Bangalore District Court
O.S./3381/2013 on 6 April, 2021
/1/ O.S.No.3381/2013
IN THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL
JUDGE, [CCH-40], AT : BANGALORE CITY.
Dated on this the 6th day of April, 2021.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No.3381/2013
Plaintiff :
Girish Sanu S/o. Chandrakanth P.Sanu,
34 Years, R/o.No.E-O, Krishna Glade
Apartment, Palace Guttahalli,
Bengaluru - 560 024.
(By Sri.S.Tejus., Advocate)
/ VERSUS /
Defendants :
1. The Bangalore Development
Authority, T.Chowdaiah Road,
Bengaluru-560020, Represented by its
Commissioner.
2. The Special Land Acquisition Officer,
The Bangalore Development
Authority, T.Chowdaiah Road,
Bengaluru-560020.
3. Anjinappa S/o Late Appaianna, 33
Years.
/2/ O.S.No.3381/2013
4. Devaraj S/o. Anjinappa, 33 Years.
5. Devegowda S/o. Anjinappa, 30 Years.
6. Dyavesh S/o. Anjinappa, 23 Years.
Defendants No.3 to 6 are
R/o Tanisandra Village,
K.R.Puram Hobli,
Bangalore East Taluk,
Arabic College Post,
Bangalore - 560 045.
7. Chandrakant. P.Sanu
S/o.Purushatham Sanu,
63 Years, R/o.No.E-O,
Krishna Glade Apartment,
Palace Guttahalli,
Bengaluru - 560 024.
[Sri.P.M, Advocate for D.No.1 & 2
Sri. S.T.G. Advocate for D.No.7
D.3 to 6 - Ex-parte.]
***
JUDGMENT
The plaintiff has filed the present suit against the defendants for the relief of Specific Performance of Contract, permanent and mandatory injunctions.
2. It is the case of the plaintiff that the defendants No.3 to 6 are the owners of agricultural land /3/ O.S.No.3381/2013 bearing Sy.No.81/2B measuring 37 guntas situated at Tanisandra Village, K.R.Puram Hobli, Bangalore East Taluk. The defendant No.7 is the GPA Holder of defendants No.3 to 6. The defendants No.3 to 6 have agreed to sell land bearing Sy.No.No.81/2B measuring of 37 guntas to the plaintiff for a total sale consideration of Rs.70,00,000/- for their family necessity. After agreeing to the plaintiff's conditions, defendant No.3 to 6 have executed an agreement of sale on 28.11.2009 in favour of plaintiff. As per the said agreement to sell, the plaintiff has paid an amount of Rs.2,50,000/- by cash on 18.11.2009 and 4 Cheques for total amount of Rs.67,50,000/-. The plaintiff further contended that as per the agreement to sell it is expressly understood by and between the parties that under no circumstances the termination of the agreement is contemplated. Further defendant No.3 to 6 agreed that the suit schedule property was acquired by defendant No.1 and /4/ O.S.No.3381/2013 2 for formation of residential layout for the benefit of general public and the acquisition proceedings were challenged before the Hon'ble High Court of Karnataka. The said case is pending before the Hon'ble High Court of Karnataka. The defendants No.3 to 6 have undertaken to complete the sale transaction after the clearance of the said dispute. The plaintiff agreed to incur the expenses on behalf of defendants No.3 to 6 to clear the pending dispute in respect of acquisition proceedings. The time for performance of agreement was 11 months from the date of agreement.
3. The plaintiff further pleaded that the defendants No.3 to 6 have also executed GPA on 28.11.2009 in favour of Sri.Chandrakanth P.Sanu i.e., defendant No.7 and have also sworn a joint affidavit on the same day stating that they have agreed to sell the above said land to the plaintiff for total consideration of /5/ O.S.No.3381/2013 Rs.70,00,000/-. The plaintiff further submitted that, in view of the pending litigation by mutual consent it was agreed that the cheques for a sum of Rs.60,00,000/- would be encashed only after the entire matter was settled by the Hon'ble Court. But, on the balance sale consideration and on receipt of the same, have endorsed in the aforesaid agreement of sale.
4. The plaintiff further pleaded that the suit schedule property along with other land was notified for acquisition by the defendants No.1 and 2 in the year 2004 for formation of Arkavathy Layout. The said acquisition was challenged by defendants No.3 to 6 along with several other land owners before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka upheld the acquisition proceedings. Against the said order, the land owners have filed S.L.P. proceedings before the Hon'ble Supreme Court of India, the Hon'ble Supreme Court also upheld the decision of /6/ O.S.No.3381/2013 Hon'ble High Court of Karnataka in the year 2010 with certain modifications. In pursuant to the Hon'ble Supreme Court order, the Government of Karnataka passed an order bearing its No.Na.AE/170/Ben-Bhu- Swa/2011 dated 18.3.2011 stating that the land acquired for formation of Arkavathy Layout in Bengaluru North (additional) Taluk of Yelahanka Hobli Villages namely, Jakkuru, Amruthahalli, Sampigehalli, Rachenhalli, etc., and out of Bangalore East Taluk, K.R.Puram Hobli Villages viz., Tanisandra, K.Narayanapura, Challakere and other Villages out of every acre of land 45% has to be reserved for civic amenities, 55% for residential sites and to allot 40% of the developed land i.e., 9,583 Sq.Ft. per acre to those land owners who have not availed of the compensation amount. According to the Government Order, defendants No.3 to 6 who have consented for the acquisition on the above terms are entitled to the extent /7/ O.S.No.3381/2013 of developed land. In pursuant to the said Government order the defendants No.1 and 2 issued notice to defendants No.3 to 6 and various other land owners to produce documents of title in order to avail the developed site in accordance with the Government Order. In view of the consent given by defendants No.3 to 6, the plaintiff is entitled to 40% of the developed land that is to be allotted to defendants No.3 to 6. Since the defendants No.3 to 6 have executed an agreement of sale in favour of plaintiff and have received substantial amount from the plaintiff.
