Karnataka High Court
Smt Padma vs Smt Devaki Subramanya on 14 February, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.No.2998 OF 2010
BETWEEN:
1. SMT. PADMA
W/O LATE H.J. MAHADEVAIAH
NOW AGED ABOUT 68 YEARS
SINCE DEAD, REP. BY HER LEGAL
REPRESENTATIVES THE APPELLANTS
2 TO 4 HEREIN
CAUSE TITLE AMENDED VIDE ORDER DATED:04.01.2022
2. SMT. H.M. SUJATHA
D/O LATE H.J. MAHADEVAIAH
NOW AGED ABOUT 48 YEARS
3. SMT. KALASHREE
D/O LATE H.J. MAHADEVAIAH
NOW AGED ABOUT 43 YEARS
4. SRI. ARAVIND
S/O LATE H.J. MAHADEVAIAH
NOW AGED ABOUT 39 YEARS
NOS.1 TO 4 ARE R/AT " CAUVERY"
(SY.NO.118), BASAVANAHALLI
HINKAL POST
MYSORE TALUK.
... APPELLANTS
(BY SRI. C.G. GOPALASWAMY, ADVOCATE)
AND:
1. SMT. DEVAKI SUBRAMANYA
W/O B.M. SUBRAMANYA
AGED MAJOR
2
R/AT NO.3/33/8
ANAND ROAD MARGA
AMBALAPADI POST
UDUPI, DAKSHINA KANNADA.
2. B.M. SUBRAMANYA
S/O MEENAIAH
AGED MAJOR
R/AT NO.3/33/8
ANAND ROAD MARGA
AMBALAPADI POST
UDUPI, DAKSHINA KANNADA.
3. MYSORE URBAN DEVELOPMENT
AUTHORITY, J.L.B. ROAD
MYSORE CITY
REP. BY ITS COMMISSIONER
... RESPONDENTS
(V/O DATED:04.01.2022 A2 -A4 ARE LR'S OF DECASED A
SRI. VIJAY KUMAR A. PATIL, ADVOCATE FOR R1;
SRI. CHANDRU AND S. SHUKAR, ADVOCATE FOR R2;
SRI. M.V. VEDAMURTHY, ADVOCATE FOR R3)
THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 20.11.2010 PASSED IN R.A. NO.705/2010) OLD
NO.271/08) ON THE FILE OF THE VI ADDITIONAL DISTRICT
JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED:17.06.2008 PASSED IN
OS.NO.60/1997 ON THE FILE OF THE FILE OF THE II CIVIL
JUDGE (JR.DN) MYSORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present regular second appeal is filed by the plaintiffs aggrieved by the judgment and decree dated 20.11.2010 passed in R.A.No.705/2010 (old R.A.No.271/2008) on the file of VI Additional District 3 Judge, Mysore, (hereinafter referred to as the 'first appellate court') setting aside the judgment and decree dated 17.06.2008 passed in O.S No.60/1997 by the II Civil Judge, (Jn.Dn.) Mysore (hereinafter referred to as the trial Court).
2. Parties are referred to by their original ranking before the Trial Court.
3. The case of the plaintiffs is that; (a) the land bearing Sy.No.118 measuring 5 acres 14 guntas situated at Basavanahalli village, Kasaba Hobli, Mysore Taluk (hereinafter referred to as the 'suit schedule property') consisting of a Farm House, Coconut garden, cattle shed and another shed for rearing silk-worm cocoons, Borewell with the pumpset, originally belonged to defendant Nos.1 and
2. That one H. J. Mahadevaiah- husband of the plaintiff No.1 and father of the plaintiff Nos.2 to 4 had entered into an agreement of sale dated 03.10.1991 with defendant Nos.1 and 2 to purchase suit schedule 4 property for a sale consideration of Rs.7,50,000/-. In furtherance thereof, defendant Nos.1 and 2 had received an advance consideration of Rs.3,00,000/- on 04.10.1991. In part performance thereof, possession of suit schedule property was delivered to H.J. Mahadevaiah. Thereafter, on different dates, additional amount was paid aggregating a sum of Rs.5,42,792/- as on 17.11.1992. Thus, ever since 04.10.1991 said H.J. Mahadevaiah and plaintiffs were residing in the suit schedule property and were in peaceful possession and enjoyment of the same.
