Bangalore District Court
L.A.C./5/2012 on 28 August, 2018
IN THE COURT OF THE II ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H. No.17)
Dated this the 28th day of August, 2018.
PRESENT:
Shri. I.F. Bidari, B.Com.,LL.B.(Spl)
II Addl. City Civil and Sessions Judge, Bangalore.
: LAND ACQUISITION CASE NO.5/2012 :
CLAIMANTS :
1) Smt. G. Lakshmi w/o Sri.
Anjanamurthy, 36 years, R/at
No.212, Govindappa Garden, 8th
Mile, Hesaragatta Main road, T.
Dasarahalli, Bengaluru.
2) Sri. Navabjan s/o late. Ahammed
Hussain, 56 years, residing at
No.166, Sree Venkateshwara
Nilaya, c/o Sri. Ramachandrappa
Building, 13th cross road,
Galeyarabalaga, Bengaluru.
(claimant No.1 by Sri.R.R., Advocate)
(Claimant No.2 by Sri.RSP, Advocate)
-VERSUS-
RESPONDENTS :
1) The Special Land Acquisition Officer,
KIADB, Bengaluru.
2) The SLAO, BMRCL, Bengaluru
(R-1 by Sri. BPP, Advocate)
(R-2 - Exparte)
-0-
Cont'd..
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: JUDGMENT :
The learned Spl. Land Acquisition Officer (here-in- after referred as LAO), KIADB, Bengaluru, has made this reference u/ss.30 and 31(2) of Land Acquisition Act 1894 (here-in-after referred as L.A. Act).
.2. The brief facts of the case are:
The land measuring 21.97 sq. meters in Dasarahalli ward No.58/13, within the limits of Bruhath Bengaluru Mahanagara Palike (here-in-after referred as BBMP), is being acquired for the purpose of Bengaluru-Metro Rail Project. The preliminary notification u/s. 28(1) of Karnataka Industrial Areas Development Act 1966 (here-in-after referred as KIAD Act) in No.CI 657 SPQ 2008 dated 31.01.2009, is published in Karnataka State Gazette dated 31.01.2009.
The final notification u/s. 28(4) of KIAD Act in No.CI 335 SPQ 2009 dated 23.02.2010 is being published in Karnataka State Gazette dated 23.02.2010. The L.A.O. Cont'd..
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resorting to the provisions of L.A. Act and KIAD Act, has acquired the aforesaid land, measuring 21.97 sq. meters in ward No.58/13 of Dasarahalli, BBMP, Bengaluru and awarded the compensation to the said land. Since O.S.No.5899/2011 was pending with-regard to the aforesaid acquired land in the court, with-regard to the title of the said land. Therefore, the L.A.O., deducted Rs.1,60,135/-, out of compensation awarded to the acquired land and made this reference u/ss. 30 and 31(2) of L.A. Act and transmitted Rs.14,41,219/- with a request to disburse the said compensation amount, to the persons, who are legally entitle to receive the same.
.3. Thereafter the receipt of reference from the LAO, u/ss. 30 and 31(2) of L.A. Act, same is registered in case L.A.C. No.5/2012, on the file of this court. This court directed the notice to both the parties. Pursuant to the notice, the claimants 1 and 2 and respondent No.1 have appeared through their respective counsel. The respondent No.2 remained absent, in-spite of Cont'd..
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service of notice, hence, the respondent No.2 is set exparte.
.4. The claimant No.1 Smt. G. Lakshmi has filed the claim statement, where-in, averred that her grand- mother Smt. Thimmakka had acquired the right over the land measuring ¼ guntas in Sy.No.58/13 of T. Dasarahalli, through a gift deed dated 06.09.1966, executed by late. Somaiah the father of Smt. Thimmakka. Thus, Smt. Thimmakka the grand-mother of the claimant No.1 was possessing and enjoying the said ¼ guntas of land as owner thereof. The grand- mother of the claimant No.1 Smt. Thimmakka during her lifetime, has executed a registered Will dated 21.04.2006, in-favour of claimant No.1, where-under, bequeathed the aforesaid ¼ guntas land in Sy.No.58/13 of T. Dasarahalli, in-favour of claimant No.1. The grand-mother of the claimant No.1 Thimmakka has died on 08.06.2010. The claimant No.1, since death of Smt. Thimmakka was possessing and enjoying the aforesaid Cont'd..