5. The plaintiff further contended that subsequently he contacted defendants No.3 to 6 for executing the registered sale deed in his favour, but the defendants have postponed the same on one or the other pretext. Hence, the plaintiff apprehended that the defendants No.3 to 6 may suppress the above facts from defendants No.1 and 2 and claim the lands for /8/ O.S.No.3381/2013 themselves. Even the plaintiff issued a notice on 04.01.2012. The plaintiff further contended that the defendants No.3 to 6 have approached the defendants No.1 and 2 for release of 40% of the land in accordance with the Government Order and are also negotiating with third parties for alienating the schedule property. In that event, the plaintiff would be put to irreparable loss and injury. Hence, he prays for decreeing the suit.
6. After service of suit summons, the defendants No.1, 2 and 7 have appeared through their counsels. The defendants No.3, 4, 5 and 6 remained absent. Hence, they were placed ex-parte. The defendants No.1 and 2 have filed written statement. Though the defendant No.7 appeared through his counsel, but has failed to file his Written Statement.
7. The defendants No.1 and 2 have filed their Written statement by denying the claim of the plaintiff. The defendants contended that the suit of the plaintiff is /9/ O.S.No.3381/2013 not maintainable in the eye of law. The defendants No.1 and 2 further contended that the land bearing Sy.No.81/2B of Tanisandra Village has been acquired and accordingly notifications have been issued and possession of the property has been taken. Neither plaintiff nor defendants No.3 to 7 are in possession of the suit schedule property. Once the land has been acquired the suit for specific performance of contract or for bare injunction is not maintainable. The Civil Court has no jurisdiction to entertain the suit. Hence, they prayed for dismissal of the suit.
8. On the basis of pleadings and documents of both the parties, this Court has framed the following issues on 16.02.2017 :
ISSUES (1) Whether the plaintiff proves that defendants 3 to 6 have executed the sale agreement on 28/11/2009 agreeing to sell the suit property for sale consideration amount of / 10 / O.S.No.3381/2013 Rs.70,00,000/- and received the amount towards the sale consideration as mentioned in para.5 of the plaint?
(2) Whether the plaintiff proves that plaintiff is entitled for specific performance of agreement of sale with respect to 40% of the land in the suit schedule land?
(3) Whether the plaintiff is entitled for the reliefs as prayed for?
(4) What order or decree?
9. The following Additional Issue framed on 25.2.2020 :
"Whether the defendants No.1 and 2
prove that suit of the plaintiff is barred under law?"
10. Heard the arguments.
11. In order to substantiate his case, plaintiff himself examined as P.W.1 and got marked documents Exs.P.1 to P.5. The defendants have not led evidence.
12. My findings on the above issues and additional issue are as follows :
/ 11 / O.S.No.3381/2013
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Addl. Issue : In the affirmative.
Issue No.4 : As per final order for the
following :
REASONS
13. Issue No. No.1 : - This issue is framed with respect to execution of agreement dated 28-11-2009 and passing of consideration as alleged in the agreement.
14. That, the plaintiff has filed the present suit for the relief of Specific Performance of contract dated 28.11.2009 and permanent injunction restraining the defendants No.1 and 2 from releasing full or atleast 40% of the developed land in Arkavathy Layout in favour of defendants No.3 to 6 pursuant to the Government order dated 18.3.2011 and for mandatory injunction directing the defendants No.1 and 2 to release 40% of the developed land in favour of plaintiff in accordance with / 12 / O.S.No.3381/2013 the Government Order dated 18.3.2011 and mandatory injunction directing the defendants No.1 and 2 to notify and intimate plaintiff regarding the allotment of 40% of the developed land and for the relief of permanent injunction restraining the defendants No.3 to 6 from alienating or encumbering suit schedule property or 40% of the land to be allotted in Arkavathy Layout pursuant to the Government Order dated 18.3.2011.
15. The defendants No.1 and 2 appeared and have filed their written statement. The defendants No.1 and 2 took specific contention in their written statement that the suit of the plaintiff is barred under Law. The parties have produced Acquisition Notification and also RTC in respect of suit schedule property.
16. In order to substantiate his case, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.5. The examination-in-chief of P.W.1 is nothing but replica of his plaint averments.
/ 13 / O.S.No.3381/2013 P.W.1 deposed that defendants No.3 to 6 are the owners of the agricultural land bearing Sy.No.81/2B measuring 37 guntas situated at Tanisandra Village, K.R.Puram Hobli, Bangalore East Taluk and the defendant No.7 is the general power of attorney holder of defendants No.3 to 6. The defendants No.3 to 6 agreed to sell the suit schedule property to the plaintiff for total consideration of Rs.70,00,000/- for their family legal necessity and also have executed an agreement of sale on 28.11.2009 in favour of plaintiff as per Ex.P.1 and have also executed Affidavit on 28.11.2009 as per Ex.P.3. Ex.P.2 is the RTC extract in respect of the suit schedule property. The defendants No.3 to 6 have received considerable amount towards part sale consideration amount. The defendants No.3 to 6 have agreed to execute the registered sale deed in favour of plaintiff within 11 months from the date of agreement of sale. The defendants No.3 to 6 agreed that the suit schedule / 14 / O.S.No.3381/2013 property was acquired by the defendants No.1 and 2 for formation of residential layout for the benefit of general public and that a case was pending before the Hon'ble High Court of Karnataka in respect of acquisition proceedings and undertook to complete the sale transaction after the clearance of above dispute. Himself has borne all the costs of litigation. The defendants No.3 to 6 have challenged the acquisition notification by filing Writ Petition, the said Writ Petition came to be dismissed. Subsequently, order passed in the said Writ Petition have been challenged by filing SLP before the Hon'ble Apex Court. The Hon'ble Supreme Court upheld the decision of the Hon'ble High Court of Karnataka in the year 2010 with certain modifications. Pursuant to the Hon'ble Supreme Court order, Government of Karnataka issued notification on 18.3.2011 as per Ex.P.5. As per said notification, the defendants No.3 to 6 are entitled for the 40% of improved land i.e., 9,583 Sq.Ft. Per acre. The / 15 / O.S.No.3381/2013 defendants No.3 to 6 are in hurry to receive their 40% of developed land. If they are succeeded, he would be put to hardship. All the said disputes have cleared off, even then the defendants No.3 to 6 have failed to execute the registered sale deed in his favour, on the contrary, the defendants No.3 to 6 are making efforts to deny his claim. Therefore, he got issued lawyer's notice on 27.9.2012 to the defendants No.1 and 2 as per Ex.P.4. The said notice duly served upon the defendants No.1 and 2. If the defendants No.3 to 6 have succeeded in their act, he would be put to irreparable loss and injury. Hence, he prays for decreeing the suit. Though this Court has granted sufficient opportunities to the defendants for cross-examination of P.W.1, even then they have failed. Hence, cross of P.W.1 was taken as nil. Defendants have not adduced evidence.