(b) That in the meanwhile, defendant No.3 - Mysore Urban Development Authority (MUDA) had issued a preliminary notification published in the official gazette dated 23.12.1991 seeking to acquire lands including suit schedule property. As such, deed of sale could not be executed. That the defendant Nos. 1 and 2 kept on promising to execute and register deed of sale after getting the preliminary notification quashed. That H.J.Mahadevaiah passed 5 away on 04.08.1982. The plaintiffs being his legal representatives were always ready and willing to perform their part of the contractual obligation and were also entitled for equitable relief under Section 53(A) of Transfer of Property Act.
(c) That in the meanwhile, defendant Nos.1 and 2 in collusion with defendant No.3 - MUDA were trying to realize the award amount of Rs.8,37,000/- and defendant No.3 was attempting to dispossess the plaintiffs from the suit schedule property without due process of law, constraining the plaintiffs to file a suit in O.S.No.60/1997 before the Trial Court for relief of permanent injunction.
4. The defendant No.1 filed written statement admitting the execution of agreement of sale and receipt of Rs.3,00,000/- however denied having parted with the possession of suit schedule property in favour of aforesaid H.J. Mahadevaiah. 6
5. Based on the pleadings, the trial Court framed the following issues.
"(1). Whether the plaintiffs prove that they are in possession of the suit schedule property?
(2) Whether the plaintiffs prove the alleged interference by the defendants?
(3) Whether the plaintiffs are entitled for the suit claim?
(4) What order or decree?"
and recorded evidence.
6. Plaintiff No.3 examined herself as P.W.1 and exhibited 17 documents marked as Ex.P1 to Ex.P17. Defendant Nos.1 and 2 did not lead any evidence. Defendant No.3-MUDA examined one G.Prakash working as a First Division Assistant and exhibited 30 documents marked as Ex.D1 to Ex.D30.
7. The Trial Court by its judgment and decree dated 17.06.2008 partly decreed the suit restraining the defendants by way of permanent injunction from 7 dispossessing the plaintiffs from the suit schedule property without due process of law.
8. Being aggrieved by the same, defendant No.3 -MUDA filed regular appeal in R.A.No.705/2010 (old R.A.No.271/2008) contending inter alia that the possession of land had been taken under Section 16(2) of the Land Acquisition Act, and that the plaintiffs not having challenged the acquisition were not entitled for relief of injunction as there were no transfer of interest in favour of H.J.Mahadevaiah or in favour the present plaintiffs.
9. Based on the grounds urged in the appeal memorandum, the First Appellate Court framed the following points for its consideration.
"(1) Whether the respondents-
plaintiffs prove that they are in lawful possession of suit schedule property and defendant No.3 is interfering in their possession and enjoyment of suit schedule property?
(2) Whether the appellant-
defendant No.3 proves that the judgment and decree of the Trial 8 Court are perverse, unsustainable and interference of this court is required? (3) What order or decree?"
10. The first appellate court by its judgment and order dated 20.11.2010 allowed the appeal and set aside the judgment and decree dated 17.06.2008 passed in O.S.No.60/1997, consequently dismissed the suit. Being aggrieved by the same, plaintiffs are before this Court.
11. Learned counsel for the appellants/plaintiffs reiterating the grounds urged in the memorandum of appeal submitted that ;
(a) the first appellate court grossly erred in reversing the finding of the trial Court with regard to possession of the plaintiffs over the suit schedule property by virtue of the agreement of sale dated 03.10.1991. That the defendant Nos.1 and 2 in part performance of agreement had delivered the physical possession of the suit schedule property in favour of H.J. Mahadevaiah which is much prior to the 9 publication of preliminary notification dated 23.12.1991.
(b) that the first appellate court failed to take into consideration the improvement made by the plaintiffs over the suit schedule property.
(c) that the plaintiffs being in settled position of law could not be dispossessed without due process of law.
(d) that claim of the defendant No.3 of having taken possession in terms of panchanama at Ex.D5 is incorrect inasmuch as the said panchanama has not been drawn in accordance with law.
