Karnataka High Court
The Commissioner vs Smt. K K Sugunamba on 23 October, 2020
Author: S. Sujatha
Bench: S. Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1044 OF 2011
Between:
The Commissioner
Bangalore Development Authority
Kumarapark West
Bengaluru-560 020.
...Appellant
(by Shri Murugesh V. Charati, Advocate)
And:
1. Smt. K K Sugunamba
W/o M Raja Gopal
Aged about 51 years
No.733, Patel Munivenkatappa Layout
Nagavara
Bengaluru-560 045.
2. Smt. K K Sunitha
D/o late K Kempaiah
aged about 41 years
No.733, Patel Munivenkatappa Layout
Nagavara, Bengaluru-560 045.
...Respondents
(by Shri A Sampath, Advocate for Respondents)
2
This Regular First Appeal is filed under Section 96 read
with Order 41 Rule 1 of the Code of Civil Procedure against the
judgment and decree dated 12.01.2011 passed in O S No.5771
of 2006 on the file of the IX Additional City Civil and Sessions
Judge, Bengaluru, decreeing the suit for the declaration and
permanent injunction.
In this Regular First Appeal, arguments being heard,
judgment reserved, coming on for pronouncement, this day,
INDIRESH J., delivered the following:
JUDGMENT
This Regular First Appeal is filed by the defendant- appellant-Bangalore Development Authority (hereinafter referred to as 'BDA' for brevity) against the judgment and decree dated 12th January, 2011 passed in Suit OS No.5771 of 2006 by the IX Additional City Civil and Sessions Judge at Bengaluru, decreeing the suit of the plaintiff for declaration and permanent injunction.
2. For the sake of convenience, the parties in this appeal are referred to as per their rank before the trial Court.
3. The averments in the plaint are that the plaintiffs claim to be the absolute owners in possession of four acres of land in Survey No.91/1 of Thanisandra village, (hereinafter referred to as 'Schedule property' for brevity) which was purchased by the 3 plaintiffs under sale deed dated 05th June, 2004 from one Anjinappa and others. Pursuant to the aforesaid sale deed, mutation entries have been effected in MR No.103/2003-2004 in the name of plaintiffs. The history relates to the acquisition of the schedule property is that one K. Mohammed Hussain was the absolute owner of the schedule property and he sold the same in favour of one Huchhappa as per sale deed dated 05th April, 1948. The said Huchhappa sold the schedule property in favour of one Kullappa on 16th May, 1949 and thereafter, the said Kullappa had sold the schedule property in favour of Huchhappa (father of Anjinappa and others) who were the vendors of plaintiffs. It is further stated in the plaint that said Huchhappa died leaving behind his sons viz. Anjinappa and Nanjappa, and thereafter, khata was changed in favour of his sons through IHC No.23/82-83 and accordingly, sons of Huchhappa (vendors of the plaintiff) have constructed houses in the schedule property and were living in the said houses by carrying out agricultural operations. It is further stated in the plaint that the defendant- BDA has issued notifications under the provisions of Bangalore Development Authority Act, 1976 (hereinafter referred to as 4 'BDA Act' for brevity) for acquiring the land for formation of "Arkavathi Layout" in Thanisandra and neighbouring villages and in the said notification, the schedule property is not notified for acquisition and the names of the vendors of the plaintiffs were not reflected in the acquisition notification. It is further averred in the plaint that the defendant had notified the land bearing survey No.91 of Thanisandra village showing it as "muffat kaval". The plaintiffs have purchased the schedule property from their vendors, i.e. Shri Anjinappa and others, pursuant to issuance of notification by the defendant and accordingly, averred that they were bona fide purchasers and are in possession of the same. In the meanwhile, the defendant has made an attempt to demolish the houses in the schedule property and immediately thereafter, the vendors of the plaintiffs have filed Writ Petition No.263 of 2005 on the file of this Court. When things stood thus, the officials of the defendant attempted to form a layout in the schedule property and as such, plaintiffs have filed OS No.394 of 2005 against the defendant and subsequently, the said suit was dismissed as withdrawn. Having come to know about the disposal of the suit 5 as withdrawn, the officials of the defendant attempted to form a layout on 28th February, 