Karnataka High Court
Sri Rangappa vs Special Land Acquisition Officer on 25 November, 2021
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.F.A No.611/2012
BETWEEN:
SRI. RANGAPPA
S/O. SAKRAPPA BEERANNAVAR
AGED ABOUT 62 YEARS
R/AT. KASTURI NIVAS
1ST CROSS, 1ST MAIN,
K U D CIRCLE, SRINAGAR
DHARWAD-580 008.
REP. BY HIS G.P.A. HOLDER
SRI. ANAND BEERANNAVAR
R/AT. No.21, ANANYA, 2ND FLOOR,
YAMUNABAI ROAD,
MADHAVANAGAR,
BENGALURU-560 001. ...APPELLANT
(BY SRI D R RAVISHANKAR, ADVOCATE-THROUGH V.C)
AND:
1. SPECIAL LAND ACQUISITION OFFICER
K I A D B, B M I C P
No.3/2, KENY BUILDING,
1ST CROSS, GANDHINAGAR
2
BANGALORE-560 009.
BANGALORE CITY.
2. NANDHI INFRASTRUCTURE CORIDOR
ENTERPRISES LTD,
No.1, MIDFORD HOUSE,
MIDFORD GARDEN, OFF M.G. ROAD,
BANGALORE-560 001.
R/BY ITS DULLY CONSTITUTED ATTORNEY
SRI. D. RAVISHANKAR.
3. NANDI ECONOMIC CORRIDOR ENTERPRISE LTD
No.1, MIDFORD HUSE, MIDFORD
GARDEN, OFF M.G. ROAD
BANGALORE - 560 001.
R/ BY ITS DULY CONSTITUTED ATTORNEY
SRI D. RAVISHANKAR
(DEFENDANT No.2 HAS BEEN DELETED AS PER THE
ORDER DATED 04.04.2011 IN THE TRIAL COURT.
HENCE NOT MADE PARTY TO RFA)
...RESPONDENTS
(BY SRI D L JAGADEESH, SENIOR COUNSEL
A/W SRI D BOREGOUDA, ADVOCATE FOR R-1
SRI R V S NAIK, SENIOR COUNSEL A/W
SRI NITIN PRASAD AND
SRI VIDUR NAIR, ADVOCATE FOR R-2.
SRI GURURAJ DESHPANDE MATHAPATI, C/R-3)
THIS R.F.A IS FILED U/S 96 R/W ORDER 41 RULE 1
OF C.P.C. AGAINST THE JUDGMENT AND DECREE DATED
30.03.2012 PASSED IN O.S.No.4273/2009 ON THE FILE
OF THE XXVII ADDITIONAL CITY CIVIL JUDGE,
BANGLAORE, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
THIS R.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the appellant/plaintiff under Section 96 R/w Section 41 Rule 1 of C.P.C., is directed against the judgment and decree dated 30.03.2012 passed in O.S.No.4273/2009 by the learned XXVII Additional City Civil Judge at Bangalore City, wherein the suit of the plaintiff came to be dismissed and liberty was given to the plaintiff to get the survey of the land in Sy No.154/10 of Kengari Village to locate his property with the help of competent surveyor.
2. In order to avoid confusion and over-lapping, parties are addressed in accordance with their rankings and status as stood by them before the Trial Court.
3. Plaintiff -Rangappa has filed original suit seeking the relief of permanent injunction against the defendants.
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4. The substance of the claim of the plaintiff is that, he is claimed to be owner of the suit schedule property measuring East to West 28 feet and North to South 86 feet totally measuring to an extent of 2408 square feet bearing House List Nos.77 and 92, Khatha No.731/B situate at Kengeri Village, Kengeri Hobli, Bangalore South Taluk coming within the limits of Kengeri Municipality. The body of plaint suggests that the schedule property exists in a layout formed in Sy.No.154/10 of Kengeri Village having been purchased by the plaintiff under registered sale deed dated 24-2-1996 from its owner S.N.Puttegowda who has purchased the said Sy.No.154/10 under registered sale deed dated 28-12-1995 and after purchase he formed a layout.
5. It is further pleaded by plaintiff that, for the purpose of formation of loop road, portion of landed 5 property bearing Sy No.154/10 of Kengeri village was proposed to be acquired by the defendant No.1 for defendant No.2. The extent of the land proposed to be acquired was 2 acres 33 guntas bounded on East by: land in Sy. No.153, West by: Part of Sy. No.154, North by: Sy. No.147 and South by: road.
6. It is further claim of the plaintiff that he purchased the suit schedule property much earlier to the proposed acquisition of the land measuring to an extent of 2 acres 33 guntas and secured all the relevant records such as Katha and other records in his name in respect of the suit schedule property and now it is within the jurisdiction of BBMP and he is paying tax to the same. It is also claimed that notification was issued by the defendant first time published on 08.05.2003 showing the area which was acquired as portion of land to the extent of 2 acres 33 guntas in property bearing Sy.No.154/10 and the said 6 land bounded on East by: Sy.No.153, West by:
Sy.No.154/10 part and Sy.No.154/11, North by: land in Sy.No.151 and South by: railway lane. The final notification again amended through corrigendum on 09.10.2003 indicating wherein that the area which was proposed to be acquired was bounded on East by: land in Sy.No.153 and part of land in Sy.No.154/10, West by: land in Sy.No.154/10 part, Sy.No.154/11, Sy.No.154/12, Sy.No.154/9 and Sy.No.155 and South by: road.
