Bangalore District Court
Smt. Nazneen Sultana vs The Commissioner on 22 April, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 22nd day of April, 2022.
O.S.No.26299/2021
Plaintiff:- Smt. Nazneen Sultana,
W/o Mr. Mohammed Rafeeqh,
Aged about 40 years,
R/at No.42, 5th Cross,
Bhaskar Nagar,
Behind Sahara Bakery,
JP Nagar 9th Phase,
1st Block, Avalahalli,
[By Sri. Kumara R S Gowda -Adv]
-V/s-
Defendants:- The Commissioner,
Bengaluru Development Authority,
T Chowdiya Layout,
Bangalore-560020.
AND OTHERS.
[By Sri. C. S Shivakumar -Adv]
2 OS No.26299/2021
ORDERS ON IA No.2/2021 FILED BY THE PLAINTIFF
UNDER ORDER XXXIX RULES 1 & 2 R/W SEC.151
OF C.P.C.
&
ORDERS ON IA No.1/2022 FILED BY THE
DEFENDANTS UNDER ORDER XXXIX RULE 4 R/W
SEC.151 OF C.P.C.
The Plaintiff has filed an application at IA-
2/2021 U/Or. XXXIX Rules 1 and 2 R/W Sec. 151 of
CPC, praying to grant Temporary Injunction, against
the Defendants, restraining them, their subordinates,
office bearers and their agents or anybody claiming
through them, from interfering in his possession and
enjoyment over the Suit Schedule Property, pending
disposal of the case.
2. The Plaintiff has sworn to an affidavit in
support of the said application contending that, the
present suit is filed by the Plaintiff for the relief of
Injunction, contending that, he is the absolute owner
in possession of the Suit Schedule Property, as he
has purchased the said property under the
Registered Sale Deed dtd.08.02.2016 from its
erstwhile owner 1) Shaik Ziaulla; 2) Nazneen Taj; 3)
Smt. Rumana A. Further contends that, originally the
land bearing Sy No.15/2 was purchased by G.
3 OS No.26299/2021
Vijayananda S/o D B Gopala Gowda, under the
Registered Sale Deed dtd.21.11.1986, thereafter he
got converted the said land for its non agricultural
use by virtue of the order by the Deputy
Commissioner Bengaluru bearing
No.B.DIS.ALN.SR(S) 251/1988-89, dtd.01.03.1989.
On forming the Sites sold Site/House No.41. 1)
Shaik Ziaulla; 2) Nasreen Taj; 3) Smt. Rumana A her
vendor purchased the said property- House No.41,
under the Registered Sale Deed dtd.16.07.2011 from
T. M Manjunathan, who inturn had purchased under
the Sale Deed dtd.31.03.1991 from Vijayalaskhmi
W/o C Adinarayanaiah, who inturn had purchased
under the Sale Deed dtd.23.10.1989. She was
residing in the said property. Thereafter she sold the
said property. On the basis of the Sale Deed
dtd.23.10.1989, Khata pertaining to the Suit
Schedule Property came to be transferred infavour of
the purchasers and lastly under the Sale Deed
dtd.08.02.2016. Khata pertaining to the Suit
Schedule Property is transferred, in her name and
her vendors have put her in actual possession of the
said property on the day of its sale. Since then, she
is in actual possession and enjoyment of the said
property.
4 OS No.26299/2021
Further contends that, on 09.11.2021 the
subordinate officials of Defendant Nos.1 to 3
alongwith their henchmen and JCB came to be the
Suit Schedule Property and tried to demolish the
building, located in the Suit Schedule Property. He
has resisted the said legal acts of the subordinates
of the Defendants with the help of the neighbours. At
the time of such resistance the Defendant Nos.1 to 3
have proclaimed that, they will come again with
large number and dispossess her from the Suit
Schedule Property by demolishing the building
located in it.
Further contends that, the Defendant Nos.1 to 3
have no any legal rights muchtheless not in
possession of the Suit Schedule Property. Inorder to
protect her possession, she had approached the
jurisdictional police to lodge the Complaint against
the Defendant Nos.1 to 3, but the said police have
refused to entertain the Complaint and have directed
to approach the Civil Court of law as the Defendants
are the Government Officials.
Having no other alternative, she has filed the
present suit inturn the present application. Further
contends that, she is having prima facie case in her
favour, balance convenience lies in her favour. If an
5 OS No.26299/2021
order of Temporary Injunction is not granted, she will
be put to great hardship, which cannot be
compensated interms of money. Hence prayed to
allow the said application.
3. The Defendants have filed their objections to
the said application on 10.12.2021 contending that,
the suit filed by the Plaintiff is itself not maintainable
on merits. Question of considering the prayer for
interim reliefs, does not arise at all. Further
contends that, the Plaintiff has not come to the Court
with clean hands. She has suppressed the material
facts and suggested the falsehood.