2006 and the same was resisted by the plaintiffs. In order to preserve and protect the schedule property apprehending danger from defendant and its officials, plaintiffs have approached the jurisdictional police. However, police authorities have directed plaintiffs to approach the competent Court for suitable relief, since the matter is of civil nature and as such, the plaintiffs have filed Original Suit No.5771 of 2006 on the file of the trial Court and sought for declaration of their title to the schedule property with consequential relief of permanent injunction against the defendant with costs. Immediately after service of notice, the defendant has entered appearance and filed detailed written statement. The defendant has stated that the suit is not maintainable since the schedule property is acquired and the suit is filed without complying mandatory provision comtemplated under Section 64 of the BDA Act. Defendant further stated that the plaintiffs have approached the court with unclean hands and have suppressed the true facts. Defendant has denied the ownership of the plaintiffs in respect of schedule property. It is 6 the case of defendant that, originally, the entire survey No.91 of Thanisandra village was totally measuring in an extent of 20 acres, which was Government land and as such, the revenue entries are shown as "muffat kaval". The defendant further averred that preliminary notification was issued on 02nd March, 2003 for acquiring 20 acres of land in survey No.91 of Thanisandra village for formation of "Arkavathi Layout" and pursuant to same, final notification also came to be issued on 23rd March, 2004. It is the case of defendant that they were the absolute owner in possession of 20 acres of land in survey No.91 of Thanisandra village and as such, denied the title of the plaintiffs in respect of schedule property. In order to substantiate their right over the schedule property, defendant averred that it has formed layout called "Arkavathi Layout" in survey No.91 and sites were allotted to the general public. The defendant further stated that it had surveyed entire survey No.91 of Thanisandra village, demarked the land which was acquired by them and they had taken possession of the land in question as provided under the law and therefore, plaintiffs, with an intention to knock off the Government land, came up with the 7 suit by creating documents. It is further stated in the written statement that the vendors of plaintiffs had no title over the schedule property and so also, since in Original Suit No.394 of 2005 the plaintiffs were not able to get an interim order restraining the defendant therein from interfering with the schedule property and as such, the said suit came to disposed of as withdrawn and as such, the defendant states that Original Suit No.5771 of 2006 is not maintainable on the ground of res judicata and accordingly, sought for dismissal the suit. Based on the aforesaid pleadings of the parties the trial Court has framed the following issues:
1. Whether the plaintiffs prove that they are absolute owners in possession of the schedule property?
2. Whether the plaintiffs prove that schedule property was not notified?
3. Whether the defendant proves that it is the absolute owner in possession of the schedule property?8
4. Whether the plaintiffs are entitled to the declaration sought for?
5. Whether the plaintiffs are entitled to permanent injunction sought for?
6. To what order or decree?
4. In order to establish their case, the plaintiffs have examined plaintiff No.1 as PW1 and produced 36 documents in all which are marked as Exhibit P1 to P36. Defendant has examined its official as DW1 and marked documents as Exhibits D1 to D3. The trial Court, after considering the material on record and evidence of the parties, by its judgment and decree dated 12th January, 2011, decreed the suit of the plaintiffs, holding that the plaintiffs are owners in possession of the suit property and consequently restrained the defendant, by means of permanent injunction, interfering with the plaintiffs' peaceful possession of the schedule property. Being aggrieved by the impugned judgment and decree passed by the trial Court, the defendant-Authority has preferred the instant appeal before this court.
9
5. We have heard Shri M V Charati, learned counsel appearing for the appellant and Sri A Sampath, learned counsel appearing for the respondents.
