Bangalore District Court
Krishnappa.M vs The Bengaluru Development Authority on 13 December, 2017
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 13th day of December 2017
O.S.No.6606/2011
PLAINTIFF : Krishnappa.M
S/o Late Muniswamappa
Aged about 53 years
R/at No.8,
Mavallai Muniswamappa Compound
Muniyappa Garden
Dhookanahalli
Indiranagar Post
Bengaluru-560 038
(By Sri.B.K.N., Advocate)
V/s.
DEFENDANT : The Bengaluru Development Authority
Sankey Road, Bengaluru
Rep.by its Commissioner
(By Sri.M.P., Advocate)
Date of Institution of the Suit: 12.09.2011
Nature of the suit
(Suit on Pronote, suit for Permanent injunction
declaration & possession, suit
for injunction)
Date of commencement of
-2- OS.6606/2011
recording of evidence:
Date on which the Judgment 13.12.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
06 03 01
JUDGMENT
The plaintiff filed this suit for permanent injunction restraining the defendant, its agents, servants, assigns or any one acting or claiming on its behalf from entering upon or in any way interfering with the possession of the suit schedule property, for permanent injunction restraining the defendant, its agents, servants, assigns or anyone acting or claiming on its behalf from demolishing the structure existing on the land and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of the property consisting of houses situated in Sy.No.47/5, Katha No.47/5, No.8, 16th 2
-3- OS.6606/2011 Main, Mavalli Muniswamappa Compound, Dhookanahalli, HAL II Stage, Indiranagar Post, Bengaluru-560 038. The property is irregular in shape. It measures 82 feet north to south and measures 41 feet east to west at one point, 42 feet at another point and 35 feet at another point and bounded by:
East by : Sy.No.47/6 belonging to
Munichinnappa and
Krishnappa
West by : Sy.No.47/5 belonging to
M.Srinivas.M
North by : 16 Main (Baba Sab Colony) South by : Sy.No.47/5 belonging to M.Muniswamy
3. The plaint averments in brief is as under:
The plaintiff is the absolute owner of the suit schedule property and marked in red colour in the sketch formed out of Sy.No.47/5 of Dhookanahalli, Bengaluru. The said property consist of house and some portion of vacant land.3
-4- OS.6606/2011
Sy.No.47/5 of Dhookanahalli, Bengaluru
measuring 10½ guntas and other lands abutting the land formerly belonged to Sri.Andari Papaiah, father of the plaintiff. Sri.Andari Papaiah had four sons viz.
Muniswamappa, Chikkamuniswamappa, Ramu and plaintiff. Chikkamuniswamappa is dead and he has two children namely Narayanappa and Smt.Jayamma. His widow is Smt.Yelamma. After the death of Andari Papaiah, the three brothers and the widow and children of Chikkamuniswamappa effected a partition of all the properties that belonged to Andari Papaiah under a deed of partition dated 18.7.1957. Though Sy.No.47/5 is assigned a survey number, there are four houses in the said land and all of them have been in existence for over 32 years. In that partition, Yellappa, Muniswamappa and Krishnappa and each one of them was allotted 2½ guntas of land each. The same has been set forth in the schedule to the plaint.4
-5- OS.6606/2011 The said Muniswamappa has three sons viz.
M.Yellappa - plaintiff No.1, M.Srinivas and Muniswamappa. The land had been acquired by the BDA, but they have passed a resolution to reconvey the land to the joint family consisting of the said Muniswamappa and the other members of the family.
In regard to it, a writ petition has been filed.
In the first week of June 1975, there was a partition between the said Muniswamappa and his sons and the same has been confirmed by a Memorandum of Confirmation of partition already made dated 10.6.1975. The said Muniswamappa was obliged to file a suit in OS.1838/1989. The suit was compromised on 17.6.1989. The earlier Memorandum executed on 10.6.1975 has been confirmed by the parties. The said Muniswamappa has become the absolute owner of the property. Under the opposite law, the said Muniswamappa was also entitled to the marginal land.5
-6- OS.6606/2011 The said Muniswamappa has been residing in the house situated in the land mentioned in the schedule.
Earlier to partition, Muniswamappa and his sons were residing together in the house. They had a ration card for nearly 32 years. Electrical connection has also been obtained. There are structures on the land. The plaintiff have not been disposed from the schedule property. There are coconut trees and other fruit bearing trees. There is a well also.
The said Muniswamappa has made an application before the Screening Committee for regularization of the construction. The house has been in occupation of him for over 32 years. Under the Circular issued by the Government, the said Muniswamappa has a legal entitlement to have the construction regularized.