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¼ gunta land in Sy.No.58/13 of T. Dasarahalli, as an owner. The name of claimant No.1, has been effected in respect of the aforesaid properties in BBMP records. The claimant No.1 was paying tax of the property to the authorities concern. These being the facts, the respondent has acquired the aforesaid land of the claimant No.1. The claimant No.2 Navab Jan, who has no manner of right, title and interest in the aforesaid acquired land, has produced created and fabricated documents and falsely claimed compensation before the L.A.O. of the acquired land. The claimant No.2 has no right and title to receive the compensation of the acquired land. The claimant No.1 is only entitle to receive the compensation of the acquired land, hence, prayer to release the compensation amount awarded to the acquired land, in-favour of claimant No.1.
.5. The claimant No.2 has filed the claim statement, wherein, among others averred that Smt. Thimmakka w/o Munihanumaiah did execute a GPA, Cont'd..
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in-favour of Govindappa s/o late. Hanumanarasaiah, to manage her property described in the schedule of GPA. The said GPA is registered on 09.04.1979. The aforesaid Smt. Thimmakka through her GPA holder, also included the aforesaid ¼ guntas land in Sy.No.58/13 of Dasarahalli, BBMP, Bengaluru. The GPA holder of Thimmakka, namely Govindappa has executed and sold the aforesaid ¼ guntas land in Sy.No.58/13 of Dasarahalli, in-favour of claimant No.2 and executed a registered GPA dated 23.09.1981, wherein, empowered the claimant No.2 to sell etc., of the aforesaid land. Thus, the claimant No.2 did become an owner of the aforesaid ¼ guntas land for consideration of Rs.800/-, from Govindappa GPA holder of Thimmakka. The claimant No.2 having purchased the said ¼ guntas, was possessing and enjoying the same as an owner thereof and his name was recorded in the records of BBMP, in- respect of the said land. The claimant No.2 was paying tax to the authorities concern. The L.A.O., during acquisition proceedings, visiting the spot, has Cont'd..
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conducted, enquiry and measured the acquired land and on going through the records confirmed that the claimant No.2 is an owner of that property, hence, issued notice in the name of claimant No.2. The aforesaid ¼ guntas land in Sy.No.58/13 of Dasarahalli village is being acquired by the respondent, for Bengaluru Metro Rail Project. Therefore, the claimant No.2 alone is entitle to receive the compensation of the acquired land, mentioned in this reference. The claimant No.2 denied the claim of claimant No.1 over the acquired land. The prayer of the claimant No.2 is to release the compensation awarded to the acquired land in his favour and dismiss the claim statement of claimant No.1.
.6. The respondent No.1 has not filed objections to the claim statements of claimants 1and 2.
.7. To substantiate her claim, the claimant No.1 G. Lakshmi got examined herself as PW.1. The Cont'd..
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documents at Exs.P.1 o 9 are marked on her behalf. The claimant No.2 Navabjan has got examined himself as PW.2, on his behalf. The documents at Exs.P.9 to 33 are marked during his evidence. The respondent No.1 has not adduced either oral or documentary evidence. The separate written arguments are filed, on behalf of claimants 1 and 2. In-spite of affording sufficient time, the learned counsel for the respondent No.1, not inclined to advance argument, hence, argument of the respondent No.1 taken as nil. Perused the records and written arguments.
.8. The points that would arise for consideration of this court are:
(1) Whether the Claimant No.1 Smt. G. Lakshmi proves that as on the date of preliminary notification dated 17.01.2006 issued u/s. 28(1) of KIAD Act, she was having right, title and interest over the acquired land?
(2) Whether the Claimant No.2 Navabjan proves that as on the date of preliminary notification dated 17.01.2006 Cont'd..
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issued u/s. 28(1) of KIAD Act, he was having right, title and interest over the acquired land?
(3) Whether the claimant No.1 G. Lakshmi and claimant No.2 Navabjan are entitle to receive the compensation amount awarded to the acquired land? If so, to what extent?
(4) What order or award?