6. Shri M V Charati, learned counsel for the appellant- defendant, submitted that the schedule property has been acquired by the appellant for formation of Arkavathi Layout in furtherance of issuance of notification for acquisition and as such, the trial Court has no jurisdiction to decree the suit in favour of the plaintiffs. He further submitted that the respondent-plaintiffs have filed Original Suit No.394 of 2005 seeking similar relief from the trial Court, however, the said suit was withdrawn by the respondent-plaintiffs without seeking liberty to file fresh suit and as such, the said aspect of the matter was not considered by the trial Court while passing the impugned judgment and decree. It is the further contention of the learned counsel for the appellant that the land in question was a Government land and without arraying the Government as a party to the suit, the suit itself is not maintainable inter alia the respondents herein could not have better title over the 10 property. He further submitted that the finding recorded by the trial Court on issues No.3 and 4 is contrary to the records and as such, the impugned judgment and decree is liable to be set aside. Shri M.V. Charati, learned counsel for the appellant, after adverting to the grounds urged in the memorandum of appeal, submitted that the Civil Court has no jurisdiction to go into the question of validity or legality of the acquisition proceedings/notifications issued under the BDA Act or respective statutory provisions. In respect of the same, he places reliance on the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER, BDA AND ANOTHER v. BRIJESH REDDY AND ANOTHER reported in (2013)3 SCC 66.
7. Per contra, Shri A Sampath, learned counsel for the respondent-plaintiffs submitted that the plaintiffs were constrained to file a suit for declaration and permanent injunction in furtherance of the interference made by the defendant-appellant herein. He contended that the trial Court has rightly come to the conclusion that plaintiffs have proved that they were the absolute owners in possession of the schedule 11 property and with regard to the acquisition proceedings, learned counsel for the respondent-plaintiffs referred to the admission made by DW1-official of the defendant Authority during the course of cross-examination and accordingly he supports the impugned judgment and decree passed by the Trial Court and sought for dismissal of the appeal.
8. In view of the rival submissions advanced by the learned counsel for the parties, the points that arise for consideration in this appeal are:
1. Whether the appellant-Authority has made out a case for interference in this appeal?
2. Whether the impugned judgment and decree passed by the Trial Court requires interference by this Court?
9. We have carefully perused the impugned judgment and decree passed by the trial Court and examined the original records. The principal submission of the learned counsel for the respondent-plaintiffs was that, the plaintiffs are the absolute 12 owners in possession of four acres of land in Survey No.91/1 of Thanisandra village and the title to the aforesaid schedule property relates back to Exhibit P6-Sale deed dated 05th April, 1948 executed by one K. Mohammed Hussain in favour of Huchappa. In the said sale deed-Exhibit P6 dated 05th April, 1948, reference was made with regard to grant of four acres of land in survey No.91 of Thanisandra village. In this regard, we have carefully examined Exhibit P6-Sale deed dated 05thApril, 1948. The property sold by K. Mohammed Hussain described with boundary as under:
East by: land of Kadugondanahalli Pillappa;
West by: Government Gomal Land North by: land of Naganahalli Byrappa and Gomal Land;
South by: Land of Rabiabi
