Bangalore District Court
Kiran Patel L vs The Bangalore Development ... on 16 January, 2024
KABC0A0040312017
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.26405/2017
Dated this 16th day of January, 2024
Plaintiff:- Mr. Kiran Patel L,
S/o Mr. P. Lakshminarayana,
Aged about 44 years,
R/at No.993, Patel Garden,
Saitpalya, St. Thomas Town Post,
Hennur Main Road,
Bengaluru-84.
(Rep. By - Sri B.V. Ramamoorthy, Advocate)
V/S
Defendant:- The Bengaluru Development Authority,
Represented by its Commissioner,
Bellary Road, Kumara Park East,
Bengaluru.
(Rep. By - Sri P.V, Advocate)
Date of Institution of the suit 11/12/2017
Nature of the (Suit or pro-note, Injunction Suit
suit for declaration and
possession, suit for injunction,
etc.)
2 OS.No.26405/2017
Judgment
KABC0A0040312017
Date of the commencement of 23/07/2019
recording of the Evidence.
Date on which the Judgment 16/01/2024
was pronounced.
Year/s Month/s Day/s
Total duration -06- -01- -05-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:: JUDGMENT ::
This is a suit filed by the sole plaintiff against sole defendant - BDA for permanent injunction.
2. The plaint averments in brief are that, originally Survey No. 208/1 of Kacharakanahalli village, Kasaba hobli, Bangalore North Taluk, belonged to the family of late Raju namely Boramma, TBR Shivaram and TBR Borajanna. Under sale deed dated 5-2-1981, the said original owners sold said Survey No. 208/1 measuring 3 acres 38 guntas in favour of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif. These three purchasers formed layout in said Survey 3 OS.No.26405/2017 Judgment KABC0A0040312017 No. and sold suit schedule property which is Property No. 38 measuring 1170 sqft formed in the said layout to Muni Naga Reddy @ MN Reddy by way of GPA and Affidavit. Having purchased the suit schedule property by way of GPA and Affidavit, Muni Naga Reddy @ MN Reddy put up construction thereon. Thereafter by sale deed dated 23-04-2007 executed by said MN Reddy acting as GPA holder of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif, the suit schedule property was sold in favour of Anasuya who is none but plaintiff's mother. She in turn gifted suit schedule property to the plaintiff under gift deed dated 04-06-2007. After getting the gift of suit schedule property in his favour, plaintiff has obtained water and electricity and sanitary connection to the suit schedule property and thereby, he is in possession and enjoyment of the same as absolute owner. When things stood thus, BDA which has never acquired suit schedule property nor ever taken possession of suit schedule property interfered with plaintiff's possession which has prompted the plaintiff to file the present suit for injunction to 4 OS.No.26405/2017 Judgment KABC0A0040312017 restrain the defendant / BDA from interfering with plaintiff's possession and enjoyment of suit schedule property and also to restrain BDA from demolishing the construction on suit schedule property and to restrain BDA from dispossessing the plaintiff from suit schedule property.
3. The suit schedule property is described as follows;
All that piece and parcel of house property bearing No. 38 situated at Kacharakanahalli village, Kasaba Hobli, Bangalore North Taluk, presently under jurisdiction of Byatarayanapura City Municipal Council, Ward No. 31, CMC Katha Old No. 188, New No. 188/38, BBMP Katha No. 469/188/38, in Survey No. 208/1 of Kacharakanahalli village, Kasaba Hobli, Bangalore North Taluk measuring east to west on the northern side 60 feet and southern side 57 feet and north to south 20 feet in all measuring 1170 square feet, [now only 882.5 square feet] and along with two square AC sheet roofed house as per sale deed produced by the plaintiff and consists of RCC building and bounded as follows;
5 OS.No.26405/2017
Judgment KABC0A0040312017 East by road, West by private property, North by property belonging to Kiran Patel South by road.
4. The defendant entered appearance and filed detailed written statement denying the plaint averments. It was specifically denied that plaintiff is in possession of suit schedule property. On the other hand, the defendant / BDA took up the plea that suit is not maintainable for non- issuance of statutory notice under Section 64 of BDA Act. Specific plea was taken up that Survey No. 208/1 of Kacharakanahalli village measuring 3 acres 33 guntas has been acquired by BDA for formation of HBR layout 1 st stage under preliminary notification dated 27-06-1978 followed by final notification dated 9-01-1985 and BDA has also taken physical possession of the said Survey No. Thereby pleading that it is BDA which is in possession and the plaintiff is not in possession of any portion of said Survey No. much less suit 6 OS.No.26405/2017 Judgment KABC0A0040312017 schedule property, the defendant prayed for dismissal of the suit.
