Bangalore District Court
Mrs. Mohanamma vs The Commissioner Bda on 14 March, 2022
Form No.9(Civil)
Title Sheet for Judgment in Suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 14th day of March, 2022.
O.S.No. 25018/2020
Plaintiff:- Mrs. Mohanamma,
D/o Late Venkataramanappa @ Ayyappa,
W/o Muniswamy,
Aged about 79 years,
R/at No.495, Chanappa Layout,
A. K Colony, Channasandra,
Kalyannagar Post,
Bengaluru-560 043.
[By Sri. Yaseen Saleha -Advocate]
V/s
Defendant:- The Commissioner BDA,
Bangalore Development Authority,
Kumar Park West,
T Chowdiya Layout,
Bengaluru-560 020.
[By Smt. Nirmala B Hansi -Advocate]
2 O.S.No.25018/2020
Date of Institution of the suit 06.01.2020
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of
05.08.2021
recording of the Evidence.
Date on which the Judgment was 14.03.2022
pronounced.
Year/s Month/s Day/s
Total duration 02 02 08
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This is the suit filed by the Plaintiff against the Defendant for the relief of Permanent Injunction.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, she is the absolute owner in possession of the Suit Schedule Property, as she has received the said property from her brother Munishami Reddy, under the Registered 3 O.S.No.25018/2020 Gift-deed dated 16.12.2019. The said property is formed in Sy Nos 160 & 165 of Kacharkanhalli.
Originally the lands bearing Sy Nos 160 & 165 of Kacharkanhalli belonged to Munishami Reddy @ Annaiah, he sold the said lands to Narayanaswamappa S/O: Punganuru Munishamappa, under the Registered Sale-deed dated 30.06.1952. Thereafter he sold the said lands to Munishami Reddy, under the Registered Sale-deed dated 28.05.1953. And inturn the said Munishami Reddy gifted the Suit Schedule Property to her sister- the Plaintiff. On the basis of the said Gift Deed, katha pertaining to the Suit Schedule Property was transferred in her name. And since from the date of the Gift Deed, she is in possession of the Suit Schedule Property, earlier to her, erstwhile owners of the said property were in possession of the said property.
Further contends that, the officers of the Defendant had approached the Suit Schedule Property on 03.01.2020 and caused obstructions to her, in her peaceful possession and enjoyment of the Suit Schedule Property and have asked to demolish the existing building in the said property, consisting 4 O.S.No.25018/2020 of a Ground floor and a first floor. The said acts of the Defendant were resisted by her.
Further it is contended that, her Vendors have acquired the Suit Schedule Property and they were in possession of the said property for morethan 70 years, with the knowledge and against the interest of the Defendant, as such by operation of Section 27 and Art 65 of the Limitation Act, the defendant has lost the claim, to have possession of the Suit Schedule Property; and she and her vendors have perfected their title over the Suit Schedule Property, by way of Adverse Possession.
Due to the interference of the Defendant, she had approached the nearest Police Station, but they have advised her to approach the Civil Court of Law. Having no other alternative, she has filed the present suit.
Hence prayed to decree the suit.
3. Suit summons was issued to the Defendant. The Defendant has appeared through its Counsel on 10.01.2020 and has filed its Written Statement on 15.02.2021.
5 O.S.No.25018/20204. The Defendant has denied all the allegations made by the Plaintiff in the Suit Plaint and contended that it has published an improvement scheme for formation of Hennur Road and Bellary Road, Ist Stage Layout U/Sec 17(1) of BDA Act and published in the Preliminary Notification in the Official Gazette dated 20.07.1978 vide No HCPRALAO:11/BDA/78-79 dated 20.07.1978 inrespect of Sy No 160. The scheme for the said layout is sanctioned by the Government as per its Order bearing No HUD 31 MNJ 76 dated 18.06.1982. Subsequently it is followed by a Final Notification dated 14.03.1985, published in Official Gazette bearing No HUD 567 MNX 84 dated 09.01.1985. The said land is acquired by it, to provide house sites to needy persons. After acquisition notices were issued and got served to the holders of the said land and award is passed. Inspursuance of the Award, it has deposited the Award Amount with its Revenue Branch, which will be disbursed to the respective holders, subject to deposit of their title deeds and other necessary documents, noted in the Award. On acquisition of the said land, it is handed over to the Assistant Engineer North Division BDA Bangalore by 6 O.S.No.25018/2020 the Revenue Inspector, Office of the Land Acquisition Officer, BDA, Bangalore, in the presence of the land owners. So the land is acquired by the BDA and the Plaintiff is an unauthorised occupant of the said land.
Hence prayed to dismiss the Suit of the Plaintiff.
5. On the basis of the above said pleadings, this Court has framed the following issues on 15.02.2021, as under:
ISSUES
1. Whether the Plaintiff proves that, she is in lawful Possession and enjoyment of the Suit Schedule Property, as on the date of filing of this suit?
2. Whether the Plaintiff proves the alleged interference of the Defendant, over the Suit Schedule Property, as contended in Para No 13 of the Suit Plaint?
3. Whether the Plaintiff is entitled for the relief of Permanent Injunction?
4. What order or decree?7 O.S.No.25018/2020
6. The Plaintiff inorder to prove her case, got examined her Power of Attorney Holder, as PW1 and got marked 32-documents as Ex.P.1 to Ex.P.32. PW1 was cross examined on behalf of the Defendant on 20.09.2021.
Inspite of affording sufficient opportunity to the Defendant, it has not led its Evidence. Hence Evidence of the Defendant is taken as "NIL" on 01.12.2021. And posted the matter for Arguments.
7. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant, respectively.
The Learned Counsel for the Plaintiff has placed his reliance on 19 decisions.
Percontra, the Learned Counsel for the Defendant has failed to advance her Arguments. Hence Arguments of the Defendant was taken as "Not Addressed" on 21.02.2022. However, Defendant was afforded with a final opportunity to file its Written Arguments on or before 07.03.2022. But the Defendant has not filed its Written Arguments.
8 O.S.No.25018/20208. My findings on the above said issues are as under:
Issue No 1: In the Affirmative;
Issue No 2: In the Affirmative;
Issue No 3: Partly in the Affirmative;
Issue No 4: As per final order for
the following
:R E A S O N S:
9. ISSUE NO.1:
The Plaintiff contends that, she is the absolute owner in possession of the Suit Schedule Property, as she has received the said property from her brother Munishami Reddy, under the Registered Gift Deed dated 16.12.2019. The said property consists of a building consisting of the Ground Floor and the First Floor. Further it is contended that, the said property is formed in Sy Nos 160 & 165 of Kacharkanhalli, which was purchased by her brother from Narayanaswammappa, under the Registered Sale- deed dated 28.05.1953. And inturn his vendor had purchased the said lands from Munishami Reddy @ Annaiah, under the Registered Sale-deed dated 30.06.1952. Her name came to be mutated in the records of the said land, by virtue of the Registered Gift Deed dated 16.12.2019 and she is paying taxes 9 O.S.No.25018/2020 to the concerned authorities. He has obtained electricity and other facilities for her enjoyment over the said property.
