Bangalore District Court
M.L.Shankar vs The Commissioner on 20 October, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 20th day of October 2018
O.S. No.8525/2010
PLAINTIFF : M.L.Shankar
S/o.Late M.S.Linge Gowda
About 85 years
R/a.Vasanthapura Village
Doddakallasandra Post
Uttarahalli Hobli
Bangalore South Taluk
Bangalore.
(By Sri K.G./B.E.S., Advocate)
V/s.
DEFENDANT : The Commissioner
Bangalore Development Authority
Kumra Park West
BANGALORE-560 020.
(By Smt.E.M., Advocate)
Date of Institution of the Suit: 08.12.2010
Nature of the suit
(Suit on Pronote, suit for Permanent Injunction
declaration & possession, suit
for injunction)
2 OS No.8525/2010
Date of commencement of 23.06.2011
recording of evidence:
Date on which the Judgment 20.10.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
07 10 12
JUDGMENT
The plaintiff has filed this suit for restraining the defendant either from interfering or meddling with the peaceful, lawful, physical possession and enjoyment of the plaintiff over the suit schedule property or dispossessing him from plaint schedule property and to award costs of the suit and to pass such reliefs.
2. The suit schedule property is described in the plaint as under:-
All that piece and parcel of the land bearing khatha (Janjaru) No.1111/1 bearing MR.No.51/2003-04 measuring 21,274 sq.ft. out of 63,162 sq.ft. situated in Vasanthapura Gramatana, Vasanthapura Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore District and bounded on:3 OS No.8525/2010
East: Sy.No.19 of Vasanthapura Village West: Road formed by the plaintiff out of the remaining extent of same property North: Remaining portion of same property South: Vasanthapura Main Road.
3. The plaint averments in brief are as under:
The father of the plaintiff Late.M.S.Lingegowda was Jodi Inamdar of Vasanthapura Village, Uttarahalli Hobli, Bangalore South Taluk. All the inam lands came to be vested with State Government under the provisions of Karnataka Personal and Miscellaneous Inams Abolition Act of 1954, which came into force from 1.2.1959. The said M.S.Lingegowda filed an application under said Act for confirmation of occupancy rights which came to be allowed.
After vesting of Inam Lands, part of old Survey No.1 and 9 were came to be included in the extended Gramatana as per the survey sketch prepared by survey department during 1962. As per the said survey sketch M.S.Lingegowda became 4 OS No.8525/2010 the owner of 4 acres 5 guntas, which is in the extended gramatana out of old Survey No.1 and 9. M.S.Lingegowda has been in possession of the said extent of 4 acres 5 guntas since 1917.
After the death of M.S.Lingegowda, the plaintiff and his brothers and sisters filed an application for effecting khatha in respect of the said land. The Taluk Surveyor prepared a sketch as per the order of the ADLR in CR No.10/1990-91 dt.11.1.1991 to find out the extent of extended Gramatana in respect of old Survey No.1 and 9 referring to old village map of before the date of vesting of the village, prepared in the year 1876 and village map prepared after final cadastral survey and settlement in the year 1962. Accordingly, on 11.01.1991 a sketch was prepared in this regard.
Since village secretary for Vasanthapura village, Uttarahalli Hobli did not effect the khatha, an appeal was preferred in R.A. No.59/91-92 and R.A. No.60/91-92. On 22.2.1999, the Asst. Commissioner has disposed of the above 5 OS No.8525/2010 appeals with liberty to approach the proper forum to get the khatha of the land.
Plaintiff and his brothers and sisters filed an application before the Asst. Director of Land Records seeking direction for effecting khatha in respect of 4 acres 5 guntas as per the Sketch prepared by the Asst. Director of land records. On 13.11.2001, the Asst. Director of Land Records have passed an order in No.113/2001-02 directing the village Secretary, Subramanyapura Group Village Panchayath to effect the khatha.
Pursuant to the order of 13.11.2002, the Subramanyapura Group Village Panchayath has made the khatha in M.R. No.44/2002-03 on 17.12.03. Thereafter, the assessment was made by the Subramanyapura Group Village Panchayath for total extent of 1,79,685 sq. ft. in the name of plaintiff and others and issued form No.9 and 10. The village panchayath has collected the taxes in the year 2003-04.