(f) that no just and fair compensation has been paid to the plaintiffs who are the lawful occupiers of the suit schedule property with the vested rights to the extent of their share in view of advance sale consideration paid by them to defendant Nos. 1 and 2. Thus, it is only on receipt of the award amount by the 10 plaintiffs, the defendant No.3 would be entitled to dispossess them from the suit schedule property under due process of law. Therefore, Ex.D2- Notification and Ex.D5-Panchanama relied upon by the defendant No.3/MUDA in furtherance to their claim for having taking the possession is not admissible.
Hence, learned counsel for the appellants submits that substantial question of law involves in the matter requiring consideration.
12. Learned counsel for the appellants has relied upon the following judgments in support of his case.
(1) (2011)5 SCC 386- Prahlad Singh and others vs. Union of India (2) (2011) 5 SCC 394-
Banda Development
Authority, Banda Vs. Moti
Lal Agawal and Others
(3) ILR 2005 KAR 5692
V. Gunda Reddy Vs. The
Secretary Department of
11
Revenue and others
(4) 2013 (1) AKR 639
Gautam Kamat Hotels Pvt.
Ltd., Bangalore vs. Bangalore
Development Authority
(5) Sri. C.V.Rama Rao and others
vs. The Secretary, Housing
and Urban Development
Department and another in
W.P.No.60065/2016 (LA-
BDA)
(6) AIR 1983 AP 177
Barnikana Appalanaidu and
others vs. Barnikana
Appayyamma
13. Sri. M.V.Vedamurthy, learned counsel
appearing for the defendant No.3-MUDA submitted that the plaintiffs have no locus standi to maintain the suit and the instant appeal. That the possession of the acquired land has been taken in the manner known to law. Further, he pointed out an affidavit has been filed by the Commissioner of defendant No.3-MUDA in furtherance to the order passed by this Court on 14.09.2002 providing the details of the acquisition and 12 the current status of the property. He relied the upon the following judgment in support of his case.
(1) AIR 2020 SC 1496- INDOOR DEVELOPMENT AUTHORITY VS. MANOHARLAL AND OTHERS ETC.,
14. Heard learned counsel for the parties. Perused the records.
15. The suit schedule property originally belonging to defendant Nos.1 and 2 and they entering into an agreement of sale dated 03.10.1991 with Sri.H.J.Mahadevaiah is not in dispute. Similarly, issuance of notification dated 23.12.1991 by the defendant No.3 -MUDA proposing to acquire the suit schedule property is also not in dispute. The only aspect that requires consideration is the taking of possession of the suit schedule property by the defendant No.3 which is seriously disputed by the plaintiffs who still claims to be in possession of the suit schedule property. Learned counsel for the appellants relied upon several citations referred to 13 hereinabove with regard to mode of taking possession of acquired land.
16. The Apex Court in the case of PRAHLAD SINGH AND OTHERS (supra) referring to its earlier judgments has reiterated the principles with regard to mode of taking possession as under;
"19. The same issue was recently considered in Banda Development Authority V. Moti Lal Agarwal decided on 26.04.2011. After making reference to the judgments in Balwant Narayan Bhagde V. M.D. Bhagwat Balmokand Khatri Educational and Industrial Trust V. State of Punjab, P.K. Kalburgi v. State of Karnataka, NTPC Ltd., v. Mahesh Dutta, Sita Ram Bhandar Society v. Govt. of NCT of Delhi, Omprakash Verma v. State of A.P. and Nahar Singh v. State of U.P. this Court laid down the following principles:
(Bandu Development Authority case, SCC p.411, para 37) "i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchanama will Ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or 14 the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building/structure may not lead to and inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession it taken by preparing appropriate document in the presence of independent witness and getting their signatures on such document.
v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken"
17. Similarly, in the case of INDOOR DEVELOPMENT AUTHORITY VS. MANOHARLAL AND OTHERS ETC., reported in AIR 2020 SC 1496 the Apex Court at paragraph 254 has held as under;
"245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the 15 possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. There after, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case".
