over to the 1st defendant society. Ex.D.3 is a certified copy of the work order dated 18.6.2001 discloses a approval of layout plan and permission by the BDA to carry out layout works in the lands handed over to the defendant society and also produced the work order dated 21.4.1997 approved by Under Secretary to Govt., Housing and Urban Development Department, Karnataka, wherein ordered that the rates on the land acquired by the BDA the same have to be suitably charged by the BDA after taking into consideration of the 41 O.S. No.25184/2007 cost of acquisition. In the said document a Sy.No.47 of the Nagarabhavi Village is not appearing. Only the said work order is passed relating to Sy.No.359/1, 2, 374/1 to 376/1, 2, 3 and Sy.No.377/2 to 377/6 measuring 20 acres land which was approved and handed over to the society by receiving a Rs.31,86,586/-.
Ex.D.4 is a preliminary notification of the Govt., which is of the year 1984 for showing that the BDA has acquired the land of Nagarabhavi, Malagala Village of Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru Urban, wherein appears Sl. No.41 in Sy.No.47 belonging to Nanja Arasappa bin Muniyappa, D.Hanumanthappa bin Doddahanumanthappa, Nagahanumantha bin Doddahanumanthappa, a dry land measuring 3 acre 32 guntas. Ex.D.5 is also a final notification of the BDA, which is of the year 1984 in Sl. No.10 a Sy.No.47 belonging to D.Hanumanthappa Bin Doddaiah, Nanja Arasappa Bin Muniyappa of the above said villages. Ex.D.6 is a copy of the BDA disclosing about the land acquisition case No.10/85-86 with mentioning of Nagarabhavi I Stage, is published for acquisition on 16.8.2005 at page No.467 to 474 Part-III of the Karnataka Gazette dated 7.11.1985 in which Sy. 42 O.S. No.25184/2007 No.47 of the Nagarabhavi measuring 3 acre 32 guntas standing in the name of above said persons is produced wherein mentioned that above said 3 acre 32 gunta is acquired by the BDA and wherein a award is also passed for the said lands as appearing in page No.5, 6 of the said judgment passed by the Special Deputy Commissioner, BDA. Ex.D.7 is a mahazar and Ex.D.8 is a particulars of Sy. No.47 of Nagarabhavi Village, wherein appears that a 3 acres 32 guntas of the Sy.No.47 of the Nagarabhavi Village, Yeshwanthapura Hobli, was acquired as per the above said notifications belonging to D.Hanumanthappa and others by making a payment of award Rs.2,26,098.50 paise. Ex.D.9 a letters of Land Acquisition Officer, written to Principal City Civil Judge, Bengaluru City, in respect of above said land is acquired by the BDA. Ex.D.10 is a true copy of the notification dated 6th July 1991 wherein also appears in Sl. No.3 Sy.No.47 measuring 3 acre 32 guntas is acquired as per the proceedings; i.e., Land Acquisition Case No.10/85-86.