5. On the basis of the above pleadings, this court has framed the following issues;
1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2) Whether the plaintiff proves the alleged interference of defendant over suit schedule property?
3) Whether the plaintiff proves that he is entitled to reliefs as sought for in the plaint?
4) What order or decree?
6. In the trial, the plaintiff examined himself as PW1 and has got marked Ex. P1 to P58. The plaintiff has also examined two witnesses in support of his case as PW2 and PW3. On 7 OS.No.26405/2017 Judgment KABC0A0040312017 behalf of the defendant / BDA, the Superintendent Land Acquisition Section of BDA is examined as DW1 and he has got marked Ex. D1 to D7.
7. After closure of evidence of both sides, I have heard the arguments of both sides and perused the records of the case. Both sides have relied upon citations, which are referred to at appropriate stage of the judgment.
8. My answer to the issues are as follows;
Issue No. 1 to 3 : In the negative.
Issue No. 4 : As per final order, for the following :-
:: REASONS ::
Issue No. 1 :-
9. The case of the plaintiff is that, originally Survey No. 208/1 of Kacharakanahalli village, Kasaba hobli, Bangalore North Taluk, belonged to the family of late Raju namely 8 OS.No.26405/2017 Judgment KABC0A0040312017 Boramma [sic: Boranna], TBR Shivaram and TBR Borajanna. Under sale deed dated 5-2-1981, the said original owners sold said Survey No. 208/1 measuring 3 acres 38 guntas in favour of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif. These three purchasers formed layout in said Survey No. and sold suit schedule property which is Property No. 38 measuring 1170 sqft formed in the said layout to Muni Naga Reddy @ MN Reddy by way of GPA and Affidavit. Having purchased the suit schedule property by way of GPA and Affidavit, Muni Naga Reddy @ MN Reddy put up construction thereon. Thereafter by sale deed dated 23-04-2007 executed by said MN Reddy acting as GPA holder of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif, the suit schedule property was sold in favour of Anasuya who is none but plaintiff's mother. She in turn gifted suit schedule property to the plaintiff under gift deed dated 04-06-2007. After getting the gift of suit schedule property in his favour, plaintiff has obtained water and electricity and sanitary connection to the suit schedule property and thereby, he is in 9 OS.No.26405/2017 Judgment KABC0A0040312017 possession and enjoyment of the same as absolute owner. When things stood thus, BDA which has never acquired suit schedule property nor ever taken possession of suit schedule property interfered with plaintiff's possession which has prompted the plaintiff to file the present suit for injunction to restrain the defendant / BDA from interfering with plaintiff's possession and enjoyment of suit schedule property and also to restrain BDA from demolishing the construction on suit schedule property and to restrain BDA from dispossessing the plaintiff from suit schedule property.
10. In support of his case, the plaintiff has examined himself as PW1 and reiterated the plaint averments and also examined two witnesses in support of his case as PW2 and PW3, who are none but his acquaintances to speak regarding the plaintiff's possession over suit schedule property. The plaintiff has got marked Ex. P1 to P58 in support of his case. 10 OS.No.26405/2017
Judgment KABC0A0040312017
11. Ex. P1 is sale deed dated 20-3-1970 but the said sale deed is in respect of survey No. 89/2 measuring 32 guntas and not in respect of either suit schedule property or survey No. 208/1 in which suit schedule property is situated and therefore, it appears the said sale deed has no relevancy to the present suit. Ex. P2 is the sale deed dated 5-02-1981 under which the original owners of survey No. 208/1 namely Boranna, Shivaram and Borejanna have sold survey No. 208/1 in favour of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif. Ex. P3 is the sale deed dated 23-04- 2007 executed by said Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif through their attorney holder - Mani Naga Reddy @ MN Reddy in favour of Anasuya who is the plaintiff's mother in respect of suit schedule property. Ex. P4 is another sale deed of the same date viz. 23-04-2007 executed by the same vendors in favour of the plaintiff and it is in respect of property adjacent to suit schedule property. Be it noted that, in the boundaries of the suit schedule property, the northern boundary is stated as property of Kiran Patel 11 OS.No.26405/2017 Judgment KABC0A0040312017 [plaintiff] and therefore, it appears that, Ex.P 4 is sale deed in respect of said adjacent Property.
