Bangalore District Court
Sri.Roy John Thomas vs The Bengaluru Development on 27 October, 2017
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 27th day of October 2017.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.27133/2011
Plaintiff: Sri.Roy John Thomas,
S/o.Late.Sri.K.John Thomas,
aged about 35 yrs, R/at.No.53,
Dacosta Layout, St.Thomas
Town Post, Bengaluru-560084.
Rep. by General Power of
Attorney Holder
Sri.Ranjan John Thomas,
S/o.Late.Sri.K.John Thomas,
aged about 43 yrs, R/at.No.53,
Dacosta Layout, St.Thomas
Town Post, Bengaluru-560084.
(By Sri.B.V.Rama Moorthy, Advocate)
V/S
Defendant: The Bengaluru Development
Authority, by its Commissioner,
T.Chowdaiah Road, Kumara
Park East, Bengaluru.
(By Sri.P.V.Ravindranath, Advocate)
2
O.S. No.27133/2011
Date of institution of the suit 01.12.2011
Nature of the suit (Suit for Suit for Declaration
Pro-note, Suit for Declaration & Permanent
and Possession, Suit for Injunction
Injunction, etc.)
Date of commencement of 28.01.2013
recording of the evidence
Date on which the Judgment 27.10.2017
was pronounced
Total duration Year/s Month/s Day/s
05 10 26
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking the reliefs of declaration to declare the plaintiff is the absolute owner of the suit schedule property by way of settled possession and also for permanent injunction to restrain the defendant from interfering with the possession of the plaintiff over the suit schedule property and also not to dispossess, the plaintiff from the suit schedule property and also from alienating or allotting the suit schedule property to other and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint, is as follows:-
All that piece and parcel of the partly demolished the residential building bearing No.11, in house list Khatha 3 O.S. No.27133/2011 No.760/128-1, Hennur Village, Kasaba Hobli, Bengaluru North Taluk, measuring East to West: 60 feet and North to South: 78.4 feet, and bounded on:
East by: Site No.10 belongs Sanjay John Thomas; West by: Site No.13 belongs to Ranjan John Thomas;
North by: Road; and on South by: Private Property.
3. Case of the plaintiff, in brief, is as below: -
Originally the land bearing Sy.No.36/2, (Old No.37), measuring 2 acres 6 guntas, situated at Hennur Village, Bengaluru North Taluk, belonging to Smt.Meri Bayamma and her children and they sold the same to Mrs.Sucy Koshy for valuable sale consideration vide registered sale deed dated 04.09.1964. By virtue of power of attorney Mrs.Sucy Koshy on 10.01.1980 executed in favour of Sri.George Philips, later on he has sold the entire above said land in favour of Sri.Thadathil Varghese Thomas & Sri.Varghese John for valuable sale consideration under registered sale deed dated 10.06.1980. Later on the said purchasers had formed a residential layout and sold the sites to various persons and also they sold the suit schedule property to the plaintiff under absolute registered sale deed dated 02.07.1997. The legal 4 O.S. No.27133/2011 possession was delivered legally from original owners to subsequent purchasers without any disturbances, interference from others including defendant and the schedule property was free from all encumbrances and also vacant possession was delivered to plaintiff and the said registered sale deed is in accordance with law and legally valid document and khata also stands in his name and he has paid the tax to the City Municipal Corporation & BBMP. The civic amenities authorities have given power connection and also all other amenities to the schedule property. The plaintiff has executed GPA in favour of Sri.Ranjan John Thomas. The plaintiff has constructed house in the schedule property and the plaintiff is having right, title, interest over the schedule property. The said act was not objected by the BDA since last more than 33 years. The schedule property was not acquired by BDA. The land bearing Sy.No.36/2 (Old No.37) of Hennur Village, measuring 1 acre 36 guntas was acquired by BDA by way of issuing preliminary notification and final notification in the name of Mr.Suecy Koshly and award was also passed in the name of Mr.Suecy Koshly and the said land was not acquired by the defendant. At that time 5 O.S. No.27133/2011 Mr.Suecy Koshly was not a owner of the land. The possession taken and award passed are created documents without completion of the acquisition proceedings in accordance with the provisions of the Land Acquisition Act and BDA Act. No such any documents are to show that the possession was taken mere passing a notification is not sufficient to hold that acquisition proceedings is completed; as per Section 27 of BDA Act that the scheme shall be implemented within 5 years; otherwise it would be lapsed. Accordingly, the scheme of the present suit property is also lapsed. Hence, defendant