7. It is further claim of the plaintiff that said Final Notification was challenged by one Mr.Parthasarathy in the writ petition No.24867/2005 and the notification was quashed by this Court on 13.02.2009. Thereafter during the pendency of the proceedings before the defendant, the plaintiff submitted his objections that the description in the notification was vague and only 2 acres 33 guntas of land in Sy. No.154/10 was 7 proposed to be acquired. It is also contended that, final notification was issued on 02.06.2009 the portion acquired is shown as 2 acres 33 guntas in Sy.No.154/10 of Kengari Village, bounded on East by: Sy.No.154/10 part, West by: Sy.Nos.156, 154/9, 154/10 part, 154/11, 154/12 and 155, North by:
Sy.No.147 and Sy.No.147/6 and South by:State highway No.17.
8. Further claim of the plaintiff is that proposed acquisition of land covered the suit schedule property which is a residential site totally measuring 2408 square feet which came under village Panchayath now coming under Kengeri Municipality Limits. It is further alleged that on 26-6-2009 defendants marked certain portions so as to cover the schedule property indicating that the schedule property is also subject matter of the acquired portion, but, in fact, the schedule property is completely excluded from 8 acquisition. Defendants have not considered the request of the plaintiff and threatened to take the possession so as to form a road in the said property without ascertaining correctness of the boundaries.
Therefore, plaintiff seeks to decree the suit as prayed.
9. Defendant No.1 is the Special Land Acquisition Officer, KIADB, defendant No.2 is the Karnataka Industrial Area Development Board and defendant Nos.3 and 4 are Nandi Infrastructure Corridor Enterprises Ltd., and Nandi Economic Corridor Enterprises Limited who are the beneficiaries of acquisition and it is stated that they are the formal parties.
10. Defendant Nos.1, 3 and 4 appeared before the Court. Defendant No.1 filed written statement 9 independently and defendant Nos.3 and 4 filed their written statements.
11. The sum and substance of the written statement of defendant No.1 is that after following all legal formalities the land was proposed to be acquired for the benefit of the other defendants and a preliminary notification was issued and the final notification was called for. However, insofar as quashing of the notification of acquisition in WP No.24867/2005, this Court quashed the said notification by its order on 13.02.2009 and there was a direction of this Court for conducting an enquiry by giving notice to all the concerned parties including the plaintiff's vendor Sri.Puttegowda.
12. Thereafter, the property under the proposed acquisition was identified and there was a joint measurement survey sketch has been prepared and 10 concluded that 2 acres 33 guntas of land comprised in Sy.No.154/10 was identified and the same was notified, objections were filed by plaintiff and it is rejected. The finality was that the land to the extent of 2 acres 33 guntas in Sy.No.154/10 of Kengeri Village came to be acquired for the purpose stated above. The writ petition filed in WP No.16801/2009 vendor of the plaintiff Puttegowda was respondent No.4 and this Court after hearing both the parties dismissed the said writ petition on 11.09.2009.
13. It was the contention of the defendants that a Civil Court has no jurisdiction under Section 9 of CPC., to entertain the suit challenging the acquisition after the final notification. The acquisition was done for formation of the road and other amenities between Bangalore and Mysore known as "Bangalore-Mysore Infrastructure Corridor Project" and the acquisition proceedings in respect of Sy.No.154/10 of Kengeri 11 village and the same was upheld by this Court in the said WP No.16801/2009 and plaintiff cannot maintain the present suit.
14. Defendant Nos.3 and 4 filed their separate written statements denying the claim made by the plaintiff.
15. The learned trial Judge based on the materials available on record framed the following issues:
"(1) Whether plaintiff proves his lawful possession of the suit schedule property as on the date of the suit?
(2) If so, whether the plaintiff further proves the alleged interference into his peaceful possession and enjoyment of the suit schedule property by the defendant as alleged in the plaint?
(3) Whether the plaintiff is entitled for permanent injunction as prayed?
(4) What decree or order?"12
16. The learned trial Judge considering the oral evidence of PW1 and documentary evidence Exs.P1 to P24 on behalf of plaintiff and oral evidence of DW1 and 2 and documentary evidence of Ex.D1 to 7(a) on behalf of the defendants, answered issue Nos. 1 to 3 in the negative and finally dismissed the suit of the plaintiff with liberty to the plaintiff to get survey the survey No.154/10 of Kengeri village to locate his property with the help of competent surveyor. Aggrieved by the same, plaintiff has presented this appeal.
17. The material proposition related to lawful possession and interference was asserted and denied. In the nature and circumstances of the case, the consideration and the discussion has been extended substantially at length.
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18. Learned counsel Sri.D.R.Ravishankar for the appellant - plaintiff through VC would submit that when defendant No.1 has stated in substance that the land acquired is to the extent of 2 acres 33 guntas in Sy.No.154/10, he is duty bound to ensure that the land under the ownership of the plaintiff was disclosed, more over the vast extent of land in Sy.No.154/10 excludes the acquired land. In the circumstances, the defendant No.1 is duty bound to respect the ownership and possession of the suit schedule property.