The plaintiff and his brothers have partitioned the extent of 1,79,685 sq. feets among the plaintiff and 3 6 OS No.8525/2010 brothers. The plaintiff has got 63,162 sq. feets under the oral partition.
Plaintiff and his brothers thereafter filed an application for effecting the khatha as per the partition made among the plaintiff and his brothers, before the Subramanyapura group village panchayath. Subramanyapura group village panchayath has passed an order of mutation in M.R. No.51/2003-04. The name of the plaintiff has been entered in the form No.9 and 10 in the records of panchayath assessing an extent of 63,162 sq. feets for payment of taxes in the name of plaintiff. The defendant is the absolute owner of the property bearing khatha (Janjaru) No.1111/1 and has been lawful, peaceful and exclusive possession in the said property.
The plaintiff has applied for grant of license to the village panchayath for construction for chowltry and sanction of plan to an extent of 21,274 sq. fts. The village officer conducted spot inspection has granted license for construction of chowltry on 13.2.2006. The panchayath has 7 OS No.8525/2010 collected Rs.18,000/- towards betterment charges and addition of Rs.2,000/- towards other charges and same the paid on 13.2.2006. The village panchayath has also approved the plan for construction of chowltry. The description of the property which has been now under construction of chowltry. It is fully described in schedule hereunder and referred as 'Schedule property' hereinafter.
Now the property comes within the limit of Bruhath Bangalore Mahanagara Palike with effect from 2008-09 and Bruhath Bangalore Mahanagara Palike has collected taxes from the plaintiff for the three years from 2008-09 to 2010-
11. The defendant has no manner of right, title or interest over the schedule land. The schedule property has not been acquired by defendant. On 5.5.10, the defendant while taking possession of the land bearing Survey No.19 which is situated towards the eastern side of schedule property has demolished construction made by the plaintiff and plaintiff has sustained a loss of Rs.10,00,000/-. The defendant is now, since three 8 OS No.8525/2010 days is making attempt to interfere the plaintiff's peaceful possession and enjoyment of the plaint schedule property with ulterior oblique motive for dispossession of he plaint schedule property. The defendant has no manner of right, title or interest over the plaint schedule property. Infact since three days, the defendant and his officials again making attempts to interfere with the plaintiff's peaceful possession of plaint schedule property on 26.11.2010, the plaintiff approached the jurisdiction police for protection, but the police have directed to plaintiff to approach the Civil Court to file suit. Hence, prays to decree the suit.
4. The defendant appeared before the court through his counsel and filed written statement contending that the acquisition proceedings initiated by the Bangalore Development Authority has not been challenged by the plaintiff and as such the acquisition proceedings have become final. The suit is liable to be dismissed for non-joinder of proper and necessary parties. As on the date of filing the suit 9 OS No.8525/2010 the plaintiff has no legal right over the suit property bearing Survey No.27 measuring 12 acres 7 guntas situated Vasanthapura Village, Uttarahalli, Bangalore South Taluk and the same is vested with the Bangalore Development Authority free from encumbrance and the plaintiff has no right, title or interest over the land referred to above.
As on the date of filing of the suit and prior to that the suit schedule property is not the property belonging to plaintiff and his predecessors-in-title and the same is vested with the Bangalore Development Authority. As such the suit for permanent injunction does not rise for consideration. In view of the said fact is attracted .
The Bangalore Development Authority issued preliminary notification dated 18.4.1989 for the formation of layout Further Extension of Banashankari 7th Stage Layout. In the said notifications Survey No.27 measuring 12 acres 7 guntas was notified for acquisition in the name of Anubhavadar and kathedear M.L.Ramachandra Gowda, D.M.Desikar, M.L.Shankar and B.M.Jayalakshmi. Thereafter, 10 OS No.8525/2010 the defendant has issued final notification dated 9.5.1994. The defendant has taken the possession in respect of 3 acres 13 guntas of land in Sy.No.27 under mahazar dated 17.8.2000. As such, the plaintiff cannot maintain the suit for bare injunction and the civil court has no jurisdiction under the provisions of the Land Acquisition Act and the plaintiff has never challenged the said acquisition proceedings. In view of the acquisition proceedings civil court has no jurisdiction to entertain the suit.