Percontra, the Defendant contends that, the land bearing Sy No 160 of Kacharkanhalli wherein Suit Schedule Property is located has been acquired by it wayback in the year 1978 for the purpose to provide sites to the landless persons; award is passed; possession is taken. So the Plaintiff is in unauthorised possession of the said property.
10. Firstly, when the Plaintiff has asserted that she is the owner in possession of the Suit Schedule Property, it is for her to prove the same. She cannot take the weakness or shortfalls of the Defendant, to have the decree of Injunction, in her favour.
10.01. As per the decision of the Hon'ble Apex Court in the case of Rangammal Vs Kuppuswami & Anr, reported in (2011) 12 SCC 220, wherein it is observed at Para No 21 as under:
"21. Section 101 of the Indian Evidence Act, 1872 defines `burden of proof' which clearly lays down that:10 O.S.No.25018/2020
"101 Burden of proof:- Whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person."
Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party."
10.02. Further, as per the decision of the Hon'ble High Court of Karnataka, in the case of Gopala Reddy (Deceased) by Lrs., V/s Suryanarayana & Others, reported in 2004 (1) KCCR 662; wherein it is held that;
"Whenever a party approached the Court for the relief based on pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party, who approaches the Court. Weakness of the Defendant cannot be considered as the trump card for the Plaintiff."11 O.S.No.25018/2020
11. Section 101 of Indian Evidence Act provides that,
a) burden of proving the facts lies on the person, who asserts the fact, to exist;
b) unless such burden is discharged by the person, so asserts, the other/opposite party cannot be called upon to prove his case/defence.
11.01. So under such circumstances, the Court has to examine as to,
(i) whether the person upon whom the burden lies, has been able to discharge his burden;
(ii) until, it arrives at a conclusion, in the affirmative for the above question referred to as (i) it cannot call upon the opposite party to disprove it i.e., shifting of onus; or it cannot proceed on the basis of the weakness/shortfalls of the other/opposite party.
12. Secondly, as per the decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, 12 O.S.No.25018/2020 "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
Further held at para No.21-(a) to (d) as under;
"(a) Where a cloud is raised over the Plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the Plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Whether there is merely an interference with the Plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property as in the case of Vacant sites, the issue of title may directly and substantially arise for consideration, as 13 O.S.No.25018/2020 without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Whether the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of 14 O.S.No.25018/2020 a suit for declaration; merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. the court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case". (Underline is mine, to lay emphasize) Applying the above principles of law to the instant case, it can be said that, since the present suit is one for the relief of Permanent Injunction, question of title cannot be gone into, to decide the question of Possession,. Inotherwords, in a suit for Permanent Injunction, question of adjudication of title, is foreign.
But where the Suit Schedule Property is an open site and the question of de-jure possession over it has to be seen, then the de-jure Possession over the Suit Schedule site is to be established on the basis of title to the said property.
Under such circumstances, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. Though issue of title is not gone into in such suits, 15 O.S.No.25018/2020 but inorder to trace the issue of possession, it is necessary to consider certain aspect, without recording a findings on the issue of title.
13. With this background, let us analyse the facts of the instant case at hand, alongwith the evidence on record, both oral and documentary.
14. The Plaintiff firstly contends that, her brother Munishami Reddy had purchased the lands bearing Sy Nos 160 & 165 of Kacharkanshalli and he was in possession of the said land, since from the day of its purchase; and his name was mutated in the records of the said lands, on the basis of the said sale transaction. She has produced,
a) the Certified copy of the Registered Sale-deed dated 28.05.1953 at ExP3. As per this document it is seen that, Narayanswamappa S/O: Punganuru Munishamappa has sold the property-lands measuring 0-08 gts out of Sy No 160; and an area measuring 0-17 gts out of Sy No 165, both situate at Kachakanhalli, Bangalore, bounded, to the East: by Raja kaluve; to the West: by Raja kaluve and wet land belonging to K S Ventakachaliah S/O:
16 O.S.No.25018/2020Subbaramappa; to the North: by wet land belonging to Venkataramaiah; and to the South: by lands belonging to Sri Yenga Reddy and Venkatappa., to Munishami Reddy S/O: Venkataramanappa @ Ayyappa, for the valuable consideration of Rs 1,000/-. Further this document indicates that, the purchaser has been put into actual possession of the purchased property, on the day of its purchase. The said document is registered as Document No 1669/1953-54 in Book I, Vol 1345, at Page Nos 186 to 187, with the office of the Sub-Registrar, Bangalore.b) RTC Extract of Sy No. 165/1, measuring 1
Acres 08 Guntas, for the years commencing from 1971 -74 to 1975-76. As per this document, name of K M Narayanaswamy is appearing both in Kabjedar as well as cultivation Columns, to the extent of 0-24 Guntas.
c) Extract from second reclassification Register pertaining to Sy No. 165/1 at Ex.P9; Hisa Survey table pertaining to Sy No. 165/1 at Ex.P10; Survey sketch pertaining to Sy No. 165/1 at Ex.P11; Survey sketch pertaining to Sy No. 165/1 and 165/2 at Ex.P12. As per these documents, the extent of the 17 O.S.No.25018/2020 land bearing Sy No. 165/1 is shown as 1 Acres 0-8 Guntas.
d) Extract from Property Register pertaining to property No.303/165 for the years 1992-93 issued Secretary Kacharkanahalli V. P at Ex.P13 alongwith Tax Receipt at Ex.P13(A). As per this document name of Sri. Munishami Reddy S/o Venkataramanappa is shown as the owner and occupant of the said property.
e) Extract from the Property Register pertaining property No.303/165 for the years 2003-2004, nil, 2007-08 at Ex.P14 to Ex.P16, respectively. As per these documents name of Sri. Munishami Reddy S/o Venkataramanappa is shown as the owner and occupant of the said property.
f) Khata certificate issued by the BBMP dtd.24.07.2007 at Ex.P19. As per this document the name of Kathedar of the Property bearing No.465/303/ 165, situate at H. B. R Kacharkanahalli, is shown as Munishami Reddy S/o Venkataramanappa.18 O.S.No.25018/2020
14.01. The Plaintiff has led the ocular evidence of her Power of Attorney holder as PW.1. But the aspect of flow of title is not denied from the side of the Defendant, nor the possession of the vendor of the brother of the Plaintiff, or of the brother of the Plaintiff is not denied by the Defendant, over the Suit Schedule Property.