.9. My findings on the above points are:
Point No.1 : In the Negative, Point No.2 : In the Negative, Point No.3 : In the Negative, Point No.4: As per final order, for the following:
REASONS .10. POINT No.1: PW.1 G. Lakshmi w/o Anjana Murthy, who is a claimant No.1, has filed an affidavit in lieu of her chief examination, reiterating most of her claim statement averments. The documents at Exs.P.1 to 9 are marked during her evidence. The Ex.P.7 is a certified copy of registered gift deed dated 06.09.1966, where-under, Somaiah Cont'd..
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has gifted 1/4th gunta land in Sy.No.58/13 of T. Dasarahalli village, along with other immovable properties mentioned therein, in-favour of his daughter Smt. Thimmakka. The Ex.P.8 is a RTC extract of the land measuring 1 gunta in Sy.No.58/13 of T. Dasarahalli. The Ex.P.1 is a certified copy of registered Will dated 21.04.2006, where-under, Smt. Thimmakka the grand-mother of claimant No.1 G. Lakshmi has bequeathed the aforesaid acquired land measuring 1/4th gunta in Sy.No.58/13 of T. Dasarahalli, Yeshavanthapura Hobli, Bengaluru North Taluka along with other immovable properties mentioned therein, in-favour of claimant No.1 G. Lakshmi. The ExsP.2 and 3 are the encumbrance certificates for the period from 01.04.1981 to 31.03.2004 and from 01.04.2004 to 10.05.2011 respectively, issued in the name of claimant No.1, in-respect of acquired 1/4th gunta land in Sy.No.58/13 of T.Dasarahalli. The Form-B property register extract was marked at Ex.P.4 in the evidence of PW.1 standing in the name of claimant No.1, but in the record, the Form-B property extract shown to have been returned. The tax-paid receipts (8 in numbers) together are marked at Cont'd..
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Ex.P.5, standing in the name of claimant No.1 G. Lakshmi, for having paid the tax to the BBMP, with-regard to the acquired land, covering the period from 2008-09 to 2011-12.
The Ex.P.6 is a death certificate of Thimmakka wife of late. Munihanumaiah issued by Dr. Jagadeesh Halappa, Unity Lifeline Hospital (India) Pvt. Ltd., wherein, it is stated that the said Thimmakka has died on 08.06.2010 at her aged about 105 years. The PW.1 in her chief-examination and also in her claim statement, in-many-words, has stated that her grand- mother Thimmakka was an absolute owner of the acquired land bearing Sy.No.58/13 measuring 1/4th gunta acquired land, which is a acquired land in this reference, as Somaiah the father of Thimmakka did gift the said property along with other properties, in-favour of Thimmakka through a gift deed. The claimant No.1, to prove the said fact has produced certified copy of gift deed dated 06.09.1966 marked at Ex.P.7. There is no reason to disbelieve or discard the evidence of PW.1 that Thimmakka was her grand-mother and acquired property in question was gifted to Thimmakka by her father Somaiah, under a gift deed, the certified copy of which is Cont'd..
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marked at Ex.P.7. The Ex.P.6 death certificate coupled with the oral evidence of PW.1 proves that Thimmakka wife of late. Munihanumaiah the grand-mother of claimant No.1 G. Lakshmi has died on 08.06.2010. The claimant No.1 G. Lakshmi is contending that by virtue of Will executed by her grand-mother Thimmakka and after the death of Thimmakka, she became an absolute owner of the acquired land and she was paying tax to the said property, as such, she is entitle to receive the compensation of the acquired land. Therefore, it is for the claimant No.1 G. Lakshmi to prove that as on the date of issuance of preliminary notification for acquisition of the land in question, she was having right, title and interest over the acquired land, then only, she is entitle to receive the compensation of the acquired land. The PW.1 during her cross-examination got marked the said certified copy of registered Will dated 21.04.2006 at Ex.P.1. The claimant No.1 G. Lakshmi being propounder of the Will dated 21.04.2006 alleged to be executed by her grand-mother Thimmakka, where-under, Thimmakka has bequeathed the acquired land along with other properties in her favour, has Cont'd..