The BDA issued preliminary notification dated 29.12.1988 and thereafter issued final notification dated 9.5.1994 under Section 19(1) of the BDA Act. In the said preliminary notification the land bearing Sy.No.19 measuring 3 acres 15 guntas situated at Vasanthapura Village is also included and so also in the final notification. The notifications are issued in the name of M.S.Lingegowda. Once the acquisition proceedings are initiated by issuing the preliminary notification, the Deputy Commissioner has no power or authority to entertain and issue official 11 OS No.8525/2010 memorandum granting permission for change in use of land and as such the alleged conversion order obtained in respect of Sy.No.19 is issued without the authority of law. The boundaries of the plaint schedule is inconsistent with each other.
In fact the plaintiff is not aware of the exact Survey Number and he is claiming that the said property has been included in the gramatana and sought for registration of khatha and the same has been rejected by the Grama Panchayath against which the an appeal came to be filed and the said appeal is also rejected. When the plaintiff claims that it has a gramatana property the question of surveying by Asst. Director of land records and directing the authorities to issue the khatha certificate and entering the name in mutation register does not arise since the Asst. Director of land records have no such power to issuing the direction to enter the name in the mutation register. The survey has to be conducted by the City Survey settlement authorities. Though in the pleadings the survey conducted by the deputy director 12 OS No.8525/2010 of land records is mentioned and his direction to the grama panchayath no such documents are produced. No title deeds are produced to show that the plaintiff is the owner of the suit schedule property. In the absence of the document no permanent injunction can be granted. No where in the plaint or schedule it is mentioned in respect of which Survey No.M.R.51/2003-04 and as such the identity of the property is involved. Except contending above, the defendant denied remaining plaint averments. Hence, defendant prays to dismiss the suit.
5. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor:-
1. Whether the plaintiff proves his lawful possession over the schedule property?
2. Does he prove the alleged obstruction ?
3. Whether the defendant proves that suit is not maintainable for non-13 OS No.8525/2010
joinder of proper and necessary parties?
4. Does he prove that suit is not maintainable for want of notice u/S.64 of Bangalore Development Authority Act?
5. Does he prove that suit is not maintainable in view of Sec.9 R/w.
6. Whether plaintiff is entitled for the relief sought for?
7. What order and decree?
6. The plaintiff in order to prove the case examined himself as PW-1 and got marked 47 documents at Ex.P.1 to Ex.P.47. The defendant examined its Sheristedar and Assistant Engineer and DW1 and DW2 and got marked 31 documents at Ex.D.1 to D.31. During the course of the cross- examination of DW 2, the plaintiff's counsel confronted one document to him and the same is marked as Ex.P.47. 14 OS No.8525/2010
7. Both the counsels filed written arguments and perused the records of the case.
8. My findings to the above issues are as under:
Issue No.1 & 2 : In the affirmative
Issue No.3 : Does not survive for
consideration
Issue No.4 : Does not survive for
consideration
Issue No.5 : In the Negative
Issue No.6 : In the affirmative
Issue No.7 : As per the final order for
the following :
REASONS
9. ISSUE Nos.1, 2 AND 5:- Since these issues are inter connected with each other and hence in order to avoid repetition of facts and evidence they are taken together for common discussions.
10. It is the case of the plaintiff that he is in lawful possession over the suit schedule property and the defendant 15 OS No.8525/2010 interfered with his possession and enjoyment of the suit schedule property. It is the case of the defendant that the Sy.No.19 and 27 of Vasanthapura Village was acquired by it and hence the suit is not maintainable in view of Section 9 r/w Order VII Rule 11 of CPC.
11. The learned Advocate appearing for the plaintiff filed written arguments stating that the suit schedule property is part of old Sy.No.1 and 9 of Vasanthapura village and it is the portion of extended Gramatana which was fallen to the share of plaintiff's father. As per the orders of ADLR dated 13.11.2002 the Subramanyapura group Village panchayat has made the khatha of the suit schedule property in the name of the plaintiff, wherein there is existence of houses, sheds for tethering cattle, servant quarters, keeping of agricultural implements and dry grass yard and it was assessed to tax and Panchayat collected the tax and after the BBMP it collected the tax of the suit schedule property from the plaintiff and the plaintiff is in 16 OS No.8525/2010 possession of the suit schedule property and the defendant interfered with the possession.