14.02. Thus, as per the evidence brought by the Plaintiff on record, more specifically, the above documentary evidence, will speak that, the land measuring 0-24 Guntas, out of Sy No. 165/1, situate at Kacharkahanahalli, belong to Narayanaswamappa; he has sold the said land to Munishami Reddy, under the Registered Sale Deed dtd.28.05.1953, for the valuable consideration of Rs.1,000/-; and he was put in possession of the said property, on the day of its purchase. The name of Munishami Reddy is mutated in the records of the said land, more specifically, inrespect of the Suit Schedule Property with the Kacharkanahalli V. P, as well as with the BBMP Authorities, after the said property coming into the jurisdiction of BBMP. The brother of the Plaintiff by name Munishami Reddy 19 O.S.No.25018/2020 has also paid property taxes of the Suit Schedule Property. Thus, the possession of the brother of the Plaintiff can be traced over the Suit Schedule Property.
15. Secondly, the Plaintiff contends that, her brother Munishami Reddy has gifted the Suit Schedule Property to her, under Registered Gift Deed dtd.16.12.2019 and since then she is in possession and enjoyment of the said property; Khata pertaining to the said property is transferred in her name and she is paying taxes of the said property.
15.01. The Plaintiff has led ocular evidence, through her Power of Attorney holder-PW.1, but the same has not been challenged, withregard to the aspect of execution of the Gift Deed by her brother, in her favour; and her possession over the Suit Schedule Property by virtue of the said Gift Deed.
15.02. The Plaintiff has produced
a) certified copy of the Gift Deed dtd.16.12.2019 at Ex.P2. As per this document, it is seen that, Munishami Reddy S/o Venkataramanappa @ 20 O.S.No.25018/2020 Ayyappa has gifted the property bearing Site No.303 formed in a portion of Sy No. 160 and 165, Khata No.224, previously situated at Kacharkanahalli Village, now coming within the jurisdiction of BBMP and which was renumbered as New Khata No.465/303/165, situate at Ward No.24, Kacharkanahalli, Bengaluru, measuring East to West: 40 feet and North to South: 40 feet, consisting of AC Sheet house with flooring and brick construction wood, jungle wood used for door and windows with all civic amenities and bounded by East by: Rod; West by: Site No.304; North by: Site No.33; and South by: Road, to his sister Mohanamma W/o Muniswamy- the Plaintiff, out of his love and affection. This documents also indicates that, the doner has delivered the possession of the gifted property to the donee, on the day of its gift. Further this document also indicates that, the doner has accepted the gift, made by her brother, in her favour.
b) Khata certificate issued by the BBMP dtd.27.12.2019 at Ex.P4. As per this document, Mohanamma W/o Muniswamy is shown as the Katedhar of the Property bearing No.303/164/224, situate at HBR Kacharkahanahlli, Bengaluru.
21 O.S.No.25018/2020c) Extract from the property Register for the years 2019-20 issued by the Assistant Revenue Officer, BBMP at Ex.P5. As per this document, Smt. Mohanamma W/o Muniswamy is shown as the owner and occupant of the P roperty bearing No.303/165/224, situate at HBR (Kacharkanahalli) Bengaluru.
d) Tax paid Receipt for the years 2019-20 at Ex.P6. As per this document, Mohanamma is shown as the owner of Property bearing No.303 Kacharkanahalli, Bengaluru, corresponding PID No.303/165/224.
e) Encumbrance Certificate pertaining to the Property No.303 situate at Kacharkanahalli, commencing from 01.04.2019 to 21.12.2019 at Ex.P7. This documents indicates the transaction of gift taken place inbetween Munishami Reddy S/o Venkataramanappa @ Aiyappa on one hand and Mohanamma D/o Venkataramanappa @ Aiyappa and W/o Muniswamy on the other hand, taken place on 16.12.2019, which is registered at Doc No.GNR-1- 04117-2019-20, with the office of the Senior Sub- Registrar Gandhi Nagar (Kacharkanahalli), Bengaluru.
22 O.S.No.25018/2020f) Electricity Bill Requisition and Receipts at Ex.P20 to Ex.P32. As per these documents, name of Mohanamma is shown to be the holder of meter bearing RR No.5ECLG55840, located at No.303, KH No.224, KK Halli Village.
15.03. Thus, on the basis of the above ocular and documentary evidence, it can be said that, Munishami Reddy who has acquired the land bearing Sy No. 160 of Karchakahanalli, wherein the Suit Schedule Property is located, has gifted the Suit Schedule Property to his sister Mohanamma W./o Muniswamy- the Plaintiff; and has delivered the possession of the Suit Schedule Property to her. The Katha pertaining to the said property is transferred in the name of the Plaintiff and the Plaintiff is paying necessary taxes of the Suit Schedule Property, to the concerned authorities. The Gift Deed executed by Munishami Reddy infavour of the Mohanamma- the Plaintiff has been acted over. Further on perusal of Ex.P22 to Ex.P33, it indicates that, the Plaintiff is in enjoyment of the said property, on obtaining electricity supply connection to it.
23 O.S.No.25018/202015.04. Thus, the Plaintiff has proved that, she is in possession of the Suit Schedule Property, as on the date of filing of this suit.
16. As observed supra, in this Judgment that, when the Plaintiff has shown the facts to be in existence, as asserted by her, then the Court has to look into the Defence of the Defendant, to ascertain, whether such Defence taken up by the Defendant will lead to disprove the fact, asserted by the Plaintiff.
17. The Defendant in its Written Statement more specifically, at Para Nos.17 and 18 has contended that, the land bearing Sy No. 160 of Kacharkanahalli, wherein the Suit Schedule Property is located, is acquired by it under Preliminary Notification bearing No.HCPRALAO:11/BDA/78-79, dtd.20.07.1978, followed by Final Notification bearing No.HUD 567 MNX 84 dtd,09.01.1985. On Acquisition possession is taken by the Land Acquisition Officer and the same is delivered to the Assistant Engineer North Division, BDA Bengaluru, to form the Sites and to provide the same to the 24 O.S.No.25018/2020 landless persons. Award is passed and the compensation amount of Rs.2,10,014.20 ps, is deposited in the Revenue Deposit of BDA, which will be released infavour of the holder subject of production of Title Deeds and necessary documents, noted in the Award Notice.
17.01. Though the Defendant has contended so, but neither it has led any ocular evidence, nor has produced any documentary evidence to substantiate its contentions. Hence the contentions taken up by the Defendant has not been substantiated by it.
18. Thus, the Plaintiff has proved that, she is in possession of the Suit Schedule Property from the date, she received the said property under the Registered Gift Deed dtd.16.12.2019 -Ex.P2.
Hence, I answer ISSUE NO.1 IN THE
AFFIRMATIVE.
19. ISSUE NO.2
The Learned Counsel for the Plaintiff would contend that, as per the pleadings of the Defendant, 25 O.S.No.25018/2020 more specifically, Para Nos.17 and 18 of the Written Statement, makes it clear about the interference of the Defendant over the Suit Schedule Property.