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to prove the execution of said Will by her grand-mother Thimmakka, during her lifetime and the said Will is valid. Admittedly, the Will, copy of which marked at Ex.P.1, is compulsorily attestable document. The Will would come into force, after the death of executant, as such, the Excutant of the Will cannot be available before the court, to prove that it is being executed by executant. Therefore, it is incumbent on the part of claimant No.1 G. Lakshmi to prove the aforesaid Will as per the provisions contemplated u/s. 68 of the Indian Evidence Act 1872 r/w section 63 (c) of Indian Succession Act 1925, at-least adducing evidence of one attesting witness, who is an attestor of the Will, if alive. Therefore, it is worth to quote Section 68 of the Indian Evidence Act and Section 65(3)(c) of the Indian Succession Act 1925, which reads as under:
"68. Proof of execution of document required by law to be attested-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
65(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered Cont'd..
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in accordance with the provisions of the Indian Registration At, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)
63. Execution of Unprivileged Wills- Every testator .............
(a) The testator .......
(b) The signature ....
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary"
The combined reading of Section 68 of the Indian Evidence Act and Section 65 (3)(c) of the Indian Succession Act 1925 makes it clear that the claimant No.1 being propounder of Will, certified copy of which is marked at Ex.P.1, shall have to examine at-least one attesting witness of the said Will before whom and his co-attesting witness executant i.e., Smt. Thimmakka has signed on the Will and they looking into the execution of Will, the said attesting witness attested such Will. At the same time, the claimant Cont'd..
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No.1 has to prove that the Will said to be executed by Thimmakka is valid and same has been executed by her with her own free Will. No-doubt, the Ex.P.6 evidences that after the aforesaid Will dated 21.04.2006, Thimmakka has died on 08.06.2010. The PW.1 G. Lakshmi during cross-examination deposed that original Will, copy of which is marked at Ex.P.1 is in her possession. If really the original Will of Ex.P.1 is with claimant No.1, then, why the claimant No.1 has not produced the original of Ex.P.1, has not been explained by her. This apart, the claimant No.1 has not adduced the evidence of any one of the attesting witness of Ex.P.1 Will. The claimant No.1 has not explained or tendered evidence as to why she has not chosen to adduce the evidence of at-least one attesting witness of Ex.P.1. The perusal of Ex.P.1 evidences that deceased Thimmakka was illiterate, since she has affixed thumb impressions on the Will. The PW.1 has not adduced evidence as to whose instruction the contents of Ex.P.1 have been drafted. More-over, the claimant No.1 has not stated as to whether scribe of Ex.P.1 is alive or not. Mere production of certified copy of Will marked at Ex.P.1, shall not Cont'd..
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be the proof of Will dated 21.04.2006, to hold that the same is being executed by late. Thimmakka during her lifetime with her free Will and free consent and she was suffering good health while executing the said Will. The case of claimant No.2 Navabjan is that Thimmakka did execute a GPA in- favour of Govindappa and in-turn, the said Govindappa did execute and has sold the acquired land in his favour through GPA date 23.09.1981, for consideration of Rs.800/-, since then, he was possessing and enjoying the acquired land as an absolute owner, but the claimant No.1 denied the said fact. Further case of the claimant No.1 G. Lakshmi is that the claimant No.2 Navabjan has produced forged and fabricated document in-respect of the acquired land before L.A.O., to claim his right over the acquired land. This apart, it is case of the claimant No.1 that Govindappa has cancelled the alleged GPA executed, in-favour of claimant No.2 through cancellation of GPA dated 02.07.2011. The PW.2 Navabjan has filed an affidavit in lieu of his chief-examination, reiterating most of his claim statement averments. The Ex.P.16 is a registered GPA dated 21.09.1981 executed by Cont'd..
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Govindappa in-favour of claimant No.2 Navabjan in-respect of acquired property bearing Sy.No.58/13 of Dasarahalli village, received Rs. 800/- consideration. The Ex.P.9 evidences that Govindappa son of late. Hanumanarasaiah through cancellation of GPA dated 02.07.2011, has cancelled GPA executed by him, in-favour of claimant No.2 Navabjan in- respect of acquired 1/4th gunta in Sy.No.58/13 of Dasarahalli village. Admittedly, the preliminary notification and final notification are issued on 31.01.2009 and 23.02.2010 respectively, to acquire the aforesaid land in Sy.No.58/13 of Dasarahalli village. Therefore, it is evident that Ex.P.9 registered cancellation of GPA dated 02.07.2011 is being executed by Govindappa, subsequent to the initiation of acquisition proceedings of acquired land. No-doubt, the claimant No.1 has produced the tax paid receipts, encumbrance certificates, RTC extract, discussed above, but the same will be of no help to the claimant No.1, to prove her title over the acquired land, since the said tax-paid receipts, RTC extract and ECs, are not title deeds. The PW.1 during cross-examination admits that Govindappa is her father.