12. The learned Advocate appearing for the defendant filed written arguments stating that the Sy.No. 27 and 19 of Vasanthapura village was acquired by the BDA and hence the suit is not maintainable under Section 9 of CPC. The ADLR has no authority to issue direction to the panchayat to enter the name of the plaintiff to the suit schedule property in the mutation register.
13. The plaintiff has filed his affidavit in lieu of examination in chief as P.W.1, wherein he has reiterated the averments made in the plaint. In support of his case, the plaintiff has also produced Exs.P.1 to 46. Ex.P.1 is the c/c of orders passed by the Assistant Commissioner, Bangalore South Sub Division dated 22.2.1999, which shows that the plaintiff and his brother filed RA.No.59/1991-92 and their brother and sisters filed RA.60/1991-92, wherein challenged 17 OS No.8525/2010 the endorsement dated 24.6.1991 issued by the Subramanyapura Grama Panchayat regarding non transfer of khatha and the same was disposed of by observing that the appeals are not maintainable and the appellants are at liberty to approach the proper forum to get the khatha of the land as per the Rule 82 to 93(a) of Karnataka Land Revenue Rules 1966. The Ex.P.2 - building license dated 13.2.2006 taken by the plaintiff to construct building in the suit schedule property. Ex.P.3 - receipt regarding payment of Rs.18,000/- towards the development tax. Ex.P.4 - receipt regarding payment of amount with respect to the construction of building. Ex.P.5 - plan of building, Ex.P.6 to P.11 - tax paid receipts of the suit schedule property shows the name of the plaintiff. Ex.P.12 - endorsement of Tahsildar regarding non availability of the orders of ADLR dated 13.11.2001 in the office. Ex.P.13 -c/c of sale deed dated 10.9.2016 shows that one Lakshman Rao sold the entire Jodi Vasanthapura Village along with other properties in favour of grand father of the plaintiffs by name M.L.Shamegowda. Ex.P.14 - c/c of 18 OS No.8525/2010 partition deed dated 3.11.2017 shows that the said Shamegowda and his children partitioned the family properties. Ex.P.15 - c/c of orders passed by the Spl. Deputy Commissioner for Inam Abolition in Case No.27/1960-61 dated 19.8.1961 shows that the father of the plaintiffs claimed all the temporary Inam Field Sy.Nos.1 to 74 and his claim was registered and proceedings was conducted and final order was passed confirming rights on the Inamdar regarding the Sy.No. claimed by the Inamdars except to the Gramatana items, which was not within the jurisdiction of the Spl. Deputy Commissioner for Inam Abolition. Ex.P.16 - c/c of partition deed dated 29.6.1965 and Ex.P.17 - c/c of the rectification deed dated 26.12.1974 shows that the plaintiff and his brothers partitioned all the lands except Gramatana items as per the final cadastral survey settlement notified Sy.Nos. Ex.P.18 - c/c of Jodi Vasanthapura Village Map discloses that after the final cadastral survey, the Sy.No.1 to 74 were reduced into 1 to 61 and the entire Village got merged with Sy.No.1 to 61 and the same was made in the 19 OS No.8525/2010 name of father of the plaintiff. Ex.P.19 to P.30 - photographs of the suit schedule property, wherein the construction is going on. Ex.P.31 - orders passed by the ADLR in case No.113/2001-02 dated 13.11.2001 shows that the 4 acres 5 guntas of land, which is shown by the then ADLR on 11.1.1991 in the sketch belongs to the father of the plaintiff, wherein the residential house, vacant site, cattle shed is situated. Ex.P.32, 33, 35, 36 & 38 - house/land tax assessment extracts of Subramanyapura Grama Panchayat, shows the name of plaintiff to the suit schedule property. Ex.P.34 - c/c of orders passed by the Subramanyapura Grama Panchayat dated 17.12.2002 which shows that it ordered for change of khatha of the suit schedule property in the name of the plaintiff. Ex.P.37 - khatha certificate of the suit schedule property shows the name of the plaintiff, Ex.P.39 to 44 - tax paid receipts of the suit schedule property shows the name of the plaintiff, Ex.P.45 and 46 - Form No.4 of Income Tax Department shows the name of the plaintiff, Ex.P.47 - c/c of Notification under Section 16(2) of Land 20 OS No.8525/2010 Acquisition Act of Banashankari 5th Stage Layout of the lands of Vasanthapura and other villages.