17. The counsel for the defendants argued that, the suit of the plaintiff is barred by limitation, the suit / 16 / O.S.No.3381/2013 schedule property has been acquired by the government hence the suit of the plaintiff is not maintainable. The plaintiff has also not adduced evidence of any attesting witness and the plaintiff has failed to prove his readiness and willingness to perform his part of contract. Hence, he prays for dismissal of the suit.
18. That, the plaintiff claims that defendants No.3 to 6 have executed an agreement of sale on 28.11.2009 as per Ex.P.1 in respect of suit schedule property. The burden lies upon the plaintiff to prove the execution of agreement to sell. It is the specific case of the plaintiff that the agreement to sell dated 28-11-2009 was executed by defendants No.3 to 6 in the presence of Ashwat.M. and Manjunath K.N. When this being the case, the plaintiff would have examined the said Ashwat.M. and Manjunath K.N. who are the attesting witnesses. However, even though the attestation is not necessary for agreement to sell, but when the execution / 17 / O.S.No.3381/2013 was denied, the best mode of proving the execution is by examining the persons who were present at the time of execution. In the instant case the plaintiff has not made any such attempt to examine the attesting witnesses. The plaintiff has failed to use the source available to him to prove Ex.P.1. The non-examination of material witness is fatal to the plaintiff's case. Even the plaintiff has failed to examine the author/scribe of Ex.P.1. Thereby, an adverse inference as contemplated under Section 114(g) of the Indian Evidence Act is drawn against the plaintiff.
19. Though P.W.1 deposed about execution of agreement - Ex.P.1, but he has not identified the signatures of executants and attesting witnesses of Ex.P.1. Thereby, the version of the plaintiff that Ex.P.1 was executed in the presence of said witnesses cannot be believed.
/ 18 / O.S.No.3381/2013
20. That, as per Ex.P.1, the plaintiff has to pay remaining amount to defendants No.3 to 6 within 11 months from the date of execution of Ex.P.1 i.e., 28.11.2009, but there is no evidence/document to show that plaintiff has tendered remaining amount and asked for execution of registered sale deed. Further, on perusal of the Ex.P.1 and also on perusal of plaint and evidence, there is a gray area to the effect that who has written Ex.P.1. On perusal of the Ex.P.1 there is no signature of the scribe who has written the said document.
21. Besides, as discussed supra, the plaintiff has not examined any of the attesting witnesses who have signed Ex.P.1 nor he has examined the scribe of the document. Hence, this Court is of the opinion that the plaintiff has failed to prove the Issue No.1. Hence, I answer Issue No.1 in the negative.
/ 19 / O.S.No.3381/2013
22. Issue No.2 : - Issue No. 2 is with regard to readiness and willingness of the plaintiff and entitlement of specific performance of agreement of sale with respect to 40% of the land in the suit schedule property.
23. The counsel for the plaintiff argued that plaintiff is ever ready to perform his part of contract, but the defendants No.3 to 6 have failed to perform their part of contract. Hence, plaintiff is entitled for the relief.
24. In order to claim the relief of specific performance of contract, plaintiff has to plead and prove his readiness and willingness to perform his part of contract. In the plaint, after referring to the agreement the blame was put at the door-step of the defendants No.3 to 6 for breaching the contract. But, on perusal of entire plaint pleadings, there is no averments as regards the the plaintiff's readiness and willingness to perform his part of contract. Thereby, the pleading of readiness / 20 / O.S.No.3381/2013 and willingness is main point in a suit for specific performance of contract. It is well settled principle of law that, Section 16(c) of Specific Relief Act lays down that specific performance of contract cannot be forced in favour of a person who fails to aver and prove that, he has performed or is always been ready and willing to perform the essential term of contract which are to be performed by him. As discussed supra, on careful perusal of the plaint averments, the plaint averments are absolutely silent with respect to readiness and willingness of the plaintiff. The plaintiff has not averred anything and the evidence adduced by him is absolutely silent with respect to his readiness and willingness.
25. In the decision reported in ILR 2016 Karnataka 2252 [Sri.Punny Akat Philip Raju, Since dead by his Lrs. vs. Sri.Dinesh Reddy], the Hon'ble High Court of Karnataka was pleased to discuss the principles of law enshrined in Section 16 of the Specific Relief Act, 1963.
/ 21 / O.S.No.3381/2013 Para -32, 33, 36, 37 and 38 read thus :
"32. The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation makes it clear that the proof of requisite funds does not mean he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance / 22 / O.S.No.3381/2013 consideration is to be deposited in the Court such a deposit is also evidenced by documentary evidence, which is also not necessary by virtue of the explanation.
