Bangalore District Court
O.S./6365/2016 on 3 March, 2020
IN THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL
JUDGE, [CCH-40], AT : BANGALORE CITY.
Dated on this the 3rd day of March, 2020.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No.6365/2016
Plaintiff :
1) Lavanya Ram D/o.Shankar Prasad, 35
Years, R/o.No.878, 1st 'A' Cross,
Indiranagar, 1st Stage, Bengaluru-38.
2) Maher Khan D/o.Mohammed Ali
Khan, 34 Years, R/o.No.303, 1st Main,
K.R.Garden, Murgesh Palya,
Bengaluru - 560 017.
(By Sri.K.Surendra Babu, Advocate)
/ VERSUS /
Defendants :
Bangalore Development Authority,
T.Chowdaiah Road, Bengaluru - 20.
Represented by its Commissioner.
[By Sri. N.B., Advocate]
***
/ 2 / O.S.No.6365/2016
ORDER ON ADDITIONAL ISSUES No.1 AND 2
That, the plaintiffs have filed the present suit against
the defendant for the relief of permanent injunction
restraining the defendant, its officials or anyone on its behalf
from interfering with plaintiffs' peaceful possession and
enjoyment of the suit schedule property.
2. It is the case of the plaintiffs that, they are the
owners in possession of residential property bearing No.311,
Assessment No.160, Khatha No.442, PID No.024-W0574-44
measuring East - West 30 Feet North - South 40 Feet
situated at Kacharakanahalli Village, Kasaba Hobli, Bangalore
North Taluk. The plaintiffs have purchased the said property
from the erstwhile owner Mohammed Isaq for valuable
consideration on 16.9.2015. After purchase of the same, the
names of the plaintiffs have been mutated in the BBMP
records and presently khatha is standing in their names.
Since 16.9.2015 the plaintiffs are in peaceful possession and
/ 3 / O.S.No.6365/2016
enjoyment. That, on 16.7.2016 some persons claiming to be
the officials of the defendant came near the suit schedule
property and declared that the suit schedule property is
B.D.A.'s property and also threatened that they would take
possession of the suit schedule property. The plaintiffs
resisted the same. The act of the officials of the defendant is
high handed and illegal. Therefore, the plaintiffs got issued
notice on 18.7.2016 through their counsel.
3. Plaintiffs further pleaded that the suit schedule
property is situated in not acquired land and it is built-up
one. The name of original owner was not notified in the
acquisition proceedings. The possession was taken by B.D.A.
and the suit schedule property was not vested with B.D.A.
The plaintiffs are the bonafide purchasers of the suit
schedule property and are in possession of suit schedule
property. The plaintiffs have constructed the building over
the suit schedule property. While constructing the building
/ 4 / O.S.No.6365/2016
no one has raised objection for construction of the building.
Hence, they prayed for decreeing the suit.
4. After service of suit summons, the defendant
appeared through its counsel and filed written statement.
5. The defendant contended that the plaintiffs are
not at all in possession of the suit schedule property, even
then have filed the present suit by suppressing the material
facts. The suit schedule property is part and parcel of the
land acquired by the public authority. Hence, suit is not
maintainable in the present form. The defendant has denied
the alleged obstruction. The defendant further contended
that the plaintiffs have not disclosed the material facts and
also the identity of the property as to in which survey
number the suit schedule property is situated. That, as per
the acquisition proceedings and the assessment number
given by the plaintiff as No.160, the suit property is situated
/ 5 / O.S.No.6365/2016
in Sy.No.160 of Kacharakanahalli Village. The defendant has
acquired Sy.No.160 measuring 3 acre 5 guntas situated in
Kacharakanahalli Village, Bangalore North Taluk along with
various lands situated in the same village and other
surrounding villages for the formation of Hennur-Bellary Road
(HBR), 1st Stage layout vide its preliminary notification No.