Further contends that, the Defendants have
acquired the Suit Schedule Property after following
necessary formalities as required under law; and as
such the Plaintiff cannot seek the relief of Injunction
against the true owner. Further the Plaintiff has not
vested right for any interest in the Suit Schedule
Property, as her alleged rights have not been
recognized under any substantive law. Hence the
Plaintiff is not entitled for any equitable reliefs. The
Plaintiff has sworn to a false affidavit and she is
liable for prosecution. Further the Plaintiff has not
given the details to alleged act of interference by the
6 OS No.26299/2021
Defendants over the property. The cause of action
pleaded by the Plaintiff is illusory and created one.
The Plaintiff is not having any prima facie case, nor
she has shown balance of convenience, nor she will
be put to injury or injustice if an interim order is not
granted. On the contrary if the interim order is
granted against them, they will be put to
unnecessary harassment inconvenience and mental
agony. Thus, prayed to reject the said application.
4. The Defendants have filed application at IA
No.1/2022, U/Or. 39 Rule 4 R/w Sec.151 of CPC,
praying to vacate/vary the Temporary Injunction
granted by this court infavour of the Plaintiff.
5. The Assistant Executive Engineer of BDA
has sworn to an affidavit in support of the said
application contending that, the Defendants being the
public authority, governed under the rules and
regulations of the Government Of Karnataka, meant
for providing house Sites to the needy public after
following necessary formalities, as required by law,
from time to time; acquired the lands, after paying
the compensation to the land owners.
7 OS No.26299/2021
Further contend that, the Defendants have
acquired several lands including the land bearing Sy
No.15/2, measuring 0.37 Guntas of Alahalli Village,
after giving preliminary notification and Final
Notification for acquisition of the lands in and around
Konanakunda Kutte, Raghuvana Paly,
Doddakalsandra, Arekere and Hulimavu. The land
bearing Sy No.15/2 is acquired as per the said
notification and the same is mentioned at Sl No.283
of the Gazette Notification, Vijayananda S/o B. D
Gopala Gowda was the holder of the said land at the
time of passing the notification. An award is passed
inrespect of the land in LAC No.202/1991-92.
Further contend that, the Plaintiff on filing the
suit and fraudulently an mispresenting the facts has
obtained interim order against them, stating that he
is possession and enjoyment of the property. Much
prior to the purchase of the property by the Plaintiff,
this Defendants had acquired the land bearing Sy
No.15/2 measuring 0.37 Guntas, after following
necessary formalities, as required under the
provisions of the Land Acquisition Act, by notifying
the name of the owner of the said land; and the
owner of the said land has received the
compensation awarded for acquisition. The owner of
8 OS No.26299/2021
the said land even after receipt of the compensation
amount, has transacted the same infavour of the
Plaintiff.
Further contend that, now they are intending to
conduct public auction, as the site involved in this
suit, is a corner site. The Plaintiff is not entitled for
any relief, muchtheless the relief of Injunction
against them. Therefore, the interim orders granted
by this Court is liable to be rejected. If the interim
orders passed by this Court is vacated, no hardship
or injury will be caused to the Plaintiff. On the other
hand, they will be put to much hardship, loss and
injury which cannot be compensated in terms of
money. Hence prayed to allow the said application.
6. The Plaintiff has filed her objections to the
said application on 21.02.2021, contending the same
contentions taken up by them in the affidavit
annexed to IA No.2/2021. Inorder to avoid
repeatation the same has not been reiterated. Hence
prayed to reject the said application.
7. Heard the Learned Counsels for the
Plaintiff and the Defendants, respectively on both IA
Nos.2/2021 and 1/2022.
9 OS No.26299/2021
The Learned Counsel for the Defendants has
placed his reliance on 6 decisions reported in (1995)
4 SCC 229; AIR 1995 SC 1767; AIR 1996 SC 523;
(1006) 11 SCC 698; AIR 1996 SC 1170; and AIR
1996 SC 540.
8. The points that arise for my consideration
are:
1) Whether the Plaintiff makes
out a prima facie case, in her
favour?
2) Whether the Plaintiff shows
that, the balance of convenience
lies in her favour?
3) Whether the Plaintiff shows
that, an irreparable injury will be
caused, if the present application
is rejected?
4) Whether the Defendant make
out a case to vacate the Exparte
ad-interim Injunction granted in
favour of the Plaintiff on
16.11.2021?
5) What order?
9. My findings on the above points are as under:
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : In the Affirmative;
Point No.4 : In the Negative;
Point No.5 : As per final order for
the following :
10 OS No.26299/2021
REASONS
10. Point No.1:-
As per the decision of the Hon'ble Apex Court
in the case of Seema Arshad Zaheer and Ors. V/s.
Municipal Corpn. Of Greater Mumbai and Ors.
MANU/SC/2420/2006 (decided on 05.05.2006);
wherein it is held that;
"The discretion of the Court is to be
exercised for grant of temporary injunction
only when the following requirements are
fulfilled by the Plaintiff (1) Existence of prima
facie case, necessitating protection of the
Plaintiff right by issue of temporary
injunction; (2) When the need for protection of
Plaintiff right is compelled with or weighed
against the need for protection of the
Defendant rights or likely infringement of the
Defendants' right, the balance of convenience
tilting infavour of the Plaintiff; (3) Clear
possibility of irreparable injury being caused
to the Plaintiff, if temporary injunction is not
granted."