has no right over the suit schedule property. The possession of the said land is remaining with the owner of the land. It is also stated in the plaint that once both the preliminary and final notification passed taking of possession is necessary; but, in the instant case no physical possession was taken. It is in possession of the owners and the acquisition proceedings not completed on 22.10.1998. Defendant authority was appointed 3 members committee consisting of Deputy Commissioner, Engineer and Town Planning member for making necessary instruction and to report about that some of the lands in HBR I Stage fully developed 6 O.S. No.27133/2011 or built area. The committee submitted a report stating that the said land is not feasible to form the layout and the suit schedule property is situated in built up area. The entire area is developed with innumberable number of residential sites. Defendant has not conducted any mahazar etc., to show that the suit property was taken to their possession; only mentioning the papers not sufficient to come to conclusion that defendant taken a possession of it. It amounts that defendant has indirectly admitted the possession and title of the owners. The plaintiff and his vendors are continuously in possession and enjoyment of suit schedule property since last more than 3 decades by having a legal title, right and interest over it; on the date of sale deed khatha was standing in the name of original owners and the plaintiff is bonafide purchaser. The defendant never objected possession of the plaintiff or his vendors and also not objected the Bengaluru City Corporation or CMC Byatarayanapura or BBMP for accepting tax and development charges and also change of khatha all revenue records are in favour of the plaintiff and his vendors. Thus, the plaintiff is having a settled possession since long time from the date of purchase by the 7 O.S. No.27133/2011 true owner. Even defendant has not raised a objection at the time of plaintiff undertaken a construction in the suit property since last more than years and defendant has not filed any suit against the vendors or plaintiff for stopping construction. The possession of the suit property was lawfully delivered by the vendors to the plaintiff and it is adverse to the interest of defendant and also it extend till today. Basing upon the registered sale deed, khatha and all other revenue records which cannot be disturbed by the defendant without due process of law. It is also case of the plaintiff that rule of law to the spinal card of democracy and foundation of democratic society. It is basic picture of our constitution, which prevailed in it that nobody can take the law in their own hands either to dispossess or demolishing the building without following the due process of law. But, the defendant is taking law in their hands, if the construction made in suit property is demolished, plaintiff will be put into hardship and it will be against the BDA Act and constitutional rights. The Apex Court in Menaka Gandhi case while interpreting Article-21 of the Constitution of India defined about right to life and in the John.B.Jomes case of the 8 O.S. No.27133/2011 Hon'ble High Court also defined that if a person is in possession shall not be dispossessed without due course of law as per the Public Premises Act, if proved the possession from more than 12 years which will be adverse interest than the persons having possession or entitled for title and possession of the said property.
The defendant has failed to follow the directions of the Hon'ble High Court and attempted to demolish the building in brad day light after taking police protection on 22.10.2011 at about 8.30 a.m. and the officials of the defendant has partially demolished the house situated in the suit property without issuing notice to the plaintiff. Then the plaintiff opposed it by putting a fence with hard earned money. There is a imminent threat of dispossession interference by the defendant and also BDA at any time alienate or allot the said property to some others; if the same is done the 12 years possession and title of the plaintiff which is came from their earlier vendor; i.e., from the period of last 30 years; plaintiff will be put into hardship and monitory loss. Plaintiff is having a prima facie case over the suit schedule property with sufficient documents as above stated. Defendant made any attempt on 9 O.S. No.27133/2011 22.10.2011 to dispossess the plaintiff from the suit property. Hence, the cause of action arose for filing this suit for seeking declaration and permanent injunction against the defendant.
4. After issuance of the suit summons and duly served upon it, the defendant appeared through its advocate Sri.P.V.Ravindranath; thereafter the defendant has filed its WS.