14. It is came in the cross-examination of PW1 that earlier the suit schedule property was coming in Sy.No.1 and
9. There is no suggestion to the PW1 that the suit schedule property is not coming in Sy.No.1 and 9 of Vasanthapura Village. The PW1 denied that he has not produced the documents to show that how his father got Sy.No.1 and 9 and he volunteers that he produced the document of extended Gramatana record. The PW1 admitted that the Sy.No.19 originally belongs to him and it was acquired by the BDA and further stated that at the time of taking possession of Sy.No.19 the defendants demolished his building. After the cross-examination of PW 1 the plaintiff produced some documents and recalled the PW1 and got marked the said documents as Ex.P.13 to 46 and the PW1 was not cross- examined on those documents and thereby the defendant did not challenge the same.
21 OS No.8525/2010
15. The pleadings averred in the plaint, the affidavit evidence of PW1 and Ex.P.1 to 46 reveals that the grand father of the plaintiff M.L.Shamegowda purchased entire Jodi Vasanthapura Village measuring 384 acres along with other properties under registered sale deed dated 10.9.1996 from one Lakshman Rao and thereafter their grand father, their father and their uncle partitioned the entire properties and in that the Jodi Vasanthapura Village fallen to the share of plaintiff's father and with the introduction of Inams Abolition Act 1954 the plaintiff's father claimed the landed properties and accordingly the Spl. Deputy Commissioner for Inam Abolition in case No.27/1960-61 dated 19.8.1961 conferred the rights of the Inamdar on him except the gramatana items, which was not within the jurisdiction of the Deputy Commissioner for Inam Abolition and accordingly the name of the plaintiff's father was entered in Form No.8 - Register of Jodi Vasanthapura Village. Thereafter, the plaintiff and his brothers partitioned all the lands among them except gramatana items as per the partition deed dated 29.6.1965 22 OS No.8525/2010 and rectification deed dated 26.12.1974. Ex.P.18 further discloses that in the year 1962 new map of Jodi Vasanthapura Village was prepared and in that the old Sy.No.1 and 9 were merged into extended gramatana, which are in total measuring 4 acres 38 guntas and the extended gramatana became 11 acres 10 guntas from the earlier 6 acres 12 guntas of gramatana area, which includes the suit schedule property. The construction of houses, sheds for tethering cattle, servant quarters, agricultural implement rules and dry grass yard and etc. was built by the plaintiff was not disputed by the defendant. Thereafter, the plaintiff and his brothers approached the Secretary of Subramanyapura Group Panchayat for transfer of khatha in the extended gramatana and the same was rejected by issuing the endorsement. The plaintiff and others being aggrieved by the orders of Secretary, Subramanyapura Group Village Panchayat preferred RA.59/1991-92 and RA.60/1991- 92 before the Assistant Commissioner, Bangalore South Sub Division, which was disposed as not maintainable. Thereafter, 23 OS No.8525/2010 the plaintiff and others approached ADLR for change of khatha of the suit schedule property to their names in case No.13/2001-02, wherein it was observed that the earlier ADLR has identified the suit schedule property in the sketch and accordingly the Secretary of Subramanyapura Panchayat was directed to change the khatha of the suit schedule property on 13.11.2001 and in pursuance of the same the khatha of the suit schedule property was changed to the name of the plaintiff and it was assessed to tax and the plaintiff paid tax to the suit schedule property to the Subramanyapura Grama Panchayat and thereafter the plaintiff obtained building license form the Panchayat to construct building in the suit schedule property by paying the development charges and building license fee and started construction in the suit schedule property and after coming into existence of BBMP, the Vasanthapura Village comes within the limits of it and it collected tax of the suit schedule property from the plaintiff. Even though defendant contended that Sy.No.27 and 19 are acquired by the BDA and the same 24 OS No.8525/2010 is deposed by the DW1 & 2, who are the officials of BDA and accordingly Ex.D.1 to 31 are produced, but in the written statement it is not specifically contended that the suit schedule property is the portion of either Sy.No.19 or Sy.No.27. When there is no specific pleadings that the suit schedule property is the portion of either Sy.No.19 or Sy.No.27, then it cannot be said that the defendant acquired the suit schedule property or the suit schedule property is portion of the acquired land. During the course of the cross- examination of the PW1, it is came as under:
"ªÀ¸ÀAvÀ¥ÀÅgÀ ¸ÀÄvÀÛªÀÄÄvÀÛ KjAiÀiÁ ©rJzÀªÀgÀÄ £ÉÆÃn¥ÉÊ ªÀiÁrzÁÝgÉ ¤d."