22. The very claim of the defendants is against the plaintiff by stating that the suit schedule property Sy.No.47 of the 43 O.S. No.25184/2007 Nagarabhavi Village, Yeshwanthapura Hobli, Bengaluru North Taluk, is acquired by the BDA and the BDA has handed over the same to the 1st defendant society wherein formed the layout and allotted to its members. But, the defendants only produced the documents a order of bulk of allotment made by the BDA in favour of the 1st defendant society as mentioned in Sl. No.1 to 13 total for 20 acres land, wherein suit Sy. No.359/2 is measuring 36 gunta and other lands handed over by the BDA to the Vyalikaval House Building Society Ltd., Bengaluru and in the said document there is no any reference of above said Sy.No.47 of the Nagarabhavi Vilage, I Stage, is handed over to the 1st defendant by the 2nd defendant. But, it is very important to note that according to the case of defendant it is taken a stand that the suit schedule property is allotted to its members; but, in the cross-examination evidence of D.W.1 and D.W.2 very peculiarly stated that they had not personally seen the suit schedule property and they cannot tell the boundaries of the suit schedule property and also they cannot say how many layouts has been formed in Sy.No.47 of Nagarabhavi Village without looking the records. Though the 44 O.S. No.25184/2007 D.W.1 and D.W.2 stated that the plaintiff is not in possession of the suit schedule property and its beneficiary a member of the society is in possession of the suit schedule property; but, not produced the list to whom the said property is allotted by the society and also not produced any evidence to show that whether the beneficiary to whom allotted the suit schedule property is got constructed a building and he is in possession of the same or not. If, really to anybody either BDA or society allotted the site to their beneficiaries, the present suit is before this court from the year 2007 till today near about more than 10 years, the defendants have not produced the list of members to show that the suit schedule property is allotted to its beneficiaries and somebody are in possession of the same. Even it is also before the court that no any order or a judgment copy of the any court of law obtained by the beneficiary of the society relating to the suit schedule property also produced to show that there was a litigation with the beneficiary and some others; i.e., like plaintiff and such persons and ultimately no any court of law held that the suit schedule property is belonging to such beneficiaries of the defendants. Suppose the suit 45 O.S. No.25184/2007 schedule property was allotted to beneficiaries of the defendants definitely they were going to produce the list of beneficiaries allotted a sites by the society to its members including the suit schedule property to whom it was allotted as they contended. Non- production of the document by the 1st defendant society it will give a scope for drawing adverse inference against the defendants as the suit schedule property is not allotted to anybody as contended in their WS and stated in evidence. Even a judgment and decree of the O.S. No.490/1997 filed by the K.M.Eshwaraiah against this defendant dismissed by the City Civil Court on 19.2.2008 is also not produced for referring the findings of the said court by this court to dispose the present case in hand to collect the information that the said suit is a declaratory suit for title or a only permanent injunction suit like the present case in hand. It is also necessary to discuss in this case that, all the documents of the defendants Ex.D.1 to D.10 are disclosing as a 3 acres 32 guntas of Sy.No.47 of Nagarabhavi Village is acquired by the BDA and necessary award also paid to the owners by name D.Doddahanumanthappa and others; but, in Ex.P.11 the concerned authority stated that no layout 46 O.S. No.25184/2007 is formed by the BDA in the said Sy.No. of Nagarabhavi Village. It appears that though the said land is acquired by the BDA there is not formed the layout; because of that a list of allottees not produced; with regard to the said fact a adverse inference can be drawn against the defendant under the provision of Section 27 of the BDA Act, which in operate the provisions of Section 36 of the same Act, since the same suit schedule property is not allotted to beneficiaries within 5 years from the date of final notification and award passed by the BDA and the defendant has not succeeded to prove that a suit schedule property, which is claiming by the plaintiff is allotted to one of the beneficiaries. Therefore, the above said citations cited by the counsel for the defendant will not applicable to the present case in hand for proving the case of the defendants, the very defence taken in the said citations are different with the present case in hand. It can be said that though the above said Sy.No.47 of Nagarabhavi Village is acquired by the BDA wherein not formed the layout and when the plaintiff and others, who have illegally entered in the said Sy. No. and got constructed a buildings by taking the civic amenities like water connection, 47 O.S. No.25184/2007 electricity connection, and