33. Money does not exist in vacuum.
Money has to be necessarily in the form of physical object. It is in the nature of document. Money is deposited in banks. Money is in the nature of securities. Money is capable of being raised from borrowing.
Money could be raised by sale of properties movable or immovable. When a person claims that he is possessed of sufficient funds, he has to produce some documentary evidence, which proves his capacity to raise the funds or he possess the funds. What are the documents which, the plaintiff can produce to prove his capacity? It may be a passbook issued by a Bank where he has kept the balance sale consideration ready for payment. If he has invested his money by way of securities, he has to produce those securities before Court to show that any time he can / 23 / O.S.No.3381/2013 encash the same and pay the balance consideration. Similarly, if he has kept the money in Fixed Deposit, in a Bank, that deposit receipt is the proof of his ability to raise the balance sale consideration. If he intends to borrow money from a Nationalized Bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request for such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These instances are only illustrative. There may be several other modes by which the requisite funds are raised. But all of these instances are evidenced by documentary evidence.
26. The Hon'ble Apex Court had an occasion to consider the contention that when there is no denial of readiness and willingness by the defendant either in the written statement or in the evidence, there is no obligation on the part of the plaintiff to produce any documentary evidence to prove his readiness. The / 24 / O.S.No.3381/2013 Hon'ble Supreme Court in a decision reported in (2011) 1 SCC 429 in the case of J.P.BUILDERS & ANOTHER VS. A.RAMADAS RAO, after referring to Section 16 of the Specific Relief Act has held at para-21 as under :
Among the three clauses, we are more concerned about clause (c). "Readiness and Willingness' is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
At para 22 it is held as under :
The words 'ready' and 'willing' imply that the person was prepared to carry out the terms of the contract. The distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and / 25 / O.S.No.3381/2013 the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
At paras-25, 26 and 27, it is held as under :
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C.Chandiok V. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, / 26 / O.S.No.3381/2013 it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-
compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and Willingness" to perform the part of the contract has to be determined/ ascertained from the conduct of the parties."
27. The burden of proving readiness and willingness is on the plaintiff. It is not dependent upon the admission of the defendant either in the written statement or in the evidence. Unless the plaintiff proves to the satisfaction of the Court that he was ready and willing to perform his part of the contract, the Court gets no jurisdiction to pass a decree for specific performance. Therefore, the argument of the learned Counsel for the plaintiff that, as there was no cross-examination of / 27 / O.S.No.3381/2013 P.W.1, regarding readiness and willingness, the oral evidence of P.W.1 that he was ready and willing to perform his part of the contract was sufficient for the Court to decree the suit for specific performance is unfounded. The plaintiff has not produced a scrap of paper to show how he propose to raise the balance sale consideration of Rs.67,50,000/-, where he has kept that money, is it in any bank or has he formulated a scheme for raising the funds and whether he actually possessed of the said funds. In the absence of such material, which has to be necessarily in the form of documentary evidence, not placed before the Court.
28. In Smt.Padmini Raghavan Vs. Mr.H.A. Sonnappa, since dead by his Lrs., and Ors., [ILR 2014 Karnataka 233], the Hon'ble High Court of Karnataka was pleased to held at para No.40 as under :
"In a suit for specific performance, the plaintiff should not only plead and prove the / 28 / O.S.No.3381/2013 terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract."
29. In the decision reported in (2002) 9 SCC 582 in the case of Pushparani. S. Sundaram and Others vs. Pauline Manomani James (deceased) and Others, it has been held by the Hon'ble Apex Court that, "Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so".
30. In another decision reported in (2013) 15 Supreme Court Cases 27 [I.S.Sikandar (dead) by LRs., vs. K.Subramani and Others], the Hon'ble Supreme Court at para No.45 of the Judgment held that :
" ..... Further, the Plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the / 29 / O.S.No.3381/2013 date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement. ........."
31. In another decision reported in (2018) 3 Supreme Court Cases 658 [Kalawati (Dead) through legal representatives and others Vs. Rakesh Kumar and others], the Hon'ble Supreme Court at para No.19 held thus :
"In I.S.Sikandar V. K.Subramani this Court noted that the Plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. In this case, looking at the attendant facts and circumstances, the Court upheld the view of the trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration...."
/ 30 / O.S.No.3381/2013
32. The another decision reported in 2020 SCC ONLINE 86 [Sukhwinder Singh vs. Jagroop Singh and another], the Hon'ble Supreme Court held that the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted. It is worthwhile to read para-9, which read thus :
"The suit being the one for specific performance of the contract on payment of the balance sale consideration, the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted. In the instant case though the defendant No.2 had denied the agreement as also the receipt of the earnest money, the same would not be of consequence as the agreement claimed by the plaintiff is with the defendant No.1 and the contention of the / 31 / O.S.No.3381/2013 defendant No.2 to deny the same is without personal knowledge on that aspect. However, even in the absence of the defence put forth, the plaintiff was required to prove his readiness and willingness and that aspect of the matter was to be considered by the Courts below."
The above said decisions are aptly applicable to the case in hand.
33. In this case the plaintiff has failed to prove his readiness and willingness to perform his part of contract. That, in order to show the financial arrangement for purchase of the suit schedule property, the plaintiff has not at all produced any documents.