5. Case of the defendant, in brief, is as below:-
This defendant contended in its WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that the land bearing Sy.No.36/2 to an extent of 1 acre 39 guntas of Hennur Village, Bengaluru North Taluk, has been acquired by the defendant authority for an improvement scheme for public purpose for the formation of a residential layout called "Hennur Bellary Road I Stage Layout". The defendant authority notified the said Sy. Nos. under preliminary notification vide BDA/ALAO/S/11/78- 79 dated 27.06.1978, which was followed by final notification No.HUD 567 MNX 84 dated 09.01.1985 and the above said entire acquired land came within above said acquisition proceedings. 10
O.S. No.27133/2011 Possession has been taken by the BDA and compensation awarded in respect of the above said acquired land; hence neither the plaintiff nor previous anubhavadar or khathedars of the said land are owners in respect of the above said land are not entitled to any claim or interest over the same. No person other than BDA has formed any sites in the said Sy.No.36/2. As such, execution of the power of attorney, sale 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 any building constructed on the said acquired land is unauthorized. Further it is contended that the BDA cannot transfer the property in favour of anybody which is illegal, such document in which the property got transferred will not be in accordance with law. Obtaining any khatha by making false representation and paying taxes in respect of the property which does not belong to him, cannot create any right in his favour and such possession if any is illegal and unauthorized and which cannot gives his any ownership. The description given in the suit schedule is not admitted by this defendant; but, admitted that in the preliminary and final notification notifying khathedar was Suey 11 O.S. No.27133/2011 Kosly as per the documents in respect of said Sy.No.36/2 and acquisition proceedings were accordingly based on records. Further it is contended that since the possession of the above said acquired land acquired by the authority vest with the defendant only, interference of the defendant authority does not arise, it is only cooked story with ulterior motive. The plaintiff is not having any legal right do any process of availing loan in any bank in respect of the said land 36/2 of Hennur Village acquired by the defendant. Thus, this defendant prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed:-
1. Whether plaintiff proves that he is lawful purchaser and owner of the suit schedule property?
2. Whether plaintiff proves that he is in settled possession of the suit schedule property from more than 12 years and alternatively he become an owner by way of adverse possession?
3. Whether defendant proves that land bearing Sy.No.36/2 of Hennur Village measuring 1 acre 39 guntas was acquired by the BDA as per Land Acquisition Act and suit property includes in it?12
O.S. No.27133/2011
4. Whether defendant proves that plaintiff is an illegal occupant of suit schedule property and his possession is deserved to be evicted?
5. Whether plaintiff is entitled to the suit reliefs as prayed for?
6. What order? What decree?
7. On behalf of the plaintiff, affidavit evidence of GPA holder of the plaintiff has been filed and he has been examined as P.W.1, affidavit evidence of plaintiff witness by name Sri.Raju.M.Varghese as a P.W.2, and also filed a another affidavit evidence of another witness by namely Sri.Kurien Varghese as a P.W.3 and Exs.P.1 to P.35 documents have been got marked.
8. On the other hand, on behalf of the defendant also, affidavit evidence of the Superintendent of the defendant authority, has been filed and he has been examined as DW.1 and Exs.D.1 to D.5 documents have been got marked.
9. Heard, the learned advocates for the plaintiff and defendant and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered.
13
O.S. No.27133/2011
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Fully Affirmative, Issue No.2: Partly Affirmative, Issue No.3: Negative, Issue No.4: Negative, Issue No.5: Affirmative, Issue No.6: As per final order, for the following:-
REASONS.
11. ISSUE No.1 to 4: All these four issues are interlinked each other; hence, for avoiding repetition I have taken up all these four issues for discussion at one stretch. In this case if the plaintiff succeeded to prove the issue No.1 and 2, then the suit will be decreed against the defendant as prayed for. On the other hand, suppose defendant succeeded to prove the defence taken in their WS, then issue No.3 & 4 will be answered in favour of the defendant as a Affirmative and suit of the plaintiff will be 14 O.S. No.27133/2011 dismissed. In order to prove the case of plaintiff the general power of attorney holder of plaintiff got examined as a P.W.1; he has reiterated the plaint averments in his affidavit evidence that originally the land bearing Sy.No.36/2, (Old No.37), measuring 2 acres 4 guntas, situated at Hennur Village, Bengaluru North Taluk, was belonging to Smt.Meri Bayamma and her children and they sold the same to Mrs.Sucy Koshy for valuable sale consideration vide registered sale deed dated 04.09.1964. P.W.1 further stated in his chief-examination that by virtue of power of attorney Mrs.Sucy Koshy on 10.01.1980 executed in favour of Sri.George Philips, later on he has sold the entire above said land in favour of Sri.Thadathil Varghese Thomas & Sri.Varghese John for valuable sale consideration under registered sale deed dated 10.06.1980. Later on the said purchasers had formed a residential layout and sold the sites to various persons and also they sold the suit schedule property to the plaintiff under absolute registered sale deed dated 02.07.1997. It is also stated by the P.W.1 that the legal possession was delivered legally from original owners to subsequent purchasers without any disturbances, interference from others 15 O.S. No.27133/2011 including defendant and the schedule property was free from all encumbrances and also vacant possession was delivered to plaintiff and the said registered sale deed is in accordance with law and legally valid document and khata also stands in his name and he has paid the tax to the City Municipal Corporation & BBMP. The civic amenities authorities have given power connection and also all other amenities to the schedule property. The plaintiff has executed GPA in his favour. P.W.1 further stated in his