16. So the above suggestion by the defendant's counsel shows that the BDA not notified the lands Vasanthapura village. The defendant did not dispute the Ex.P.18, which discloses that the Sy.No.27 situated far away from the Vasanthapura Village and the Sy.No.19 is situated near the Vasanthapura Village. The plaint schedule also discloses that towards the eastern side of the suit schedule 25 OS No.8525/2010 property Sy.No.19 of Vasanthapura Village is situated and the same is not disputed by the defendant. The DW1 during the course of his cross-examination deposed as under:
"I cannot say definitely in which Sy.No. of Vasanthapura Village the suit schedule property comes.
Q: It is not true that the suit schedule property do not fall either in Sy.No.27 or 19 of Vasanthapura Village and hence I cannot say that definitively in which Sy.No. the suit schedule property exists?
Ans: The Engineering Section knows the same.
................ I do not know that there is no connection in between Sy.No.27 of Vasanthapura Village and the suit schedule property.
.................I do not know that whether I have produced any document to show that the suit schedule property comes in Sy.No.27 or 19 of Vasanthapura Village. I do not know that I have not produced any such document to show that the suit schedule property comes in Sy.No.27 or 19 of 26 OS No.8525/2010 Vasanthapura Village.................I do not know that the BDA has not formed any layout in the suit schedule property."
17. It is came in the cross-examination of DW2 as under:
"It is true to suggest that towards western side of Sy.No.19 the Gramatana of Vasanthapura Village is situated. We have not acquired the Gramatana of Vasanthapura Village............. There is no necessity for the Engineering Section to know that who is in possession of Gramatana of Vasanthapura Village. It is not true to suggest that the suit schedule property is in no way connection with the Sy.No.19. Witness volunteers that the plaintiff tried to encroach the Sy.No.19."
18. So, the Sy.No.19 and 27 of Vasanthapura Village was acquired by the BDA, which belongs to the plaintiff and others and the suit schedule property is situated adjacent to the said Sy.No.19. As stated above, there is no cross- 27 OS No.8525/2010 examination to the PW1 on Ex.P.31 to 46. So, all these shows that the suit schedule property is not acquired by the defendant and the plaintiff is in lawful possession over the suit schedule property.