34. The counsel for the plaintiff argued that the defendants No.3 to 6 remained absent, the evidence of P.W.1 is intact, hence, plaintiff is entitled for the relief. That, by mere placing defendants ex-parte, the plaintiff will not get any rights to claim the relief. He has to prove / 32 / O.S.No.3381/2013 his case independently. In a decision reported in (2012) 5 SCC 265 (C.N.Ramappa Gowda Vs. C.C.Chandregowda (Dead) by his LRs), wherein the Hon'ble Apex Court held that, "Non-filing of written statement, held, should not have penal consequences - Court should proceed cautiously and exercise its discretion in a just manner - Even in absence of written statement, burden of proof would remain on plaintiff and his mere assertion in plaint affidavit would not be sufficient to discharge the burden - Where in view of non-filing of written statement despite repeated opportunities given to defendant, decree was passed without going into merits, merely on basis of affidavit filed by plaintiff, in a case involving disputed questions of fact, held, it would amount to a penal decree - If plaint indicates disputed questions of fact, court should require plaintiff to lead evidence, and on independent examination thereof, should it pass a judgment and decree." The said decision is aptly / 33 / O.S.No.3381/2013 applicable to the case in hand. In this case also the plaintiff ought to have proved the fact that the defendants No.3 to 6 have executed agreement to sell as per Ex.P.1 and they have failed to execute the registered sale deed in his favour and he further failed to prove that he is ever ready to perform his part of contract and is having sufficient means to purchase the property. Except the oral evidence, no documents available. It is well settled law that, one who claims the relief, he has to have prove his case. He cannot take the weakness of the defendants as trump card. That, in a decision reported in (2019) 6 SCC 82 [Jagadish Prasad Patel (dead) through LRs Vs. Shrinath and another.] in which the Hon'ble Apex Court held that, "Plaintiff has to prove his case independently. He cannot take the weakness of the defendant." The said decision is aptly applicable to the case in hand.
/ 34 / O.S.No.3381/2013
35. That, on perusal of the entire pleadings and documents produced by the plaintiff, as on the date of suit the plaintiff was not having sufficient means to purchase the suit schedule property, even then the plaintiff is trying to shift the burden upon the defendants on the ground that the defendants are not ready to execute the sale deed. That, the fault lies with the plaintiff and he cannot shift his fault upon the defendants. Hence, I answer Issue No.2 in the negative.
36. Additional Issue : - That, on perusal of entire pleadings and documents produced by both the parties, the suit schedule property has been acquired by B.D.A for formation of Arkavathy Layout by publishing the same in official gazette. The counsels for the plaintiff and defendants No.1 and 2 have produced the official gazette published in the Karnataka Gazette bearing No.BDA/ COMMR/ALO/LA9/104/2002-03 Bengaluru dated 3.2.2003 and Notification No.UDD/192/ MNX/2004 dated / 35 / O.S.No.3381/2013 21.02.2004. On perusal of the said notifications Sy.No.81/2B of Tanisandra Village, K.R.Puram Hobli is acquired. As per the contention of the defendants, declaration of notification under Section 6(1) of the Land Acquisition Act was also published and possession was also handed over as per Section 16 of the Land Acquisition Act. It is the specific contention of the defendants that as per Section 9 of C.P.C., Civil Court jurisdiction is barred by any other law for the time being in force. Further contended that when final notification under Section 4(1), 6(1) issued and Award under Section 12(2) of Land Acquisition Act has been passed and possession has been taken over by the defendants No.1 and 2, the aggrieved person may file an application under Section 18 of Land Acquisition Act for enhancement of compensation or he may challenge the acquisition proceedings as per Articles 32 or 226, 227 of Indian Constitution. The Civil Court has no jurisdiction to / 36 / O.S.No.3381/2013 try the suit. Hence, the plaintiff's suit for specific performance, permanent and mandatory injunctions is not maintainable. The Civil Court has no jurisdiction to entertain the suit.
37. The counsel for the plaintiff argued that the plaintiff filed the present suit for the relief of Specific performance of contract, permanent and mandatory injunctions, he sought for issuance of directions to defendants No.1 and 2 for release of 40% of developed land in the suit schedule property in favour of plaintiff in accordance with the Government Order dated 18.3.2011. Hence, Civil Court has got jurisdiction to entertain the suit. Therefore, he prays for decreeing the suit.
38. On perusal of the contention raised by defendants, it can be said that as per Section 9 of C.P.C., Civil Court can try all the suits of civil nature unless the / 37 / O.S.No.3381/2013 cognizance of such suits either expressly or impliedly barred by any other law for time being in force. But, under the Land Acquisition Act special procedure is envisaged to effectuate public policy. The Government has got power to acquire property for the public purpose. That, before acquiring the property, issuance of notification under Sections 4(1) and 6(1) of Land Acquisition Act are mandatory. In this case, the defendants No.1 and 2 have already issued the notification as envisaged under the Land Acquisition Act. The only remedy left with the aggrieved person is to approach either under Articles 226 and 227 of Indian Constitution to the Hon'ble High Court of Karnataka or under Article 136 to the Hon'ble Apex Court. Hence, it is clear from the scheme of the Act that, Land Acquisition Act is a complete code in itself and thereby the jurisdiction of Civil Court to take cognizance of the case arising under L.A.Act by necessary implication stood / 38 / O.S.No.3381/2013 barred. The Civil Court thereby is devoid of jurisdiction. Thus, this Court lacks jurisdiction to decide the matter in issue, which is falling within the domain of the Land Acquisition Act, wherein remedy and relief both are provided.
39. Besides, on careful perusal of the Notifications dated 3.2.2003 and 21.2.2004 of Karnataka Gazette Notifications relating to acquisition of lands produced by the counsel for defendants No.1 and 2, it clearly goes to show that land bearing Sy.No.81/2B of Tanisandra Village has been acquired. Admittedly, the said notifications have been published in the year 2003 and 2004. As per Section 81 of the Indian Evidence Act, "Presumption as to gazettes, newspapers, private acts of parliament and other documents."
40. Though the plaintiff contended that the defendants No.3 to 6 have agreed to sell the suit / 39 / O.S.No.3381/2013 schedule property and have executed an agreement of sale on 28.11.2009, but failed to prove that his vendors have got right to sell the suit schedule property as on the date of execution of alleged agreement to sell dated 28.11.2009.