Ex. P5 is the gift deed by plaintiff's mother Anasuya dated 4- 06-2007 in favour of the plaintiff under which suit schedule property is gifted in favour of the plaintiff. Ex. P6 to 8 are rental agreements executed by plaintiff in respect of various tenants, purportedly renting out portions of Suit Schedule Property. Ex. P9 to 11 are endorsements issued by BBMP giving permission to the plaintiff for road digging for electrical work. Ex. P12 is the building license. Ex. P13 to 21 are electricity bill along with receipts. Ex. P22 is approval of electrical installation in suit schedule property and Ex. P23 is the work order in respect of the same. Ex. P24 to 26 are documents regarding obtaining water connection and sanitary connection to suit schedule property. By inadvertence, no document is marked as Ex. P27 in the present case. Ex. P28 is also a document relating to water connection in respect of suit schedule property. Ex. P29 is a receipt for payment of fees to BBMP. Ex. P30 is encumbrance certificate and also 12 OS.No.26405/2017 Judgment KABC0A0040312017 sanctioned plan obtained by the plaintiff in respect of putting up construction on suit schedule property. Ex. P-31 to 42 are photographs and Ex. P-43 is CD said to contain the photographs. Ex. P-44 to P58 are certified copies of judgments passed in various suits in which BDA is defendant, but none of the said judgments are in respect of either suit schedule property or at least in respect of Survey No. 208/1 of Kacharakanahalli village in which suit schedule property is situated.
12. Per contra, the defence raised by BDA is total denial of the fact that plaintiff is in possession of suit schedule property. On the other hand, the defendant / BDA has taken up the plea that suit is not maintainable for non-issuance of statutory notice under Section 64 of BDA Act. Specific plea is taken up that Survey No. 208/1 of Kacharakanahalli village measuring 3 acres 33 guntas has been acquired by BDA for formation of HBR layout 1st stage under preliminary notification dated 27-06-1978 followed by final notification 13 OS.No.26405/2017 Judgment KABC0A0040312017 dated 9-01-1985 and BDA has also taken physical possession of the said Survey No. Thereby pleading that it is BDA which is in possession and the plaintiff is not in possession of any portion of said Survey No. much less suit schedule property, the defendant has prayed for dismissal of the suit.
13. On behalf of the defendant, as noted supra, the superintendent of Land Acquisition Section of BDA is examined as DW-1 and got marked Ex. D-1 to D-7. Ex. D-1 is the authorization letter in favour of DW-1. Ex. D-2 is the preliminary notification. Ex. D-3 is the final notification. Ex. D-4 is the award. Ex. D-5 is the Mahazar for taking physical possession of Survey No. 208/1. Ex. D-6 is the notification under Section 16 [2] of the Land Acquisition Act. Ex. D-7 is the Erratum to the final notification rectifying the Survey No. as 208/1 instead of "2-8", since there was a mistake in the final notification.
14 OS.No.26405/2017
Judgment KABC0A0040312017
14. Having appreciated the rival cases set up by both sides and the oral and documentary evidence on record, it is to be noted that, since, this is a suit for bare injunction, the primary question to be considered by the court is whether plaintiff has proved his peaceful possession and enjoyment of suit schedule property as on the date of the suit.
15. Before considering this primary question, certain ancillary matters may be briefly disposed off. One contention raised by defendant in written statement is that, suit is not maintainable for non-issuance of statutory notice under Section 64 of BDA Act. This contention does not survive because order sheet discloses that, at the time of filing of the suit, by orders dated 13-12-2017, this court has allowed IA No. 1 filed by plaintiff under Section 64 [2] of BDA Act and considering the urgency stated, this court has dispensed with statutory notice to BDA and permitted the plaintiff to institute the suit without the requirement of issuing statutory notice. Therefore, when this court has specifically allowed IA No. 1 15 OS.No.26405/2017 Judgment KABC0A0040312017 and permitted plaintiff to file the suit without issuing statutory notice in view of considering the urgency stated, the contention that suit is not maintainable for want of statutory notice does not survive and accordingly this contention is disposed off.
16. At this stage, it is necessary to take note of the citations relied upon by both sides. The contention of the defendant / BDA by relying upon the ruling of Hon'ble Apex Court in BDA v. Brijesh Reddy reported in 2013 [03] SCC 66 is that suit for injunction is not maintainable in respect of acquired land. On this basis, it was argued that, since, admittedly entire survey No. 208/1 has been acquired, suit before civil court in respect of portion of said acquired land is not maintainable and the present suit is liable to be dismissed as such.
17. Per contra, Learned Counsel for the Plaintiff has relied upon the following rulings;
16 OS.No.26405/2017
Judgment KABC0A0040312017
i) BDA v. Gopamma and others in RFA 1631 of 2007 dated 15-03-2023 : In this case, Hon'ble High Court of Karnataka has taken note of law laid down in Mukunda v. State of Karnataka and held that, on the basis of Mahazar prepared without the presence of owners of land or anybody representing them, such Mahazar cannot be relied upon to demonstrate taking over of physical possession of property by BDA.
ii) K. L. Ramesh v. BDA reported in 2013 (5) KarLJ 670 : wherein also the law laid down at paragraph 12 is that, where Mahazar is in cyclostyled form with blanks filled up in handwriting and the absence of names and addresses of so called witnesses to the Mahazar and the identity of the witnesses not being established and the owner's signature not being taken, it cannot be said that such a Mahazar is proof of BDA taking over the possession.
iii) Mukunda v. State of Karnataka reported in AIR.