Cont'd..
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Admittedly, the claimant No.1 has not produced any probate of original Will dated 21.04.2006, copy of which is marked at Ex.P.1. This apart, it is not case of the claimant No.1 that she has obtained probate of the said Will. The evidence adduced on behalf of claimant No.1 is not sufficient to hold that Smt. Thimmakka executed Will dated 21.04.2006, where-under, bequeathed acquired land in-favour of claimant No.1. Therefore, effect shall not be given to the said Will. The appreciation of oral evidence of PWs.1 and 2 and above discussed documentary evidence, it is made clear that the claimant No.1 G. Lakshmi failed to prove that as on the date of issuance of preliminary notification, to acquire the land, in question, she was having right, title and interest over the acquired land. Hence, I answer the point No.1 in negative, for consideration.
.11. Point No.2: The PW.2 Navabjan s/o late. Ahammed Hussain has filed an affidavit, in lieu of his chief- examination, reiterating most of his claim statement averments. The Ex.P.10 is a notice dated 02.03.2010 issued Cont'd..
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12.09.2014 written by claimant No.2 to the respondent No.1 S.L.A.O., requesting to furnish certified copies of letters described in the letter with-regard to the acquisition of land in question. The Ex.P.13 is a cash receipt dated 27.09.2014, where-under, the claimant No.2 has paid Rs.8/- towards charges of documents described in Ex.P.12 letter under RTI. The Ex.P.14 is a letter dated 27.09.2014, issued by Public Information Officer, in the name of claimant No.2, directing him to pay Rs.8/- as a charge for photo copying the documents. The Ex.P.15 is a certified copy of registered GPA executed by Thimmakka wife of Muni Hanumaiah in-favour of Govindappa son of late. Hanuma Narasaiah, empowering him to do acts in-respect of the properties mentioned therein, including acquired land. The PW.2 in the chief-examination, among other facts, has stated that the L.A.O., visiting the acquired land and also verifying the documents of acquired land, has clearly held that the claimant No.2 is an owner and Cont'd..
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consequently, he has issued a letter and notice in his name. The claimant No.2, to prove the same, has produced the aforesaid notice and documents. The PW.2 in his chief- examination has stated that Thimmakka had executed a registered GPA in-favour of Govindappa on 09.04.1979, in- turn, Govindappa has sold him 1/4th gunta acquired land in Sy.No.58/13 of Dasarahalli village, in his favour through GPA dated 23.09.1981 for consideration of Rs.800/-, since then, he was in possessing and enjoying of the acquired land as owner and was paying tax to the acquired land, as such, he himself entitle to receive the compensation of the acquired land. The PW.2 further stated that earlier the acquired land was coming within the limits of Chokkasandra village. Accordingly, it was registered in khata No.630 of T. Dasarahalli village. The Ex.P.18 is an extract of tax demand register of Chokkasandra village, for the year 1987-88, issued by the Secretary, Chokkasandra Grama Panchayathi, wherein, it is mentioned that the claimant No.2 is an owner and anubhavadar of the property comprised in Sy.No.58/13.
Cont'd..
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The Exs.P.19 and 20 are the tax paid receipts. The Ex.P.22 is a self-declared income tax Form filed by the claimant No.2. The Ex.P.21 is a tax paid receipt. The Ex.P.23 is also the tax paid receipt. The Ex.P.24 is a certificate dated 27.05.2010 issued by the Revenue Officer of Dasarahalli Sub Division, BBMP, wherein, it is stated that the property comprised in Sy.No.58/13 of Dasarahalli in khata No.2194, is standing in the name of claimant No.2. The evidence of PW.2 is that thereafter when the acquired land come within the limits of BBMP, it was given khata No.2194. The Ex.P.25 is an extract of house and open space register for the year 2010-11 issued by BBMP, Revenue Department, wherein, the aforesaid acquired land bearing khata No.2194 of BBMP standing in the name of claimant No.2. The Exs.P.26 to 28 are the challan counter parts. The Ex.P.29 is a notice issued by BBMP, with-regard to the payment of tax as mentioned therein. The Ex.P.30 is a tax-paid receipt, for the year 2009- 10 standing in the name of claimant No.2, for having paid tax of the acquired land. The Ex.P.31 is an encumbrance certificate for the period from 01.04.2004 to 28.04.2011 in-
Cont'd..