B.D.A./ALAO/S11/78-79 dated 27.6.1978 published in the
official gazette on 27.8.1978 and the scheme of the said
layout has been sanctioned by the Government vide
G.O.No.HUD-31-MNJ-76 dated 18.6.1982 followed by the
final notification No.HUD567-MNX-84 dated 9.1.1985
published in the official gazette on 14.3.1985. The said ands
have been acquired for public purpose as defined under the
Land Acquisition Act. That, as per the final notification,
(1)Raghavappa (2) Muniramaiah, (3) Nandichowdappa,
(4)Narayanaswamy, (5) Krishna (6) Muniraju
(7)G.Chikkamuniyappa Reddy (8) Narayanappa,
/ 6 / O.S.No.6365/2016
(9)K.M.Chowdappa are the notified khatedars of the land
bearing Sy.No.160, totally measuring 3 acres 5 guntas. That,
(1)K.M.Chikkachowdappa, (2) Munithayamma, (3) C.Nagaraj
and (4) Ashwathkumar have filed their claim petition,
however, the notified khatedars have not filed any claim
petition. The said Sy.No.160 was an ex-inam land. The
competent authority has confirmed the occupancy right and
regranted in favour of Chikkamuniyappa Reddy to an extent
of 21 guntas, Krishnappa 23 guntas, K.M.Chikkachowdappa
18 guntas, Munithayamma 20 guntas, total 2 acres, but no
entries are forthcoming in the Form No.VIII Register extract
about the regrant of the remaining extent of 1 acre. In the
absence of claim petition by the notified khatedars with proof
of title, the entire compensation of Rs.2,10,014.20 Award
amount has been deposited in the R.D. of B.D.A. enabling to
disburse compensation to the rightful claimant. Out of the
award amount, a sum of Rs.97,180/- being the value of
/ 7 / O.S.No.6365/2016
1 acre of land which was not regranted to anybody and
Rs.3,390/- being the value of 0.3 guntas of reserve kharab is
ordered to send to the Tahsildar, Bangalore North. As per
notification and Mahazar the possession of entire Sy.No.160
and surrounding lands of Kacharakanahalli Village have been
taken over by the defendant on 24.11.1986 itself. The lands
in question are subject matter of acquisition. Hence, the Civil
Court has no jurisdiction to entertain the suit. Hence, prays
for dismissal of the suit.
6. On the basis of pleadings and documents of both
the parties, following Issues and Additional Issues have been
framed :
1) Whether the plaintiffs prove that they are
in possession and enjoyment of the suit
schedule property ?
2) Whether the plaintiffs prove the alleged
interference by the defendant?
/ 8 / O.S.No.6365/2016
3) Whether plaintiffs are entitled for the
reliefs as prayed for ?
4) What order or decree ?
Additional Issues framed on 14.3.2019
1) Whether the defendant proves that the
suit schedule property has been acquired
by B.D.A. ?
2) Whether the defendant proves that suit is
barred under law?
7. Since Additional Issues No.1 and 2 involve the
question of law, the said issues are treated as preliminary
issues.
8. Heard the arguments on Additional Issues No.1
and 2.
9. My findings on the Additional Issues No.1 and 2
are in the affirmative, for the following :
/ 9 / O.S.No.6365/2016
REASONS
10. Additional Issues No.1 and 2 : - These issues
are interlinked with each other. In order to avoid repetition
of facts and evidence, these issues are taken up together for
discussion.
11. It is the case of the plaintiffs that, they have
purchased the suit schedule property on 16.9.2015 from its
erstwhile owner Mohammed Isaq for a valuable
consideration. Since 16.9.2015 they are in possession and
enjoyment of suit schedule property and accordingly khatha
stands in their names and they have paid upto-date tax to
BBMP. The defendant is no way concerned to suit schedule
property and is obstructing the peaceful possession and
enjoyment of plaintiffs over suit schedule property. The suit
schedule property is situated outside the acquired land.
Hence, they pray for issuance of permanent injunction
against the defendant.
/ 10 / O.S.No.6365/2016
12. Defendant appeared through its counsel and filed
written statement contending that the suit schedule property
is part and parcel of Sy.No.160 of Kacharakanahalli Village.
The plaintiff purposely not disclosed the identity of the suit
schedule property as to in which survey number the suit
schedule property is situated. However, as per acquisition
proceedings and the assessment number given by the
plaintiffs as No.160, the suit property is situated in Sy.No.160
of Kacharakanahalli Village. The Sy.No.160 was totally
measuring 3 acre 5 guntas and same has been acquired by
B.D.A. for formation of Hennur - Bellary Road (HBR) 1st
Stage Layout. Accordingly, the preliminary notification has
been published on 27.6.1978 and same has been published
in the official gazette on 20.7.1978. The final notification has
been published in the name of khatedars and amount has
been deposited. Subsequently Mahazar has been conducted
/ 11 / O.S.No.6365/2016
and possession of the land was taken by the defendant on
24.11.1986.