other benefits, neither the defendant No.1 nor defendant No.2 tried to prevent it by submitting a objection to the BBMP and even not tried to dispossess them immediately after when they trespassed in the suit schedule property, and even the khatha changed in the name of plaintiff also not got cancelled by submitting a complaint to the BBMP by stating that the plaintiff entered into suit schedule property illegally. It appears in this case that, the defendants being a silent against the plaintiff in respect of suit schedule property without taking any course of law to dispossess the plaintiff and others claiming as they are residing in the suit schedule Sy.No.47 of Nagarabhavi Village by got constructing building. It appears that the defendants have not taken a legal steps to dispossess them. On the other hand, upon perusal of the plaintiff documents a sale deed executed by Nanja Arasappa in favour of B.Gopala Reddy and a khatha certificate also issued in favour of the B.Gopala Reddy relating to the suit schedule property, which is issued on 24.11.2006; for which B.Gopala Reddy had submitted the application and also produced the electricity bill and water bill paid 48 O.S. No.25184/2007 receipts. These documents are disclosing apparently that the plaintiff is in possession of the suit schedule property and even though BDA acquired the same and handed over to the 1st defendant society. Thus being the fact, through the oral evidence and documentary evidence of the plaintiff, it is appearing that the plaintiff is being in possession and enjoyment of suit schedule property by got transferring the same in his name on the strength of the sale deed executed by Nanja Arasappa in favour of him and also got changed the khatha in his name by the BBMP and taken a necessary electricity connections, water connection to the suit schedule property. However, on careful consideration of the citations relied by the plaintiff advocate; i.e., AIR 2004 Supreme Court Page No.4609 and another reported judgment of our own Hon'ble High Court of Karnataka reported in ILR 2005 KAR Page No.295 of the D.Narayanappa case, wherein given a verdict that a possession of a person; i.e., a settled possession cannot be dispossessed by individual or any statutory authority without following the due course of law. Even in the present case in hand also through the above discussed oral and documentary evidence of 49 O.S. No.25184/2007 the plaintiff it is proved that he is in possession of suit schedule property from the date of purchase from got changing the khatha of the suit schedule property from the BBMP and taken the electricity, telephone and other civic amenities facility to the suit schedule property, which are not disproved by the defendant No.2. In the result, it appears that the plaintiff is being in possession and enjoyment of the suit schedule property from the year of purchase from its owner till today. It is further I would like to say that if the defendants wants to evict/dispossess the plaintiff from the suit schedule property as defined in the Hon'ble Supreme Court and a judgment of the Hon'ble High Court of Karnataka, which relied by the plaintiff by the process of due course of law, cannot be forcibly dispossessed the plaintiff from the suit schedule property. Thus, I came to conclusion that the plaintiff has succeeded to prove the issue No.1 & 2. Accordingly, I would like to answer issue No.1 & 2 in favour of the plaintiff as a Affirmative.
23. ISSUE No.3: For the reasons discussed in Issue No.1 & 2, I proceed to pass the following:-
50 O.S. No.25184/2007
ORDER.
Suit of the plaintiff is decreed with costs.
The defendants and their agents or henchmen or any persons claiming the suit schedule property in any manner are hereby permanently restrained from unlawfully interfering in peaceful possession and enjoyment of plaintiff's suit schedule property or dispossessing the plaintiff from the suit schedule property without following the due course of law by the defendants.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictation computerized by Stenographer, corrected and then pronounced by me in the open court on this, the 24th day of April, 2018).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.B.Gopal Reddy
51 O.S. No.25184/2007
List of documents exhibited for the plaintiff:
Ex.P.1 - Original registered sale deed dated
19.08.1999
Ex.P.2 & 3 - Tax receipts
Ex.P.4 & 5 - Khata certificates
Ex.P.6 - Tax-receipt
Ex.P.7 - Photograph
Ex.P.8 & 9 - Electricity Bills
Ex.P.10 - Water bill
Ex.P.11 - C/C of endorsement issued by BDA
List of witnesses examined for the defendants:
D.W.1 - Sri.H.Sreenivas
D.W.2 - Sri.H.L.Shivaramu
List of documents exhibited for the defendants:
Ex.D.1 - Authorisation Letter
Ex.D.2 - Official Memorandum
Ex.D.3 - Work Order
Ex.D.4 & 5 - Preliminary Notification & Final
Notification respectively
Ex.D.6 - C/C of the award
Ex.D.7 - Copy of the mahazar for having taken
possession
Ex.D.8 - Statement of particulars
Ex.D.9 - Letter of LAO for having deposited
the award amount
Ex.D.10 - True copy of the notification issued
under Section 16 (2) of BDA Act
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
52 O.S. No.25184/2007