2016 Karnataka 158 for the same proposition of law in respect of the Mahazar.
iv) Jaypaul v. BDA in W.P. 13640 of 2014 : wherein the Hon'ble High Court of Karnataka has taken note of Section 38D introduced into BDA Act granting certain reliefs to land losers and Hon'ble High Court of Karnataka disposed off the petition reserving liberty to petitioners to seek reprieve under Section 38D of the BDA Act.
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Judgment KABC0A0040312017
v) BDA v. M. S. Narayana Murthy reported in Laws Karnataka 2013-9-68 for the proposition of law at paragraph 5 that, Section 9 of CPC enables the court to try all civil suits unless they are barred. Therefore whenever a suit is filed in respect of acquired land what is required to be examined is whether relief sought for by the plaintiff is civil in nature or challenge to validity of acquisition proceedings. If it is a civil dispute, civil court can proceed and if relief sought for is related to challenging validity of acquisition proceedings, civil court has no jurisdiction to entertain it.
vi) Muniswamy v. State of Karnataka in WP 45498 of 2014 : Wherein, Hon'ble High Court of Karnataka has observed at paragraph 5 that, where the identity of the witness to the Mahazar taking over possession by BDA could not be established on the basis of the Mahazar itself, it would be well nigh impossible for BDA to establish the circumstances to the satisfaction of the court and when valuable property is sought to be divested from a landowner, it would require a much more honorable document to be executed to establish that he was divested of the property under due process of law. In other words, the proposition of law laid down herein is similar to the proposition of law laid down in the first three rulings relied upon by Learned Counsel for plaintiff which requires that any Mahazar prepared by BDA in respect of taking over physical possession of land should be signed by the landowner and by 18 OS.No.26405/2017 Judgment KABC0A0040312017 witnesses whose identity and parentage is duly established.
vii) Poornima Girish v. Revenue Department reported in ILR 2011 Karnataka 574 : for the proposition of law that where acquisition proceedings has become stale and inconclusive not having taken possession of subject property though notified for acquisition, notification issued for purpose of acquiring the lands will not enure to the benefit of authority.
viii) Krishna Ram Mahale v. Shobha Venkatrao reported in 1989 [4] S.C.C. 131 : for the proposition that occupant in possession of land cannot be dispossessed without recourse to law.
ix) Satyam @ Ramaiah v. Karnataka Milk Federation Cooperative Limited reported in ILR 1999 Karnataka 1451 : for proposition of law that even trespasser in settled possession is entitled to injunction.
x) Karthiyayani Amma v. Govindan reported in AIR 1980 Kerala 224 : for the proposition of law that a person in possession of immovable property can sustain a suit for injunction even against the rightful owner and such a person can be dispossessed only with due process of law.
xi) Patil Exhibitors v. Corporation of City of Bangalore reported in AIR 1986 Karnataka 194 : wherein it is 19 OS.No.26405/2017 Judgment KABC0A0040312017 held that even the landlord cannot dispossess the tenant otherwise than through due process of law.
xii) Kallappa Shetty v. Lakshmi Narayan Rao reported in AIR 1972 S.C. 2299 : for the proposition of law that where plaintiff is in possession of suit property he can on the strength of his possession resist interference by defendant who has no better title than himself.
xiii) Narayanappa v State of Karnataka reported in Laws Karnataka 2004-11-11 : for the proposition of law that nature of possession which may entitle a trespasser to exercise right of private defence of property should contain attributes that trespasser must be in actual possession of the property over a sufficiently long period and possession must be to the knowledge expressed or implied of the owner without any attempted concealment and the process of dispossession of the true owner by the trespasser must be complete and final and should be acquiesced by the true owner and the usual test to determine quality of settled possession in the case of cultivable land would be whether or not trespasser after having taken possession has grown crops.
xiv) John B. James v BDA reported in ILR 2000 Karnataka 4134 : wherein it is laid down that, where in respect of any land acquired by BDA any person is in settled possession such a person can be dispossessed only by due process of law.