13. That, as per contention of defendant, notification
under Section 6(1) of Land Acquisition Act was published and
deemed possession was also handed over as per Section 16
of Land Acquisition Act.
14. It is specific contention of defendant that as per
Section 9 of C.P.C. Civil Court has got jurisdiction to try all
suits unless it is barred under the provisions of any other law
for time being under force. Further contended that when
preliminary and final notifications under Sections 4(1), 6(1)
issued and Award under Section 12(2) of Land Acquisition
Act has been passed and possession has been delivered, 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 either under
Article 136 or under Articles 226 and 227 of Indian
/ 12 / O.S.No.6365/2016
Constitution. The Civil Court has no jurisdiction to try the
suit. Hence, the suit of the plaintiffs for the relief of
permanent injunction is not maintainable. The Civil Court
has no jurisdiction under Section 9 of C.P.C. to entertain the
suit involving acquisition of property under Land Acquisition
Act. Hence, prays for dismissal of suit and also relied upon
the following decisions :
(1) (1995) 4 Supreme Court Cases 229 - State
of Bihar Vs, Dhirendra Kumar and others.
(2) (2006) 8 Supreme Court Cases 336 -
Commissioner, Bangalore Development
Authority.
(3) (2019) SAR (Civil) 902 - State of Haryana &
Ors., Vs. Sunder Lal.
15. On perusal of contention raised by defendant, it
can be said that as per Section 9 of C.P.C. the Civil Court can
try all the suits of Civil nature, unless the cognizance of such
suit either expressly or impliedly barred by any other law for
/ 13 / O.S.No.6365/2016
time being in force. But, under Land Acquisition Act special
procedure is envisaged to effectuate public policy, the
Government has got power to acquire property for public
purpose. That, before acquiring property issuance of notice
under Sections 4(1) and 6(1) of Land Acquisition Act is
mandatory. 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 of Indian Constitution to the Hon'ble Supreme
Court. Hence, it is clear from the scheme of the Act that
Land Acquisition Act is a complete code in itself and thereby
jurisdiction of the Civil Court to take cognizance of the Court
arising under Land Acquisition Act by necessary implication
stood barred. The Civil Court thereby is devoid of
jurisdiction. Thus, the Court lacks jurisdiction to decide the
matter in issue, which is falling within the domain of Land
Acquisition Act wherein remedy and relief both are provided.
/ 14 / O.S.No.6365/2016
16. The defendant has produced the copy of
preliminary notification published in the official gazette dated
27.6.1978 wherein at Sl.No.102 it is stated that Sy.No.160 of
Kacharakanahalli Village measuring 3 acre 5 guntas is
acquired for formation of HBR Layout. The notification
issued by Government falls within the ambit of Sections 56
and 57 of the Indian Evidence Act. Judicial Notice can be
taken of the publication of the notification regarding.
17. 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."
/ 15 / O.S.No.6365/2016
In this case also B.D.A has acquired Sy.No.160 of
Kacharakanahalli Village and notification under Sections 4(1),
6(1) and 12(2) of Land Acquisition Act have been published
in the official gazette and same have been produced by
defendant in this case. Hence, judicial notice of notification
is taken.
18. Besides, on careful perusal of the Notification
dated 27.6.1978 of Karnataka Gazette and Notifications
relating to acquisition of lands, it clearly goes to show that
land bearing Sy.No.160 of Kacharakanahalli Village has been
acquired. Admittedly, the said notification has been
published in the year 1978. As per Section 81 of the Indian
Evidence Act, "Presumption as to gazettes, newspapers,
private acts of parliament and other documents." Section 81
of Indian Evidence Act reads thus :
"Presumption as to Gazettes, newspapers,
private Acts of Parliament and other documents
- The Court shall presume the genuineness of
/ 16 / O.S.No.6365/2016
every document purporting to be the London
Gazette, or [any Official Gazette, or the
Government Gazette] of any colony,
dependency of possession of the British Crown,
or to be a newspaper or journal, or to be a
copy of a private Act of Parliament [of the
United Kingdom] printed by the Queen's
Printer, and of every document purporting to
be a document directed by any law to be kept
by any person, if such document is kept
substantially in the form required by law and is
produced form proper custody."