A main water pipeline goes along the road abutting the marginal land of plaintiff. The said Muniswamappa has drawn pipeline from the main water pipeline for the use of water in his house. There 6
-7- OS.6606/2011 is no approach to their land, except through the marginal land which abuts their land.
Without prejudice and in the alternative, they have perfected their title by adverse possession. Their possession is open, hostile and continuous. The possession of the property has not been taken. No layout has been formed. On the other hand, the plaintiff have been enjoying the property to the knowledge of the defendant, ever since the notifications were issued namely preliminary and final and even prior to that ancestors are in settled possession of the same. They have perfected their title by adverse possession. The possession of title is a settled possession. It is trite law that in as much as the buildings are existing and as the land has been fenced, the defendant has no right to interfere with the possession of the plaintiff.
Later the defendant's officials are coming to the spot and are trying to take photographs. The silence on the part of defendant and in-action on their part for over 7
-8- OS.6606/2011 40 years is a clear indication that they have given up their rights.
The plaintiff has not been dispossessed till this day. They have not refused to receive any notice. No notice was tendered to them. However, the defendants' officials are giving pin pricks to the plaintiff to dispossess them from the schedule property.
On 3.9.2011 the officials of the defendant came near the land and threatened to demolish the house existing on the land. The BDA has no right to do so.
The plaintiff has a right to be in possession of the property. The defendant has no right to dispossess the plaintiff forcibly. The law does not countenance forcible dispossession. As the defendant is a statutory authority, plaintiff cannot protect their possession by themselves. Hence prays to decree the suit.
4. Upon service of summons, the defendant appeared before the court through his counsel and filed 8
-9- OS.6606/2011 written statement contending that the plaintiff is not the owner of any site in Sy.No.47/5 of Binnamangala Manavarthekaval Village, Krishnarajapura and Varthur Hobli, Bangalore Taluk, Bangalore District to an extent of 10½ guntas, which has been acquired by the defendant for the formation of HAL II Stage. The land bearing Sy.No.47/5 of Binnamangala, Manavarthekaval Village, Krishnarajapura and Varthur Hobli, Bangalore Taluk, Bangalore District to an extent of 10½ guntas has been acquired by the Government of Mysore for an improvement scheme for public purpose for the formation of Layout between Old Madras Road and HAL II Stage in exercise of the powers conferred by the Land Acquisition Act 1804. The defendant authority notified the said Sy.No. under preliminary notification dated 28.11.1959, which was followed by final notification dated 19.8.1964. The said entire acquired land came within the said acquisition proceeding and the defendant authority has taken possession. Hence, neither the plaintiff nor previous anubhavadar or khathedars of the said land are owners in 9
- 10 - OS.6606/2011 respect of the said land and not entitled to any claim or interest over the same. The said original land has been handed over to Engineering Section and compensation amount deposited in RD Account.
Execution of the partition deed or any other document, after preliminary notification in respect of the acquired land does not hold any validity in the eyes of law. If there is any illegal construction put up by the plaintiff or any other person on the acquired land it is un authorized construction and defendant is having all the right to demolish the same and neither plaintiff nor any other claim any regularization for illegal construction on the acquired land.
Eversince of the preliminary notification till the date of final notification the said entire acquired vacant land said Sy.No.47/5 was under the acquisition proceedings subsequently it is in the possession of the defendant. Except contending above, the defendant has denied all other plaint averments. Hence, prayed to dismiss the suit. 10
- 11 - OS.6606/2011
5. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether plaintiff proves his lawful possession over the schedule property?
2) Does he prove the alleged obstruction of the defendant as pleaded in para-16 of the plaint?
3) Whether defendant proves that plaintiff have no cause of action as the possession of the acquired land was acquired by the authority vest with defendant only?
4) Whether plaintiff is entitled for the relief sought for?
5) What order and decree?
6. The plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.12. The General Power of Attorney holder of the plaintiff examined himself as PW2 and got marked Ex.P.13 to P.64.
11
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7. Heard the arguments and perused the records of the case.
8. My findings to the above issues are as under:
Issue No.1 & 2 : Do not arise for
consideration
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : As per the final order,
for the following;
REASONS
9. ISSUE NOs.1 to 3:- Since these Issues are interconnected hence they are taken up together common discussion in order to avoid repetition of facts and evidence.
10. The plaintiff and General Power of Attorney holder of plaintiff filed their affidavits in lieu of examination in chief as P.W.1 and P.W.2, wherein they have reiterated the averments made in the plaint. In support of his case, the 12
- 13 - OS.6606/2011 plaintiff has also produced Exs.P.1 to 64. The defendant has not led his evidence.