19. It is further submitted that the sketch was prepared in accordance with the location and extent of the property and it reflects that the existence and location of the suit schedule property cannot be disturbed by the defendants. The vendor of the plaintiff owned more than 3 acres of land in the said survey number and the land acquired by the 14 defendant No.1 has no connection at any time in respect of the suit schedule property. It is further submitted that the sketch filed by the defendant No.1 does not explain the location of the property.
20. Learned counsel for appellant submits that the documents filed along with I.A. filed under Order XLI Rule 27 r/w Section 151 of CPC., consists of a certified copy of the sale dated 21.12.1995, a certified copy of the sale deed dated 27.01.1994, original letter dated 18.09.2012 issued by BMICPA, certified copy of the plaint in OS No.9016/2012, the written statement filed by KIADB in the said suit in OS No.9016/2012, a certified copy of the judgment in OS No.9016/212, order of the DDLR in ¨sÀÆ.G.¤.C¦üÃ®Ä £ÀA.48/2006-07 issued under RTI Act.
21. These documents are filed by the appellant on 21.03.2013. In the ends of principles of natural 15 justice and to adjudicate all the points in controversy, it is just and proper to allow the application and to look into the said documents. Accordingly, said application is allowed, the documents are taken on record and perused the same.
22. The learned counsel has also filed a memo with the sketch which is stated to have been got prepared through a competent Surveyor. In the light of the liberty given to the plaintiff by the trial Court, no prejudice would be caused to ends of justice, if the said sketch is looked into. The acquisition was not challenged by Sri.Puttegowda. It is also submitted that the appellant is not the only person who has purchased the lands from Sri.Puttegowda. As a matter of fact, there are other purchasers also namely Smt.H.Sarojamma, Smt.Sudhamani, Smt. Sarvamangaladevi, Smt. Rohini.M.G, 16 Sri.M.S.Gundurao, Sri.Umakantha Adiga. M.G., Sri.R.Balarama, Smt.Jayalakshmi. Learned counsel further submits that his objections were legal and legitimate, but not considered by the Acquisition Officer. The plaintiff seriously apprehends the encroachment of the defendants in the guise of acquisition.
23. This Court ordered for surveying of the land through its order dated 19.04.2012 appointed the Deputy Director of Land Records as court commissioner and he has filed his report on 8.08.2012. However, that report was incomplete and was not accepted by this Court, as such, in the order dated 27.06.2013, it is pointed out the lapses left over and directed the court Commissioner to redo the entire exercise. It is in the said connection, the Deputy Director of Land Records has submitted his report on 05.07.2013. Learned counsel would further 17 submit that despite being reminded of the deficiencies in execution of warrant, the Commissioner has repeated the lapse and report does not answer the points raised by this Court.
24. Learned Senior counsel Sri.D.L.Jagadish appearing for respondent No.1 along with Sri. D. Boregowda, would submit that the whole claim under the suit is made under misconception and with malafide intention. The defendant No.1 has verified and looked into all the aspects and the land that was acquired in Sy.No.154/10 to the extent of 2 acres 33 guntas is well defined, both preliminary and final notifications were passed and the acquisition became final. Even the writ petition filed by Sri.Parthasarathy, as observed above was dismissed on 13.02.2009 by this court and there are all curtains for the plaintiff. The plaintiff himself has admitted the location of suit schedule property.
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25. Learned Senior counsel further submitted that when defendant No.1 has not at all interfered with the schedule property of the plaintiff, there is no question of entitlement of the plaintiff for the relief of injunction.
26. Learned counsel for respondent No.2 submitted the plaintiff neither has prima facie case nor a one on merits. The suit is filed with ulterior motive to grab the land in prime locality.
27. Learned counsel for appellant-plaintiff relied on the following decisions:
2000(6) Supreme 389 - Shreepat Vs. Rajendra Prasad & Ors.:
"Code of Civil Procedure, 1908 - Order XXVI- suit for declaration-Defendant disputing identity of property - Defence that property not part of Khasra No.... stated in plaint-Decree only on the basis of oral evidence-Not correct-Court should have got identity of property established by issuing survey commission- Decree set aside-Case remanded to trial Court for disposal afresh."
ILR 2010 KAR 897- N.Swamygowda Vs. Ramegowda and Others:
19
"CODE OF CIVIL PROCEDURE, 1908 - ORDER 26 Rule 9 - Commissions to make local investigation- Application-Prayer sought-Appointment of the Taluka Surveyor as the Court Commissioner for ascertaining in which survey number the suit schedule property is situated - Grant of prayer - Pleaded against - HELD, When there are conflicting versions regarding the location of the suit schedule property, no amount of oral and documentary evidence may enable the Trial Court to adjudicate the matter. It has therefore, appointed the Court Commissioner for ascertaining the suit schedule property - FURTEHR HELD, The appointment of the Court Commissioner falls within the discretionary province of the Trial Court. In exercise of the power under Article 227 of the Constitution of India, it is not desirable to direct the Trial Court either to appoint or not to appoint the Court Commissioner. The power under Article 227 of the Constitution is exercisable only for ensuring that the subordinate Courts function within the limits of their authority.-ON FACTS, HELD, The Trial Court, on perusing the oral and documentary evidence placed on its record, has formed the view that the matter calls for the appointment of the Court Commissioner, it cannot be found to be at fault."