10. After purchasing the afore-mentioned property by Huchappa, he sold the same in favour of one Kullappa through sale deed dated 16th May, 1949 (Exhibit P8). Even in this document, the schedule property was described as four acres of land in survey No.91 of Thanisandra village and the boundaries 13 are also similar to that of one shown in Exhibit P6 sale deed dated 05th April, 1948. The said Kullappa has sold the schedule property in favour of Huchhappa through sale deed dated 15th February, 1951 (Exhibit P7). Perusal of Exhibit P9-Mutation Register extract indicate that the sons of Huchhappa H., i.e. Anjinappa and Nangappa, have mutated the revenue records in their favour as per Exhibit P9. Perusal of Mutation Register (Exhibit P9) reveals that the mutation was effected in respect of land bearing Survey No.91/2 of Thanisandra village and the said document is of the year 1982-82. Exhibit P11-copy of hissa tippani relates to Survey No.91/1 and 91/2 and the said hissa tippani copy indicates that phode No.1 is defined as "Sarkari Kharab" and in respect of phode No.2, it is shown as Police Department. The said fact would make it clear that the Government has granted the said land to Police Department. Exhibit P12 is a copy of Survey Settlement Department and Exhibit P13 is Mutation Register extract relating to Survey No.91/1 and 91/2 of Thanisandra village. In these documents, survey No.91/1 is totally measuring eight acres one gunta, whereas in respect of Survey No.91/2, it is shown as 31 acres 14 and 1 gunta. Perusal of said documents further establish the fact that survey No.91/2 is shown as 31 acre 1 gunta granted to Police Department and insofar as eight acres of land in survey No.91/1 wherein four acres of land was in the name of one D. Krishna and remaining four acres of land was in joint name of Anjinappa and Nanjappa, who were vendors of plaintiffs as per sale deed dated 05th June 2004 (Exhibit P1). The schedule to Exhibit P1 reads as under:
"µÉqÀÆå¯ï ¸ÀéwÛ£À «ªÀgÀ ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀƪÀð vÁ®ÆèPÀÄ, PÀȵÀÚgÁd¥ÀÄgÀ ºÉÆç½, xÀt¸ÀAzÀæ UÁæªÀÄPÉÌ ¸ÉÃjzÀ ªÀiÁf ¸ÀªÉð £ÀA§gÀÄ 91/2 DVzÀÄÝ, ºÁ° ¸ÀªÉð 91/1 £Éà £ÀA§j£À°ègÀĪÀ F ¢£À ¤ªÀÄUÉ PÀæAiÀÄ ªÀiÁrPÉÆlÄÖ ¤ªÀÄä ¸Áé¢üãÀ¥Àr¹gÀĪÀ 4J OUÀÄAmÉ (£Á®ÄÌ JPÀgÉ) «¹ÛÃtðzÀ RÄ¶Ì d«ÄäUÉ ZÀPÀÄ̧A¢:-
¥ÀƪÀðPÉÌ : PÉA¥ÀtÚgÀªÀgÀ d«ÄãÀÄ
¥À²ÑªÀÄPÉÌ : ¸ÀPÁðj d«ÄãÀÄ
GvÀÛgÀPÉÌ : £ÁUÀªÁgÀ PÉÆýgÁªÀÄtÚgÀªÀgÀ d«ÄãÀÄ
zÀQëtPÉÌ : PÀȵÀÚ¥ÀàgÀªÀgÀ d«ÄãÀÄ
11. It is the case of the appellant-defendant that the defendant-authority has issued notification for acquisition of land as per preliminary notification-Exhibit D1 dated 02nd March, 2003 and as per Final Notification-Exhibit D2 dated 24th March, 2004 15 and perusal of the aforesaid documents reflects that the schedule land in survey No.91 of Thanisandra is shown as muffat kaval. Out of these lands, there was proposal to acquire 20 acres of land as per Notification Exhibit D1 referred to above. However plaintiffs have contended that survey No.91/1 was phoded in the 1983 itself as per Exhibit P9 and Exhibit P11 and in that view of the matter, the finding recorded by the trial Court arriving at the conclusion declaring that plaintiffs are the owners and in possession of the schedule land and also that the defendant has not verified the revenue records relating to survey No.91/1 and further, no documents were produced to show that 31 acres of land was granted to Police Department and accordingly, the trial Court has decreed the suit in favour of plaintiff affirming issues No.1, 2 and 4. After carefully analysing the impugned judgment and decree of the trial Court and the facts of the case, though the trial Court has declared that plaintiffs are owners of the schedule property, however, at paragraph 11 of the judgment, has observed as follows:
"In the circumstances, though there may be little difference relating to phode numbers of the said survey 16 numbers and the plaintiffs have also noticed it while purchasing the property and it is mentioned in the schedule that ªÀiÁf ¸ÀªÉð £ÀA§gÀÄ 91/2 DVzÀÄÝ, ºÁ° ¸ÀªÉð 91/1. In the circumstances, the plaintiffs have established that they are the absolute owners in possession of the schedule property and it is also proved by the plaintiffs that this property was not notified under Ex.D1 and D2. Whereas the defendant failed in its attempt to show that it has acquired the suit property and it is in possession of the same."