chief- examination that the plaintiff has constructed house in the schedule property and the plaintiff is having right, title, interest over the schedule property. The said act was not objected by the BDA since last more than 33 years. The schedule property was not acquired by BDA. It is also stated by the P.W.1 that as on the date of issue of preliminary notification Mrs.Sucy Koshy was the notified as a khatadar of the land bearing Sy.No.36/2 (Old No.37) measuring 2 acres 4 guntas of Hennur Village and not Mrs.Suey Kosly. The boundaries mentioned in preliminary notification and final notification are entirely different from the boundaries mentioned in the sale deed dated 04.09.1964. Even the defendant authority has 16 O.S. No.27133/2011 also admitted that, Sucy Koshy was the notified khatadar of the land bearing Sy.No.36/2 of Hennur Village. The Suey Kosly is/was no where concern to the land belongs to Sucy Koshy; hence the BDA has not acquired the suit schedule property. P.W.1 further stated in his chief-examination that the land bearing Sy.No.36/2 (Old No.37) of Hennur Village, measuring 1 acre 36 guntas was acquired by BDA by way of issuing preliminary notification and final notification in the name of Mr.Suecy Koshly and award was also passed in the name of Mr.Suecy Koshly and the said land was not acquired by the defendant. At that time Mr.Suecy Koshly was not a owner of the land. The possession taken and award passed are created documents without completion of the acquisition proceedings in accordance with the provisions of the Land Acquisition Act and BDA Act. No such any documents are to show that the possession was taken mere passing a notification is not sufficient to hold that acquisition proceedings is completed; as per Section 27 of BDA Act that the scheme shall be implemented within 5 years; otherwise it would be lapsed. Accordingly, the scheme of the present suit property is also lapsed. 17
O.S. No.27133/2011 Hence, defendant has no right over the suit schedule property. It is also stated by the P.W.1 that the possession of the said land is remaining with the owner of the land. Once both the preliminary and final notification passed, taking of possession is necessary; but, in the instant case no physical possession was taken. It is in possession of the owners and the acquisition proceedings not completed. On 22.10.1998 defendant authority was appointed 3 members committee consisting of Deputy Commissioner, Engineer and Town Planning member for making necessary instruction and to report about that some of the lands in HBR I Stage fully developed or built area. The committee submitted a report stating that the said land is not feasible to form the layout and the suit schedule property is situated in built up area. The entire area is developed with innumerable number of residential sites. P.W.1 further stated in his chief-examination that the defendant has not conducted any mahazar etc., to show that the suit property was taken to their possession; only mentioning in the papers not sufficient to come to conclusion that defendant taken a possession of it. It amounts that defendant has indirectly admitted the 18 O.S. No.27133/2011 possession and title of the owners. The plaintiff and his vendors are continuously in possession and enjoyment of suit schedule property since last more than 3 decades by having a legal title, right and interest over it; on the date of sale deed khatha was standing in the name of original owners and the plaintiff is bonafide purchaser. The defendant never objected possession of the plaintiff or his vendors and also not objected the Bengaluru City Corporation or CMC Byatarayanapura or BBMP for accepting tax and development charges and also change of khatha all revenue records are in favour of the plaintiff and his vendors. Thus, the plaintiff is having a settled possession since long time from the date of purchase by the true owner. Even defendant has not raised a objection at the time of plaintiff undertaken a construction in the suit property since last more than years and defendant has not filed any suit against the vendors or plaintiff for stopping construction. It is also stated by the P.W.1 that the possession of the suit property was lawfully delivered by the vendors to the plaintiff and it is adverse to the interest of defendant and also it is extended till today. Basing upon the registered sale deed, khatha and all other 19 O.S. No.27133/2011 revenue records which cannot be disturbed by the defendant without due process of law. P.W.1 further stated in his chief- examination that rule of law to the spinal card of democracy and foundation of democratic society. It is basic picture of our constitution, which prevailed in it that nobody can take the law in their own hands either to dispossess or demolishing the building without following the due process of law. But, the defendant is taking law in their hands, if the construction made in suit property is demolished, plaintiff will be put into hardship and it will be against the constitutional rights. The Apex Court in Menaka Gandhi case while interpreting Article-21 of the Constitution of India defined about right to life and in the John.B.Jomes case of the Hon'ble High Court also defined that if a person is in possession shall not be dispossessed without due course of law as per the Public Premises Act, if proved the possession from more than 12 years which will be adverse interest than the persons having possession or entitled for title and possession of the said property. The defendant has failed to follow the directions of the Hon'ble High Court and attempted to demolish the building in brad day 20 O.S. No.27133/2011 light after taking police protection on 22.10.2011 at about 8.30 a.m. and the officials of the defendant has partially demolished the house situated in the suit property without issuing notice to the plaintiff. Then the plaintiff opposed it by putting a fence with hard earned money. There is a imminent threat of dispossession interference by the defendant and also BDA at any time alienate or allot the said property to some others; if the same is done the 12 years possession and title of the plaintiff which is came from their earlier vendor; i.e., from the period of last 30 years; plaintiff will be put into hardship and monitory loss. Plaintiff is having a prima facie case over the suit schedule property with sufficient documents as above stated and he prays to decree the suit.