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respect of acquired land issued in the name of claimant No.2. The Ex.P.32 is a certified copy of order sheet in O.S.No.5899/2011, on the file of City civil Judge court at Bengaluru, filed by the claimant No.1 G. Lakshmi against the claimant No.2 Navabjan and others for injunction with-regard to the compensation amount awarded to the acquired land. The Ex.P.33 is a certified copy of memo dated 16.07.2012 filed by the plaintiff/claimant No.1 seeking permission to withdraw the suit O.S.No.5899/2011, as not pressed. The L.A.O. has made the instant reference, as there was dispute with-regard to the title of the acquired land as the suit O.S.No.5899/2011 is being filed with-regard to the acquired land. The PW.1 during cross-examination admits that she did file the suit O.S.No.5899/2011 in the court of CCH-5 at Bengaluru, wherein, she has arrayed the L.A.O. as defendant No.2 and claimant No.2 as a defendant No.1. The PW.1 deposed that she did file the said suit seeking the relief that the compensation of the acquired land shall not be given to the claimant No.2 and thereafter, the deposit of compensation amount in this case, she has withdrawn the said suit. The Cont'd..
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Exs.P.32 and 33 and the oral evidence of PWs.1 and 2 proves that the claimant No.1 who had filed the suit O.S.No.5899/2011 in CCH-5 court has withdrawn the same as not pressed, as subsequently the compensation awarded to the acquired land is being deposited in this case. The learned counsel for the claimant No.2 in the written argument filed on behalf of claimant No.2 has stated that in view of the provisions contemplated u/s. 48 of Transfer of property Act, the claimant No.2 Navabjan has become an absolute owner and entitle for the compensation. The learned counsel referring to the documentary evidence let on behalf of both the parties, stated in the written argument that as on the date of acquisition, the claimant No.2 was in possession and enjoyment of the acquired land as owner, as such, he is entitle to receive the compensation of the acquired land. The PW.1 G. Lakshmi during her cross-examination denied the suggestion that her grand-mother did execute a GPA in the year 1979, in-favour of Govindappa and on the basis of the said GPA, Govindappa in turn, executed a GPA in-favour of claimant No.2 Navabjan in the year 1981-82 and also Cont'd..
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executed the sale deed. The PW.1 denied the suggestion that since execution of sale deed, both Thimmakka and Govindappa had lost their right over the acquired land. The PW.1 denied the suggestion that her father receiving Rs.800/- consideration has executed a sale deed in-favour of claimant No.2, in the year 1981-82. Admittedly, the claimant No.1 has not produced such of sale deed executed by Govindappa the GPA holder of Thimmakka, in-respect of acquired land in- favour of claimant No.2 Navabjan, much less, as suggested to the claimant No.1 during her cross-examination as discussed above. If really the said Govindappa had executed the sale deed in-favour of claimant No.2 as GPA holder of Thimmakka in-respect of the acquired land, then, what prevented the claimant No.2 not to produce such sale deed has not been explained by him. No such sale deed what-so-ever produced on behalf of claimant No.2. There is no dispute that Thimmakka daughter of Somaiah did acquire the title and interest over the acquired land bearing Sy.No.58/13 measuring ¼ gunta through a registered gift deed dated 06.09.1966, certified copy of which is marked at Ex.P.7.
Cont'd..