19. Though the plaintiffs contended that they
purchased the property on 16.9.2015 from its erstwhile
owner Mohammed Isaq, but failed to prove that their vendor
has got right to sell the suit schedule property as on the date
of execution of sale deed. The plaintiffs themselves produced
acknowledgment issued by B.D.A. dated 18.7.2016 in which
it is clearly mentioned 'Site No.311, Sy.No.160 of
Kacharakanahalli Village', which clearly goes to show that the
/ 17 / O.S.No.6365/2016
suit schedule property has been carved in Sy.No.160 of
Kacharakanahalli Village.
20. On the basis of above said notification the land
bearing Sy.No.160 of Kacharakanahalli Village was acquired
by the B.D.A for formation of HBR Layout, 1st Stage 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 he
purchased suit schedule property on 16.9.2015, but on
perusal of the notification produced by defendant, it reveals
that entire Sy.No.160 measuring 3 acres 5 guntas has been
acquired by B.D.A on 27.6.1978 itself i.e., much prior to
alleged purchase of plaintiffs. The defendant has also
produced final notification No.HUD-567-MNS-84 dated
9.1.1985 in which also at column No.102 it is clearly
mentioned that Sy.No.160 measuring 3 acres 5 guntas has
been acquired by B.D.A.
/ 18 / O.S.No.6365/2016
21. 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 alleged sale
deed of the plaintiffs 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 the possession vests with the Government.
22. The counsel for plaintiffs argued that the suit
schedule property has not been acquired by B.D.A., the
plaintiffs are in possession of suit schedule property, hence,
the suit for bare injunction is maintainable and also relied
upon following decisions :
(1) ILR 2000 KARNATAKA P.4134 - John B.James
& Others Vs. Bangalore Development
Authority and another - "Para 90 : for the
reasons stated above, we find that petitioners
/ 19 / O.S.No.6365/2016
are not entitled to any relief, and these
petitions are dismissed, subject to the
observations above, reserving liberty as
follows : (i) To petitioners to approach Civil
Court for appropriate relief where they are
entitled to such relief; (Interim injunction) to
Bangalore Development Authority to take
action for eviction dispossession either before
the Civil Court or by initiating action under the
provisions of Karnataka Public Premises
(Evictions of Unauthorised Occupants) Act,
1974, where petitioners are in settled
possession ; and (iii) To Bangalore
Development Authority to take action for
demolition and dispossession, where
petitioners are not in settled possession".
(2) 2001 (3) KCCR 1898 - Rangamma Vs. The
Chairman, B.D.A. : "Held : The suit is
maintainable."
(3) 2003 (1) SCC 557 - Saleem Bhai and Others
Vs. State of Maharashtra and others : "Head
Note : A. Code of Civil Procedure, 1908 - Or.8
/ 20 / O.S.No.6365/2016
R.10 - Defendant's application under Or.7
R.11(a) & (d) - Germane facts for deciding
such an application, held, are the averments
in the plaint and not plea taken in the written
statement - Hence, trial Court's direction to
the defendant to file the written statement,
without deciding this application under Order
7 R.11 held, bad".
(4) 2005 (2) KCCR 788 - Bangalore Development
Authority Vs. The Vysya Bank Limited : "Scope
and extent of power to be exercised by the
Court wile considering application to reject
plaint laid down thus : - (i) For the purpose of
deciding the application the averments in the
plaint are germane : the plea taken by the
defendant in the written statement would be
wholly irrelevant. AIR 2003 SC 759 relied.
(ii) Court considering application should note
the distinction between plaint not disclosing
cause of action and that the plaintiff has no
cause of action : it is only when the plaint
does not disclose cause of action the plaint is
/ 21 / O.S.No.6365/2016
liable to be rejected. AIR 1998 SC 3085
relied.
(iii) Cause of action in the plaint should be in
relation to the relief/s claimed in the plaint :
Plaint cannot be rejected in part.
(iv) Entire averments in the plaint should be in
relation to the relief/s claimed in the plaint :
plaint cannot be rejected in part.
(v) The question as to whether ownership and
adverse possession can be pleaded
alternatively has to be considered at trial and
it will not make the plaint barred by any law
for the purpose of Order 7 R. 11".