12. Further the plaintiff has got examined the one Raju.M.Varghese and Kurien Varghese on his behalf as a P.W.2 and P.W.3; they have specifically stated in their affidavit evidence that the suit schedule property is situated in Sy.36/2 of Hennur Village; it was purchased by Sucy Koshy from Bayamma and others. Koshy has executed a GPA in favour of George Philips; on the strength of the said GPA George sold the said land in favour of 21 O.S. No.27133/2011 Thadathil Varghese Thomas and Mr.Varghese John under registered sale deed dated 10.06.1980; they formed layout and sold the different sites to the different persons. Later on they have sold the suit schedule property in favour of plaintiff under registered sale deed dated 02.07.1997. The name of Mrs.Sucy Koshy was not notified in preliminary, final notification and also not passed award in her name. No possession was taken from Mrs.Sucy Koshy; hence the said land belongs to Mrs.Sucy Koshy was not acquired by BDA and the defendant authority has no right over the suit schedule property. P.W.2 and P.W.3 stated that they are the partners of Venus Suits Pvt. Ltd., which is situated in Sy.No.36/2 of Hennur Village have filed suits against BDA; i.e., O.S. No.26508/2011 and the said suits were decreed by giving a finding that land Sy.No.36/2 of Hennur Village belongs to Mrs.Sucy Koshy was not notified in the alleged notification. The plaintiff has put up a construction in the suit property as a residential building and plaintiff is in possession and enjoyment of suit schedule property, even today also plaintiff is in lawful possession and enjoyment of suit schedule property. BDA has not acquired 22 O.S. No.27133/2011 the above said Sy. number from its original owners, which is a entire developed and built up area. The plaintiff has got fenced to the property of the plaintiff and enjoying the same.
13. Upon perusal of the cross-examination of P.W.1 denied that measuring 1 acre 39 gunta of Sy.No.36/2 belonging to Hennur Village of Bengaluru is acquired by the BDA on 27.6.1978 by following the due process of acquisition and acquired the same. It is also denied that on 27.06.1978 and 9.1.1985 defendant had got issued a preliminary notification and final notification for acquiring the above said survey number and it is also denied that plaintiff has not constructed the building in suit property and plaintiff is colluding with the town planning authority created a false documents before filing a suit against the defendant without having any right and interest over the suit schedule property. But, it is admitted that he has stated in his sworn affidavit evidence that suit schedule property is purchased by the plaintiff of this suit from the some other private layout owners. It is also stated that plaintiff has purchased the suit schedule property in the year 1997 under the registered sale deed from Thadathil Varghese Thomas and 23 O.S. No.27133/2011 Varghese John and it is also denied that both the said persons were not the owners of the suit schedule property on the date of execution of the registered sale deed in favour of the plaintiff property and they have not formed the private layout. On account of that, they had no legal right to execute the sale deed in favour of anybody for making the sale transaction. It is also denied that in the year 1985 BDA has acquired the land of Hennur Village for the purpose of forming the BDA layout; but it is stated that one Suey Kosly was the owner of the above said land measuring 1 acre 39 gunta and it is denied that the BDA has acquired the land measuring 1 acre 39 gunta for the purpose of formation of the layout by notifying the preliminary notification and final notification. It is also denied that Sucy Koshy was never owner of the above said land and both Thadathil Varghese Thomas and Varghese John had no right to purchase the same from the Sucy Koshy and there was no such any land to the Suey Kosly after acquiring the land measuring 1 acre 39 gunta in the year 1985 under final notification. It is also denied that there was no any power of attorney or a sale transaction documents were executed 24 O.S. No.27133/2011 by the original owner of the said land in favour of the above said persons. It is also denied that the plaintiff has no any right to make any construction in the suit schedule property belonging to the defendant. Accordingly, he has no right to pay any tax to the BBMP or any City Corporation. It is further denied that he has illegally constructed the building in the suit schedule property. Even upon perusal of the cross-examination of P.W.2 and P.W.3 also disclosing the same cross-examination answers of P.W.1 to the counsel for the defendant, there is no any difference in between the cross-examination of P.W.1 to P.W.3. It is their total case that suit property is purchased by the plaintiff from its original vendors and he is in peaceful possession and enjoyment over it by got constructing the construction and the defendant is not having any right, interest, title over the said property; no any preliminary or final notifications are got published and also the above said survey number is not at all acquired by the BDA etc.