19.01. The contention of the Plaintiff that she has resisted the illegal interference made by the Defendant, in her possession over the Suit Schedule Property, coupled with agitations of the Defendant to demolish the building structure available over it, will show that Plaintiff has apprehension, coupled with acts of the Defendant, amounting to attempts of interference made by its officials.
Thus apprehension of injury or belief on the part of the Plaintiff, coupled with the Intention of the Defendant, to do certain act, which harms the Plaintiff, amounts to interference by the Defendant.
Since the act apprehended by the Plaintiff and intended by the Defendant, is such that, if completed, give a ground for action. There is a foundation for the exercise of jurisdiction. Thus it amounts to interference.
Hence, I am of the firm opinion that Plaintiff has proved that, the prospect or apprehension and belief coupled with intention of the Defendant exhibited, if 26 O.S.No.25018/2020 completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
For the above said reasons, I answer ISSUE NO 2 IN THE AFFIRMATIVE.
20. ISSUE NO.3:
The Learned Counsel for the Plaintiff has relied below mentioned decisions;
a) of the Hon'ble Apex Court, in the case of Rame Gowda (D) by Lrs. V/s M. Varadappa Naidu (D) by Lrs and Anr., in Civil Appeal No.7662 of 1997 D/d 15.12.2003, wherein it is observed in Page No.2, Para No.2, as under:-
"It is thus clear that so far as the Indian law is concerned the person in 27 O.S.No.25018/2020 peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough 28 O.S.No.25018/2020 time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
b) of the Hon'ble Apex Court, in the case of Raghbir Singh Sehrawat V/s State of Haryana and Ors., in SLP (c) Nos.1204-12043-12043 of 2011, D/d 23.11.2011, wherein it is observed in Para No.26, as under:-
"26. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose."29 O.S.No.25018/2020
c) of the Hon'ble High Court of Karnataka, in the case of John B James and Ors. V/s Bangalore Development Authority, reported in ILR 2000 Kar 4134, wherein it is observed in Para No.71, as under:-
"71. Having regard to the principles laid down in the said decisions, we may conveniently cull out the legal position in regard to a true owner vis-a-vis a trespasser as under:
(i) A true owner [even if it is the State or a statutory body] has no right to forcibly dispossess an unauthorized occupant [including a trespasser] in settled possession, otherwise than in accordance with law;
(ii) A trespasser or unauthorized occupant in settled possession, can be dispossessed, only in accordance with an order/decree of a competent Court/Tribunal/Authority or by exercise of any statutory power of dispossession/demolition entrusted to the State or Statutory Authority;
(iii) A person in unauthorized possession shall be deemed to be in settled possession, if his entry into the property was lawful or authorized;
(iv) A person in unauthorized possession, whose entry into the property is illegal or unauthorized, can claim to be unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner;30 O.S.No.25018/2020
(v) A surreptitious and unauthorized entry into another's land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to settled possession only when the true owner having knowledge of it, acquiesces in it;
(vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession. The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorized construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorized occupant.
(vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 years, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question."
d) of the Hon'ble Apex Court, in the case of M. Kallappa Setty V/s M. V Lakshminarayana Rao, reported in AIR 1972 SC 2299, wherein it is observed in Para No.4, as under:-
"The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court 31 O.S.No.25018/2020 has also not gone into that question. But the High Court has dismissed the plaintiff's suit on the sole ground that the plaintiff has not satisfactorily proved his title."
e) of the Hon'ble Apex Court, in the case of Krishna Ram Mahale (Dead) V/s Mrs. Shobha Venkat Rao, reported in (1980) 4 SCC 131, wherein it is observed in Para No.9, as under:-
"9. This proposition was also accepted by a Division Bench of this Court in Rant Rattan and Ors. v. State of Uttar Pradesh . The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of 32 O.S.No.25018/2020 the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant No. 3 amounted to a licence or a sub-lease."
f) of the Hon'ble High Court of Karnataka, in the case of Patil Exhibitors (Pvt) V/s The Corporation of the city, reported in AIR 1986 Kar 194, wherein it is held that:-
"It is part of the concept of "Rule of Law"
that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognised or countenanced by Courts. Such a right in the respondent cannot be recognised regardless of the question whether or not the appellant itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession - which in the circumstances is litigious possession and cannot be equated with lawful possession - but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession."
33 O.S.No.25018/2020g) of the Hon'ble High Court of Karnataka, in the case of Iim Employees Association V/s Indian Institute of Management, reported in ILR 1990 Kar 3148, wherein it is observed in Para No.20 and held in Para Nos.4 to 6 as under:-
"20. It is clear from the ratio of the above mentioned two decisions that a defendant can in appropriate cases claim interim injunction against the defendant in the same suit provided the defendant's claim to relief of injunction arises out of the plaintiff's cause of action or is incidental to it. In Suganda Bai's case, the cause of action for the plaintiff's suit arose in the year 1970 whereas the cause of action for the defendant's arose in 1973. Therefore, it is held that the two causes of action are different and, as such, the Courts below were wholly in error in granting temporary injunction prayed for by defendant-1. In that view of the matter, his Lordship has allowed the Revision Petition, reversed the orders of the Courts below and dismissed first defendant's application for temporary injunction against the plaintiff.
It is thus seen that no reference is made to the provisions of Rule 2 of Order 43 C.P.C. which clearly provides that the Rules of Order 41 also apply so far as may be necessary to appeals filed under Order 43. In Ajjappa v. Shadaksharappa's case reliance is placed on the observations made in Sangappa's case and it is observed that:
"Apparently the learned Counsels for the parties had not brought the ruling of this 34 O.S.No.25018/2020 Court in Sangappa's case to the notice of the learned Civil Judge. I have no doubt that if that ruling had been brought to the notice of the learned Civil Judge, he would not have admitted the additional documents produced by defendant-1 and considered them in deciding the correctness of the order that was challenged before him. In relying on the additional documents and reversing the order of the trial Court, the learned Civil Judge committed material irregularity affecting his jurisdiction."
His Lordship Puttaswamy, J, who has rendered this decision has also not referred to the provisions of Order 43 Rule 2 C.P.C. Therefore, respectfully disagreeing with the observations made in the said two decisions, I am of the view that additional evidence under Order 41 Rule 27 C.P.C. can be entertained in appeals filed under Order 43 Rule 1 C.P.C. in deserving cases."
h) of the Hon'ble High Court of Karnataka, in the case of P. Prabhavathi and Anr., V/s Divisional Controller and Ors., reported in ILR 2000 Pg 435, wherein it is observed in Para No.15 as under:-
"15. Whether he is entitled to continue in possession is a question to be decided in suit and whether the present plaintiff- Revision Petitioner can be legally evicted by defendant is also question to be decided on process of law being adopted by defendant.35 O.S.No.25018/2020
Once plaintiff - applicant, i.e Revision Petitioner is found to be in settled possession the plaintiff was entitled to the grant of temporary injunction to the effect that plaintiff shall not be evicted in any manner, otherwise than due process of law. Thus considered, in my opinion here is a case, where the Court below on irrelevant and illegal considerations, has illegally refused to exercise jurisdiction by rejecting the application and appellate Court also committed jurisdictional error, and illegally refused to interfere and refused to interfere with Trial Court's order, i.e illegally refused to exercise the jurisdiction vested in it. Thus considered the Civil Revision Petition is to be and is hereby allowed.