28. Learned counsel for the respondents-defendants relied on the following decisions:
AIR 1995 SC 1955 State of Bhihar Vs. Dhirendra Kumar and Others:
"Civil P.C.(5 of 1908), S.9-Civil Court - Jurisdiction - Extent - Validity of notification under S.4 and declaration under S.6 of Land acquisition Act - Civil Court has no jurisdiction to go into that - Only High Court can do that in proceedings under Art.226 of Constitution."
ILR 2019 KAR 2935 Rudrappa Vs. Prakash:
"SPECIFIC RELIEF ACT, 1963 - CHAPTER 7 - Injunctions generally - Injunctive relief - The title may not be an integral part in a suit for permanent 20 injunction, but it does not mean that the person can claim possession and permanent injunction only on the basis of his assertion-"
29. The suit of the plaintiff is for the relief of permanent injunction. The essential ingredients to be established are lawful possession of the property in respect of the relief sought. It is incumbent on the part of the plaintiff to establish to the satisfaction of the Court that he was in possession of the suit schedule property on the date of filing of the suit and his induction into the possession of the suit schedule property was lawful in the beginning and continued to be so.
30. The second ingredient which the plaintiff has to establish is the interference by the defendants. This concept of interference consists of apprehension of invasion to his property and also the physical acts of interference and the relief was given to the 21 defendants when the Court is satisfied as to the said ingredient.
31. In the present suit, the suit schedule property claimed by the plaintiff is a residential vacant site measuring East to West 28 ft and North to South 86 feet, totally to the extent of 2408 sq.ft of Kengeri village, Bangalore South Taluk. He claims to have purchased the suit schedule property under the registered sale deed dated 24.02.1996 and it is marked as Ex.P2. The purchase of the schedule property by the plaintiff is not disputed. The vendor is one Puttegowda who is stated to be the owner of portion of land in Sy.No.154/10. The acquisition of the land and the details of final notification is dated 02.06.2009 and it is marked as Ex.P10. As the sale deed in favour of plaintiff is not disputed, the extent of land of 2 acres 33 guntas in Sy.No.154/10 of Kengeri 22 Village, Bengaluru South Taluk, acquired by defendant No.1 also is not disputed.
32. Following points are amply clear in the nature and circumstances of the case:
• The schedule property is an immovable property forming a vacant site and the relief is claimed in respect of the same in connection to land in Sy.No.154/10 of Kengeri Village.
• The suit schedule property and the related property to the extent of 2 acres 33 guntas in the same survey number is not disputed. The vendor of the plaintiff is one Puttegowda and he executed the registered sale deed as per Ex.P-2 in favour of plaintiff on 24.02.1996 is not disputed nor the title of Puttegowda to execute the sale deed.
• At the same time acquisition of land by defendant No.1 for the purposes stated above under Ex.P-10 dated 02.06.2009 also is not disputed.23
33. The suit came to be filed by the plaintiff claiming that the defendant No.1 in the guise of acquiring the notified land of 2 acres 33 guntas tried to encroach the suit schedule property and even the cause of action pleaded in the plaint is on 02.06.2009 at paragraph No.9 which is as under:
"9. The cause of action for the suit arose on 2-6-2009 when certain area was acquired for formation of a loop road on 26-6-2009 when certain areas including the Schedule Property were marked contemplating to form a road though the land is not acquired under any of the notifications and since they are contemplating to take work on war footing, there is a threat of dispossession which is imminent and within the jurisdiction of this Hon'ble Court."
Thus, the plaintiff claims that the areas including schedule properties were marked to reflect that they were also acquired.
34. Learned counsel for appellant/plaintiff would submit that this court ordered appointment of Deputy 24 Director of Land Records as court commissioner on 19.04.2012 and the same is extracted as under:
ORDER "Having regard to the serious controversy as to the location and identity of the suit property and whether the same is, or is not, part of the acquired land by the State Government and in the light of the fact that the trial court did not choose to appoint a Court Commissioner to visit the spot and to have a first hand report of the disputed area, the appeal coming on for admission, this court, at first blush, is of the opinion that a Commissioner's Report is necessary, even at the stage of admission, for a complete adjudication of the dispute between the parties.
Accordingly, the Counsel for the appellant and the Counsel for the respondents were called upon to file their Memo of Instructions. The appellant has filed a Memo of Instructions as to the manner in which a survey should be carried out and to measure and demarcate 3 acres 14 guntas of land in Survey No.154/10, belonging to S.N.Puttegowda and to demarcate 33 guntas of land, out of the above extent of 3 acres 14 guntas, said to have been acquired by the State and thereafter to indicate whether the suit property falls within the acquired extent of 33 guntas or is in the remaining extent of 2 acres 21 guntas belonging to Puttegowda and also to indicate the property, in which, a loop road is being formed with reference to the Master Plan approved by the BMICPA.25
Insofar as the last of the above points is concerned, the learned counsel for the respondents would have serious objection as it would be outside the scope of inquiry and outside the scope of the suit and therefore, would be a wholly superfluous finding, which may create further controversy and opposes any such finding being given by the Commissioner on that last point.
On the other hand, the learned counsel for the respondents have sought the appointment of the Deputy Director of Survey Settlement and land Records or such other officer of the State Government, as this court may deem fit and with reference to the suit schedule property, which has been purchased by the appellant under a sale deed, seeks a finding as to whether the same has been acquired under the Final Notification dated 2.6.2009, Exhibit P-10, issued under Section 28(4) of the Karnataka Industrial Areas Development Board Act, 1966 (hereinafter referred to as `the Act' for brevity), with the boundaries mentioned therein.