14. The plaintiff has produced the original registered sale deed executed by Thadathil Varghese Thomas and Varghese John in favour of the Roy John Thomas/plaintiff in respect of residential 25 O.S. No.27133/2011 building site No.11 in House List Khatha No.760/128-1, Hennur Village, Kasaba Hobli, Bengaluru North Taluk, measuring East- West: 60 ft., North-South: 78.4 ft., total area measuring 4704 sq ft., bounded by East: Site No.10, belongs to Sri.Sanjay John Thomas, West by: Site No.13, belongs to Sri.Ranjan John Thomas, North by: Road, South by: Private Road. In the said property there is a 2 square built up house with mud and brick in the year 1974 and the roof is of the asbestos sheet with jungle wood doors and there is no civic amenities. Plaintiff has produced the another document of self tax assessment Form No.III issued by the Commissioner of City Municipality, Byatarayanapura, Bengaluru, which is issued on 7.07.2004 in respect of site No.11 and standing in the name of plaintiff only; tax is paid for 2003-04. Ex.P.4 are also a tax-paid receipts of the same property for the year 2003-04 to 2012-13; even in the said documents also the name of the plaintiff is shown as a owner and possessor of the property site No.11/760/128/1. Ex.P.6 is the certified copy of GPA executed by plaintiff Roy John Thomas and Mr.Sanjay John Thomas in favour of the Ranjan John Thomas by delivering rights over the suit schedule property with 26 O.S. No.27133/2011 terms and conditions that the said Ranjan Thomas can represent for them to open the bank accounts in their name and to receive, deposit or withdraw any amount and to sign the cheques, pro-notes and mortgage the immovable property by taking loans etc., and other powers appearing before the income tax and sale tax authorities including executing the any sale of agreements and payment of tax etc., in respect of the suit schedule property. The other certified copies of sale deeds Ex.P.1 dated 4.9.1964-65 and Ex.P.2 dated 4.2.1980 regarding a alienation of the suit schedule properties as mentioned in the plaint. Ex.P.6 and Ex.P.7 are the B- property extracts of the suit schedule property site No.11- 760/128/1. Ex.P.9 to P.19 are the certified copies of judgment and decrees of the other similar suits like this suit is filed against defendant for seeking a permanent injunction in respect of respective sites and buildings situated in Sy.No.34 which is having a khata No.560 to 563 in Royal Towers of Hennur Village, Kasaba Hobli, Bengaluru North Taluk, measuring 18,000 sq ft and the apartments bearing site No.19 to 22 situated at Hennur, Kasaba Hobli, Bengaluru North Taluk, and other sale deeds to show that all 27 O.S. No.27133/2011 the suits were filed against the BDA for claiming the permanent injunction against the BDA for restraining for interfering or causing any damage to the building situated in the said properties etc. The said suits are decreed by granting a perpetual injunction in favour of the concerned suits plaintiffs by holding that the said plaintiffs being a possession of the respective suit properties as they are in possession and enjoyment of the same by relying upon the above said documents and other documents of depositions of one R.Renukappa given a evidence in O.S. No.27068/2011 and Ex.P.26 a certified copy of evidence given by the same person in O.S. No.26878/2011 and in O.S. No.26899/2011 and in O.S. No.26902/2011 and also in O.S. No.26879/2011 in respect of the properties upon which plaintiff witness of the said suits given a evidence against the BDA. In the said suits Renukappa, who is represented for the BDA he sworn in affidavit para No.3 that the respective suit schedule properties coming in Sy.No.36/2 of Hennur Village, which are acquired and formed the sites and he tried to say that all the suit schedule properties of the respective suits are in possession and enjoyment of the defendants and given 28 O.S. No.27133/2011 evidence as a D.W.1. Ex.P.30 is the tax-paid receipt of the suit schedule property for the year 2015-16 and Ex.P.31 is the encumbrance certificate issued on 30.10.2015 by the