Bangalore District Court
Smt. Nusrath Ishaq vs The Commissioner on 25 June, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 25th day of June, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 4449/2008:
PLAINTIFF : Smt. Nusrath Ishaq,
W/o. Late Mohammed Ishaq,
Aged about 48 years,
Residing at No.47, 1st Main road,
Someshwaranagar,
Jayanagar 1st Block,
Bangalore - 560 011.
(By Sri. Tanveer Ahmed Shariff,
Advocate)
-V/S-
DEFENDANTS : 1. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
Bangalore City.
2. The Executive Engineer,
Bruhat Bangalore Mahanagara Palike,
BBMP Complex, Bommanahalli,
Bangalore - 560 068.
(By Sri. S.J.Puranik, Advocate,
for defendants No.1 & 2)
2 O.S.No.4449/2008
Date of institution of the suit: 08.07.2008
Nature of the suit:
Permanent Injunction
Date of commencement of 24.02.2010
recording of evidence:
25.06.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
17 11 06
: JUDGMENT :
This suit is filed by the plaintiff against the defendants for grant of permanent injunction restraining them, its henchmen, agents, servants or anybody claiming under them from demolishing the suit schedule property and such other reliefs with costs. (Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case asserted by the plaintiff that she is the absolute owner of the piece of property bearing No.248, situated at Bommanahalli, Begur Hobli, Bangalore South Taluk, Bangalore, described it in the schedule to the plaint, as she has 3 O.S.No.4449/2008 acquired the right, title and interest over the same as legal representative and wife of late Mohammed Ishaq along with her children, as her husband purchased it from its previous owners Rajendra Prasad and Shafieulla Khan by virtue of a General Power of Attorney dated 20.12.1989. Previously it was purchased by the said owners Rajendra Prasad and Shafieulla Khan for a valuable consideration under registered sale deed dated 29.09.1984 i.e., the suit property forming part of Sy.No.26/1A of Yellunkunte Village, Begur Hobli, Bangalore South Taluk, totally measuring 1 acre. Previous owners formed layout therein and sold a site to the plaintiff's husband. There was ban on registration of revenue site by the Government. The plaintiff's husband could not obtain a registered sale deed in his name. However, the previous owners had executed a General Power of Attorney on 20.12.1989, conveying the suit schedule property in favour of the plaintiff's husband and in pursuance of the same, he was in possession and enjoyment of the property. He died on 30.08.2001. Hence, the plaintiff along with her children is in peaceful possession and 4 O.S.No.4449/2008 enjoyment of the suit schedule property. The constructed portion of the house in the suit schedule property has been let out to three families and out of the rents, the plaintiff is leading her life and this being so, the defendant No.2 along with its officials came to the suit schedule property on 04.07.2008 and threatened the tenants of dispossessing them from the suit schedule property and the suit schedule property would be demolished for the purpose of extending the road, within 3 days. The tenants of the plaintiff should vacate the suit schedule property. Hence, she immediately enquired with defendant No.2 who pleaded ignorance and directed the plaintiff to approach BDA. She made enquiry with BDA, in turn they advised the plaintiff stating that the suit schedule property does not come within its jurisdiction and approach the defendants. The defendants have not issued any notice to the plaintiff or the tenants occupying the suit schedule property and trying to interfere with the peaceful possession and enjoyment of the said property under the threat of demolition for the purpose of widening the road. The defendants being a Government Agency, have not followed any 5 O.S.No.4449/2008 principles of natural justice and taken law into their hands and tried to demolish the structure on the suit property. Hence having no efficacious and alternative remedy, the plaintiff has approached this court and prayed to decree the suit as prayed for.
3. On registering the case after issuance of suit summons, the defendants appeared through their counsel, but not filed written statement.
4. To prove the case, the plaintiff herself deposed as P.W.1 and relied upon the documents at Exs.P.1 to P.4. Whereas the defendants have not adduced any oral or documentary evidence.
5. Heard the arguments of the learned counsels for the plaintiff and defendants.
6. Perused the pleadings of the parties, evidence and record on hand.
6 O.S.No.4449/2008
7. On the basis of the pleadings, following points that would arise for my consideration:
(1) Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit property as on the date of filing of the suit?
(2) Whether the plaintiff proves that the defendants are trying to demolish the structure on the suit schedule property, without due process of law?
(3) Whether the plaintiff is entitled for relief as prayed for?