41. In a decision reported in AIR 1987 SC 1713 (Union of India Vs. Nihar Kanta Sen and others) in which the Hon'ble Apex Court clearly held that :-
"Head Note B - Evidence Act [1 of 1872], Ss. 56 and 57 - Judicial Notice - Publication of Notification relating to acquisition of intermediary estate under Section 4 of West Bengal Estates Acquisition Act in gazette - Government filing office thereof in High Court - That Court should have taken judicial notice of notification."
In this case also the B.D.A acquired Sy.No.81/2B measuring 37 guntas situated at Tanisandra Village and notification under Sections 4(1), 6(1) and 12(2) of Land / 40 / O.S.No.3381/2013 Acquisition Act have been published in the official gazette and same have been produced in this case. Hence, judicial notice of notifications is taken.
42. On the basis of above said notifications, the land bearing Sy.No.81/2B measuring 37 guntas situated at Tanisandra Village is acquired by the B.D.A for formation of Arkavathi Layout as per Section 16 of Land Acquisition Act, after taking possession the land vests with the State Government with absolute title free from all encumbrance. The plaintiff claims that the defendants 3 to 6 have executed an agreement to sell in his favour on 28.11.2009, but on perusal of the notification produced by both the parties, it reveals that entire Sy.No.81/2B of Tanisandra Village has been acquired by B.D.A in the year 2003 itself i.e., much prior to alleged agreement to sell dated 28.11.2009. Hence, once the property has been acquired by the B.D.A., the title and possession vests with the acquisition authority / 41 / O.S.No.3381/2013 and no one will get the better title than the acquisition authority i.e., Government of Karnataka. Therefore, the alleged agreement to sell dated 28.11.2009 will not get any title or possession over the suit schedule property. Besides, there is a presumption under Section 16 of the Land Acquisition Act that once the land is acquired under the Land Acquisition Act, the possession vests with the Government.
43. The plaintiff himself produced the R.T.C. - Ex.P.2 in respect of suit schedule property. On perusal of the said R.T.C. it clearly reveals that, at Column No.11 it is mentioned that, the land bearing Sy.No.81/2B of Tanisandra Village has been acquired by the Government under the final notification No.UDD 193 MNX 2004 dated 21.2.2004. As per Section 133 of Karnataka Land Revenue Act, any entry made in the revenue records has got presumptive value.
/ 42 / O.S.No.3381/2013
44. That as per Section 58 of Indian Evidence Act, facts admitted need not be proved. The plaintiff himself admitted the fact that the entire land bearing Sy.No.81/2B of Tanisandra has been acquired by the B.D.A. Hence, once the property has been acquired the title and possession vests with the acquisition authority and no one will get the better title than the acquisition authority i.e., Government of Karnataka. Therefore, the plaintiff will not get any title or possession over the suit schedule property on the basis of the alleged agreement to sell allegedly executed by defendants No.3 to 6 in his favour. Besides, there is a presumption under Section 16 of the Land Acquisition Act that once the land is acquired the possession vests with the Government.
45. Besides, the defendants No.1 and 2 contended that the land in Sy.No.81/2B has been acquired in 2003- 04 itself. As per decision of our own Hon'ble High Court reported in ILR 2007 KAR 5121 (M.B.Bettaswamy Vs. / 43 / O.S.No.3381/2013 The Commissioner, Bangalore Development Authority and another), wherein it is held that :-
"CODE OF CIVIL PROCEDURE, 1908 -
SECTION 96 READWITH ORDER 41 RULE 1 -
Regular First Appeal - suit for possession and injunction - Challenge to dismissal of suit - Plaintiffs assertion that he is in settled position of the suit schedule property - Threat of dispossession by the respondent B.D.A - Suit land was the subject matter of acquisition - Formation of Layout - HELD, When the land is acquired and the possession is taken, the land vests in the State. Even if the plaintiff puts up unauthorized construction, he does not have any legal right to remain in possession based on the illegal structure and it cannot be termed as a settled possession - A person who is unauthorisedly squatting on the public property, has no right to remain in possession. However, the trial Court extending the sympathy, directed the B.D.A to issue notice and evict the plaintiff in / 44 / O.S.No.3381/2013 accordance with law. Such sympathy will harm the public interest, as there are several persons legally waiting for lawful allotment - FURTHER HELD, Admittedly, the plaintiff has not proved his title nor proved his right to remain in possession - Dismissal of suit is justified."
46. In another decision of our own Hon'ble Court reported in 2017 (2) AKR 695 (B.D.A., Bengaluru Vs. Bhagavandas Patel), it is held that :-
"(B) Civil P.C. (5 OF 1908), S.9, O.39, R.1 -
Land Acquisition Act (1 of 1894), Ss.4, 6 - Civil Court - Exclusion of jurisdiction - suit for injunction- suit property forming part of layout formed out of lands acquired under acquisition notifications - Acquisition proceedings beyond jurisdiction of Civil Court - Grant of injunction against dis- possession is also beyond Civil Court jurisdiction."
Hence, in this case neither the plaintiff nor the / 45 / O.S.No.3381/2013 defendants No.3 to 6 are in possession of the property and the plaintiff is not entitled for the relief.
47. As per the decision of the Hon'ble Apex Court reported in AIR 1996 S.C. 540 (Smt. Sneha Prabha etc., Vs. State of U.P. and another), in which the Hon'ble Apex Court clearly held that:
s "(A) Land Acquisition Act (1 of 1894), S.4 - Land acquisition - Land policy issued by State Govt. - Benefits under given only to person whose land was acquired- Appellant purchasing land after publication of notification for acquisition of land under the Act - Not entitled to benefits of land policy."