(emphasis supplied by us)
12. The aforesaid judgment was supported by the admission made by DW1 to the effect that BDA has not acquired the land in survey No.91/1. The said finding recorded by the trial Court on issues No.1, 2 and 4 is contrary to the documents produced before the Trial Court on the ground that Exhibit P15, letter dated 23rd April, 2003 issued by the Tahsildar, Bangalore (East) Taluk to Commissioner, BDA and the existence of the said document is doubtful in nature as the plaintiffs have not produced original or certified copy of Exhibit P15. Though the learned counsel for the respondent-plaintiffs submitted that the plaintiffs have secured copy of Exhibit P15 under Right to 17 Information Act, however, the author of the said document has not been examined by the plaintiffs to prove their case for declaration. Suffice it to say that, the Government is not a party to the proceedings. As per Sections 17 and 19 of the BDA Act, the acquisition proceedings would be initiated by the Government for the purpose of allotment of sites to the general public and thereafter, transferred those acquired lands to the beneficiary-Bangalore Development Authority (appellant herein). The acquiring authority, as per Bangalore Development Authority Act is the Government, and the beneficiary is the Bangalore Development Authority. Since the Government is not a party to the suit, and as such, the principal submission of the learned counsel for the appellant-defendant that plaintiffs having not arraigned the Government as a party to the proceedings, rendering the judgment and decree is illegal on the ground of non-joinder of necessary party, is to be accepted. We have also carefully considered the material on record, which establishes the fact that vendors of the plaintiffs have filed writ petition No.263 of 2005 before this Court challenging the action of the defendant-Authority, however, the said writ petition was 18 dismissed as withdrawn; and thereafter, the plaintiffs have filed Original Suit No.394 of 2005 on the file of the Civil Court, which also came to be withdrawn. The said fact would pave way of doubtfulness on the part of the court declare the plaintiffs as absolute owners of the schedule property.
13. Be that as it may, we have carefully noticed the boundaries of the schedule property with regard to Sale deeds referred to above. The boundaries describe as East by: land of Kandugondanahalli Pillappa and others; West by: Gomal land:
North by: land of Naganahalli Byrappa and Gomal land; and South by: land of Rabiabi. Admittedly, government land is situated on the Northern and Western side of the schedule land. It is also not in dispute that as per Exhibit P11-Tippani copy dated 07th April, 1983, phode No.1 is defined as Sarkari Kharab and with regard to phode No.2, it stated as the land granted to Police Department. Though the plaintiffs have produced Exhibit P34 (index of land) and Exhibit P15 (certified copy of the letter dated 23rd April, 2003), the same would not be a basis to arrive at the conclusion that plaintiffs are the owners in possession of 19 the land, which creates a cloud in the mind of this Court to discern the truth while answering the points formulated for determination in this appeal; and since the government is not a party to the proceedings, it is difficult for us to adjudicate the case on hand, because the government is only the competent authority to acquire the property and thereafter, make over the same to the beneficiary-Bangalore Development Authority (appellant herein) and in that view of the matter we are of the considered opinion that, the entire proceedings have to be remanded to the trial Court for deciding the issue afresh. It is settled principle of law that, First Appeal is a valuable right of the parties. The whole case in the First Appeal is open for re- hearing, both on the question of fact and law. In the case on hand, admittedly, the acquisition referred to in Exhibits D1 and D2 are relating to the acquisition made by the Government to form a Layout called "Arkavati Layout" and sites were allotted to the general public and thereafter, large number of land owners have questioned the acquisition proceedings before this Court in writ petitions No.11365 and 14771 of 2005 and learned single judge of this Court by order dated 15th April, 2005 set aside the 20 entire acquisition and thereafter, the matters were carried to the Division Bench of this Court in Writ Appeals No.2625-26, 2771 of 2005 wherein the Division Bench of this Court, by its Judgment dated 25th November, 2005 has set aside the Order of the learned single Judge. Thereafter, being aggrieved by the same, the defendant and land owners have filed appeals before the Hon'ble Supreme Court in Civil Appeals No.4097 of 2010 and connected Appeals, and the Hon'ble Supreme Court, by its judgment dated 05th May, 2010 has upheld the acquisition proceedings and reversed the findings of the Division Bench of this Court. The acquisition is of the year 2003 as per Exhibits D1 and D2 and during the pendency of this appeal, the Hon'ble Supreme Court has rendered the judgment upholding the acquisition proceedings and pursuant to the same direction was also issued to BDA to issue a revised notification. The said revised notification is not before us, the same being issued during the pendency of this appeal, and it is a subsequent event during pendency of appeal. The findings with regard to subsequent events are required to be considered in this appeal and the same has to be adjudicated through a detailed trial. We 21 are of the considered opinion that the instant case is required to be remitted back to trial Court for fresh adjudication considering the subsequent events also, which would meet the ends of justice.