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Therefore, it is evident that since 06.09.1966 Thimmakka the grand-mother of claimant No.1 was possessing and enjoying the acquired land as an owner. Admittedly, Govindappa the GPA holder of Thimmakka has not executed a sale deed in- respect of acquired land, in-favour of claimant No.2 Navabjan. The evidence on record proves that the acquired land in Sy.No.58/2013 measuring ¼ gunta of T. Dasarahalli village, is an immovable property worth more than Rs.100/-, under the circumstances, Govindappa being a GPA holder of Thimmakka, ought and must sold the said acquired land through a registered sale deed, as the provisions contemplated u/s. 17 of Registration Act, 1908, mandates that if an immovable property worth more than Rs.100/- is to be sold, then, such sale or transfer of immovable property shall be only under registered sale deed. The sale as defined u/s. 54 of Trnasfer of property Act 1882 reads as under:
54 "Sale" defined - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a revision or other intangible thing, can be made only by a registered instrument.
Cont'd..
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In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property;
Contract for sale- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in, or charge on, such property.
The appreciation of oral evidence of PW.2 Navabjan and the documentary evidence marked at Ex.P.15, Ex.P.16 and Ex.P.17 coupled with the oral evidence of PW.1 leads to the unmistakable fact that Smt. Thimmakka the grand-mother of claimant No.1 G. Lakshmi executed a registered GPA in the month of April 1979 in-favour of Govindappa, who is father of claimant No.1 G. Lakshmi, with-regard to the acquired land along with other lands. The said Govindappa the GPA holder of Thimmakka, in--turn, executed a registered GPA marked at Ex.P.16 dated 21.09.1981 in-favour of claimant No.2 Navabjan, with-regard to the acquired land. This fact itself evidences that the said Govindappa the GPA holder of Thimmakka has not executed either sale deed or any Cont'd..
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conveyance deed as known in the Transfer of Property Act 1882, with-regard to the acquired land in-fvour of claimant No.2 Navabjan. This Ex.P.16 executed by Govindappa in- favour of claimant No.2 on the basis of GPA executed by Thimmakka will not attract the provisions contemplated u/s. 48 of Transfer of Property Act, as such, the written argument filed, on behalf of claimant No.2, in that regard will not hold good and will not help the claimant No.2 to prove that he was having title over the acquired land, as on the date of issuance of preliminary notification. The Ex.P.16 registered GPA dated 21.09.1981 is not a title deed and if at all the said Govindappa ought to have transferred the acquired land, in- favour of claimant No.2 Navabjan either through sale deed or through any mode of conveyance known under Transfer of Property Act, on the basis of GPA executed by Thimmakka in- favour of Govindappa, then only, the claimant No.2 could have acquired the title over the acquired land, but same is not the case on hand, so far as claimant No.2 is concerned. No- doubt, the documents marked at Exs.P.17 to 30 and the oral evidence of PW.2 evidences that the name of claimant No.2 Cont'd..
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came to be recorded in the records of acquired land, in Chokkasandra Grama Panchayath, CMC, Dasarahalli and later, in the records of BBMP, bu the same are not title deeds as mere payment tax or revenue of acquired land in the name of claimant No.2 will not make him as an absolute owner over the acquired land. The appreciation of oral and documentary evidence on record leads to the only probability that the claimant No.2 Navabjan utterly failed to prove his title over the acquired land. The claimant No.2 in many words in the chief-examination has stated that the L.A.O. inspecting the acquired land on the spot and also verifying the records, has held that the claimant No.2 is entitle for compensation, hence, claiming that he is an owner of the acquired land and was in possession, but the same will be of no help to the claimant No.2, for the reason that when the parties disputing the title of the acquired land, then, the L.A.O. has no power to adjudicate the title of disputed acquired land and the compensation awarded by the L.A.O., of the acquired land in the award is only an offer and it is only the Civil Court, which has got power to adjudicate the title of disputed acquired Cont'd..
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land. Therefore, there is no substance in the contention of claimant No.2 that he is entitle for the entire compensation amount of the acquired land on the ground that the L.A.O. has held that the claimant No.2 was an owner and in possession and enjoyment of the acquired land. Thus, I hold the point No.2 in negative, for consideration.
.12. Point No.3: This court, under points 1 and 2, appreciating the oral and documentary evidence on record, has come to the very definite conclusion that neither claimant No.1 G. Lakshmi nor claimant No.2 Navabjan proved their alleged title and interest over the acquired land as on the date of issuance of preliminary notification, for acquisition of acquired land in question, as such, this court is constrained to hold that both claimants 1 and 2 are not entitle for compensation awarded to the acquired land, in this reference. Hence, I hold this point No.3 in the negative, for consideration.