For considering the applications filed by the
Plaintiff at IA No.2/2021, three ingredients are to be
seen viz., 1) Prima facie case; 2) Balance of
convenience & 3) Irreparable loss or injury.
In order to get satisfied the first ingredient, the
Plaintiff has prima facie to show the existence of her
right over the Suit Schedule Property i.e., her
11 OS No.26299/2021
possession over the Suit Schedule Property; and a
triable case.
11. On careful perusal of the contentions of the
Plaintiff, wherein he contends that, she has
purchased the Suit Schedule Property under the
Registered Sale Deed dtd.08.02.2016 from its
erstwhile owner 1) Shaik Ziaulla; 2) Nasreen Taj; 3)
Smt. Rumana A, who inturn had purchased the said
property, under the Sale Deed dtd.16.07.2011, from
its erstwhile owner, Sri. T. Manjunatha, who inturn
had purchased the said property from Vijayalakshmi
under the Sale Deed dtd.31.03.1999. And inturn
Smt. Vijayalakshmi had purchased the said property
under the Sale Deed dtd.23.10.1989. Said
Vijayalakshmi Adinarayana was in possession and
enjoyment of the said property and she has delivered
possession of the said property to subsequent
purchasers and inturn the Plaintiff has come into
possession of the said propery under the Sale Deed
dtd.08.02.2016. And since then, she is in possession
and enjoyment of the Suit Schedule Property.
Further contends that, Suit Schedule Property consist
of a house building.
12 OS No.26299/2021
Percontra, the Defendants contend that, the
land bearing Sy No.15/2 was acquired under the
notification bearing No.
BDA/SLAO/AG/PR/257/1988-89 dtd.17.11.1988,
for forming Jayaprakash Narayananagar, 9 th Stage,
Bengaluru, wherein Sy No.15/2 was shown at Sl
No.283. On having notification of acquisition, award
was passed in LAC No.202/1991-92, infavour of the
G Vijayananada. Thereafter, possession of the
lands acquired including the land bearing Sy
No.15/2 was taken; and Sites of various dimensions
were formed; and were allotted to the allottees.
Thus, Defendants contend that, the Suit Schedule
Property is formed in Sy No.15/2 which is acquired
under the above notification.
The Learned Counsel for the Defendants would
contend that, when the land bearing Sy No.15/2 of
Alahalli is acquired under the provisions of Land
Acquisition Act, then
a) the suit filed by the Plaintiff for the relief of
Permanent Injunction is not maintainable;
b) Injunction cannot be granted against the true
owner;
13 OS No.26299/2021
c) they are in possession of the Suit Schedule
Property; and they intend to conduct public auction,
as the site is a corner site.
Further the Learned Counsel for the Defendant
has placed his reliance on the below mentioned
decisions viz.,
a) of the Hon'ble Apex Court, in the case of
State of Bihar V/s Dhirendra Kumar and Ors,
reported in (1995) 4 SCC 229, wherein it is held
observed in Para No.3, as under:-
"The question is whether a civil suit is
maintainable and whether ad interim
injunction could be issued where proceedings
under the Land Acquisition Act was taken
pursuant to the notice issued under s.9 of the
Act and delivered to the beneficiary. The
provisions of the Act are designed to acquire
the land by the State exercising the power of
eminent domain to serve the public purpose.
The state is enjoined to comply with statutory
requirements contained in Section 4 and
Section 6 of the Act by proper publication of
notification and declaration within limitation
and procedural steps of publication in papers
and the local publications envisaged under
the Act as amended by Act 68 of 1984. In
publication of the notifications and
declaration under Section 6, the public
purpose gets crystalised and becomes
conclusive. Thereafter, the State is entitled to
authorise the Land Acquisition Officer to
proceed with the acquisition of the land and
to make the award. Section 11A now
14 OS No.26299/2021
prescribes limitation to make the award
within 2 years from the last of date of
publication envisaged under s.6 of the Act. In
an appropriate case, where the Govt. needs
possession of the land urgently, it would
exercise the power under Section 17(4) of the
Act and dispense with the enquiry under
Section.5-A. Thereon, the State is entitled to
issue notice to the parties under Section.9
and on expiry of 15 days, the State is entitled
to take immediate possession even before the
award could be made. Otherwise, it would
take possession after the award under
Section 12. Thus, it could be seen that the Act
is a complete code in itself and is meant to
serve public purpose. 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 the 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. So, the civil suit itself was not
maintainable. When such is the situation, the
finding of the trial court that there is a prima
facie triable issue is unsustainable. Moreover,
possession was already taken and handed
over to Housing Board. So, the order of
injunction was without jurisdiction."
b) of the Hon'ble Apex Court, in the case of
Balwant Narayan Bhagde V/s The Punjabrao
Krishi Vidyapeeth Akola and Ors, reported in
15 OS No.26299/2021
AIR 1975 SCC 1767, wherein it is held observed in
Para No.28, as under:-
"When a public notice is published at a
convenient place or near the land to be taken
stating that the Government intends to take
possession of the land, then ordinarily and
generally there would be no question of
resisting or impeding the taking of
possession. Delivery or giving of possession
by the owner or the occupant of the land is
not required. The Collector can enforce the
surrender of the land to himself under section
47 of the Act if impeded in. taking possession.