19. With respect to the arguments of the defendants' counsel with respect to that the ADLR has no power to issue direction to the Panchayat to enter the name of the plaintiff in the mutation register is concerned, I would like to rely on the ruling reported in 1985(3) KLJ 481, wherein it is held as under:
"In the absence of the any specific
provisions under the act in respect of
building sites situated in towns, the
provisions made in this regard for lands situated in villages will be applicable to building sites situated in towns and villages as well. This is because of the extended definition of the "land" and "village" Chapter -XII of the rules comprised of rules 82 to 93A specifically provides for 28 OS No.8525/2010 survey, maintenance of records of buildings sites and mutation in case of change in the rights over such sites on account of succession, survivorship, inheritance or otherwise. Under rule 83(2) (d) such records pertaining to building sites are to be maintained in Form No. 13 described as "
Property card" Chapter XI of the act will have its application in respect of building sites. In respect of building and sites as provided under rule 88, information has to be given to the City Surveyor. In case of building sites, rule 90 provides that the disputed cases shall be disposed of according to the procedure prescribed in Rule 67. Keeping in view of the rule of harmonious construction and the avowed object of making the provisions workable and effective, it can be safely held that in case of building sites, the Assistant Director of Land Records is the authority who has been empowered to pass appropriate orders after due enquiry in the disputed cases. Keeping in view the scheme of the act and the nature of administrative functions 29 OS No.8525/2010 discharged by the respective officers have now been vested with the statutory functions, it is a plausible and reasonable interpretation to hold that in case of the building sites the original jurisdiction to resolve the dispute is vested in the Assistant Directors and that entertaining the appeals against the orders passed by them lies with the Deputy Directors; and that the revisional power in this regard has to be exercised by the Joint Directors. The Joint Directors had no jurisdiction to entertain either a second appeal or a revision against an appellate order passed by the Deputy Director under Section 136(2) of the Act. Neither Rule 43(3) not Rule 69 of the rules provide for any independent appellate forum since in the matter of mutation disputes the remedies of the aggrieved parties are to be governed by Section 136 alone."
20. So, from the above citation it is clear that the provisions of building sites situated in towns are also applicable to the lands situated in villages and the ADLR is 30 OS No.8525/2010 having authority to pass appropriate orders after due enquiry. Accordingly in the present case on hand, the ADLR passed the orders as per Ex.P.31 for the change of khatha of the suit schedule property in the name of the plaintiff after due enquiry.
21. As stated above, I already came to the conclusion that the suit schedule property is not the portion of Sy.No.19 or 27 of Vasanthapura Village, which were acquired by the BDA and then the suit of the plaintiff is not barred under Section 9 of CPC r/w Order VII Rule 11 of CPC and the same is maintainable before this court.
22. The case of the plaintiff is that officials of the defendant tried to interfere with his peaceful possession of the suit schedule property on 26.11.2010. As stated above, the tenor of the defendant in the written statement discloses the denial of interference and contending that the Sy.No.19 and 27 of Vasanthapura Village was acquired, which shows that 31 OS No.8525/2010 the defendant interfered in the possession and enjoyment of the suit schedule property by the plaintiff.
23. So, from the discussions made above, I am of the opinion that the plaintiff proved that he is in lawful possession over the suit schedule property and the defendant interfered with his possession over the suit schedule property and the defendant failed to prove that suit is not maintainable in view of Section 9 r/w Order 7 Rule 11 of CPC. Hence, Issue No.1 and 2 are answered in the Affirmative and Issue No.5 in the negative.
24. ISSUE NO.3 : The defendant at para No.4 of its written statement contended that suit is liable to be dismissed for non-joinder of proper and necessary parties, but not stated who are the proper and necessary parties. Such being the case, the question of considering whether the suit is bad for non-joinder of proper and necessary parties 32 OS No.8525/2010 does not arise for consideration. Hence, Issue No.3 is answered as does not arise for consideration.
25. ISSUE NO.4: The defendant in para No.5 of his written statement contended that suit of the plaintiff is not maintainable for want of notice under Section 64 of Bangalore Development Authority Act. The records discloses that at the time of filing of the suit itself the plaintiff filed IA No. I under Section 64 of BDA Act r/w Section 151 of CPC to dispense the issue of notice to the defendant and the same was allowed and accordingly the issue of statutory notice to the defendant was dispensed. Hence, the question of considering whether the notice under Section 64 of BDA Act was issued or not does not survive for consideration. Hence, Issue No.4 is answered as does not survive for consideration.
26. ISSUE NO.6: In view of my finding on Issue No.1 and 2 in the Affirmative and in favour of the plaintiff, I hold that the suit is fit to be decreed. Hence, the plaintiff is entitle 33 OS No.8525/2010 for the reliefs sought for. So, Issue No.6 is answered in the affirmative.
27. ISSUE NO.7: In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is decreed.
The defendant themselves or their officials or GPA Holders, agents, supporters, henchmen or any person or persons claiming any right under or through them are permanently restrained from interfering or meddling with the peaceful, lawful, physical possession and enjoyment of the suit schedule property by the plaintiff or dispossessing him from plaint schedule property, Under the circumstances of the case, no order as to costs.34 OS No.8525/2010
Draw decree accordingly.