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Judgment KABC0A0040312017
18. Therefore the sum and substance of the law laid down in the citations relied upon by both sides is that, the civil court has no jurisdiction to entertain a suit in which acquisition proceedings are challenged, however, where a person claims to be in settled possession of acquired land and seeks injunction on the basis of such settled possession, then, notwithstanding the fact that the land has been acquired, such a suit is maintainable and such a person is entitled to injunction, if he can prove his settled and lawful possession over the property as on the date of the suit.
19. In the background of the above well settled position of law, let me consider the evidence adduced by the plaintiff to see whether plaintiff has proved his lawful possession over suit schedule property as on the date of the suit.
20. In civil suits where the question of lawful possession of Plaintiff is to be determined, the said question has to be determined on the basis of documentary evidence adduced 21 OS.No.26405/2017 Judgment KABC0A0040312017 and not by the self-serving oral evidence of the plaintiff or his witnesses. In any event PW 2 and PW 3 are close acquaintances of plaintiff and even as per their chief examination affidavit, they are family friends and therefore they are not independent witnesses and therefore the oral evidence of PW 1 to PW 3 is in no way helpful to the plaintiff and instead the question whether the plaintiff has proved his possession as on the date of suit has to be addressed on the basis of appreciation of documentary evidence on record.
21. If the documentary evidence is looked into, it is seen that, the plaintiff has got marked Ex. P1 to P58. Ex. P1 as already noted supra is sale deed executed by Muni Sadapa and Muni Shamappa in favour of company by name IBM United Trade Corporation and it is in respect of some other survey No. viz. survey No. 89/2 measuring 32 guntas and therefore, said sale deed is neither in respect of suit schedule property nor in respect of survey No. 208/1 in which suit schedule property is situated and therefore the said sale deed 22 OS.No.26405/2017 Judgment KABC0A0040312017 is totally irrelevant for the purpose of the present suit and cannot help the plaintiff in any way.
22. Ex. P2 to P5 are the title deeds under which plaintiff claims that, the title in respect of suit schedule property has flown to plaintiff. Ex. P2 is sale deed by original owners of survey No. 208/1 in favour of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif, in respect of survey No. 208/1 measuring 3 acres 33 guntas. Under Ex. P3 and P4 said purchasers namely Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif through their attorney holder namely MN Reddy have sold suit schedule property and another adjacent property to plaintiff's mother Anasuya and plaintiff respectively. Under Ex. P5 said Anasuya has gifted suit schedule property to the plaintiff.
23. However, it is crucial to note that, admittedly survey No. 208/1 measuring 3 acres 33 guntas has been acquired by BDA under the acquisition notifications at Ex. D2 and D3. 23 OS.No.26405/2017
Judgment KABC0A0040312017
24. At this stage a slight digression is required to substantiate the above finding that survey No. 208/1 has been admittedly acquired by BDA. At the outset, it is to be noted that, as per the plaint averments, the survey No. 208/1 totally measures 3 acres 38 guntas. However from the sale deed at Ex. P2 executed by the original owners of said survey No. in favour of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif, it is forthcoming that, the total extent of survey No. 208/1 is only 3 acres 33 guntas. To show the acquisition of entire survey No. 208/1 measuring 3 acres 33 guntas, DW1 has got marked the preliminary and final notifications at Ex. D2 and D3. In Ex. D2 at serial No. 190 of Kacharakanahalli village it is shown that survey No. 208/1 measuring 3 acres 33 guntas has been acquired and the Kathedar is shown as TBA Boramma [sic: Boranna] s/o TR Raju who is none but the vendor in Ex. P2. In Ex. D3 which is the final notification there is admittedly an error at serial No. 190 of Kacharakanahalli village since the survey No. is shown as 2 - 8 instead of 208/1, but in this regard there is a 24 OS.No.26405/2017 Judgment KABC0A0040312017 clarification in the award at Ex. D4 wherein it is stated that there is a mistake in mentioning the survey No. as 2 - 8 in final notification and hence an erratum is issued which is enclosed along with the award file. The said erratum is marked as Ex. D7 in which there is rectification of survey No. from 2 - 8 to 208/1. So on the basis of said preliminary notification and final notification as rectified by erratum at Ex. D7 and also the award which is marked as Ex. D4 it is clear that entire extent of survey No. 208/1 has been acquired by BDA.