In this light of the matter, the Deputy Director of Survey Settlement and Land Records, Bangalore Urban District is hereby appointed as the Court Commissioner to measure and demarcate 3 acres 14 guntas of land which stood in the name of Puttegowda, in Survey No.154/1 and to demarcate 33 guntas of land acquired as per Final Notification dated 2.6.2009, issued under Section 28(4) of the Act and to indicate whether the suit property, which is defined in the schedule to the plaint, falls within the said acquired extent of 33 guntas or falls in the remaining extent of 2 acres 21 guntas standing in the name of S.N.Puttegowda, 26 which is said to have been purchased by the appellant herein under a sale deed dated 24.02.1996. Accordingly, the Commissioner, with reference to the acquisition proceedings, the sale deed of the plaintiff and the plaint schedule, and such other relevant records, shall arrive at his finding and to submit his report before the trial court and the trial court shall, on the request of either of the parties, subject the Commissioner to cross-examination, if necessary. The parties may also file objections to the Commissioner's Report and thereafter, the same shall be submitted before this court. The Commissioner is directed to submit his report within thirty days from the date of warrant. The appellant shall bear the cost and expenses of the survey and any fees that may be charged by the Commissioner.
Notice to respondent No.1.
The parties to maintain status-quo in the meanwhile."
35. The report was submitted by the Deputy Director of Survey and Land Records wherein it was reported to the court that original tippani of Sy.No.154/10 was not available and the survey was based on tippani of Sy.No.154. However this court was not satisfied with the sketch or report as filed by the said Deputy 27 Director and on 27.06.2013 following order was passed by this court:
ORDER "By order dated 19.04.2012 this court, at the stage of admission of appeal, for a complete adjudication of the dispute between the parties, thought is necessary to appoint a commissioner for local inspection and to submit a report.
2. After hearing the parties, this court appointed the Deputy Director of Survey Settlement and Land Records, Bangalore Urban District, as Court Commissioner to measure and demarcate 3 acre 14 guntas of land, which stood in the name of S.N.Puttegowda in land bearing Survey No.154/10 and then to demarcate 33 guntas of land acquired as per Final Notification dated 02.06.2009 issued under Section 28(4) of the Karnataka Industrial Areas Development Board Act, 1966 (for short, `KIADB Act') and then to indicate whether the schedule property, which is defined in the schedule to the plaint, falls within the said acquired extent of 33 guntas or falls in the remaining extent of 2 acres 22 guntas standing in the name of S.N.Puttegowda, which was said to have been purchased by the appellant herein under a sale deed dated 24.02.1996. The Report was directed to be submitted to the trial court and the parties were permitted to file objections, if any, to the commissioner's report and also to cross-examine the commissioner, if necessary. Pursuant to the warrant issued, the Deputy Director of Survey Settlement and Land Records conducted the local inspection and submitted his report along with a sketch. The 28 appellant-plaintiff filed his objections to the commissioner's report and the commissioner was also cross-examined.
3. In the report as well as the sketch produced by the commissioner, it is indicated that the original `tippani' copy pertaining to Survey No.154/10 was not available and survey was conducted on the basis of the tippani copy of Survey No.154.
4. In the cross-examination, it is elicited from the mouth of the commissioner that the survey was done by keeping Survey No.146 and 147 as the base line and reference line. It is further elicited from him in the cross-examination that the original tippani copy pertaining to Survey No.154/10 is available in the office. He further admitted that he is in possession of an atlas of Survey No.154/10. From these admissions it is clear that, though the original tippani copy pertaining to Survey No.154/10 was available in the office, the same was not used as the base for carrying-out the directions issued by this Court. It is not forthcoming from the report as to on what basis Survey No.154/10 was identified by using the tippani copy of Survey No.154. The land bearing Survey No.154 measured a larger extent and Survey No.154/10 is a part of Survey No.154.
Similarly, Survey No.154 has been sub-divided into 14 parts. It is not forthcoming from the evidence of the commissioner as to whether the tippani copy pertaining to Survey No.154 showed any sub-division therein. Therefore, in the light of the said admission, it is highly difficult to find-out as to where exactly Survey No.154/10 is located in Survey No.154 and where exactly 33 guntas owned by 29 S.N.Puttegowda, which was the subject matter of acquisition, was located in Survey No.154/10, and where exactly the remaining extent of land owned by S.N.Puttegowda in Survey No.154/10 was located. These ascertainments are very much necessary to find-out as to whether the schedule property claimed by the plaintiff falls within the acquired area of 33 guntas belonging to S.N.Puttegowda or within remaining extent belonged to S.N.Puttegowda. Therefore, it may be necessary for this court to direct the commissioner to re-do the exercise. However, before adopting the said course, this court is of the opinion that it is necessary to direct the Deputy Director of Survey Settlement and Land Records to produce the original tippani copy pertaining to all sub-numbers of Survey No.154 of Kengeri Village, before this Court. The office is directed to issue necessary intimation to the Deputy Director of Survey Settlement and Land Records, Bangalore Urban District, to produce the aforesaid documents before the Court, on 10.07.2013.
List this matter on 10.07.2013."