48. That in another decision reported in 2019 SAR (Civil) 902 (State of Hariyana and others Vs. Sunder Lal), in which the Hon'ble Apex Court clearly held that:
s"Land Acquistion-Lapse-Proof-Panchanama of taking possession - Drawn - Enough for / 46 / O.S.No.3381/2013 taking possession - No laps for acquisition". The above said decisions are aptly applicable to the case in hand. Admittedly, in this case also land Sy.No.81/2B of Tanisandra Village belongs to defendant No.3 to 6 have been acquired by the defendants No.1 and 2. Hence, the defendants No.3 to 6 are entitled to the benefits arising out of acquisition. The plaintiff allegedly entered into contract with defendants No.3 to 6 after publication of notification for acquisition of land under Land Acquisition Act. Therefore, plaintiff is not entitled to benefits of land policy.
51. In another decision reported in AIR 1996 SC 3377 (Tamil Nadu Housing Board Vs. A.Viswam [Dead by LRs]), the Hon'ble Apex Court has held that :
" (B) Land Acquisition Act (1 of 1894), S.16
- Acquisition of land - Mode of taking possession - recording of a memorandum of panchanama by LAO in presence of Witnesses signed by them - Would / 47 / O.S.No.3381/2013 constitute taking possession of Land."
52. In another decision reported in AIR 2003 SC 234 (Northern Indian Class Industries Vs. Jaswanth Singh and others) the Hon'ble Apex Court has held that:
"(A) Constitution of India, Art. 226 - Delay and laches - writ petitions challenging acquisition notification-Filing of, after 17 years of finalization of acquisition proceedings -Earlier, petitioners accepted compensation amount as per award and sought enhancement of compensation without challenging Ss. 4 and 6 notifications- Petitions liable to be dismissed on ground of delay and laches in absence of any explanation for the delay-
Merely because full enhanced
compensation amount not paid to
petitioners, so ground to condone the delay.
(B) Land Acquisition Act (1 of 1894), S.16 -
Taking possession - After passing of award
- Effect - Land vests with Government free / 48 / O.S.No.3381/2013 from all encumbrances- Landowner thereafter cannot ask for restitution of possession even if land is not used for the purpose of which it was acquired."
In the above said decisions, the Hon'ble Apex Court clearly held that, after passing of award, the land vests with the Government free from all the encumbrances, then the land owner thereafter cannot ask for restitution of possession even if the land is not used for the purpose for which it was acquired. The ratio laid down in the above decisions are aptly applicable to case in hand.
53. In another decision reported in (2013) 3 SCC 66 (Commissioner, Bangalore Development Authority and another Vs. Brijesh Reddy and another), the Hon'ble Apex Court clearly held that :-
"Land Acquisition Act 1894 - Ss.4 and 6 r/w/s. 9 C.P.C. - Maintainability of suit in Civil Court when schedule lands acquired under land acquisition proceedings -
/ 49 / O.S.No.3381/2013 remand of proceedings through trial Court without examining issue of maintainability
- propriety -reiterated, Land Acquisition Act is a complete code in itself and is meant to serve public purpose - by necessary implication, power of Civil Court to take cognizance under Section 9 C.P.C. stands excluded and Civil Court has no jurisdiction to go into question of validity or legality of notification under Section 4 declaration under Section 6 and subsequent proceedings - Civil Court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under Land Acquisition Act - Only right available to aggrieved person is to approach High Court under Article 226 of Indian Constitution and Supreme Court under Article 136 of extraordinary power - On facts held, civil suit filed by plaintiffs for permanent injunction restraining defendants 1 and 2 i.e., B.D.A from interfering with peaceful possession and enjoyment of suit schedule property was / 50 / O.S.No.3381/2013 not maintainable."
54. In another decision reported in (2018) 11 SCC 104 (H.N.Jaganath and others Vs. State of Karnataka and others), in which the Hon'ble Apex Court clearly held that:
"Civil Court has no jurisdiction to
examine acquisition proceedings by
necessary implication. Civil Court lost its
jurisdiction under Section 9 C.P.C. - It is High Court which gets jurisdiction under Article 226 or Supreme Court under Article 136 of the Constitution to examine validity of acquisition proceedings - Civil suit challenging acquisition proceedings not maintainable." The above said decisions are aptly applicable to the case on hand. In this case also, the plaintiff has filed the present suit for the relief of permanent and mandatory injunctions, whereas the property has been acquired by the Government prior to the alleged agreement to sell dated 28.11.2009. Hence, by / 51 / O.S.No.3381/2013 considering all the materials available on record it clearly goes to show that the defendants No.3 to 6 are not in possession of the suit schedule property and they have no right to alienate the suit schedule property in favour of plaintiff as on the date of filing of the suit.
55. The counsel for the plaintiff argued that, the plaintiff is not at all challenging the acquisition proceedings and hence, the present suit is maintainable. But, on careful perusal of plaint prayer it reveals that the plaintiff is seeking for specific performance of Agreement dated 28.11.2009, for issuance of permanent injunction restraining the acquisition authority i.e., defendants No.1 and 2 from releasing the 40% developed land to defendants No.3 to 6 and for mandatory injunction directing defendants No.1 and 2 to release the 40% developed land in favour of plaintiff. The plaint prayer reads thus :
/ 52 / O.S.No.3381/2013 "aa) Judgment and decree for the specific performance of the agreement dated 28.11.2009 entered into between the plaintiff and defendants No.3 to 6 with respect 40% of the developed land in the suit schedule land and direct the defendants No.3 to 6 to execute registered sale deed in favour of the plaintiff with respect to 40% of the developed land in the suit schedule land as the defendants No.3 to 6 are entitled for only 40% of the developed land in the suit schedule land and direct the defendants 3 to 6 to put the plaintiff in the physical possession of the 40% of the developed suit schedule land which is going to be granted/ allotted in favour of defendants No.3 to 6.
a) : for grant of permanent injunction restraining the defendants No. 1 and 2 from releasing full or atleast 40% developed land in Arkavathy Layout in favour of the defendants No.3 to 6 pursuant to Government order dated 18.3.2011;
b) : for grant of mandatory injunction directing the defendants No. 1 and 2 to / 53 / O.S.No.3381/2013 release 40% of developed land in favour of plaintiff, in accordance with the Government order dated 18.3.2011;
c) : For grant of mandatory injunction directing the defendants No.1 and 2 to notify and intimate plaintiff as to above i.e., (a) or
(b) as the case may be.
d): Grant permanent injunction restraining defendants No.3 to 6 from alienating or encumbering the suit schedule properties or 40% of the land to be allotted in Arkavathy Layout, pursuant to Government Order dated 18.3.2011.
e): Grant such other relief/s as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case, including the cost of the proceedings, in the interest of justice and equity."