25. This acquisition of survey No. 208/1 is impliedly admitted by the plaintiff by putting one suggestion to DW1. In the cross-examination of DW1 dated 13-08-2021, a suggestion is put to DW 1 by Learned Counsel for Plaintiff that, the owners of survey No. 208/1 measuring 3 acres 33 guntas challenged the acquisition of said survey No. by filing writ petition which was allowed and the acquisition has been quashed. By putting the said suggestion it is clear that 25 OS.No.26405/2017 Judgment KABC0A0040312017 plaintiff admits that survey No. 208/1 measuring 3 acres 33 guntas was acquired, but the defence is that said acquisition was quashed in writ petition. However no such order of Hon'ble High Court in writ petition quashing such notification has been produced by the plaintiff. In view of the documents produced by defendant which categorically shows acquisition of survey No. 208/1 measuring 3 acres 33 guntas and in view of the above suggestion impliedly admitting the acquisition, I hold that, there cannot be any doubt that entire survey No. 208/1 in which Suit Schedule property is allegedly situated, has been acquired by BDA.
26. The contention of plaintiff is that, although the land has been acquired, BDA never took actual physical possession of survey No. 208/1 and in this regard, reliance is placed upon Ex. D5 - Mahazar to show that, it is not signed by the owner and the identity of the witnesses is not established and as already noted Supra, plaintiff has relied upon various rulings of Hon'ble High Court of Karnataka wherein the categorical 26 OS.No.26405/2017 Judgment KABC0A0040312017 law laid down is that, if the Mahazar is not signed by the land owner or his representative and the name, parentage and identity of the witnesses is not clearly established such Mahazar cannot be relied upon to show taking over of physical possession by BDA.
27. However, in a civil suit, it is first for the plaintiff to prove his case and plaintiff cannot depend upon weaknesses of the defendant. Therefore, before entering into the question whether BDA has proved taking over of physical possession of survey No. 208/1, first, the court has to see whether plaintiff has proved his lawful possession of suit schedule property as on the date of the suit. It is only if the plaintiff discharges the initial onus and proves his lawful possession as on the date of suit that, then, the court has to see whether the defense raised by BDA that such possession is unauthorized since BDA had already taken physical possession of survey No. 208/1, is substantiated.
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Judgment KABC0A0040312017
28. Therefore let me first address the question whether plaintiff has proved his lawful possession and enjoyment of suit schedule property as on the date of the suit. In this regard, as already noted Supra, the title deeds of the Plaintiff and his predecessors in interest, are not by themselves sufficient to prove the physical possession of Plaintiff over Suit Schedule Property, because admittedly the survey No. 208/1 has been acquired and the sale deed by original owners in favor of Ashfaq Ahmed, Eshan Ahmed Sharif and Irshad Ahmed Sharif and subsequent sale deed by said purchasers in favor of plaintiff's mother Anasuya are all subsequent to the preliminary notification at Ex. D2. In this regard, reference may be made to the observations in the case of Sneha Townships Private Limited and Ors. vs. State of Karnataka and Ors. (12.01.2021 - KARHC) : W.A. Nos. 3745 of 2016 [LA-KIADB], Decided On: 12.01.2021;
37. In Shiv Kumar, although the Hon'ble Supreme Court considered the case under Section 24(2) of 2013 Act, in respect of the acquisition under the provisions of the LA Act, 1894, it has been observed in the said case that after the 28 OS.No.26405/2017 Judgment KABC0A0040312017 issuance of notifications for acquisition, whether preliminary or final, notified lands are sold at throw-away prices by builders and unscrupulous persons and such sales are void and do not confer any right to claim a higher compensation themselves than the owner himself. Further, such a sale effected after Section 4 notification issued under the LA Act, 1894 is ineffective and therefore, Section 24 of 2013 Act cannot be invoked. That, when the sale transaction does not confer any title, the purchaser cannot claim any possession and challenge the acquisition by questioning the legality or regularity of the proceedings in taking over of possession. That, a purchaser of a notified land under a void transaction cannot have any right to challenge the acquisition proceedings, as any such purchase has no legality. This is because, no legal, just or equitable right enures to the purchaser of the notified land so as to assail the process of acquisition. The sale of notified land is void ab initio and no rights are acquired on the purchaser as against the State. The Hon'ble Supreme Court has elaborated on such sales being void and ultimately over-ruled the earlier decision in Manav Dharam Trust. The said judgment would squarely apply even to an acquisition under the provisions of KIAD Act.