It is hereby ordered as under:
The defendants are restrained pending the decision of the suit from illegally dispossessing the plaintiff from the suit property and the defendants are prevented from taking possession of the suit property from the plaintiff, who has been found to be in lease possession in carrying on business, since 1991 on the suit premises. They are prevented from dispossessing plaintiff or interfering with his possession in any manner, otherwise than the process of law. As the suit is almost 4 years old, the Trial Court is expected to decide it expeditiously."
i) of the Hon'ble High Court of Karnataka, in the case of Mrs. Poornima Girish V/s Revenue Department, Government of Karnataka and Ors., reported in ILR 2011 Kar Pg 574, wherein it is observed in Para Nos.7 and 9 as under:-
36 O.S.No.25018/2020"7. In the wake of the inaction on the part of the authority itself and which is now conceded in terms of the report placed before this Court by the authority, it is obvious that the situation is more akin to the one covered by the provisions of Section 20 of the Act under which provision the authority if it is not acquiring any land within the area earmarked for development, then if the authority is of the opinion that as a result of the development in the surrounding area, the land owner whose land is left untouched stands to gain, then the authority can claim and levy betterment tax and it will be open to the authority to take action to claim such betterment tax in accordance with law, after issue of necessary notice to the petitioner in this regard.
9. It is also open to the authority to ensure that the structure, if any, on the site is brought in conformity with the building bye- laws and regulations which are in force in the concerned area. It is rather surprising nay annoying that a public authority like the Bangalore Development Authority behaves in a most irresponsible manner to remain inactive without responding to either the land owners' travails and even has the tenacity to ignore and bypass even Court orders, as if this Court had in a situation similar and in a cause brought before this court earlier by a group of land owners, has already passed orders [passed in writ petition No. 16133 of 2004 and connected matters disposed of on 6.6.2006], it is the bounden duty of the public Authority like the Bangalore Development Authority to have implemented and obeyed that order in letter and spirit and not to drive 37 O.S.No.25018/2020 every citizen to seek relief only before this Court."
j) of the Hon'ble High Court of Karnataka, in the case of Sri. R. Adikesavalu Naid and Ors. V/s The State of Karnataka, reported in ILR 2011 Kar Pg 3657, wherein it is observed in Para Nos.138, 140 and 142 as under:-
"138. It also follows as a consequence, that the State Government or the BDA or its officials or agents acting on their behalf cannot disturb peaceful possession and enjoyment of the subject land in which the petitioners claim to be in possession forming part of Sy. No. 30 of Kothanur Village and therefore the respondents are hereby restrained from taking any adverse action otherwise not permitted in law as against the petitioners in respect of the subject land.
140. In the light of above discussion, answers to the questions as raised above, are as under:
Question No 1:A scheme proposed by BDA if is not substantially implemented within a period of five years as is mandated under Section 27 of the BDA Act and has lapsed, there is no question of Court permitting further implementation of the scheme, if it is to the detriment of any person and such a person has sought for relief before Court; and Question No 2:When once the scheme lapsed as per the provisions of section 27 of the BDA Act, there cannot be any further proceedings for acquisition either, and if the 38 O.S.No.25018/2020 subject land sought to be acquired had not vested in the State Government before lapsing of the scheme, to the extent of the lands not vested in the State Government before the lapsing of the scheme, even the acquisition proceedings lapse, as the acquisition was only for the purpose of implementation of the scheme and to the extent of land not yet vested in the State Government, the scheme having lapsed, there is no possibility of the implementation of the scheme thereafter.
142. The BDA is restrained from further implementation of the lapsed scheme if it is to be to the detriment and adverse to the interest of the land owners whose lands have, as a consequence of this order, revert to them."
k) of the Hon'ble High Court of Karnataka, in the case of D. Narayanappa V/s The State of Karnataka, reported in ILR 2005 Kar 295, wherein it is observed in Para Nos.32 as under:-
"32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, and again in Deep Chand v. State of Rajasthan, . These cases were considered by a Three judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law".
6(6). As soon as the full amount of the purchase money is paid the auction 39 O.S.No.25018/2020 purchaser shall execute an agreement in Form-11 and thereafter he shall be put in possession of the site and a possession certificate issued to him."
l) of the Hon'ble High Court of Kerala, in the case of Kathiyani Amma V/s Govindan, reported in AIR 1980 Ker 224, wherein it is observed in Para No.7 as under:-
"7. The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession."
m) of the Hon'ble Apex Court, in the case of Vimal Chand Ghevarchand Jain V/s Ramakant Eknath Jajoo, in Civil Appeal No.1784 of 2009 D/d 23.03.2009, wherein it is observed in Para No.6 as under:-
"Right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The 40 O.S.No.25018/2020 vendor, in terms of the stipulations made in the deed of sale, is bound to deliver possession of the property sold. If he does not do so, he makes him liable for damages. The indemnity clause should have been construed keeping in view that legal principle in mind."