Sub-Registrar, Shivajinagar (Banaswadi), Bengaluru, for the period from 01.04.2004 to 29.10.2015 in respect of suit schedule property and it is standing in the name of plaintiff. Further the plaintiffs have produced the colour photographs Ex.P.32 & 33 are the photographs of the suit schedule property and Ex.P.35 is a certified copy of letter written by the Addl.Land Acquisition Officer, Bengaluru, to the LN Puram Pavan School, situated in site No.509/12 one Smt.M.Manjula. In the certified copy of Ex.P.35 it is stated that Sy.No.36/2 of the Hennur Village, is measuring 1 acre 19 guntas as per the records and according to the documents one Sucy Koshy become the owner and possessor of the suit schedule property; but the name of Sucy Koshy is appearing as a scheduled possessor of the respective properties and wherein it is also stated that the property belonging to Mrs.Sucy Koshy is not acquired by the BDA and the property of the Sucy Koshy is not belonging to the BDA. The suit property of the present suit is also relating to the above 29 O.S. No.27133/2011 said Survey number of Hennur Village. Even in the above said suit XIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru, it is held that suit survey number 36/2, Old No.37 of Hennur Village, for which having obtained a decree against the BDA and P.W.1 relied on the number of documents of sale deed from the period of their original vendor to till his purchase of the suit property. Accordingly, the plaintiff is appearing being a owner and in possession of the suit schedule property. P.W.2 and P.W.3 of the above said suit also supported the case of the plaintiff in the said suit.
15. On the other hand, the Superintendent in the office of the ALAO Section, Bengaluru Development Authority Sri.Ananda.V., given his evidence as a D.W.1 by stating that the land bearing Sy.No.36/2 to an extent of 1 acre 39 guntas of Hennur Village, Bengaluru North Taluk, has been acquired by the defendant authority for an improvement scheme for public purpose for the formation of a residential layout called "Hennur Bellary Road I Stage Layout". The defendant authority notified the said Sy. Nos. under preliminary notification vide BDA/ALAO/S/11/78- 30 O.S. No.27133/2011 79 dated 27.06.1978, which was followed by final notification No.HUD 567 MNX 84 dated 09.01.1985 and the above said entire acquired land came within above said acquisition proceedings. Possession has been taken by the BDA and compensation awarded in respect of the above said acquired land; hence neither the plaintiff nor previous anubhavadar or khathedars of the said land are owners in respect of the above said land are not entitled to any claim or interest over the same. No person other than BDA has formed any sites in the said Sy.No.36/2. As such, execution of the power of attorney, sale 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 any building constructed on the said acquired land is unauthorized. It is also he stated that the BDA cannot transfer the property in favour of anybody which is illegal, such document in which the property got transferred will not be in accordance with law. Obtaining any khatha by making false representation and paying taxes in respect of the property which does not belong to him, cannot create any right in his favour and such possession if any is illegal and unauthorized and which 31 O.S. No.27133/2011 cannot gives his any ownership. The description given in the suit schedule is not admitted by this defendant. The preliminary and final notification notifying khathedar was Suey Kosly as per the documents in respect of said Sy.No.36/2 and acquisition proceedings were accordingly based on records. It is also he stated that since the possession of the above said acquired land acquired by the authority vest with the defendant only, interference of the defendant authority does not arise, it is only cooked story with ulterior motive. The plaintiff is not having any legal right do any process of availing loan in any bank in respect of the said land 36/2 of Hennur Village acquired by the defendant and prays to dismiss the suit.