(Emphasis Supplied)
29. Therefore on the basis of the said title deeds it cannot be said that plaintiff has proved his lawful possession, but plaintiff has to produce some other reliable documents to show his actual physical possession of suit schedule property as on the date of the suit. In this regard, it is noted that, apart from the title deeds discussed above, all other documents produced by the plaintiff are subsequent to the filing of the suit. Ex. P6 to 8 are rental agreements purported 29 OS.No.26405/2017 Judgment KABC0A0040312017 to be executed by the plaintiff in favour of tenants in respect of portions of construction put up on suit schedule property. However, they are all of the year 2019, whereas the suit is of the year 2017. Ex. P9 to 11 are endorsements issued by BBMP permitting the plaintiff to do road cutting work, for the purpose of electrical work, however, they are of the year 2018, whereas suit is of the year 2017. Ex. P12 is the building license which is dated 9-3-2018 which is also subsequent to the suit. Ex. P13 to 21 are electricity bills and receipts, but they are all of the year 2019 and therefore subsequent to the suit. Ex. P22 to 26 and Ex. P28 and 29 are documents regarding plaintiff obtaining water and electricity and sanitary connection to suit schedule property, but they are also subsequent to the suit, since they are of the year 2019, whereas the suit is of the year 2017. Ex. P30 is encumbrance certificate and sanctioned plan & it is crucial to note that even the sanctioned plan is dated 9-3-2018 and therefore it is also subsequent to the suit. Ex.P 31 to 42 are photographs purporting to show multi-storey building on suit schedule 30 OS.No.26405/2017 Judgment KABC0A0040312017 property Ex. P43 is the CD. However, it is to be noted that even as per the building license and sanction plan produced by the plaintiff, the sanction plan is obtained only subsequent to the suit and therefore it appears the building, if any, on suit schedule property is constructed subsequent to the suit, whereas, the court has to see whether Plaintiff has proved his possession, as on the date of the suit.
30. Further, it is to be noted that, the description of the suit schedule in the Plaint is itself self-contradictory. Firstly, in the Plaint schedule, the suit schedule property is stated to be measuring 1170 square feet, but it is immediately followed by statement that, now it is only 882.5 square feet. Plaintiff has not pleaded nor explained how the measurement of 1170 square feet became 882.5 square feet. This clearly indicates that plaintiff's mother Anasuya was never put into possession of 1170 square feet by her vendors and therefore, plaintiff is claiming to be in possession of only 882.5 square feet. Plaintiff has not explained when and under which document 31 OS.No.26405/2017 Judgment KABC0A0040312017 plaintiff acquired the possession of said 882.5 square feet. Therefore, this categorical admission by the plaintiff in the Plaint schedule by stating that, although as per the title deeds, the measurement of suit schedule property is 1170 square feet, the present measurement is only 882.5 square feet is another reason to hold that the title deeds are totally irrelevant for the purpose of proving plaintiff's possession.
31. Apart from this, it is to be noted that, in the Plaint schedule, it is stated that the suit schedule property consists of two squares AC sheet roof house as per sale deed and consists of RCC building. Therefore, the plaintiff himself is not certain and clear as to whether suit schedule property consists of RCC building or AC sheet roof house. On one hand, PW2 has stated in his cross examination dated 25-11- 2021 that, the construction of plaintiff is sheet roof construction, whereas plaintiff seeks to produce photographs at Ex. P31 to 42 purporting to show that there is RCC construction. Therefore, this contradiction in the plaintiff's 32 OS.No.26405/2017 Judgment KABC0A0040312017 own case also goes against the plaintiff's case and falsifies his contention.
32. Ex. P44 to 58 are all judgments passed by City Civil Court, Bangalore and they are all judgments in suits filed against BDA, but, none of the judgments are in respect of either suit schedule property or at least in respect of survey No. 208/1 of Kacharakanahalli village and therefore the said judgments are not relevant for the purpose of considering the question whether plaintiff has proved his lawful possession over suit schedule property.
33. Therefore, on analysis of the oral and documentary evidence produced by the plaintiff, it is clear that, plaintiff has totally failed to prove his physical and lawful possession of suit schedule property as on the date of the suit.
34. In conclusion, it is to be noted that, firstly, for the reasons noted supra, it is proved that survey No. 208/1 in which plaintiff claims suit schedule property is situated has 33 OS.No.26405/2017 Judgment KABC0A0040312017 been acquired by BDA under the preliminary and final notifications at Ex. D2 and D3. Although, plaintiff contends that BDA never took physical possession of said survey No. and plaintiff contends there are defects and deficiencies in the Mahazar at Ex. D5, the fact remains that, it is for the plaintiff to prove his case and plaintiff cannot rely upon any perceived weaknesses in the defendant's case. In order to prove his possession, as on the date of the suit, plaintiff has not produced a single document and all documents produced by the plaintiff, as already discussed supra, are subsequent to the filing of the suit. In fact, PW2 who is plaintiff's own witness has gone to the extent of stating that construction on suit schedule property is sheet roof construction whereas, by producing photographs at Ex. P31-42, plaintiff seeks to contend that there is RCC roof multistorey building on suit schedule property. Anyhow, the sanctioned plan itself is obtained on 9-3-2018 which is subsequent to the filing of the suit. Therefore, from the above discussion and the documents produced by the plaintiff which are all subsequent to the suit, 34 OS.No.26405/2017 Judgment KABC0A0040312017 it becomes clear that, as on the date of the suit, plaintiff was not in physical possession of suit schedule property. Moreover, suit schedule property is situated in survey No. 208/1 which is admittedly acquired by BDA. Therefore, when plaintiff has failed to prove his lawful possession as on the date of the suit, issue No. 1 is answered in the negative. Issue No. 2 :-
35. When I have answered issue No. 1 holding that plaintiff has failed to prove his possession of suit schedule property as on the date of the suit, the question of defendant interfering with plaintiff's possession does not arise and hence I answer issue No. 2 in the negative.