n) of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
Further held at para No.21-(a) to (d) as under;
"(a) Where a cloud is raised over the Plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the Plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Whether there is merely an interference with the Plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
41 O.S.No.25018/2020(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property as in the case of Vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Whether the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties 42 O.S.No.25018/2020 lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration; merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. the court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case". (Underline is mine to lay emphasize)
o) of the Hon'ble High Court of Karnataka, in the case of Chikkabasavaiah V/s Bhagyalakshmi, in RSA No.953 of 2010 D/d 13.06.2012, wherein it is observed in Para Nos.12 and 13 as under:-
"12. On the basis of the principles laid- down in the decisions referred to supra, if the facts on hand are taken into consideration, admittedly, the plaintiff is not entitled to the declaration as he has not proved his 19 RSA 953/10 title by adverse possession to grant a decree to declare him as a owner. But, when 43 O.S.No.25018/2020 the main relief is to be refused, there appears to be no obstacle either under the provisions of the Specific Relief Act or under any law to protect the possession of the plaintiff by granting a lesser relief, which has been sought for by the plaintiff. Though the learned counsel for the 1st respondent relied upon the decision reported in ILR 2009 Kar. 1099 [Basawanthrao since deceased by his LRs. Vs. Rajkumar], wherein the suit was filed for a declaration and injunction and the plaintiff had claimed title to the suit property on the basis of the adverse possession. The trial Court decreed the suit and in the appeal before this court it was held that the plaintiff has not proved his title by adverse possession and therefore, the appeal was allowed and the Judgment and Decree of the trial Court was set aside by dismissing the suit both for the relief of declaration and injunction. It is true that this Court has not granted the alternate relief of injunction. But, as could be seen from the contents, it is very much clear that no question was raised before the Court as to whether a lesser relief could be granted when the main relief is refused. Even there was no claim by 20 RSA 953/10 the respondent before the Court to protect his possession by granting injunction at least when the decree was set aside by this Court. So, when no such question was raised and this Court has not considered that aspect of the matter, in the absence of any principle laid-down by the Court in the aforesaid decision, it cannot be said that the claim of the appellant herein for the lesser relief could be declined.44 O.S.No.25018/2020
13. Now, to advert to the claim made by the appellant herein as the appellant has proved the possession over the suit property since from the year 1979 till the date of institution of the suit, though the relief of declaration has been declined by the Courts below, this Court has to grant the relief of injunction to protect his possession and he cannot be dispossessed by the defendants by taking the law into their hands. The only way left open for the respondents is to approach the Court for the relief of possession. Though it is the submission of the learned counsel for the 1st respondent that the 1st respondent is a old lady and is fighting the litigation for the last more than 10 years, that cannot be a ground for her to dispossess the plaintiff by unlawful means. When the law provides a procedure to 21 RSA 953/10 take possession, the respondents/defendants have to adopt the said procedure and claim the relief to take possession in due course of law. Hence, the substantial question of law raised is held in affirmative holding that a person in settled possession of the property is entitled to protect his possession except his dispossession in due course of law. The respondents/defendants are at liberty to approach the Court for a relief of possession."
p) of the Hon'ble High Court of Karnataka, in the case of Sathyam Ramaiah & Ors V/s Karnataka Milk Federantion Co-operative Ltd., reported in ILR 1999 Kar 1451, wherein it is observed in Para Nos.5 and 6 as under:-
45 O.S.No.25018/2020"The nature of possession in such cases which may entitled a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge either express or implied of the owner of without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case.
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquisceed in by the true owner; and
(iv) that one of the usual tests in determine the quality of settled possession, in the case of cultivable land would be whether or not the trespasser after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and the trespasser will have a right of private defence and the true owner will have no right of private defence. These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case -
(AIR 1968 SC 702)."
The test that has been considered in Puran Singh's case - (AIR 1975 SC 1674) was 46 O.S.No.25018/2020 to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop and if any such crop had been grown by the trespasser then, even the true owner has no right to destroy the crops grown by the trespasser and to take forcible possession illegality, either it may be for a longer period or for some period. In the case in hand, it is seen that some of the purchasers have already constructed houses and they are residing there. When that being the position, it cannot be said that they are not in settled possession at this juncture, whether they may be in settled possession, or whether they have claimed possession, on the basis of the alleged sale deeds in their favour from the vendor, which defendant alleges to be illegal and even if so, they cannot be thrown away or ousted from possession of suit properties by the true owner, except in accordance with the procedure established by law. I do not express any opinion, nor I should be taken to by expressing any opinion on the question of validity or legality of said sale deeds or sale transaction, nor on any question in issue between the parties for trail or decision in the suit. If that is so, even observations are or have been made are tentative and permitted extent and are of only for the purpose of dealing with the matter of temporary injunction and appeal arising from that interlocutory matter. The observations made herein during the course of this order should not come in the way of the Trial Court while it is trying or deciding the cases and issues arising in the suit on its own merits. The 47 O.S.No.25018/2020 finding of the Court below that the plaintiffs- appellants have purchased the suit properties, they are in actual possession and they have invested lakhs of rupees for putting up structures after the purchases made by them and they have also formed roads and obtained electricity connections and other amenities from various Corporations etc., clearly means that the act of possession was not in concealment. The Court below also found that there is and has been laxity on the part of the officials. So, in my view, this is not a case in which it could be said that no temporary injunction can be granted as appellants are 'trespassers'. This question as well is yet to be decided finally in the course of trial of suit on the basis of the pleas raised by the parties. The persons who purchased the property may be entitled and allowed to continue in possession, if they prove that they purchased the suit properties from the lawful owner, or establish any other right, title or interest therein these questions are yet to be tried and decided. In these cases because of the laxity on the part of the concerned officials, necessary entries were even not got made in the relevant records by the defendant-respondent. The plaintiffs have entered possession and constructed buildings and obtained necessary permission for the same from the concerned authorities. The findings given by the Court below are that the plaintiffs-appellants are really in actual possession, and in my opinion, it may amount to be settled possession. When once the Court below arrived at a conclusion that the plaintiffs, either all or some or many are in possession and have constructed structures, 48 O.S.No.25018/2020 three storeyed buildings the Court should have considered, whether temporary injunction should be granted or not, keeping in view of the question of balance of convenience. If temporary injunction is not granted in such a situation, the whole purpose of the suit will be frustrated. The final decision of the Court may be either in favour of the plaintiffs or defendants. That is not the question here. If prima facie the plaintiffs are in possession, it would have been proper for the Court below to issue an order of temporary injunction and to direct the parties to maintain status quo as existed on the date of the suit, as it has been originally ordered, namely, that pending disposal of the suit, the defendants will not interfere with the peaceful possession and enjoyment of the property and the plaintiffs will not change the nature of the property. The order of injunction would have been only for a limited period, i.e, pending final decision of the suit. The contention of the learned Counsel for the respondent is that the plaintiffs are not in legal possession, but the contention of the plaintiffs appellant is that they are in legal possession and they are in settled possession and they are not trespassers. The contention of the learned Counsel for the respondent, no doubt as pointed out and stated is that the respondent shall not dispossess the appellants, except in accordance with law and procedure established by law. No doubt, if the plaintiffs are found to be in possession without any title, and even if they have raised constructions as mentioned earlier, the defendant has got adequate remedy under law to take back possession from them. What 49 O.S.No.25018/2020 relief has to be granted to the plaintiffs is for the trial Court to decide after giving full opportunity to both the parties to adduce evidence and considering all other material documents and circumstances. The learned Counsel for the parties suggested that the Court below may be directed to expedite the decision of the suit finally and the parties may be directed to maintain status quo as on the date of the suit, i.e, neither the plaintiffs nor the defendant will not change the nature or character of the suit property and also to direct that neither of the parties, shall make any transfer or alienation in favour of any person, pending the decision of the suit."
q) of the Hon'ble Apex Court, in the case of Gurunath Manohar Pavaskar & Ors V/s Nagesh Siddappa Navalgunda & Ors, in Appeal (Civil) No.5794 of 2007 D/d 11.12.2007, wherein it is observed in Para No.14 as under:-
"14. We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land 50 O.S.No.25018/2020 whether an Advocate - Commissioner or an officer of the Revenue Department."