(4) What order and decree?
8. My findings on the above points are as under:
Point No.1 .. Does not survive for consideration. Point No.2 .. Does not survive for consideration.
Point No.3 .. In the Negative.
Point No.4 .. As per final order for the following:
R E A S O N S
9. Points No.1 to 3:- Since these three points are interlinked with each other. Hence they are taken together for common consideration to avoid repetition of facts and circumstances of the case. The plaintiff has claimed the permanent injunction 7 O.S.No.4449/2008 against the defendants Statutory Body restraining them, their agents or anybody acting under them from demolishing the suit property bearing No.248, situated at Bommanahalli, Begur Hobli, Bangalore South Taluk, Bangalore, described the boundaries and measurement thereunder and claimed her absolute title over the suit property by inheritance on account of death of her husband Late Mohammed Ishaq, along with her children. Her husband had purchased the suit property from its previous owner Rajendra Prasad and Shafieulla Khan and he came in possession of the same by virtue of General Power of Attorney dated 20.12.1989. The previous owners had acquired right, title and interest over the suit property by virtue of registered sale deed dated 29.09.1984. The suit property was part of Sy.No.26/1A of Yellunkunte Village, Begur Hobli, Bangalore South Taluk, measuring 1 acre and the original owners formed a private layout in the said Sy.No.26/1A and sold the sites and the suit schedule property to the husband of the plaintiff. There was ban on registration of revenue sites by the Government and her husband could not obtain a registered sale deed in his name. The previous 8 O.S.No.4449/2008 owner had executed a General Power of Attorney and an affidavit dated 20.12.1989, conveying the suit property to the plaintiff's property and since then the suit schedule property was in possession of the husband of plaintiff and he was enjoying it peacefully. He died on 30.08.2001, leaving behind his wife i.e., plaintiff and children and they continued the possession and enjoyment of the suit property. There is a construction of house in the suit schedule property and let out to the three families and out of the said rents, the plaintiff is getting her income to lead the life.
In this connection reiterating the plaint averments, the plaintiff herself has deposed as PW.1 and relied upon the documents at Exs.P.1 to P.4. Ex.P.1 is the General Power of Attorney dated 20.12.1989, executed by Rajendra Prasad and Shafieulla Khan; Ex.P.2 is the encumbrance certificate; Ex.P.3 is the affidavit dated 20.12.1989 and Ex.P.4 is the sale deed dated 27.09.1984, for having sold the suit property to the vendors by P. Sathyavathi and her family members.
9 O.S.No.4449/2008
10. The learned counsel for the plaintiff, has relied upon the following reported decisions.
(1) ILR 1994 Kar. 2505 (B.V.Subbachari Vs. B.K.Joyappa.
Wherein it is considered regarding the relevant point in case of suit for permanent injunction, i.e., whether the plaintiff is in possession of the property as on the date of filing of the suit and the question of tenancy is not relevant. The character, nature and the source of possession of the plaintiffs are not very relevant but only factum of possession is relevant. The Civil Court has jurisdiction to entertain the suit and it is considered at the interim stage on filing of application seeking temporary injunction. However, the legal point considered is to adjudicate upon the person in possession cannot be evicted, without due process of law and he cannot be dispossessed by force and he can continue the possession resisting the interference by any one including the rightful owner. If the owner threatens the peaceful possession of a person, he will be entitled to approach the Court of Law and seek injunctory relief to protect his possession and enjoyment thereupon.