14. It is settled principle of law that the First Appellate Court, being the final Court of fact, has jurisdiction to reverse or affirm the findings of the trial Court. However while doing so, the appellate Court must show conscience to apply mind with regard to its findings based on evidence adduced by the parties. In the instant case, the plaintiffs have categorically stated that the land in question is not acquired; on the other hand, the same is denied by the defendant. Perusal of Exhibit P15- comunication between defendant and Tahsildar, Bangalore (East) Taluk, indicate that there is no land for further acquisition in survey No.91/1 of Thanisandra village and in that view of the matter, even on factual aspects of the case, to discern the truth, the matter deserves a remand to the trial Court. It is the settled principle of law that if the Appellate Court holds that the trial Court did not understand properly the points that arose for 22 consideration and evidence on record was scanty and insufficient to give proper findings, remittance of the case to the trial Court for fresh disposal is just and proper. In the case, the perusal of Exhibits D1 and D2 makes it clear that the land in question is a muffat kaval belonging to government. Subsequently, pursuant to direction issued by Hon'ble Supreme Court, defendant- Authority has issued a revised notification with regard to the entire layout in question and in that view of the matter, in order to ascertain the truth, adjudication of the present lis should be done by affording opportunity to both the sides to give evidence, if any, to prove their case. The abovesaid finding recorded by us is supported by the law declared by the Hon'ble Supreme Court in the case of MARIA MARGARIDA SEQUERIA FRNANDES AND OTHERS v. ERASMO JACK DE SEQUERIA (DEAD) THROUGH LRs reported in AIR 2012 SC 1727. At paragraphs 30 to 40 of the said judgment, it is held thus:
"30. ...
Truth as guiding star in judicial process 23
31. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
The truth should be the guiding star in the entire judicial process.
32. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth.
That is their mandate, obligation and bounden duty.
33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-24
whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of U.P. and Others (2010) 10 SCC 677 this Court reproduced often quoted quotation which reads as under:
"Every trial is voyage of discovery in which truth is the quest"
37. This Court observed that the power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that:
"In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries."25
39. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
40. Lord Denning further observed in the said case of Jones (supra) that "`It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth..."
15. We have also carefully considered the submission made by the learned counsel for the appellant-defendant that plaintiffs are the subsequent purchasers and originally the petitioners in Writ Petition No.263 of 2005. The said writ petition came to be dismissed as withdrawn by the petitioners. Admittedly, plaintiffs are the subsequent purchasers. Equaly it is true that, subsequent purchasers are disentitled to challenge the acquisition proceedings. It is also settled principle of law that 26 subsequent purchaser/s cannot challenge the acquisition proceedings so also not entitled to get compensation in incomplete acquisition contemplated under Section 48 of Land Acquisition Act. It is the declaration of law by the Hon'ble Supreme Court in the case of THE U.P. JAL NIGAM, LUCKNOW THROUGH ITS CHAIRMAN & ANOTHER v M/S. KALRA PROPERTIES (P) LTD., LUCKNOW & OTHERS reported in (1996)3 SCC 124 wherein Hon'ble Supreme Court held that when a piece of land is sought to be acquired, notifications thereon are required to be issued by the State Government strictly in accordance with law and the said Notification must also require to be followed by a declaration to be made under the appropriate provisions of law and with issuance of such notification, any encumbrance carried by the owner or any person made after the issuance of such notification, would be deemed to be void and would not be binding on the Government. Though the Civil Court has no jurisdiction to adjudicate with regard to validating the acquisition proceedings in view of the law declared by the Hon'ble Supreme Court in the case COMMISSIONER OF BDA (supra), however, the perusal of the findings recorded by the 27 trial Court on all the issues would clearly establish the fact of the learned trial Judge has encompassed on the acquisition proceedings while decreeing the suit in favour of the plaintiffs and thereby, we are of the considered opinion that this is a fit case for remitting the matter to the trial Court for adjudicating the findings afresh.