r) of the Hon'ble High Court of Karnataka, in the case of Naganna V/s Shivanna, reported in AIR 2004 Kar 209, wherein it is observed in Para Nos.5 and 6 as under:-
"5. The recitals of Ex. P. 2 discloses that partition was effected between the parties six months prior to Ex. P. 2 and properties were distributed. Again under Ex. P. 2 the parties mutually agreed to exchange between themselves some of the properties and the suit property is allotted to plaintiff. Obviously Ex. P. 2 is an unregistered document. The contention that Ex. P. 2 is the continuation of the oral partition recorded under Palupatti-Ex. P. 1 is untenable by the explicit terms of the document, when once the parties by oral partition have divided the properties by metes and bounds and put into writing by way of memorandum of partition, the joint character of the property comes to an end and each of the party would become exclusive owner of the share allotted to him. If there is any further transaction of exchange of properties between the parties, it is to be done necessarily by a registered document under Section 17 of the Registration Act. The terms of Ex. P. 2 does not disclose that the earlier oral partition referred to is not put into effect when the earlier partition is complete and concluded it binds the parties. The reversal of allotment of the properties granted in the earlier partition cannot be done by oral transaction. Ex. P. 2 being an unregistered 51 O.S.No.25018/2020 document, cannot invest any title in the plaintiff.
6. On the possession, I find Ex. P. 2 although unregistered for collateral purpose would show the delivery of possession of the suit property to the plaintiff. Besides, the ROR extracts produced by the plaintiff would show that he is in effective possession of the property. The ROR extract carries presumptive value in law. There is no convincing evidence placed by the defendant to rebut the legal presumption. In that view, the finding of the Appellate Court to the extent that the plaintiff is in possession is to be upheld, but however declaration of title by the Appellate Court is untenable and contrary to law. Accordingly, the first part question of law is answered in affirmative and second part in negative."
s) of the Hon'ble Apex Court, in the case of Prahald Singh and Ors V/s Union of India and Ors, in (Civil Appeal No.3779 of 2011 D/d 29.04.2011), wherein it is held that:-
"If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority's case, it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was 52 O.S.No.25018/2020 taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama.
A reading of the Khasra Girdawari and Jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005- 2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima facie, supports the appellants' assertion that physical possession of the land is still with them. Respondent Nos. 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government.
The judgments, which have been referred to in the impugned order really do not have any bearing on the case in hand because in all those cases, the Court had found that possession of the acquired land had been taken. In Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Ltd. (supra), this Court declined to interfere with the acquisition proceedings on the ground of delay. The facts of that case were that after preparation of the draft development plan for 'G' Ward of the Bombay Municipal Corporation, notification dated 6.7.1972 was issued under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 for the acquisition of land needed for implementing the 53 O.S.No.25018/2020 development plan. Respondent Nos.1 and 2, who were in possession of the land as tenants, filed claim for compensation. They were heard by the competent authority in 1979. In the meanwhile, the Bombay Metropolitan Region Development Authority Act, 1974 was enacted by the State Legislature and notifications were issued under that Act. In 1979, City Survey No.503 was de-reserved from the earlier public purpose of locating the extension of Dharavi Sewage Purification Plant and the entire land was to be utilized for residential, commercial, para-commercial and social facilities by the local residents of the area. After the award was made by the Collector, possession of the acquired land was taken. The respondents filed writ petition after lapse of four years from the date of taking possession. The learned Single Judge dismissed the writ petition but the Division Bench allowed the appeal. This Court held that once the award was passed and possession was taken, the High Court should not have exercised its power to quash the award."
t) of the Hon'ble High Court of Karnataka, in the case of Jayalakshmma V/s State of Karnataka, in WP Nos.781-785 of 2014 & 10334/2014 D/d 04.07.2019, wherein it is held that:-
"6. This Court is of the considered view that these writ petitions are liable to be dismissed for the following reasons:54 O.S.No.25018/2020
(i) admittedly, the acquisition process for the purpose of formation of Vijayanagara III Stage Layout in Mysore began with the issuance of the Preliminary Notification dated 01.04.1981 which was gazetted on 25.06.1981; the Final Notification dated 29.03.1984 was gazetted on 31.03.1984;
awards came to be passed on 02.04.1986; these writ petitions are filed in the first half of 2014 i.e., with in inordinate delay of more than 30 years and no plausible explanation has been offered therefor; even otherwise also no circumstances are shown from the record warranting condonation of delay & laches, either;
(ii) although no period of limitation is and can be prescribed by the Legislature for invoking the writ jurisdiction, the consistent view of the Apex Court and of this Court is that delayed challenge to the land acquisition should not be favoured, subject to all just exceptions into which the case of the petitioners does not fit; the identical challenges to the very same acquisition comprising the adjoining lands has been negatived by this Court vide judgment dated 17.09.2007 in W.P.No.6207/2005 in the case of K.SATYANARAYANA & OTHERS vs. STATE & OTHERS; the Writ Appeal No.2106/2007 c/w Writ Appeal No.1944/2007 filed against the same also came to be dismissed by the Division Bench of this Court vide judgment dated 28.01.2008; similarly in yet another case between H.N.BASAVARAJU vs. STATE & OTHERS in W.P.No.6731 & 7131-35 of 2010 the challenge having negatived by a learned Single Judge vide Order dated 03.08.2010, the Writ Appeal Nos. 3451, 3654-58 of 2010 55 O.S.No.25018/2020 also came to be dismissed vide judgment dated 08.04.2011; the copies of these judgments are produced by the respondent- MUDA at Annexures-R-1, R-2 & R-3 to its Statement of Objections; there is no reason for this Court to take a different view in these writ petitions which are founded on more or less the very same grounds urged therein;
(iii) the contention of the petitioners that still they have been continuing in the possession of the subject lands does not gain acceptance because the judgments aforementioned speaking of the very same acquisition notifications record a finding as to the possession having been taken by the respondents from the land owners again decades ago and that there is no reason as to why the possession of these lands has been left with the land owners;
(iv) the document at Annexure-R-9 is the letter dated 09.10.1992 given by the petitioners at Annexures R-9 to the Statement of Objections, wherein they have given consent for acquisition at the rate of Rs.50,000/- per acre; it is a settled legal position that a person who consents to acquisition cannot later turn around and lay a challenge thereto; entertaining the writ petitions of such persons virtually amounts to placing premium on unconscionability; thus the petitioners are disentitled to the grant of relief at the hands of this Court in its extraordinary jurisdiction;
(v) yet another reason to deny relief to the petitioner nos. 2 & 3, namely, Mr.Chandre Gowda and Mr.Janardhana had filed W.P.Nos.19116/2006 laying a challenge to the very same notifications of acquisition and 56 O.S.No.25018/2020 the same came to be dismissed vide judgment dated 28.01.2009 by a Co-ordinate Bench of this Court, a copy whereof is at Annexure-R-7 to the Statement of Objections filed in W.P.No.16724-16729/2014; none of the petitioners have whispered one single sentence about they having lost the challenge in the earlier round of litigations; thus all the petitioners have tried to play fraud on this Court vide suppressio veri & suggestio falsi and therefore they are liable to be non-suited; and
(vi) the contentions of the petitioners which are now being urged as to acquisition being bad and the possession having not being taken by the respondent- MUDA are hit by the doctrine of constructive res judicata inasmuch as similar contentions having been or could have been urged and rejected, and therefore their re- agitation apart from being impermissible may border the abuse of the process of the Court. For the same reason the reliance placed by them on the decision of the Apex Court in the case of PRAHALAD SINGH vs. UNION OF INDIA, (2011) 5 SCC 386 and of this Court in D.NARAYANAPPA vs. STATE & OTHERS, (2005) 2 KCCR 1134 and BASAVANAPPA vs. DEPUTY COMMISSIONER, (2006) 2 KCCR 808 do not come to their aid."