(5) 2005 (7) SCC 510 - Popat and Kotecha
Property Vs. State Bank of India Staff
Association : "A. Code of Civil Procedure, 1908
- Or.7 R.11(d) - Rejection of plaint where
barred by any law - Object, nature, scope and
applicability - Case law reviewed - Or.7
R.11(d) applies only where the statement as
made in the plaint without any doubt or
/ 22 / O.S.No.6365/2016
dispute shows that suit is barred by any law in
force - It does not apply in the case of any
disputed question - Having regard to
averments made in the plaint in the instant
case, held, High Court erred in rejecting the
plaint under Order 7 R.11(d) on ground that
the suit as apparent from statement in the
plaint was barred by limitation under the
Limitation Act."
(6) RFA No.415/2010 - J.Ramesh Chand Vs.
Bangalore Development Authority. : "If the
suit property is not established are shown to
be part of the acquisition proceedings, then
the plaintiff would be entitled to protection of
the Civil Court. ..... if it is found that the suit
property was not the subject matter of the
acquired land, the plaintiff would be entitled
to protection which the Court shall reconsider,
on the basis of material that is placed before
it already. Hence, it is necessary to frame an
additional issue which shall be tried by the
trial Court namely, "Whether the defendant
proves that the suit property is subject matter
/ 23 / O.S.No.6365/2016
of acquisition proceedings referred to in the
written statement of the defendant ? ..... The
parties shall be permitted to tender evidence
in support of their case, insofar as the
additional issue is concerned and the trial
Court shall reconsider the matter in the light
of such additional evidence that may be
tendered and pass a Judgment, in accordance
with law. Consequently the Judgment of the
Court below is set aside and the parties are
directed to maintain status-quo during
reconsideration of the matter.
(7) 2014 (1) KCCR 668 - Bangalore Development
Authority Vs. M.S.Narayanamurthy : "In the
instant case, the relief sought for by the
plaintiff is not challenged to validation of
acquisition proceedings or even the award or
possession taken by the B.D.A. When such
being the case, the suit property is to be
examined whether it situates within acquired
land or not. Even if the answer would be that
it falls in the acquired area, then if the
/ 24 / O.S.No.6365/2016
possession or occupation is established, even
if it is unauthorised, that necessarily a civil in
nature for which the suit for eviction has to be
filed by filing a separate suit."
(8) 2015 (3) KCCR 2706- Bangalore Development
Authority, Bengaluru and other Vs. Smt.Arifa
Kauser and others : "Code of Civil Procedure,
1908 - O.39 Rules 1 & 2 - temporary
injunction - Grant of - Challenge to -
Acquisition of suit land - Attaining finality -
But plaintiffs found to have put up structures
and in possession - Have to be evicted in
accordance with law - Till such time they
have to be protected against unlawful
dispossession only - Parties to maintain same
state of things till disposal of suit."
(9) 2016 (2) KCCR 1500 - Smt.N.Triveni Vs.
G.T.Shankar : "Rejection of plaint in existence
of power under Order 7 R.11 C.P.C. being a
drastic power conferred on the Court to
terminate a civil action at the threshold i.e.,
/ 25 / O.S.No.6365/2016
without the trial of the suit, the conditions
precedent to exercise the said power have to
be strictly applied. .... In view of the ratio of
law laid down of law laid down by the Apex
Court in the decisions noticed supra, it is the
averments made in the plaint that have to be
read as whole to find out whether it disclose a
cause of action or whether the suit is barred
under any law. At the stage of exercising the
power under Order 7, R.11 C.P.C., the case of
the defendant stated in the plaint is
immaterial. It is only if the averments in the
plaint ex-facie do not disclose a cause of
action or the suit appears to be barred under
any law, the plaint can be rejected.
Otherwise, the case of the parties has to be
adjudicated by conducting the trial."
23. The counsel for defendant relied upon decision
of Hon'ble Apex Court reported in (1995) 4 Supreme Court
Cases 229 in which the Hon'ble Apex Court held that, "Civil
Court has no jurisdiction to go into the question of validity of
/ 26 / O.S.No.6365/2016
legality of notification under 4(1) or of declaration under
Section 6 - only High Court can do under Article 226 - Act is
complete Court in itself and meant to serve public purpose -
Possession of acquired land handed over to the Housing
Board - Civil suit by encroacher against the Housing Board
not maintainable - Moreover, possession of land having
already been handed over to the housing board - Civil
Court's Order granting interim injunction under Order XXXIX
Rule 1 C.P.C. restraining the Housing Board from
dispossessing the plaintiff is without jurisdiction."