18. In the instant case, the defendant No.3/MUDA claims to have issued notices dated 01.07.2000 and 07.06.2000 marked at Ex.D6 and Ex.D7 informing the plaintiffs about taking possession of the suit schedule property. Ex.D4 dated 24.07.2000 is the declaration issued by the defendant No.3/MUDA for having taken possession of the suit schedule property. Ex.D5 is the panchanama drawn while 16 taking possession of the suit schedule property by defendant No.3 witnessed by the panchas.
19. The first appellate Court at paragraph 19 of its judgment has taken note of the aforesaid dates and events and has also taken note of the fact that the aforesaid exhibits evidencing the process of taking possession of the property have come into existence subsequent to the order passed by this Court in CRP No.1303/2000 dated 22.5.2000, wherein this Court had reserved liberty to defendant No.3/MUDA to take possession of the suit schedule property under Land acquisition Act or any other law.
20. It is relevant at this juncture to note that this Court by order dated 14.09.2017 had directed the defendant No.3 - MUDA to file a detailed affidavit with regard to the date on which the possession of the property measuring 5 acres 14 guntas of land in Sy.No.118 was taken to state whether the entire extent of 5 acres 14 guntas was utilized for formation 17 of layout and if the sites were allotted in the said layout, how many sites were allotted and how many sites were still be allotted.
21. In response to the aforesaid order, the Commissioner of the defendant No.3 -MUDA has filed an affidavit dated 04.10.2017 along with certain documents. Relevant portion of the said affidavit is extracted hereunder;
(a) That the plaintiff herein in the above suit in O.S.No.60/1997 had filed an application an interim order injunction which was dismissed by the trial Court by its order dated 24.01.1998. Being aggrieved by the same, the plaintiffs filed Miscellaneous Appeal in MA.No.21/1998 which was allowed on 01.02.2000 granting an interim order against defendant Nos. 1 to 3 restraining them with from interfering plaintiffs peaceful possession and enjoyment of the plaint schedule property until they were dispossessed in accordance with law. In the said order it was made clear that " said injunction order would not come in the way of defendant No.3 or the concerned land acquisition officer or any other Government authorities taking possession of the schedule property under provisions of Land Acquisition Act or any other provisions of Law".
18
(b) The said order was challenged by the defendant No.3 in CRP No.1303/2000 before this Court which petition was dismissed as the interest of the defendant No.3 was sufficiently safeguarded reserving liberty "to take possession of the land in accordance with law notwithstanding the interim order of injunction". That thereafter, the defendant No.3 had issued notices as per Ex.D6 and Ex.D7 dated 01.07.2000 and 07.06.2000 respectively. Panchanama was drawn on 24.07.2000 as per Ex.D5 and a declaration of having taken possession of the property was made as per Ex.D4.
(c) That in the layout plan of the scheme, the suit scheduled land has been designated for the purpose of roads and residential sites and that after utilizing the portion of the land, the respondent authority has formed 24 meters of wide road and two 12 meters wide roads and has erected high tension line on the land in question. That 7 residential sites each measuring 12X18 meters have been formed and sale deed in respect of one of the sites has also been executed.
(d) However, the trial Court decreed the suit in O.S.No.60/1997 filed by the plaintiffs on 17.06.2008 granting permanent injunction infavour of the plaintiff restraining defendant No.3 from dispossessing them from suit schedule property without due process of law. Aggrieved by the same defendant No.3 had filed regular Appeal in R.A.No.705/2010 which was allowed by 19 the first appellate Court setting aside the judgment and decree of the trial Court. The plaintiff aggrieved by the same filed the present appeal and this Court by order dated 23.02.2011 had stayed the operation and execution of the judgment and decree passed by the first appellate Court.
(e) That in view of the filing of the appeal and obtaining the order further development activities could not be undertaken. In view of the same, no further development activities would be carried on.
(f) That in the meanwhile, the plaintiffs had filed Writ petition No.10966/2006, even during the pendency of the original suit seeking issue of writ of mandamus directing the defendant No.3 - MUDA to consider their representation dated 06.06.2005. That the very submission of the said representation would establish that the defendant No.3 have taken possession of the land except to the extent of the residential house of the plaintiffs and plaintiffs were completely aware of the said fact.