Hence, on perusal of the plaint prayers it clearly reveal that the plaintiff is challenging the acquisition notifications and seeks for issuance of directions to the / 54 / O.S.No.3381/2013 acquisition authority for release of 40% developed land in his favour which is barred under the Land Acquisition Act.
56. Besides, it is well settled law that once the property is acquired by the Government under the Land Acquisition Act or even if a preliminary notification is issued for acquisition of the property, the Civil Court has no jurisdiction to entertain the suit. In this case also, the property has been acquired by B.D.A in the year 2003-04 itself. Hence, this Court has no jurisdiction to entertain the suit. If at all the plaintiff is aggrieved by any acquisition proceedings, he has to approach the appropriate forum for his redressal.
57. Thus, prima facie as per gazette notification No.UDD 193 MNX 2004 Bangalore dated 21.2.2004, this Court can conclude that as on the date of filing of the suit, i.e., 27.04.2013 the possession of land Sy.No.81/2B of Tanisandra Village was taken and same was vested / 55 / O.S.No.3381/2013 with B.D.A. Hence, the present suit filed by the plaintiff for the relief of specific Performance of contract, permanent and mandatory injunctions on 27.04.2013, the same is subsequent to acquisition of land. Therefore, for the above discussion and above said decisions, the suit for permanent and mandatory injunctions and specific performance filed by the plaintiff is not maintainable as it is barred under Land Acquisition Act.
58. In this case, as discussed supra, the property has been acquired by B.D.A and as on the date of alleged agreement of sale dated 28.11.2009 the defendants No.3 to 6 are not at all in possession of the suit schedule property. Hence, I am of the view that once the property has been acquired by the Government under Land Acquisition Act under Section 16 of the Land Acquisition Act possession vests with the Government, thus the suit for specific performance, permanent and / 56 / O.S.No.3381/2013 mandatory injunctions is not maintainable and Civil Court has no jurisdiction to try the suit. The suit of the plaintiff is barred under Land Acquisition Act. Hence, I answer Additional Issue in the affirmative.
59. Issue No.3 : - The advocate for plaintiff argued that defendants No.3 to 6 have executed agreement to sell on 28.11.2009 as per Ex.P.1 and have agreed to alienate suit schedule property. The evidence of P.W.1 kept in tact. There is no material to disbelieve the version of plaintiff. Hence, plaintiff is entitled for 40% of the developed land and he prayed for molding the relief and also relied upon a decision reported in AIR 2019 SC 4252 [Madhukar Nivruthi Jagatap and other Vs. Smt. Pramila Bai Chandulal Parandekar (dead) through L.Rs and others], in which the Hon'ble Apex Court held that, "Specific Relief Act (47 of 1963), S.21, S.22 - Power to award compensation - Suit for specific performance of contract - Subsequent purchasers in possession of suit / 57 / O.S.No.3381/2013 property for about 40 Years - Land carrying much higher valuation at time of passing of Judgment in second appeal - Plaintiffs, praying for alternative relief of recovery of amount paid by them - Instead of specific performance, awarding of monetary compensation to plaintiff would meet the ends of justice - Lump sum of Rs.15,00,000/- awarded as compensation in lieu of specific performance."
60. The counsel for plaintiff relied on another decision reported in 2020 (2) KCCR 1307 [Shivaramegowda (D) by L.Rs Vs. Smt.Kempamma by LRs.] in which the Hon'ble High Court of Karnataka held that, "Civil Procedure Code, 1908 - Order 7, Rule 7 - Moulding of relief - Powers of Court - Even in the absence of a prayer for a lesser relief and without there being any amendment to plaint the Court can pass a decree for a lesser relief based on oral and document evidence on record."
/ 58 / O.S.No.3381/2013
61. There is no dispute regarding the ratio laid down by the Hon'ble Apex Court and the Hon'ble High Court of Karnataka. But, the facts of the above said decisions are altogether different from the case hand. Hence, the above said decisions will not come to the aid of plaintiff. As discussed supra, plaintiff has failed to prove due execution of agreement to sell dated 28.11.2009 and further failed to prove Issue No.2. Hence, he is not entitled for any relief. Accordingly, I answer Issue No.3 in the negative.
62. Issue No.4 : - For the foregoing reasons, I proceed to pass the following Order:-
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed / 59 / O.S.No.3381/2013 and then pronounced by me in the open Court on this the 6th day of April, 2021.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Girish Sanu
2. List of documents exhibited for plaintiff:
Ex.P1 Sale agreement dated 28.11.2009 Ex.P2 RTC extract Ex.P3 Affidavit executed by Anjanippa & others.
Ex.P4 Copy of Notice to B.D.A. dated
27.9.2012
Ex.P5 C/c of Ex.P.7 filed in O.S.No.2564/14
(copy of proceedings dt.18.3.2011)
3. List of witnesses examined/documents exhibited on behalf of defendants:
- NIL -
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 60 / O.S.No.3381/2013
06/04/2021
/ 61 / O.S.No.3381/2013
Judgment pronounced in the Open Court (vide separate Judgment) :
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(KHADARSAB), XXXIX A.C.C. & S. Judge, Bangalore City.