11. It is admitted fact that the defendant i.e. Bangalore Development Authority has acquired the Sy.No.47/5 of Dhookanahalli Village, HAL II Stage, Indira Nagar Post, Bengaluru under the preliminary notification dated 28.11.1959 and final notification dated 19.8.1964 for the purpose of formation of layout between old Madras Road and HAL II Stage.
12. Before considering the issue Nos.1 and 2 it is just and proper to consider issue No.3 whether the plaintiff has cause of action to file the suit as the suit schedule property vests with the defendant and the suit of the plaintiff is maintainable under Section 9 of the CPC. Admittedly the Sy.No.47/5 of Dhookanahalli Village measuring 10½ guntas was acquired by BDA for the purpose of formation of layout between old Madras Road and HAL II Stage under the 13
- 14 - OS.6606/2011 preliminary notification dated 28.11.1959 and final notification dated 19.08.1964 and the suit schedule property is portion of it. After the acquisition of the lands it vests with the State with nil encumbrances. Then to decide the dispute and claim if any, the plaintiff has to approach the Hon'ble High Court of Karnataka as the Land Acquisition Act is the self contained code and hence the plaintiff has no cause of action to file the suit as the suit schedule property vests with the defendant and suit of the plaintiff for permanent injunction restraining the defendant from interference and demolishing the structure over the suit schedule property is not maintainable before the civil court.
13. In this regard, I would like to rely on the ruling reported in AIR 1995 Supreme Court 1955 (State of Bihar V/s Dhirendra Kumar and others), wherein their lordships held as under:
"................Thus, it could be seen that the act's is a complete code in itself and is 14
- 15 - OS.6606/2011 meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under S.9 of CPC stands excluded, and a civil Court has no jurisdiction to go into the question of the validity or legality of the notification under S.4 and declaration under S.6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable...................."
14. Further, in this regard, I would like to further rely on the ruling reported in 2013(3) SCC 66 (Commissioner, Bangalore Development Authority and another V/s Brijesh Reddy and another), wherein their lordships held as under:
"Land Acquisition Act, 1894 - Suit schedule. 4 and 6 r/w S.9 Code of Civil Procedure - Maintainability of suit in civil court when scheduled lands acquired under land acquisition proceedings - Remand of proceedings to trial court without examining 15
- 16 - OS.6606/2011 issue of maintainability - Propriety - Reiterated, Land Acquisition Act is a complete code in itself and is meant to serve public purpose - By necessary implication, power of civil court to take cognizance under S.9 Code of Civil Procedure stands excluded and civil court has no jurisdiction to go into question of validity or legality of notification under S.4, declaration under S.6 and subsequent proceedings - Civil court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under LA Act - Only right available to aggrieved person is to approach High Court under Art. 226 and Supreme Court under Art. 136 of Constitution with self-imposed restrictions on their exercise of extraordinary power - On facts held, civil suit filed by plaintiffs for permanent injunction restraining Defendants 1 and 2 i.e. Bangalore Development Authority, from interfering with peaceful possession and enjoyment of schedule property was not maintainable - High Court erred in remitting matter to trial court when 16
- 17 - OS.6606/2011 suit itself was not maintainable - Constitution of India - Arts. 300-A, 226 and 136 - Civil Procedure Code, 1908, S.9"
15. In this regard, I would like to further rely on the unreported decision of Hon'ble High Court of Karnataka dated 30.03.2015 in RFA.No.406/2013 (R.Raghavendra Rao V/s Commissioner, Bangalore Development Authority), wherein referred the above said ruling of Hon'ble Supreme Court of India and observed by his lordship as under:
"It is to be noticed at the outset that one significant circumstance that a civil suit would not be maintainable in respect of lands which are subject matter of compulsory acquisition, is now the settled legal position. This may not have been taken note of by the Trial Court, as is laid down by the Apex Court in the case of 'Bangalore Development Authority and another V/s Brijesh Reddy and another) ((2013) 3 SCC 66). The very suit was not maintainable. In any event, the suits having 17
- 18 - OS.6606/2011 been dismissed on findings of fact, cannot also be faulted.
Though the learned counsel Sri.R.B.Sadasivappa would point out that there is material produced by the plaintiff to indicate that he is in settled possession and even if the Bangalore Development Authority has acquired the lands in question, the plaintiff who was in settled possession, could not be disturbed, otherwise than under due process of law. And the law does not arm the Bangalore Development Authority to take law into its own hands in forcible dispossessing the plaintiff who is in settled possession. He also seeks to rely on the judgment of this Court in the case of 'JOHN B.JAMES AND OTHERS VS. Bangalore Development Authority AND ANOTHER' (2001(2) KAR.L.J. 364) and would further contend that even on merits, the Bangalore Development Authority claiming to have acquired the land in question under a final notification of the year 1994, has not taken any steps to form any layout in the area and in which event, in terms of Section 27 of the 18
- 19 - OS.6606/2011 Bangalore Development Authority Act, the entire acquisition proceedings would lapse and the Bangalore Development Authority would have no authority to disturb the possession of the plaintiff.