36. It is subsequent to the said order dated 27.06.2013 the Deputy Director of Land Records submitted the survey sketch and the report.
37. Meanwhile learned counsel for plaintiff filed application I.A.1/2013 on 21.03.2013 to lead 30 additional evidence and another application I.A.3/2013 is filed on 17.04.2013 by appellant/plaintiff for production of documents. This was clarified by learned counsel that said application was filed for producing the said document made in evidence of appellant. However earlier application 21.03.2013 has been allowed by this court and the documents are looked into and subsequent application in connection with the same stands disposed of.
38. Learned counsel for plaintiff also filed a memo with survey sketch on 17.04.2013 it is a document showing a survey sketch of lands in several survey numbers including Sy.No.154/10 of Kengeri Village, Kengeri Hobli, Bangalore South Taluk. In this connection the operative portion of the impugned Judgment has to be looked into wherein learned trial Judge while dismissing the suit of the plaintiff gave liberty to the plaintiff to get the land in Sy.No.154/10 31 surveyed. It is in this context plaintiff claim the land in Sy.No.154/10 surveyed through competent surveyor Mr.H.G.Chennaiah, a retired Assistant Director of Land Records and the said sketch is made available.
39. The total extent of Sy.No.154/10 is stated to be 5 acres 26 guntas including kharab of 13 guntas net extent 5 acres 13 guntas. The land of Parthasarathy in the same survey number to the extent of 2 acres is marked in green color. Out of remaining land of Puttegowda to the extent of 2 acres 27 guntas, the acquired extent of 33 guntas in Sy.No.154/10 is marked in red color.
40. Orange marking is also available in acquired extent of 33 guntas which is mentioned as site No.64 in the sketch. It was submitted that the said site No.64 was the subject matter of earlier dispute in 32 O.S.No.9016/2004 wherein the plaintiff therein Jayalakshmamma had filed suit for permanent injunction against defendant No.1 and the said suit came to be dismissed on the ground that the said site No.64 fell in the notified and acquired area. Incidentally, the sketch relates to present schedule property also which is stated to have been marked in blue color identifying Site Nos.77 and 92 which are seen in connecting rows and columns being East West bounded by different site numbers namely 78 and 91 on the one side and 76 and 93 on the other side respectively and on the northern side it is shown as 28 ft road and southern side 28 ft road. The sketch shows the 2 acres 33 guntas of land as ABEC and D which is irregular pentagon wherein BEC forms a reverse triangle stated to be 33 guntas of land that belonged to Puttegowda on which several sites are formed. To the West of BEC is irregular quadrilateral 33 which is to the extent of 2 acres which is stated to have belonged to one Parthsarathy. There is remaining layout stated to have been formed by Puttegowda which is to the North West of ABCD which is the land of Parthasarathy.
B E
72 71 70 69 68 67 66
28' road
72A 73 74 75 76 77 78 79 80 81 82 83 84 84A
96A 96 95 94 93 92 91 90 89 89 87 85/86
28' road
A
C
D
41. In the said sketch site No.81 and 88 are partly separated. The sketch produced by the learned counsel for the appellant along with memo is made part of the Judgment which is as under: 34
42. All this exercise became necessary to highlight the site Nos.77 and 92 which situate by the side of 35 each other North South together is stated to be the suit schedule property. This document is filed by the plaintiff which goes to show that it is admitted document by the plaintiff. Further defendant No.1 has not objected the same. It is also to be noted that the scope of the suit is not certifying the validity and authenticity of approval of layout if any formed. However, it is looked into for considering the admitted locations of the property. Moreover the court is conscious about its domain and scope. The road passes from North Eastern side of the entire property and runs towards South West.
43. Learned counsel for plaintiff Sri.D.R.Ravishankar would submit that when the defendant No.1 has gone on record by stating that the area acquired by him does not encroach the schedule property it goes to show the nature of possession and ownership of the 36 schedule property by the plaintiff and hence suit is to be decreed.
44. It is in this background though the adjudication of the suit has spread its tentacles to various aspects the exercise seems to be to define the circumstances entitlement, yardsticks regarding suit for injunction. Before going further, I find it necessary to mention chapter II of the Specific Relief Act which pertains to suits based on contract and contracts including specific performance and the sale, nature of contract relating to Trusts, specific performance of part of the contract, contract to sell or let the property by a person not authorized to sell circumstances of non encroachment with variation substituted performance of contract, special provision relating to infrastructure project, constitution of special court, expeditious disposal of appeals, power to grant possession, partition and the related, liquidation or damages or its 37 effect on the relief of specific performance and bar of suit for specific performance and related.
45. In the over all circumstances, the contract falling under II also governed by Section 38 which incidentally falls under Chapter-8. Apart from the breach of contract, this suit is governed by the cases other than the above. In the sense, the plaintiff is entitled for relief when there is invasion or threat to invade plaintiff's right of enjoyment or any other rights over the property and other circumstances mentioned in Sub Sec. 3 of Section 38 of the Act and the cases mentioned as A.B.C. in the said section.
46. It is in the light of this back ground, suit for permanent injunction relating to properties are filed basically when there is invasion or threat to invasion by the defendants. Regard being had to the fact that 38 the contract, the other cases of breach of contract and the related are governed in Chapter II of the Act.