16. During the course of the arguments, learned counsel for the Appellant has submitted that during the pendency of the appeal subsequent events have been occurred pursuant to the direction issued by the Hon'ble Supreme Court to issue revised notification as observed supra. In our view, the subsequent events have to be considered by the trial Court, while deciding the issues after remand. In this connection, the law declared by the Hon'ble Supreme Court in the case of HASMATH RAI AND ANOTHER v RAGHUNATH PRASAD reported in AIR 1981 SC 1711, wherein the Hon'ble Supreme Court, in the course of judgment at paragraph 14, has observed thus:
"14. .... Once an appeal against decree or order of eviction is preferred the appeal being a continuation of suit, landlord's need must be shown to continue to exist 28 at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. A landlord was in a position to show he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial court. When the matter was pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be non- suited. Can the court shut its eyes and evict the tenant?"
17. It is needless to say that absence of any substantial issue relating to subsequent event would vitiate the trial depending upon the facts and circumstances of the case. If it can ascertain from the materials on record that both the parties understood their rival case and relevant question arising for consideration and led all the evidence of all material aspects of the case, and the Court on considering the said material gives its finding, then the decision cannot be said to have been vitiated, merely on the ground of absence of specific issue in question. In 29 the instant case, admittedly, the Government is not arrayed as a party. Government is the acquiring authority under the provisions of Bangalore Development Authority Act and the defendant is only beneficiary of land. Exhibit P15 produced by the plaintiff indicate that the Tahsildar himself has stated that there is no land for further acquisition in Survey No.91/1 of Thanisandra village, creates cloud in the mind of the Court to adjudicate the issues in the lis and in that view of the matter, order of remittal could be legal and proper to discern the truth. In this regard it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of GAIV DINSHAW IRANI AND OTHERS V. TEHMTAN IRANI AND OTHERS reported in AIR 2014 SC 2326 wherein at paragraph 34 of the judgment, it is held as follows:
"34. ... However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or one the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage 30 adopted by the Supreme Court of America in Patterson vs. State of Alabama followed in Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury. The aforementioned cases were recognized by this Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders, wherein he stated that:
a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."
The abovementioned principle has been recognized in a catena of decisions. This Court by placing reliance on 31 the Pasupuleti Venkateswarlu Case (supra), held in Ramesh Kumar vs. Kesho Ram that:
"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
This was further followed in Lekh Raj vs. Muni Lal & Ors.. This Court in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building & Ors. while discussing the issue of taking cognizance of subsequent events held that:
"19. To the same effect is the decision of this Court in Om Prakash Gupta case where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied: (SCC p. 263, para
11) "11. ... (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in 32 accordance with the rules of procedural law so that the opposite party is not taken by surprise."
18. Further, the Hon'ble Supreme Court in the case of CHIKKAM KOTESWARA RAO v. CHIKKAM SUBBARAO AND OTHERS reported in AIR 1971 SC 1542 has held as follows:
"Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission."
19. For the foregoing reasons referred to above, we are of the considered view that the impugned judgment and decree is liable to be set aside and the matter is to be remitted to the trial Court for fresh disposal, after affording fullest opportunity to the parties. Accordingly, the points for determination formulated in this appeal are answered in favour of the appellant-BDA. It is also made clear that all the contentions of the parties to the lis are kept open. Hence, the following:
ORDER
1. Appeal is allowed;33
2. Judgment and decree dated 12th January, passed in OS No.5771 of 2006 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru is set aside and the matter is remitted back to the trial Court for adjudication afresh.
3. Parties are directed to appear before the trial Court on 18th November, 2020 without waiting for further notice in this regard.
Sd/-
JUDGE Sd/-
JUDGE lnn