Thus in the said decision, it is considered the actual possession and protection to the possession against the obstruction, as the plaintiff therein has claimed absolute ownership over the suit property involved, purchased under a registered sale deed. But in the present case, the plaintiff as legal heir of power of attorney holder 10 O.S.No.4449/2008 seeking title thereupon under the power of attorney, and the affidavit alleged vendors (Exs.P.1 & P.4) under which the deceased husband of plaintiff did not acquire any absolute title to the suit property mere execution of power of attorney and the affidavit do not confer any title to the suit property. Apart from this, the plaintiff has stated further that there is construction put up upon the suit property. But in this connection, no materials are forthcoming to prove the construction thereupon. Apart from this, she has contended about leasing out the premises constructed upon the suit property to the tenants. But no materials are forthcoming in this connection that the alleged tenants are in occupation of the suit property and paying the rents to the plaintiff. Thus in the absence of such materials, only the evidence of plaintiff in connection with the alleged construction and possession through the tenants, at this stage, it does not come to her aid to believe that she has possession and control over the suit property after the death of her husband, under the alleged power of attorney and affidavit (Exs.P.1 & P.4). Suit is purely based on ownership in connection with the suit 11 O.S.No.4449/2008 property. It is alleged that it is apprehension that the defendants may demolish the structure over the suit property. No doubt Exs.P.1 & P.4 reveals that husband of plaintiff No.1 had taken possession of suit property under Exs.P.1 & P.4. But these documents are not title deeds confirming any title to the suit property. Ex.P.4 discloses the payment of entire consideration amount. But, it is not registered deed. At the most it is only to be considered as agreement to sell. But these documents do not confer any title unless the property sold with duly stamped and registered document. Defendant disputed the title. But suit is not one for declaration of title against defendant and the true owners. Therefore since the facts and circumstances of the case involved in the said decision, are not similar to that of involved in the present case and hence the plaintiff cannot take shelter of the said decision.
(2) 1981(1) Kar.L.J. 522 (The Commissioner, Corporation of the City of Bangalore Vs. Kapoorchand Brothers).
"Maintainability of suit against the Corporation - If it is proceeded to demolish the building, without due process of law and hence the remedy is provided before 12 O.S.No.4449/2008 the court of law, who resist it as the Corporation has to follow the due procedure in order to demolish the unauthorized construction. The Karnataka Municipal Corporation Act provides for following of procedure that if there is any imminent danger to the buildings on the facts of the case and it is obligatory on the part of the Commissioner to have issued a show cause notice and complied with the principles of natural justice before passing the impugned order. If he had not done so, then the suit is maintainable. In the said decision, the rulings of the Hon'ble Apex Court are also referred to i.e., AIR 1968 SC 78; AIR 1977 SC 955 and (1968) 1 Mys. L.J. 90".
With due respect to the said decision, there is no dispute with reference to the dictum laid down and principles provided to be followed by the court. But in the present case, the plaintiff prima- facie has to prove her possessory title over the suit property. If she fails to prove it, the question of alleged structure on the suit property and the attempt of demolition of structure by the defendants do not arise for consideration. But the plaintiff prima- facie failed to prove the lawful possession based on title, over the suit property as discussed above. The suit is not for declaration of title against the true owners.
13 O.S.No.4449/2008
11. The Learned counsel for the plaintiff relied upon other decisions, they are reported in -
(a) (2012) 1 Supreme Court Cases 656 (Suraj Lamp & Industries Pvt. Ltd (2) Through Director Vs. State of Haryana & Another).
"It is referred to regarding the proper mode of transfer / conveyance of immovable property - General power of attorney sales (GPA sales) or sale agreement / general power of attorney / will transfers while testator is alive and it is held that immovable property can be transferred only by deed of conveyance (sale deed) duly stamped and registered as required by law and thereby it is explained the nature and scope of an agreement for sale, power of attorney and living will, and therefore GPA sales will not transfer title or interest in the immovable property, it does not create any right, title or interest and it is limited to the extent of section 53-A of T.P. Act.
A transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance duly stamped and registered as required by law, no right, title or interest in an immovable property can be transferred.
Any contract of sale (agreement to sell), which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 & 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53-A of the TP Act). According to the TP Act, an agreement for sale, whether with possession or without possession, is not a conveyance.14 O.S.No.4449/2008
A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (Section 1-A and Section 2, Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee".
(b) 1991(4) Kar.L.J.647 (Corporation of the City of Bangalore Vs. Smt. Yeshodamma).
"In connection with the jurisdiction of the court to entertain the suit and hence made sections 444 & 482 of KMC Act and unauthorized construction or construction in violation of building regulations. The authority established under the KMC Act cannot determine the question arbitrarily. But it has to follow the procedure as contemplated under the Act by issuing a notice, notifying the person concerned and actual deviation or unauthorized construction and then calling upon such person to give his explanation and to take a decision, otherwise such action without following these procedures its arbitrary action undertaken by the Corporation by its authority and thereby it is amounting to deprivation of his right to enjoy his property and availability of section 482 of the Act to a citizen to institute a suit against Corporation for injunction against Corporation".
(c) 1996(2) Kar.L.J. 336 (Alla Baksh Vs. Mohammed Hussain & Another).