(Dictated to the judgment writer directly on the computer, thereafter corrected and then pronounced by me in the open court, on this the 20th day of October 2018).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 M.L.Shankar
b) Defendant's side:
D.W.1 G.P.Jayashree
D.W.2 Devaraju
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Copy of order issued by Asst.
Commissioner
Ex.P.2 License issued by panchayath
Ex.P.3 & 4 Tax paid receipt
Ex.P.5 Plan
Ex.P.6-11 Six receipts
Ex.P12 Endorsement issued by Tahsildar
35 OS No.8525/2010
Ex.P.13 Certified copy of partition deed
dt.10.9.1916
Ex.P.13(a) Typed copy of Ex.P.13
Ex.P.14 Certified copy of partition deed
dt.3.11.1917
Ex.P.14(a) Typed copy of Ex.P.14
Ex.P.15 Copy of Order issued by Spl. D.C. Inam
Abolition
Ex.P.15(a) Typed copy of Ex.P.15
Ex.P16 Certified copy of partition deed
dt.29.6.1965
Ex.P.17 Certified copy of rectification deed
dt.26.12.74
Ex.P.18 Certified copy of village map
Ex.P.19 to 30 Photographs and negatives Ex.P.19(a) to Negatives 30(a) Ex.P.31 Certified copy of order dt.13.11.01 passed by ADLR Ex.P.32 & 33 Two certified copy of tax assessment Ex.P.34 Certified copy of MR Extract Ex.P.35 & 36 Two certified copy of tax assessment register extracts Ex.P.37 Khatha certificate Ex.P.38 Khatha Extract Ex.P.39 to 44 Six tax paid receipts Ex.P.45 & 46 Two property tax returns in Form No.4. Ex.P.47 C/c of Notification under Section 16(2) of Land Acquisition Act
b) defendants side :
Ex.D.1 Notification
No.BDA/SLAO/A1/324/1988-89
Ex.D.2 Preliminary notification 29.12.1988
Ex.D.3 Copy of Deccan Herald Paper Publication
Ex.D.4 Prajavani paper publication
36 OS No.8525/2010
Ex.D.5 Final notification dated 9.5.1994
Ex.D.6 Copy of notice issued to plaintiff
dt.19.9.1994
Ex.D.7 Copy of informal comment letter dated
4.9.2000
Ex.D.8 Mahazar dated 19.8.2000
Ex.D.9 Copy of award
Ex.D.10 Copy of letter dated 28.8.2000
Ex.D.11 Informal comment letter dated 23.3.2001
Ex.D.12 Copy of letter to the court dated
11.9.2000
Ex.D.13 Copy of letter to Tahsildar
Ex.D.14 Copy of inventory note 16.8.1990
Ex.D.15 Copy of notice dt.19.9.1994
Ex.D.16 Copy of notice dt.30.7.1994
Ex.D.17 Copy of acquired land details
Ex.D.18 Copy of Mahazar dated 29.12.1995
Ex.D.19 Copy of sketch
Ex.D.20 Copy of mahazar dated 28.1.1995
Ex.D.21 Copy of award notice
Ex.D.22 Copy of informal commit letter dated
30.10.1999
Ex.D.23 Copy of details of lands etc. acquired and
their values
Ex.D.24 Copy of cheque dated 21.8.2000 for
Rs.34,089
Ex.D.25 Copy of award details
Ex.D.26 C/c of layout plan
Ex.D.27 to 30 4 photographs
Ex.D.31 CD of Ex.D.27 to 30
Digitally signed
by BASAVARAJ
DN: ( BASAVARAJ )
cn=BASAVARAJ,
ou=GOVERNME XLI ADDL.CITY CIVIL JUDGE
NT OF
KARNATAKA,o= BANGALORE
BASAVARAJ HIGH COURT
OF
KARNATAKA,st
=Karnataka,c=I
N
Date:
2018.10.20
17:39:41 IST
37 OS No.8525/2010
38 OS No.8525/2010