21. Though the Plaintiff has contended that, she has perfected her title over the Suit Schedule Property byway of Adverse Possession, such relief cannot be granted under the present filed suit for bare injunction. So Plaintiff is not entitle to the relief 57 O.S.No.25018/2020 of Declaration, as she has not proved her title byway of Adverse Possession, to grant a decree to declare her, as a owner. But she has proved possession over the suit property, since 28.05.1953, till the date of institution of the suit. Though the relief of Declaration is declined, but the relief of Injunction can be granted to protect her possession. Consequently, she cannot be dispossessed by the Defendant by taking the law into their hand.
21.01. Under these circumstances, I am of the considered opinion hat, the controversy involved in the present suit, in relation to the Suit Schedule Property, is squarely covered by the decision of the Hon'ble High Court of Karnataka, in the case of Chikkabasavaiah S/o Late Madaiah V/s Smt. Bhagyalakshmi and Anr., (RSA No.953/2010, D/d 13.06.2012), referred to supra.
22. On the basis of interference, and apprehension on the part of the Plaintiff, which has cropped up, at the instance of the Defendant, which forms the cause of action, which creates a right in favour of the Plaintiff, to get protected her 58 O.S.No.25018/2020 possession, as per Sec.37 and 38 of Specific Relief Act.
The remedy available to the Plaintiff is, only by way of a suit for Permanent Injunction.
When the Plaintiff receives a threat or apprehension of committing an act, from the Defendant, if completed, amounts to interference, then such Plaintiff can file a suit for Injunction Simplicitor against such Defendant.
In the present case, the Plaintiff on receiving the threat and apprehension from the Defendant, has filed the present suit for the relief of injunction simplicitor, which is quite maintainable. I find support to my above view, as per the decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
59 O.S.No.25018/202023. Secondly, the Defendant contended that, the suit for bare Injunction is not maintainable, as the Defendant has denied the ownership of the Plaintiff over the Suit Schedule Property and contends that, No Injunction can be granted infavour of a person, inrespect of the Property, against its true owner. As per the decision of the Hon'ble Apex Court in the case of Premji Ratansey Shah & Ors Vs Union of India & Ors, reported in (1994) 5 SCC 547, wherein, it is observed in Para Nos 4 & 5 as under:
"4. .... The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even 60 O.S.No.25018/2020 assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
23.01. Mere raising a doubt/cloud, as to the title of the Plaintiff is not sufficient, but the same is to be coupled with some cogent and believable evidence, then only the suit for bare Injunction is not maintainable, otherwise, it is maintainable. I find force to my said opinion as per the decision of the Hon'ble Apex Court in the case of Jharkhand State Housing Board Vs Didar Singh & anr (Civil Appeal No 8241/2009. Date of Disposal 09.10.2018) as well as in the case of Anatullah Sudhakar Vs P. Bucchi Reddy & Anr, reported in AIR 2008 SC 2033.
Thus the Plaintiff is entitle for the relief of Permanent Injunction, against the Defendant, in respect of the Suit Schedule Property, with terms.
Hence, I am constrained to answer ISSUE NO.3 PARTLY IN AFFIRMATIVE.
61 O.S.No.25018/202024. ISSUE NO.4:-
For having answered Issues Nos.1 and 2 in the Affirmative and Issue No.3 Partly in the Affirmative. Thus, I proceed to pass the following:
ORDER Suit of the Plaintiff is Decreed, inpart. In the consequences the Defendant, its representative, agents or any person/s acting under it are hereby restrained by an order of Permanent Injunction, from interfering with the peaceful possession and enjoyment of the Plaintiff, over the Suit Schedule Property.
Further this order of Injunction will not come in the way of the Defendant to dispossess the Plaintiff in accordance with law.
Looking to the special facts of the case, both the parties to bear their respective costs.
Draw Decree Accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 14th day of March, 2022) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions 62 O.S.No.25018/2020 Judge, Bengaluru. (CCH-73) :Schedule:
All that piece and parcel of the immovable property bearing site No.303, formed in a portion of Assessment (sy) Nos.160 and 165, Katha No.224, previously situated at Kacharkanahalli Village, Kasaba Hobli, Bangalore, now assigned as BBMP New Katha No.465/303/165, presently situated at Kacharkanahalli Bangalore, now comes under BBMP New Ward No.24, Eastern side: 40 feet, Western side: 40 feet, Northern side: 40 feet, Southern Side: 40 feet, total measuring 1600 square feet, alongwith five square A. C Sheet House, with Re-Oxide flooring, Cement and Bricks used construction wall jungle wood used for doors and windows with all civic amenities, together with all rights and appurtenances whatsoever whether underneath or above the surface thereon and bounded on as follows:
bounded on the:
East by: Road, West by: Site No.304, North by: Site No.300, South by: Road.
Measuring East to West 40 square feet North to South 40 square feet.
The total site area of the Schedule Property measures about 1600 sq.ft., [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 63 O.S.No.25018/2020 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1: Mohammed Yousuf.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P1: General Power of Attorney. Ex.P2: Certified copy of the Registered Gift Deed dtd.16.12.2019.
Ex.P3 & 3(A): Certified Copy of Registered Sale Deed dated :
28.05.1953, alongwith its typed copy.
Ex.P4: Khata certificate issued by BBMP, dtd: 27.12.2019. Ex.P5: Property Extract for the years 2019 -20. Ex.P6: Property Tax receipt.
Ex.P7: Encumbrance Certificate. Ex.P8: R/R extract of Sy.No. 165/1. Ex.P9 & 10: Hissa Survey Tippani of Sy.No. 165. Ex.P11 & 12: Survey Sketch.
Ex.P13 & 13(A): Extract from the assessment list for the year 1992-93 alongwith receipt. Ex.P14 to 16: 3 Extracts from the assessment list.
Ex.P17 & 18: 2 Receipts.
Ex.P19: Khata Certificate.
Ex.P20 to Ex.P32: 13 Electricity requisition slips.
64 O.S.No.25018/2020LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
-Nil -
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
-Nil -
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)