15 O.S.No.4449/2008
"Pertaining to adverse possession under Article 65 of Limitation Act. The possession of transferee under invalid deed of transfer (unregistered sale deed) and the evidence showing transferee in open, continuous and uninterrupted possession and enjoyment of property for over 12 years and transferee in such possession has perfected his title by adverse possession".
But in the present case, it is not the case of the plaintiff that the defendants are the owners of the suit property. But she is claiming ownership under the alleged purchase referring power of attorney and affidavit (Exs.P.1 & P.4) executed by the alleged owners of suit property in favour of plaintiff's husband and after his death, as successors the plaintiff and her children are claiming the possessory right based on title. Thus, the plaintiff cannot assert title over the suit property by adverse possession against the defendants. But it is available against the real and true owners, who are not the parties to this suit. The defendants are only Statutory Authority against whom the plaintiff is alleging that they are trying to demolish the construction over the suit property. The defendants are not asserting any right over the suit property. It is mere exercise of power and to discharge the duty as contemplated under the KMC Act, which does 16 O.S.No.4449/2008 not amount to claiming right over the suit property as of owner. Thus, the said decisions do not come to the aid of the plaintiff to assert her right against the defendants as absolute owner and entitle for protection of her title on her behalf and on behalf of her children and protection of alleged possession thereunder, against the statutory body. It is mere apprehension. But no materials or evidence put forth by plaintiff regarding interference of defendants.
12. It is pertinent to note that the very suit itself as per pleading by the plaintiff that the permission in the suit property has been let out to the tenant and thus she is not in actual possession of the suit property. However to substantiate about the possession of tenants, the plaintiff neither put forth any material documents nor adduced the evidence of the alleged tenant to prove her constructive possession over the suit property under the alleged power of attorney and also the affidavit-cum-sale agreement. It is relevant at this stage to consider the observation made in the decision above referred, reported in (2012) 1 Supreme Court Cases 656 (Suraj Lamp 17 O.S.No.4449/2008 and Industries Pvt. Ltd., (2) Through Director Vs. State of Haryana & Another) in connection with the well-settled legal position that, "Sale agreement / GPA / will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. Therefore, the said transactions may also be used to obtain specific performance or to defend possession under section 53-A of the Transfer of Property Act. And that they can rely upon to apply for regularization of allotment / lease by development authorities and if the documents relating to "sale agreement / GPA / will transactions"
have been accepted / acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of said decision".
Thereby, it has made it clear that the said observations are not intended to affect the validity of sale agreements and powers of attorney executed in genuine transactions. Thus, by the observation made, it is made it clear that such transactions as involved in the present case on hand, are not treated as complete transaction or conveyance and therefore they can continue to be treated as existing agreement of sale. The plaintiff having right to get the sale deed executed, but no efforts are made as revealed from the very pleadings. She has not availed the right accrued to her and her 18 O.S.No.4449/2008 husband's legal heirs in respect of suit property, against the vendors or their legal heirs. On account of death of plaintiff's husband, the effect of GPA Ex.P.1), executed by the alleged vendor stood terminated under Law of contract i.e., the Law governing the agency, under section 201 of Contract Act.
13. However under the affidavit (Ex.P.4), which is referring to the agreement of sale on being received the entire consideration amount thereunder, it has not been registered and thereby it is considered to be mere sale agreement. But it is not registered deed and it does not confer any title upon the plaintiff and her children, as representatives of deceased husband of the plaintiff No.1. Even no materials are forthcoming pertaining to the revenue records or other documents to show that the name of deceased husband of PW.1 was entered in the revenue records. Ex.P.4 reveals handing over of possession. But suit is against the Statutory Authority and pleading is mere apprehension that the defendants may demolish the structure on the suit property. Ex.P.2 (encumbrance certificate) shows ownership of vendors of husband of PW.1 and it was for the 19 O.S.No.4449/2008 year 1984-85. But property extract is not forthcoming to show, as to the entries of name of owners and possessors. These are suppressed. These materials are important and relevant documents. So, the suit for mere injunction is not maintainable against the defendants, without seeking appropriate relief pertaining to accrued legal right, against the persons infringing the right of the plaintiff and her children. Even any overt act of defendants has not been brought on record to believe that the defendants are trying to demolish the construction, by dispossessing the alleged tenants of plaintiff