On publication of the notice under section (1)
claims to compensation for all interests in the
land has to be made ; be it the interest of the
owner or of a person entitled to the
occupation of the land. On the taking of
possession of the land under section 16 or 17
(1) it vests absolutely in the Government free
from all in cumbrances. It is, therefore, clear
that taking of possession within the meaning
of section 16 or 17(1) means taking of
possession on the spot. It is neither a
possession on paper nor a "symbolical"
possession as generally understood in Civil
Law. But the question is what is the mode of
taking possession ? The Act is silent on the
point. Unless possession is taken by the
written agreement of the party concerned the
mode of taking possession obviously would
be for the authority to go upon the land and to
do some act which would indicate that the
authority has taken possession of the land. It
may be in the form of a declaration by beat of
drum or otherwise or by hanging a written
declaration on the spot that the authority 10
SC 75-18 has taken possession of the land.
16 OS No.26299/2021
The presence of the owner or the occupant of
the land to effectuate the taking, of
possession is not necessary. No further notice
beyond that under section 9(1) of the act: is
required. When possession has been taken,
the owner or the occupant of the land is
dispossessed. Once possession has been
taken the land vests in the Government."
c) of the Hon'ble Apex Court, in the case of
Laxmi Chand and Ors V/s Gram Panchyart,
Kararia and Ors, reported in AIR 1996 SC 523,
wherein it is held observed in Para No.4, as under:-
"It is true that the Gram Panchayat had
initially expressed about its lack of funds but
soon thereafter it came forward to proceed
with the acquisition and thus lack of funds
with the Gram Panchayat does not divest the
power and jurisdiction of the Land Acquisition
Officer to proceed with the enquiry under
Section 11 and to make the award
thereunder. The Land Acquisition Officer does
not lack jurisdiction or power to make the
award. The Civil Court as well as the High
Court thereby committed no error of law
warranting our interference."
d) of the Hon'ble Apex Court, in the case of
Star Wire (India) Ltd V/s State of Haryana and
Ors, reported in (1996) 11 SCC 698, wherein it is
held observed in Para No.4, as under:-
"In this case, admittedly, the petitioner
has purchased the property covered by the
17 OS No.26299/2021
notification under Section 4(1) after it was
published and, therefore, it's title is a void
title. It has no right to challenge the
acquisition proceedings much less the award.
The Division Bench of the High Court has
exhaustively reviewed the case law to negate
the claim of the petitioner. We do not find any
illegality in the judgment of the High Court
warranting interference."
f) of the Hon'ble Apex Court, in the case of
U. P Jal Nigam, Lucknow V/s M/s Kalra
Properties (P) Ltd, reported in AIR 1996 SC
1170, wherein it is held observed in Para No.3, as
under:-
"The learned Attorney General for the
appellants contended that after the judgment, it
has come to light that in respect of the self-same
lands, the market value as per the guidelines
issued by the Government was determined for
stamp duty at Rs. 80/- per square yard in
Ziamou area and the respondent himself had
purchased the land for Rs. 60,000/- in 1989. The
determination of the compensation by the
Collector @ Rs. 200/- per square foot is an
obvious error apparent on the face of the record
and the directions issued by the Division Bench
are vitiated by manifest error of law. Shri Gopal
Subramanyam, the learned senior counsel, who
has sought for and granted 15 adjournments on
the ground that matter is being settled, has
informed the Court that the settlement has not
been reached and it is under process. He has
sought further extension of time. Since the case
has been adjourned several times, we are not
inclined to adjourn the case. In his usual
fairness, he has stated that he does not stand on
technicalities. The respondent has purchased the
land in question. The acquisition covered about
18 OS No.26299/2021
10,000 square feet in addition, the respondent
had purchased another 5,000/- square feet
which was also taken possession of by the
respondent under the notification but the same
does not from part of the acquisition. He
contended that since possession was taken
before declaration under Section 6 was
published, it was not validly taken. Admittedly,
the award was not made even after two years of
the coming into force of the Amendment Act.
Therefore, the notification under Section 4(1) and
the declaration under Section 6 shall stand
lapsed by operation of Section 11A of the Act.
Thereby, the respondent is entitled to the
compensation on the basis of prevailing market
value. The District Collector had assessed the
market value at Rs.200/- per square foot and,
therefore, there is no illegality in the order of the
Division bench in directing payment of the
compensation @ Rs. 200/- per square foot and
also the consequential solatium and interest.