47. It is in the light of this background, Rule 1 and 2 of Order 39 CPC provides the circumstances when a person claims relief of interlocutory injunction which may be in the aid of final decree. Rule 1 of Order 39 CPC provides the cases mentioned in Section 38 of CPC other than those which fall under Chapter II. Similarly, Rule 2 of Order 39 CPC provides for remedies against the breach of contract and the related which are found under several provisions under Chapter II of the Specific Relief Act. It is in this back ground, the relief of permanent injunction as provided under Specific Relief Act and temporary injunction as provided under CPC are inter related to each other.
48. Now the aspect would be, whether there is denial of title by one party. The answer would be this 39 is a suit for permanent injunction wherein lawful possession and interference would be the criteria but there is no impediment to say record suggest title over property of the plaintiff or the acquisition of the property to the extent of 2 acres 33 guntas by defendant No.1 are not disputed.
49. The next aspect is, the invasion or threat to the property of the plaintiff. It is in this connection, Sri.D.R.Ravishankar submitted that when once defendants have not claimed schedule property there is no embargo to this court to pass a decree.
50. The broad ingredients which are considered in a suit for permanent injunction as stated above are:
Possession over the property which is the subject matter and interference. Insofar as, possession is concerned, it implies that it must be lawful possession. Lawful possession is determined as on the 40 date of the filing of the suit. Invariably suggests the essentials of possession namely corpus possessionis and animus possidendi.
51. First one refers to the very possession of the object and second one is mental element that such person has mental feeling that he is entitled for possession. It is not necessary that mental feeling should be in all stages of life. Mental feeling as reflecting there in at the time of commencement of possession which goes to shows that he entered lawfully possession. The mental element of possession is necessary at the time of entering into possession. For example, when a book is purchased rightfully for a consideration and then arranged in the Library, in the course of time, even the purchaser forgets the existence of book, he does not loses the right because, at the time of entering possession of the book it was lawful.
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52. Here in this connection, possession of plaintiff over the schedule property is, he was inducted under absolute sale deed executed by Mr. Puttegowda on 24-2-1999 and he was delivered possession of the property under the said sale. But it is not the case of the defendants that neither Puttegowda has no right to sell the property nor the plaintiff purchased the same under Ex.P2. Literally, there is no embargo to grade the possession as unlawful and invariably I accept the possession of the plaintiff as lawful.
53. The next aspect is regarding interference or invasion or threat to invade as contemplated under Section 38 of Specific Relief Act. Section 38 of Specific Relief Act and Order 39 rule 1 and 2 CPC reads as under:
38. Perpetual injunction when granted.--(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation 42 existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
ORDER XXXIX Temporary Injunctions and Interlocutory Orders:
1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise,--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view of [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property 43 in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
54. Admittedly, it is not a suit connecting to breach of contract or continuously. Plaintiff claimed cause of action on 2-6-2009, wherein he states that, the defendants at the time of marking the area claimed to 44 have been acquired by them, marked portion over the schedule property and it is in this direction there was interference by the defendants.
55. Insofar as para 24 of the judgment of the trial court is concerned, it reads as under:
"24. For the first time before the court 64 saving so in the examination-in-chief he says in Page 14 of the cross-examination that "in the month of December 2011, I got measured the property to know that whether the land so acquired namely 2 acres 33 guntas consists of suit schedule property or not. Then, I found that, the suit schedule property is not at all forming any part of the said 2 acres 33 guntas. I took assistance of the private surveyor retired ADLR by name Chennaiah to measure the property. The said private surveyor is preparing the sketch and I will produce the same in due course of time."
So, this evidence for the first time so spoken to by PW.1 establish that, though private survey have been conducted by him and sketch is prepared by the retired ADLR, nothing prevented this PW.1 to produce the same during the course of trial. But, even till the arguments are concluded, no efforts have been made by PW.1 or plaintiff to produce the said private sketch prepared by the retired ADLR being private surveyor. He is consistent in his evidence that, the private surveyor has inspected the said 1 acre 10 guntas. He has seen existing houses and also the suit schedule property so situated in the said 1 acre 10 guntas of land. Nothing prevented this 45 PW.1 to examine the said private surveyor Chennaiah but not examined."
56. In the said para, the learned trial judge observes that there existed no realm of any construction in the suit schedule property now.
57. Further in para 24 of the impugned judgment, the cross examination portion is extracted and the learned trial judge has considered the measurement of schedule property by the plaintiff during December 2011. Plaintiff found that the suit schedule property was not at all forming any part of 2 acres 33 guntas and he took the assistance of private Surveyor and retired ADLR.
58. Para No.28 of the trial court judgment is necessary to be extracted, wherein the plaintiff claims that he filed the objections to the acquisition of the land by defendant No.1 , which reads as under: 46
"28. In page 19 of the cross-examination this PW.1 says that the case so made out by the plaintiff in this case is in consonance with the objections submitted before the SLAO. But, he volunteers to say that, the said objections were filed against the preliminary notification. It is admitted fact by the plaintiff that, objections so filed by him before SLAO have been rejected and even the orders passed by the SLAO on the objections have been challenged in the writ petition and writ petition also have been dismissed."
59. Acquisition of the land to the extent 2 acres 33 guntas in Sy.No.154/10 as per final notification along with its boundaries is also considered and observed by learned trial judge at para No. 35 of its judgment.