occupying the suit property. She can avail remedy before the defendants, to protect her possession by submitting all authenticated documents to protect her alleged lawful possession, with due process of law, as the plaintiff is claiming the possession under the said power of attorney (Ex.P.1) of the year 1989 and affidavit-cum- agreement of sale (Ex.P.4) of the year 1984. Apart from this, plaintiff has not brought on record that her husband done the act of holding possession under Ex.P.4 and undertaking of construction or otherwise showing his overt act done prior to his death in pursuance 20 O.S.No.4449/2008 of Exs.P.1 & P.4, so that it could be protected under law, and that the General Power of Attorney (Ex.P.1) had not been revoked till his death, though it is considered to be irrevocable General Power of Attorney. But on account of his death, it stands terminated. So, these are material issues touches to the title of the plaintiff. So, mere injunction suit against only the proper party and not being necessary party, it does not maintainable. As discussed above that the plaintiff pleaded that the suit property is in possession of the alleged tenants, so that it can be considered the lawful possession of the plaintiff and also the claim of possession for more than 12 years a gap of long period. It is settled law that if greater remedy is available, then the injunctory relief as sought for in the present case does not sustainable. The plaintiff has not filed the suit for specific performance of agreement of sale as per Specific Relief Act, or title by way of adverse possession against the real owners. Therefore, mere injunction against the defendants being Statutory Authority, the plaintiff cannot maintain the suit. Even no materials on record to prove that the said documents referred to by the plaintiff i.e., GPA 21 O.S.No.4449/2008 and affidavit-cum-sale deed, have been accepted and acted upon by Municipality or other developmental authorities or Revenue Authorities to effect the mutation, so as to consider her alleged lawful possession over the suit property. Getting possession protected, without due process of law relating to the title to the suit property, by way of injunctory relief is illegal and at this stage no relief as prayed for, can be granted. She has not come to the court with clean hands. Therefore, from the evidence on record, it is revealed that without producing the materials with reference to the lawful possession basing on title, over the suit property specifically with reference to the existence of structure, and also regarding the alleged interference i.e., attempt of defendants to demolish the structure, etc., are the matters taken to be not proved. Therefore, the plaintiff is not entitled for the reliefs as prayed for.
14. It is also specifically disputed the maintainability of the suit on account of non-compliance of statutory notice under section 482 of KMC Act, by the defendant Corporation through its counsel though written statement is not filed. In this connection, the Learned 22 O.S.No.4449/2008 counsel for the plaintiff referred I.A.No.I regarding dispensation of notice, since there was urgency and accordingly the said application has been allowed at the initial stage, hence it cannot be disputed at this stage.
15. Therefore, in view of the above discussion, the plaintiff has not put forth the materials to support her case that she is entitled to the relief against the defendant Corporation. Therefore, at this stage, the suit of the plaintiff as against the Statutory Authority i.e., defendants, is not maintainability and hence liable to be dismissed. Hence by answering Points No.1 & 2 accordingly, as they do not survive for consideration and Point No.3 is answered in the 'Negative'.
16. Point No.4:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby dismissed.23 O.S.No.4449/2008
However, the plaintiff can have recourse to law, for the alleged right, against the proper and necessary parties and she can proceed before the competent authority of BBMP, on account of alleged apprehension of demolition of building with due process of law, and then the defendants can proceed in accordance with law, in the matter, within its power and duties under KMC Act.
Parties are directed to bear their own costs. Draw up the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 25th day of June 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Smt. Nusrath List of the documents marked for the plaintiff:
Ex.P.1 General Power of Attorney dated 20.12.1089 executed by Rajendra Prasad.
Ex.P.2 Encumbrance Certificate.
Ex.P.3 Affidavit dated 20.12.1989.
Ex.P.4 Sale Deed dated 27.09.1984.
24 O.S.No.4449/2008
List of the witnesses examined for the defendants:
- NIL -
List of the documents marked for the defendants:
- NIL -
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.25 O.S.No.4449/2008
Judgment pronounced in the open Court (vide separately) ORDER Suit of the plaintiff, is hereby dismissed.
However, the plaintiff can have recourse to law, for the alleged right, against the proper and necessary parties and she can proceed before the competent authority of BBMP, on account of alleged apprehension of demolition of building with due process of law, and then the defendants can proceed in accordance with law, in the matter, within its power and duties under KMC Act.
Parties are directed to bear their own costs. Draw up the decree accordingly.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.26 O.S.No.4449/2008 27 O.S.No.4449/2008 28 O.S.No.4449/2008