Having regard to the facts of this case, we were
not inclined to further adjourn the case nor to
remit the case for fresh consideration by the High
Court. It is settled law that after the notification
under Section 4(1) is published in the Gazette any
encumbrance created by the owner does not bind
the Government and the purchaser does not
acquire any title to the property. In this case,
notification under Section 4[1] was published on
March 24, 1973, possession of the land
admittedly was taken on July 5, 1973 and
pumping station house was constructed. No
doubt, declaration under Section 6 was published
later on July 8, 1973. Admittedly power under
Section 17(4) was exercised dispensing with the
enquiry under Section 5A and on service of the
notice under Section 9 possession was taken,
since urgency was acute, viz., pumping station
house was to be constructed to drain out flood
water. Consequently, the land stood vested in the
State under Section 17 [2] free from all
encumbrances. It is further settled law that once
19 OS No.26299/2021
possession is taken, by operation of Section 17(2),
the land vests in the State free from all
encumbrances unless a notification under Section
48(1) is published in the Gazette withdrawing
from the acquisition. Section 11A, as amended by
Act 68 of 1984, therefore, does not apply and the
acquisition does not lapse. The notification under
Section 4(1) and the declaration under Section 6,
therefore, remain valid. There is no other
provision under the Act to have the acquired land
divested, unless, as stated earlier, notification
under Section 48(1) was published and the
possession are surrendered pursuant thereto.
That apart, since M/s. Kalra Properties,
respondent had purchased the land after the
notification under Section 4(1) was published, its
sale is void against the State and it acquired no
right, title or interest in the land. Consequently, it
is settled law that it cannot challenge the validity
of the notification or the regularity in taking
possession of the land before publication of the
declaration under Section 6 was published."
g) of the Hon'ble Apex Court, in the case of
Smt. Sneh Prabha V/s State of U. P and Anr,
reported in AIR 1996 SC 1170, wherein it is held
observed in Para No.5, as under:-
"Though at first blush, we were inclined to
agree with the appellant but on deeper probe, we
find that the appellant is not entitled to the
benefit of the Land Policy. It is settled law that
any person who purchases land after publication
of the notification under Section 4 [1], does so at
his/her own peril. The object of publication of the
notification under Section 4 [1] is notice to
everyone that the land is needed or is likely to be
needed for public purpose and the acquisition
proceedings points out an impediment to anyone
to encumber the land acquired thereunder. It
20 OS No.26299/2021
authorizes the designated officer to enter upon
the land to do preliminaries etc. Therefore, any
alienation of land after the publication of the
notification under Section 4 [1] does not bind the
Government or the beneficiary under the
acquisition. On taking possession of the land, all
rights, titles and interests in land stand vested in
the State, under Section 16 of the Act, free from
all encumbrances and thereby absolute title in
the land is acquired thereunder. If any
subsequent purchaser acquires land, his/her
only right would be subject to the provisions of
the Act and/or to receive compensation for the
land. In a recent judgment, this Court in Union of
India vs. Shri Shivkumar Bhargava & Ors. [JT
1995 (6) SC 274] considered the controversy and
held that a person who purchases land
subsequent to the notification is not entitled to
alternative site. It is seen that the Land Policy
expressly conferred that right only on that person
whose land was acquired. In other words, the
person must be the owner of the land on the date
on which notification under Section 4 [1] was
published. By necessary implication, the
subsequent purchaser was elbowed out from the
policy and became disentitled to the benefit of the
Land Policy."
12. The Plaintiff has produced below
mentioned documents
a) copy of the Sale Deed dtd.08.02.2016,
wherein Plaintiff has purchased the Suit Schedule
Property from 1) Shaik Ziaulla; 2) Nasreen Taj; 3)
Smt. Rumana A for the valuable consideration of
Rs.37,60,000/-;
21 OS No.26299/2021
b) copy of the Sale Deed dtd.7.02.2016,
wherein Plaintiff has purchased portion of the the
Suit Schedule Property from Akthari Begum for the
valuable consideration of Rs.7,90,000/-;
c) Extract from the Property register in Form-B
issued by the BBMP, wherein the name of Plaintiff
and the another is shown as the owner and occupier
of the property bearing No.145/15/2/42 and 43;
d) Extract from the Property register in Form-B
issued by the BBMP, wherein the name of the
Plaintiff is shown as the owner and occupier of the
property bearing No.920/41/15/2/287/145/41;
e) Encumbrance Certificate for 15 years
commencing from 01.06.1989 to 31.03.2004. The
said document indicates about the transaction of sale
dtd.07.07.1989 inrespect of the property bearing
Khata No.145, inbetween Timber Merchant Co-
operative Society Ltd., and Akhatari Begum; and the
said transaction is registered under Doc. No.556/89-
90, in the office of Senior Sub-Register Jayanagar;
f) Encumbrance Certificate commencing from
01.04.2011 to 26.02.2013. The said document
indicates about the transaction of sale
dtd.23.02.2013 inrespect of the property bearing
Khata No.145, HL No.41, inbetween Abdul Rasak
22 OS No.26299/2021
and Shaik Ziaulla, Smt. Nasreen Taj and Smt.