(g) That Defendant Nos. 1 and 2 who had lost the title of the land pursuant to the acquisition were pursuing their claim for allotment of land loosers site by filing W.P.No.35063/2016. That defendant Nos. 1 and 2 had earlier filed a writ petition in W.P.No.27446/1994, which was withdrawn. Thereafter, the said defendant No.1 had filed another writ petition in 20 W.P.No.24663/1998 seeking writ of mandamus for immediate release of compensation of Rs.2,00,000/- and also for allotment of three sites each measuring 40X60 feet in Vijayanagara 4th Stage, 2nd phase. Said writ petition was disposed of on 17.09.1998 by this Court directing the defendant No.3 -MUDA to pay compensation of Rs.2,00,000/- within two weeks from the date of the order. That said defendant No.1 had initiated contempt proceedings in C.C.No.2254/1998 complaining disobedience of the order passed in W.P.No.24663/1998. During the pendency of the said contempt proceedings, Rs.2,00,000/- were paid to defendant No.1 and consequently contempt proceeding were dropped.
(h) The plaintiffs herein had filed a writ appeal in W.A.No.5334/1998 before the Division Bench of this Court challenging the aforesaid order in W.P.No.24663/1998. The said writ appeal was disposed of with following observation;
"In view of the fact that already compensation is paid to the respondent No.1, nothing remains to be decided in these appeals. It is open to the appellant to pursue the remedy for recovery of compensation from respondent No.1 by resorting to reference under Section 18 read with Section 30 of the Land Acquisition Act."21
(i)The defendant No.1 had also filed writ appeal challenging the order dated 17.09.1998 in W.P.No. 24663/1998 which appeal was dismissed holding that rights of defendant No.1 was sufficiently safeguarded.
(j)That in terms of the order in W.A.No.5334/1998 the plaintiffs and others had issued a notice on 21.02.1997 to defendant No.3-MUDA calling upon them to make reference to the Civil Court. Since the plaintiffs had no locus-standi to seek reference for enhancement of compensation. No reference was made. Thereafter, plaintiffs had filed a petition under Section 18(3)(d) of the Land Acquisition Act before the reference court , which was numbered as LAC No.461/1998, which was rejected on 14.10.2008. Aggrieved by the same, an appeal in LAC No.46/2008 was filed before III Additional Sessions Judge, Mysore. Said appeal was also dismissed by judgment and decree dated 09.09.2010.
(k) Aggrieved by the same, plaintiff had filed MSA No.51/2011 before this Court which was also dismissed on 17.03.2016.
22. The plaintiffs have not filed any objections or counter to the aforesaid affidavit. Thus, the affidavit averments with regard to status of acquisition and various proceeding initiated by the plaintiffs 22 pursuant to the acquisition proceedings either seeking compensation or allotment of alternate sites remained unchallenged.
23. Though, learned counsel for the appellants/plaintiffs sought to dispute the issuance of notice drawing up of mahazar and declaration of taking possession as per Exs.D4 to D7, the first appellate Court has dealt with these factual aspects of the matter and has given detailed reasons thereto. The first appellate Court had also taken note of the fact that the aforesaid process of taking possession of the suit schedule property preceded by issuance of notice and drawing up of mahazar was subsequent to the order passed by this Court in CRP No.1303/2000. Therefore, no infirmity or illegality can be found therewith.
24. In view of the aforesaid factual aspect of the matter and also in view of the details of the status of acquired land as narrated in the affidavit by the 23 Commissioner of defendant No.3/MUDA and in view of number of parallel proceedings being resorted to by the plaintiffs as enlisted in aforesaid affidavit at paragraph 32 in which the plaintiffs have been parties, and which fact not having been disputed by the plaintiffs, this Court is of the considered view that no substantial question of law is involved in the matter requiring consideration.
25. Consequently, the appeal in RSA No.2998/2010 is dismissed. Judgment and Decree dated 20.11.2010 passed in R.A.No.705/2010 (old R.A.No.271/2008) on the file of VI Additional District Judge, Mysore, is confirmed.
Sd/-
JUDGE RU/BNV*