Cont'd..
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.13. POINT NO.4: In view of my finding on the afore- mentioned points 1 to 3, I proceed to pass the following:
ORDER The reference made by the SLAO, KIADB, Bengaluru, under Sections 30 and 31(2) of the Land Acquisition Act, 1894 is hereby rejected.
The claim of claimant No.1 Smt.
G. Lakshmi wife of Anjanamurthy and
also the claim of claimant No.2
Navabjan son of late. Ahammed
Hussain, over the acquired land
measuring 21.97 sq. meters in
Sy.No.58/13 of Dasarahalli village, is hereby rejected.
The office is hereby directed to send back the amount of Rs.14,41,219/- which is in F.D., awarded to the acquired land with accrued interest to the Special L.A.O., Cont'd..
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KIADB, Bengaluru, after the appeal period is over.
Draw award accordingly.
(Dictated to the Judgment Writer, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 28th day of August, 2018.) (I.F. Bidari) II Additional C.C. and Spl. Judge, Bangalore ANNEXURE
1. WITNESSES EXAMINED FOR CLAIMANTS:
P.W.1 : G. Lakshmi
PW.2 : Nawab Jan
2. DOCUMENTS MARKED FOR THE CLAIMANTS:
Ex.P.1 : True copy of registered Will
Ex.P.2 : Copy of encumbrance certificate
Ex.P.3 : Copy of encumbrance certificate
Ex.P.4 : Khata extract
Ex.P.5 : Tax paid receipts (8 in numbers)
Ex.P.6 : Death certificate of Thimmakka
Ex.P.7 : True copy of registered gift deed
Ex.P.8 : Copy of extract
Ex.P.9 : Cancellation of GPA
Ex.P.10 : Notice copy
Ex.P.11 : Letter written by LAO
Ex.P.12 : Letter written to LAO
Ex.P.13 : Cash receipt
Ex.P.14 : Letter from Bengaluru Metro
Cont'd..
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Ex.P.15 : Certified copy of GPA
Ex.P.16 : Registered GPA
Ex.P.17 : Letter written by Secretary
Ex.P.18 : Certified copy of tax demand register
Ex.P.19-20 ; Receipts (2 in numbers)
Ex.P.21 : Acknowledgement
Ex.P.22 : property tax form No.111
Ex.P.23 : Receipt
Ex.P.24 : Certificate
Ex.P.25 : Certified copy of books
Ex.P.26-27 : challans (2 in numbers)
Ex.P.28 : Challan counter party
Ex.P.29 : Notice
Ex.P.30 : Tax receipt
Ex.P.31 : E.C.
Ex.P.32 : Certified copy of order sheet in
O.S.No.5899/2011
Ex.P.33 : Certified copy of memo in O.S.No.5899/2011
3. WITNESSES EXAMINED FOR THE RESPONDENTS:
Nil
4. DOCUMENTS MARKED FOR THE RESPONDENTS:
Nil (I.F. Bidari), II Addl. C.C. and Spl. Judge, Bangalore.
IBRAHIM Digitally signed by IBRAHIM
FEERASAB BIDARI
DN: cn=IBRAHIM FEERASAB
FEERASAB BIDARI,ou=HIGH
COURT,o=GOVERNMENT OF
Cont'd..
KARNATAKA,st=Karnataka,c=IN
BIDARI Date: 2018.08.30 16:20:37 IST
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Cont'd..
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(Judgment pronounced in open court)
Vide separate order
ORDER
The reference made by the learned
Spl. Land Acquisition Officer, BBMP, Bengaluru, under Sections 30 and 31(2) of the Land Acquisition Act, 1894 is hereby rejected.
The claim of c laimant No.1 M. Lingaraju (Ningaraju) and objector/claimant No.2 M. Manjunatha, the sons of Muniyellappa, is hereby rejected.
The amount of Rs.2,56,634/-, which is in F.D., in the bank with accrued interest is ordered to be returned to the respondent - Spl. LAO, BBMP, Bengaluru.
Draw award accordingly.
II Additional C.C. and Sessions Judge, Bangalore Cont'd..
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54 "Sale" defined - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Cont'd..
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Sale how made- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a revision or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property; Contract for sale- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in, or charge on, such property.
Cont'd..