Rumana A; and the said transaction is registered
under Doc. No.JPN-1-09884-2012-13, in the office of
Senior Sub-Register Jayanagar;
f) Encumbrance Certificate commencing from
01.04.2004 to 07.02.2020. The said document
indicates about the transaction of sale
dtd.27.02.2016 inrespect of the property bearing Site
No.41, HL No.41, BBMP No.145/41, VP Khata
No.920/41/15/2/387, formed in converted Sy
No.15/2 of Alahalli Village inbetween Akthari Begum
and Nazneen Sultana - Plaintiff; and the said
transaction is registered under Doc. No.DGR-1-
08193-2015-16, in the office of Senior Sub-Register
Jayanagar;
g) Copy of the Orders passed by the Deputy
Commissioner Bengaluru Bearing
No.B.DIS.ALN.SR(S) 251/88-89 dtd.01.03.1989,
wherein the Deputy Commissioner Benglaur has
accorded sanction of use of agriculture land bearing
Sy No.15/2 of Alehalli, for its non agricultural use, as
per the application submitted by Sri. G Vijayananada
S/o B. D Gopal Gowda;
h) Property Tax receipts;
i) Property Tax receipts;
23 OS No.26299/2021
j) Extract from the property register. As per this
document, name of T. Manjunathanis shown as the
owner of the property bearing No.4243;
k) Electricity bills sjhowing meter standing in
the name of the Plaintiff and another.
l) Gas Invoices, standing in the name of the
Plaintiff showing the address of the Suit Schedule
Property.
m) Aadhar card of the Plaintiff showing the
address of the Suit Schedule Property.
n) Positive Photographs showing the house
building, with CD.
13. The Defendant has produced the below
mentioned document
a) Notification dtd.17.11.1988. As per this
document, land bearing Sy No.15/2 Alehalli is
shown at Sl No.283, which is the subject matter of
acquisition.
b) Copy of the award passed U/Sec.11 of Land
Acquisition Act, wherein an award of Rs.1,49,334/-
is passed inrespect of Sy No.15/2, infavour of G
Vijayananda.
24 OS No.26299/2021
c) Copy of Mahazar drawn for taking
possession of the land bearing Sy No.15/2 of Alehalli
dtd.16.02.1995.
d) Notification pertaining to taking possession of
the land bearing Sy No.15/2 of Alehalli. As per this
document, possession of land bearing Sy No.15/2 of
Alehalli is taken on 09.02.1995.
e) Details of the property taken in possession,
available in Sy No.15/2.
f) Notification bearing NoHUD 553 MNX 90
dtd.22.07.1991, wherein Sy No.15/2 is shown as Sl
No.202, which is the subject matter of acquisition.
14. The present suit is filed by the Plaintiff for
the relief of Permanent Injunction. The Plaintiff has
not challenged either the notification passed under
the provisions of Land Acquisition Act, or claiming
Declaration of tile over the Suit Schedule Property.
But he has filed the present suit contending that, she
is in possession of the Suit Schedule Property and
the Defendants are interfering with her possession
over the same.
Under the present application prima facie the
rights of the parties withregard to possession, is
required to be seen.
25 OS No.26299/2021
15. As per the Plaintiff she contends that,
Vijayalakshmi has come into possession of the Suit
Schedule Property on 23.10.1989 under the
Registered Sale Deed dtd.23.10.1989; and thereby
she has delivered the possession of the said property
to various purchasers, lastly she has come in
possession of the said property, under the Sale Deed
dtd.08.02.2016. And since 08.02.2016, she is in
possession of the said property.
As per the Defendants, they contend that, they
have come into possession of the Suit Schedule
Property on 09.02.1995 and since then, they by
forming residential layout, formed the Sites and have
allotted the Sites to the respective allottees.
16. The Defendants have produced the
possession Mahazar and the details of the property
available in Sy No.15/2, at the time of taking
possession.
16.01. As per these two documents, firstly,
it is seen that, a house building measuring 30 Feet X
15 feet; compound wall around the land measuring
50 feet X 66 feet; and house measuring 15 feet X 19
feet, RCC built up, is available in Sy No.15/2 of
26 OS No.26299/2021
Alehalli. So existence of house is admitted by the
Defendant i.e., as on 16.02.1995.
16.02. Secondly the Defendants as per the
Notification contends that, they have possession of
the land bearing Sy No.15/2 on 09.02.1995; but as
per the Mahazar drawn for taking possession and
details of the property available at the time of taking
possession, it is contended that, the possession is
taken on 16.02.1995. No definite date is coming
from the side of the Defendants for taking possession
of the land bearing Sy No.15/2 of Alehalli.
16.03. Thirdly, the Notification as well as
the Mahazr is silent as to from whom the possession
the land bearing Sy No.15/2 is taken.
17. Fourthly, the Plaintiff has produced the
Orders passed by the Deputy Commissioner
Bengaluru, which suggest that, the land bearing Sy
No.15/2 of Alehalli is converted for its non
agricultural use, but nothing is mentioned either in
the notification or in the possession mahazar
produced by the Defendant, about conversion of the
land bearing Sy No.15/2 of Alehalli Village.