60. In a suit for permanent injunction, the importance of interference cannot be ignored. In this connection, I refer to the decisions relied upon by the learned counsel for defendants/respondents:
(1) State of Bihar Vs. Dhirendra Kumar and others reported in AIR 1995 Supreme Court 1955, wherein it is held as under:47
"... We are, therefore, inclined to think as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 of CPC stands excluded, and a Civil Court has no jurisdiction to go into the question of validity or legality of the notification under Section 4 and declaration under Section 6, except by the High Court in a proceeding under Article 226 of the Constitution."
(2) Rudrappa Vs. Prakash reported in ILR 2019 Karnataka 2935 wherein, it is held as under:
"HELD, It to be noted that in order to get injunctive relief, the possession must be invariable and lawful one. The lawful possession, importantly at the time of entering into the possession is to be established. If the plaintiff has derived from his father, the source of induction of his father invariably has to be established. The possession of vacant land goes after owner ship. In this connection, documents or reliable material or circumstances shall be placed before the Court.
Further held,
(a) The title or the possession must have a valid source.
The validity of source does not lie in mere assertion inn any number of words. Corroboration from document or circumstances having probative force in law has to e explained. The term "lawful possession" or "absolute and exclusive owner" are meaningless without a valid source.
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(b) Without establishing the valid possession by producing documents or the records issued by the Competent Authority, title or protection for possession cannot be assumed. The title may not be an integral part in a suit for permanent injunction. But it does not mean that the person can claim possession and permanent injunction only on the basis of his assertion and to use the decree in future as a source of title. - CODE OF CIVIL PORCEDURE, 1908-SECTION 100 - REGULAR SECOND APEAL DISCUSSED."
61. Learned counsel Sri. D.R.Ravishankar appearing for appellant/plaintiff has relied upon the following decisions:
(1) 2006 (6) Supreme 389 - Sreepat Vs. Rajendra Prasad and others;
(2) (2008) 8 SCC 671 - Haryana Wakf Board Vs. Shanti sarup and others;
(3) 2014 SCC Online Hydrabad 959 - K. Dayanand Vs. P. Sampathkumar;
(4) ILR 2010 Karnataka 897 - N.Swamy Gowda Vs. Ramegowda and others;
(5) 2005 (3) APLJ 120 (SC) - J. Satyasri Ramababu Vs. Anasuya;
(6) RFA 415/2010 - J.Ramesh Chand Vs. Commissioner BDA and another;49
62. It is a recognized principle of law 'ubi jus ibi remedium' which means, "Wherever there is right there lies remedy." Insofar as the existence of schedule property is concerned, there is no hurdle insofar as present case is concerned as the defendants by their pleadings, statement and tone and tenor of examination does not dispute the existence of schedule property, but the question is, whether the question of claim for relief arises when there is no interference which is active in nature or when the plaintiff apprehends interference. Whether the apprehension or the interference is well founded. It is in this connection, the concept of interference in a suit for permanent injunction cannot be neglected establishing interference is equally required as possession in a suit of permanent Injunction as unsung hero. Establishing interference is equally required as possession in a suit for permanent 50 injunction. It is equally important for lawful possession and cause of action. The cause of action is interference. Of course, the person has to establish this. But it does not stop there and he continues possession. In this connection, when there is active interference or invasion or threat to invade, there is no question of going things out of possession. But the necessity of invasion would arise when plaintiff asserts rights, invaded or interfered by the interference during the tenor and tone of pleadings, documents, evidence would tell defendants is claiming justification of interference.
63. When the plaintiff has established right of lawful possession over the property still defendants are justifying their right to interfere then proper direction to be given to the defendants stating that the plaintiff has established possession and interference is not required or warranted.
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64. The second aspect regarding apprehension is concerned, apprehension must be genuine, justifiable and be in the contextual nature of plaint. Simple sensitiveness or apprehension or deeming interference do not call for interference and asserting his right was justifiable. But this aspect has to be assessed in detail. It cannot be assessed duly from the point of plaintiff or defendants. But, it must be from independent angle wherein it reflects over all facts and claim whether defendant is capable or is about to prepare interference with possession. In this connection, defendant No.1 stated that he does not encroached the schedule property. There are six columns between the schedule property and the acquired land. Each stated to be 30. ft. and schedule property is at a distance of more than 170 ft. The plaintiff has also unequivocally stated that schedule property is away from it. In the circumstances, while 52 granting injunction, the Court has to give a definite wording that there was interference.
65. In the circumstances, the admission of both plaintiff and defendant No.1 and defendant No.1 being statutory body, I find restraining defendant No.1 for no fault of it stating that it has interfered is not necessary. At the same time, rights may be recognized and there cannot be declaration when there is no interference. Court while holding possession is lawful, cannot imagine interference and pass restraint order.
66. In the circumstances, it is necessary to state that passing of order of injunction or restraint order when the defendant has not at all interfered is not a proper exercise of authority in the realm in a suit for permanent injunction. On the other hand, it is only labeling stigma over the defendant No.1 for no fault. 53 Under these circumstances, the appeal fails as the plaintiff has not proved interference to his possession. As the substance of the judgment is dismissal of the suit by the trial court, it does not call for interference. Appeal is dismissed.
The dismissal of the suit of the plaintiff is on the basis of the judgment of this court.
Sd/-
JUDGE HD/GH/SBN/tsn*