24. The counsel for defendant relied on another
decision reported in (2006) 8 Supreme Court Cases 336
wherein the Hon'ble Apex Court held that, "Civil suit
challenging the acquisition proceedings is not maintainable."
He also relied on another decision reported in (2019) SAR
(Civil) 902, in which the Hon'ble Apex Court held that, "When
State acquires large track of land and draws panchanama of
/ 27 / O.S.No.6365/2016
taking possession, same is enough for taking possession of
land." The above said decisions are aptly applicable to the
case in hand. Besides, it is well settled law that, under the
judicial process recent decisions are to be followed. Hence,
the decisions relied by the defendant i.e., (2019) SAR (Civil)
902 is the recent decision of Hon'ble Apex Court. Hence,
said decision is to be followed. Hence, as per the recent
decision of the Hon'ble Apex Court i.e., (2019) SAR (Civil)
902, once the property has been acquired by the
Government, the jurisdiction of Civil Court is barred to
entertain a suit.
25. The defendant contended that the land in
Sy.No.160 has been acquired in 1978 itself. As per decision
of our own Hon'ble High Court reported in ILR 2007 KAR
5121 (M.B.Bettaswamy Vs. The Commissioner, Bangalore
Development Authority and another), wherein it is held that:-
/ 28 / O.S.No.6365/2016
"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 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
/ 29 / O.S.No.6365/2016
nor proved his right to remain in possession -
Dismissal of suit is justified."
26. 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 dispossession is also beyond Civil
Court jurisdiction."
Hence, in this case also plaintiffs are not in possession of the
property and not entitled for the relief.
27. In another decision reported in AIR 1996 SC
3377 (Tamil Nadu Housing Board Vs. A.Viswam [Dead by
LRs]), the Hon'ble Apex Court held that :
/ 30 / O.S.No.6365/2016
" (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 constitute taking
possession of Land."
28. In another decision reported in AIR 2003 SC
234 (Northern Indian Class Industries Vs. Jaswanth Singh
and others), the Hon'ble Apex Court 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
/ 31 / O.S.No.6365/2016
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
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."
29. In the above said decisions, the Hon'ble Apex
Court and Hon'ble High Court of Karnataka 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
land it 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.
30. In another decision reported in (2013) 3 SCC
66 (Commissioner, Bangalore Development Authority and
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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 - 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
/ 33 / O.S.No.6365/2016
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 not maintainable."
The above said decision is aptly applicable to the case
on hand. In this case also, the plaintiffs have filed the
present suit for the relief of permanent injunction, whereas
the property has been acquired by the Government prior to
the alleged purchase of the plaintiffs. Hence, by considering
material available on record, it clearly goes to show that the
plaintiffs are not in possession of the suit schedule property.
31. 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
/ 34 / O.S.No.6365/2016
jurisdiction to entertain the suit. In this case also, the
property has been acquired by B.D.A in the year 1978 itself.
Hence, this Court has no jurisdiction to entertain the suit. If
at all the plaintiffs are aggrieved by any acquisition
proceedings, they have to approach the appropriate forum
for their redressal.
32. Thus, prima facie as per gazette notification No.
B.D.A./ALAO/S/11-78-79 dated 27.6.1978 and notification
No.HUD567-MNX-84 dated 9.1.1985, this Court can conclude
that as on the date of filing of the suit, i.e., 1.9.2016 the
possession of land Sy.No.160 of Kacharakanahalli Village was
taken and same was vested with B.D.A. Hence, the present
suit filed by the plaintiffs for the relief of permanent
injunction on 1.9.2016, the same is subsequent to acquisition
of land. Therefore, for the above discussion and above said
decisions, the suit for permanent injunction filed by the
plaintiffs is not maintainable as it is barred under Land
/ 35 / O.S.No.6365/2016
Acquisition Act. 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
permanent injunction is not maintainable and Civil Court has
no jurisdiction to try the suit. Hence, I answer Additional
Issues No.1 and 2 in the affirmative.
33. For the foregoing reasons, I proceed to pass the
following Order:-
ORDER
Suit of the plaintiffs is hereby dismissed as it is barred under Land Acquisition Act.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 3rd day of March, 2020.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
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Orders pronounced in the Open Court (vide separate order) :
ORDER Suit of the plaintiffs is hereby dismissed as it is barred under Land Acquisition Act. No order as to costs.
Draw decree accordingly.
XXXIX A.C.C. & S. Judge, Bangalore City.