27 OS No.26299/2021
18. Fifthly, as per the document produced by
the Plaintiff, prima facie, it is seen that, from
23.10.1989 Vijayalakshmi is in possession of the
Suit Schedule Property. But as per the possession
Notification, possession of land bearing Sy No.15/2
is taken on 09.02.1995, but it is not mentioned as to
whether the possession of the Suit Schedule Property
is taken from Vijayalakshmi.
19. In the absence of any prima facie
materials on record to show dispossession of
Vijayalakshmi from the Suit Schedule Property either
subsequent to 23.10.1989 or on 09.02.1995 or on
16.02.1995, a presumption is required to be drawn
that, Vijayalakshmi was in possession till she parted
away the possession of the said property, to the
successive purchasers, including the Plaintiff, under
the Sale Deed dtd.08.02.2016.
Thus, Plaintiff has prima facie shown that, she
is in possession of the Suit Schedule Property.
19. Further the Defendants contend that, on
acquiring and taking over the possession of the land
bearing Sy No.15/2 of Alehalli Village; they have
formed residential layout and allotted the Sites to the
28 OS No.26299/2021
allottees. But the Defendant has not produced any
prima facie material, to suggest such fact, on record.
20. Further as per Para No.5, at Page No.4 of
the Affidavit annexed to IA No.1/2022, the Assistant
Executive Engineer attached to the Defendants
authority has contended that, they are intending to
conduct public auction, as the site is a corner plot.
So as per the Defendants the Suit Schedule Property
plot is a corner plot.
But the Plaintiff has mentioned the Schedule of
the property in the suit, wherein she has contended
that, only one road is located towards the
westernside of the Suit Schedule Property. So it is
not a corner plot.
Thus, the Defendants have also not placed any
prima facie material on record to show that, the Suit
Schedule Property is a corner plot.
21. Further as per the contents of the Written
Statement, more specifically in Para No.6, the
Defendants contend that,they have already formed
the Sites of various dimensions and have allotted the
said Sites.
29 OS No.26299/2021
Whereas, as per the contents of the affidavit
annexed to IA No.1/2022, the Assistant Executive
Engineer attached to the Defendant authority
contends that, the Defendants intend to conduct
public auction. It means that, yet they have not
allotted the site- the Suit Schedule Property.
Two contradictory versions are coming from the
side of the Defendants.
22. The Plaintiffs while producing Sale Deed,
Tax paid receipts, prima facie showing the existence
of the house building, as on the date of filing of this
suit as prima facie shown that, she is in possession
and enjoyment of the Suit Schedule Property. Thus,
Plaintiff has shown prima facie in her favour.
Hence, I am constrained to answer POINT NO.1
IN THE AFFIRMATIVE.
23. POINT NO.2:-
The Plaintiff contend that, the Defendants are
causing interference to him, in the Suit Schedule
Property.
Percontra, the Defendant contends that, they
have acquired the Suit Schedule Property; and they
are in possession of the Suit Schedule Property, but
30 OS No.26299/2021
no any material is placed prima facie, to substantiate
their claim.
Looking to such contentions of the Defendant, if
an order of injunction is not granted, there is every
possibility that the Defendants, may take law into
their hands and commit an act, which is
apprehended by the Plaintiff.
Till the disposal of the suit, it is necessary to
keep the nature and position of the Suit Schedule
Property, in tact; in other words, the Suit Schedule
Property is required to be kept in tact till the rights of
the parties are adjudicated, in this suit. If the
Defendants are not restrained, by way of a limited
order of injunction, there is every chances of episodes
of interference, which will lead to irreparable injury
to the Plaintiff.
Thus Plaintiff has shown that balance of
convenience lies in her favour.
Hence, I answer POINT NO.2 IN THE
AFFIRMATIVE.
24. POINT NO.3:-
In the present situation, it is gainsaid to
mention the preposition of Law laid down by the
Hon'ble Apex Court in Gujarath Bottling Company
31 OS No.26299/2021
Ltd., and Others V/s Coca Cola Company and
Others, reported in 1995 (5) Supreme Court
Cases 545, wherein it is held that:
"The grant of an interlocutory injunction
during the pendency of legal proceedings is
a matter requiring the exercise of discretion
of the court. While exercising the discretion
the court applies the following tests-(i)
whether the Plaintiff has a prima facie
case; (ii) whether the balance of
convenience is in favour of the Plaintiff; (iii)
whether the Plaintiff would suffer an
irreparable injury if his prayer for
interlocutory injunction is disallowed. The
decision whether or not to grant an
interlocutory injunction has to be taken at a
time when the existence of the legal right
assailed by the Plaintiff and its alleged
violation are both contested and uncertain
and remain uncertain till they are
established at the trial on evidence. Relief
by way of interlocutory injunction is
granted to mitigate the risk of injustice to
the Plaintiff during the period before that
uncertainty could be resolved. The object of
the interlocutory injunction is to protect the
Plaintiff against injury by violation of his
right for which he could not be adequately
compensated in damages recoverable in the
action if the uncertainty were resolved in
his favour at the trial. The need for such
protection has, however, to be weighed
against the corresponding need of the
Defendant to be protected against injury
resulting from his having been prevented
from exercising his own legal rights for
which he could not be adequately
compensated. The court must weigh one
32 OS No.26299/2021
need against another and determine where
the "balance of convenience" lies. In order
to protect the Defendant while granting an
interlocutory injunction in his favour the
court can require the Plaintiff to furnish an
undertaking so that the Defendant can be
adequately compensated if the uncertainty
were resolved in his favour at the trial".