Given the above circumstances and the contentions urged, it is now the settled legal position that in so far as lands which are the subject matter of acquisition proceedings, as admittedly the property claimed by the plaintiff in the present appeal was situated in the area notified for acquisition by the BDA and as claimed by the BDA, possession also having been taken, is a question which would necessarily have to be addressed in writ proceedings, if at all. In that, even after having taken possession if the BDA has failed to form a layout and the scheme has lapsed pursuant to which the lands were acquired, it has to be canvassed in the writ jurisdiction of this Court which has the jurisdiction to declare that such a turn of event has come about. While reserving such liberty to the plaintiff to avail such remedy if it is available to him in law, notwithstanding 19
- 20 - OS.6606/2011 the long lapse of time, the question is left open and may be urged before the writ court. The appeal, however, would not be maintainable and is rejected."
16. From the above decisions of Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka, it is very clear that the suit against the Bangalore Development Authority for permanent injunction is not maintainable when there was acquisition of the suit schedule property by the BDA as on the date of suit, which are aptly applicable to the case on hand. So the suit of the plaintiff before the civil court is not maintainable as the same is barred under Section 9 of the CPC and his remedy is before the Hon'ble High Court of Karnataka. Since the Land Acquisition Act is a complete code in itself and it is meant to serve public purpose, the power of civil court to take cognizance under Section 9 of CPC stands excluded and the civil court has no jurisdiction to try the suit and there is no cause of action to file the suit as the suit schedule property vests with the defendant. Hence, in the 20
- 21 - OS.6606/2011 facts and circumstances of the case the question of considering the Issue Nos.1 and 2 do not arise for consideration. So, Issue Nos.1 and 2 are answered as do not arise for consideration and Issue No.3 is answered in the affirmative.
17. ISSUE NO.4:- In view of my findings on Issue Nos.1 and 2 as do not arise for consideration and against the plaintiff, the suit of the plaintiff has to be dismissed without costs. Hence, Issue No.4 is answered in the negative.
18. ISSUE NO.5: In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed.
Under the circumstances of the case, no order as to costs.21
- 22 - OS.6606/2011 Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 13th day of December 2017).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Krishnappa
P.W.2 Y. Suryanarayana
b) Defendant's side:
NIL
II.List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 & 2 Enumeration Forms
Ex.P.3 Acknowledging of police complaint
Ex.P.4 to 10 Electricity bills
Ex.P.11 & 12 Two electricity bill paid receipts
22
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Ex.P.13 General Power of Attorney
Ex.P.14 Deed dated 18.7.1957
Ex.P.15 C/c of partition deed dated
25.8.2006
Ex.P.16 to 19 4 tax paid receipts
Ex.P.20 Encumbrance certificate dated
2.9.2006
Ex.P.21 Application in OS.1838/1989
Ex.P.22 C/c of decree in OS.1838/1989
Ex.P.23 Revenue Sketch
Ex.P.24 Ration card
Ex.P.25 Election identity cards of Yellappa
and Suryanarayana
Ex.P.26 Electricity demand bills
Ex.P.27 Water and Sewerage Bill
Ex.P.28 Encumbrance certificate dated
8.2.2012
Ex.P.29 Tax paid receipts of 2009 and 2010
Ex.P.30 C/c of Property Register dated
11.5.2010
Ex.P.31 Tax paid receipts of 2008-09
23
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Ex.P.32 C/c of judgment in OS.4979/1989
Ex.P.33 C/c of decree in OS.4979/1989
Ex.P.34 C/c of Photos
Ex.P.35 to 39 5 Original electricity bills Ex.P.40 to 42 3 Receipts Ex.P.44 Original Aadhar Card Ex.P.45 C/c of Election identity card Ex.P.46 Original voters list Ex.P.47 Original employment cess Ex.P.48 Election ID Ex.P.49 C/c of decree in OS.1838/1989 Ex.P.50 Original gas connection Ex.P.51 to 54 Gas receipts Ex.P.55 & 56 Two BESCOM Bills Ex.P.57 BESCOM Receipt Ex.P.58 to 63 6 Photos Ex.P.64 CD of Photos 24
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b) Defendant's side :
NIL ( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 25
- 26 - OS.6606/2011 26