Issue No. 3 :-
36. When plaintiff has failed to prove his lawful possession as on the date of the suit, it follows that plaintiff is not entitled to relief of injunction as prayed for and hence I answer issue No. 3 in the negative.
35 OS.No.26405/2017
Judgment KABC0A0040312017 Issue No. 4 :-
37. Having answered issue No. 1 to 3 as above, I proceed to pass the following :-
:: ORDER ::
The suit is dismissed, with cost.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 16th day of January, 2024] Digitally signed by SUDINDRA SUDINDRA NATH S NATH S Date: 2024.01.16 16:41:02 +0530 (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
-:ANNEXURE:-
WITNESS EXAMINED FOR PLAINTIFF:
P.W.1 : Mr. Kiran Patel L S/o Mr. P.
Lakshminarayana
P.W.2 : L. Arun Patel S/o Late P. Lakshminarayana
P.W.3 : B.S. Venu Madhava S/o Late B.N.
Shankaraiah
36 OS.No.26405/2017
Judgment
KABC0A0040312017
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 : Copy of Sale Deed dt: 20/3/1970
Ex.P2 : Copy of Sale Deed dt: 05/02/1981
Ex.P3&4 : Two Copies of Sale Deed dt: 23/4/2007
Ex.P5 : Gift Deed dt: 04/06/2007
Ex.P6to8 : Three Copies of Rental Agreements
Ex.P9to11 : Reply given by BBMP (3 Nos)
Ex.P12 : License given by BBMP to construct building
Ex.P13to : Electricity Bills (9 Nos)
21
Ex.P22to : Three Documents related to Electricity Connection
24
Ex.P25& : License and Receipt issued by Bengaluru Water
26 Supply & Sewage Board
Ex.P27to : One receipts & Letter of Payment Charges, Receipt,
30 Encumbrance certificate
Ex.P31to : 12 Photographs and one C.D
44
Ex.P44 : Certified copy of Judgement and Decree in
OS.No.25086/2017
Ex.P45 : Certified copy of Judgement and Decree in
OS.No.26118/2015
Ex.P46 : Certified copy of Judgement and Decree in
OS.No.25179/2015
37 OS.No.26405/2017
Judgment
KABC0A0040312017
Ex.P47 : Certified copy of Judgement and Decree in
OS.No.26962/2011
Ex.P48 : Certified copy of Judgement and Decree in
OS.No.26508/2011
Ex.P49 : Certified copy of Judgement and Decree in
OS.No.26987/2013
Ex.P50 : Certified copy of Judgement and Decree in
OS.No.26547/2007
Ex.P51 : Certified copy of Judgement in
OS.No.6725/2006
Ex.P52 : Certified copy of Judgement in
OS.No.26720/2011
Ex.P53 : Certified copy of Judgement and Decree in
OS.No.26317/2009
Ex.P54 : Certified copy of Judgement and Decree in
OS.No.642/1999
Ex.P55 : Certified copy of Judgement and Decree in
OS.No.263/2011
Ex.P56 : Certified copy of Judgement and Decree in
OS.No.26245/2009
Ex.P57 : Certified copy of Judgement in
OS.No.7797/2000
Ex.P58 : Certified copy of Judgement and Decree in
OS.No.25416/2018
38 OS.No.26405/2017
Judgment
KABC0A0040312017
WITNESS EXAMINED FOR DEFENDANT:
D.W.1 : Ananda S/o Venkatappa
DOCUMENT MARKED FOR DEFENDANT:
Ex.D1 : Authorization Letter
Ex.D2 : Preliminary Notification Dt: 27/06/1970
Ex.D3 : Final Notification dt: 09/01/1985
Ex.D4 : Copy of Award dt: 22/10/1986
Ex.D5 : Copy of Mahazar
Ex.D6 : Notification U/s 16(2) of L.A Act
Ex.D7 : Attested copy of Erratum by way of
Notification dt: 16/09/1986
Digitally signed by
SUDINDRA SUDINDRA NATH S
NATH S Date: 2024.01.16
16:41:11 +0530
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.