25. Applying the above said principles of law
to the instant case at hand, it can be said that, the
relief by way of interlocutory Injunction is to be
granted, to mitigate the risk of injustice to the
Plaintiff, during the period, before that uncertainty
could be resolved. And the very object of
interlocutory Injunction is to protect the Plaintiff,
against the injury to be caused by violation of her
rights, for which he could not be adequately
compensated in terms of damages, recoverable in the
action, if the uncertainty were resolved in her favour,
at the trial.
The need of such protection has, however, to be
waived against the corresponding need of the
Defendants, to be protected against the injury
resulting from having been prevented from exercising
his own legal rights, for which she could not be
adequately compensated.
33 OS No.26299/2021
Thus, the balance of equilibrium inbetween the
two is to be maintained, till the uncertainties are
resolved, at the trial.
26. By considering the situation in the present
case and by taking into consideration, the preposition
of law laid down by the Hon'ble Apex Court in the
above said decision, when the Plaintiff has prima-
facie, shown the existence of his rights over the Suit
Schedule Property; and has shown that the
Defendants have an intention to dispossess him, by
demolishing the structure available in it, without
adopting the due process of law, it is this uncertainty
which is required to be resolved in this case.
Till the resolution of such dispute, it is necessary
to protect the interest of the Plaintiff, over the Suit
Schedule Property. If the rights of the Plaintiff are not
protected, there are every chances of infringement.
Thus, the Plaintiff has shown the balance of
convenience in her favour and irreparable injury
would be caused to him, if an order of Injunction is
not passed, in her favour.
Hence, I answer POINT NO.3 IN THE
AFFIRMATIVE.
34 OS No.26299/2021
27. POINT NO.4:-
Since, the Plaintiff has shown prima-facie case
and balance of convenience in her favour; and since
the Defendant has failed to make out the grounds to
vacate the interim orders passed in favour of the
Plaintiff on 16.11.2021.
Inview of the findings on Point Nos.1 to 3,
supra, the interim order of injunction is required to be
made Absolute. In the consequences, the Defendant
has to fail, under IA No.1/2022.
Hence, the Defendant is not entitled for the
relief sought for, under IA No. 1/2022.
Hence, I answer Point No.4, in the Negative.
28. Point No.5 :
Thus, for the foregoing reasons, I proceed to
pass the following:
ORDER
I.A.No.2/2021 filed by the Plaintiff/Applicant under Order 39 Rule-1 and 2 R/W Sec. 151 of CPC., is hereby Allowed, inpart.
In the consequences, the
Defendants, its agents,
representative or any person/s
acting on its behalf, or claiming through it, are hereby restrained by 35 OS No.26299/2021 an order of Temporary Injunction, from dispossessing the Plaintiff from the Suit Schedule Property, without adopting due process of law, till the disposal of this suit.
IA No.1/2022 filed by the Defendant, U/Or. 39 R 4 of CPC, is hereby Rejected.
No order as to costs.
----
(Dictated to the Stenographer directly on the computer, corrected and pronounced in open court this the 22nd day of April, 2022.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, (CCH-73), Bengaluru.
36 OS No.26299/2021Schedule 'A' Property All that piece and parcel of the property bearing House List No.42 and 43, formed in Sy No.15/2, Khatha No.145 (converted from Agricultural to non agricultural residential purpose vide conversion order bearing No.B.DIS.ALN.SR(S) 251/88-89, dtd.01.03.1989 passed by the Special Deputy Commissioner, Bengaluru District, situation at Alahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru now within the limits of BBMP Bengaluru bearing Municipal No.145/15/2/42 and 43 as per form-B property register extract, measuring East to West: 40 feet and North to South:
40 feet, in all measuring 1600 square feet, and the same is bounded on the.
East by: House No.50 and 51, West by: Road, North by: House No.41,
South by: Remaining portion of the same property.
Schedule 'B' Property All that piece and parcel of the property bearing Site No.41, House List No.41, BBMP No.145/41, VPKhatha No.920/41-15/2/387, site formed in converted Sy No.15/2, vide order dtd.01.03.1989 No.B.DIS.ALN.SR(S) 251/1988-89, situation at Alahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru now within the limits of BBMP of BBMP Ward No.196, measuring East to West: 40 feet and North to South: 41+40.6/2 feet, totally measuring 1632 square feet, North to South: 9 feet, totally measuring 360 square feet, and the same is bounded on the.
East by: Site No.52, West by: Road,
North by: Remaining portion of Site No.41, South by: Site No.42.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, (CCH-73), Bengaluru.