16. Upon perusal of the cross-examination of the D.W.1 he stated that he has not seen the suit schedule property personally; but, giving evidence on the available land acquisition documents of their office and he knows the everything process of preliminary notification and final notification conducted for acquisition of Sy.No.36/2 of Hennur Village, which is acquired by the Suey Kosly. It is also answered in the cross-examination that according 32 O.S. No.27133/2011 to the documents of notification at Sl.No.15 land Sy.No.36/2 of Hennur Village is standing in the name of Suey Kosly and which is measuring 1 acre 39 gunta acquired by the BDA for the formation of the layout. It is also admitted that towards Eastern side of the said land, a land of one Kempanna and Puttanna Sy.No.35 is situated, towards Western side there is being Sy.No.34 and public road and in Sy.No.34 made a 10 hissas and Sy.No.34/1 is standing in the name of Devamma as a owner of the said property; towards Southern side a boundary of the Kacharakanahalli is situated. It is also admitted that in Ex.P.1 and P.2 a total land of Sy.No.36/2, 2 acre 4 gunta is purchased by one Sucy Koshy and as per Ex.P.2 later on Meri Bayamma and others purchased the said land in the year 1964 under the registered sale deed. It is also admitted that towards Eastern side of Sy.No.36/2 measuring 2 acres 4 gunta of Hennur Village there is situated a land of one Venkatappa Sy.No.36/4 and its original owner name is mentioned as a Vemanna; towards Western side of the said land a main road is mentioned and towards Northern side land of Annayya and Southern side a boundary of the Kacharakanahalli and land of 33 O.S. No.27133/2011 Kyakappa mentioned. It is also admitted that as per Ex.P.3 above said lands Sy.No.36/2 measuring 2 acre 4 gunta is owned by Smt.Sucy Koshy and she executed a GPA in favour of George Phillips; in turn George Phillips executed a GPA in favour of Thadathil Varghese and Varghese John and further admitted that in Ex.D.1 to D.3 there is not mentioned as measuring 2 acre 4 gunta of the Sy.No.36/2 is acquired. Further it is admitted that in Ex.P.20 legal opinion/notice issued by the BDA at page No.3 para No.4 not mentioned that a land of Sucy Koshy of Hennur Village is acquired for the defendant by the BDA and it is also admitted that in Ex.P.21 at page No.1 para No.1 mentioned that measuring 2 acre 4 gunta of land Sy.No.36/2 is belonging to Meri Bayamma and her children and they have sold the said property in the year 1964 in favour of Sucy Koshy and in turn GPA executed by Sucy Koshy in favour of George Phillips and the said George Phillips executed a GPA in favour of Thadathil Varghese Thomas and Varghese John in respect of the said property and the same is mentioned in the legal opinion. It is also admitted by the D.W.1 that in the same para; i.e., in the land of Sucy Koshy a 15 apartment are constructed 34 O.S. No.27133/2011 by the Veenus Suits Pvt. Ltd., and it is also admitted that earlier to him one Renukappa was giving a evidence in all BDA cases. It is answered by the D.W.1 that he does not know the what evidence given by Renukappa in other cases regarding the land of Sucy Koshy and BDA and he cannot say about his evidence without looking the necessary documents. It is also admitted that in Ex.D.2 to 4 a name of Sucy Koshy is not mentioned and her land of 2 acre 4 gunta of Hennur Village is not mentioned in any BDA records including the measurement and boundaries of the said land of Sucy Koshy and it is also admitted that their BDA authority has not produced a land acquisition panchanama conducted by the Land Acquisition Officer and his officials. In this case, in support of the case of defendant, the counsel for the defendant relied on ruling reported in (2013) 3 Supreme Court Cases, Commissioner of BDA and another v/s Brejesh Reddy and another, about which it was held that, the said citation is not helpful to the defendant; because, the plaintiff of this suit produced the number of documents Ex.P.1 to 35 to show that the plaintiff is a purchaser of the suit schedule property from Thadathil Varghese Thomas and a Varghese John, 35 O.S. No.27133/2011 who are the purchasers from the George Phillips under the GPA; a necessary document of GPA executed by Sucy Koshy in favour of the George Phillips also produced in this case, which the above discussed documents are disclosing that the plaintiff is came in possession of the suit schedule property by way of purchase and later on got mutated the same in his name in the BBMP records and obtained the necessary civic amenities from the concerned office; the said documents and photographs produced by the plaintiff, which are at Ex.P.1 to P.35 are disclosing that plaintiff is in settled and peaceful possession and enjoyment of the suit schedule property as on the date of suit. The very defence taken by the defendant in WS and chief-examination of the D.W.1 disclosing that the right, title and interest of the plaintiff over the suit schedule property is disputed with a contention that the same is coming in the BDA acquired property. It itself shows that the defendant might have caused the threat to demolish and dispossess the plaintiff from the suit schedule property. The counsel for the plaintiff produced a number of judgments delivered by the various court of City Civil Court by submitting the written argument with 36 O.S. No.27133/2011 a contention that the same evidence is posed in the above discussed suits and considering the prima facie of lawful purchase and possession of the parties from the date of purchase till filing the suit and considering the objection raised by the BDA regarding causing obstruction to dispose and transfer the said property in favour of somebody as averred in the plaint of the respective suit, with the above said observation, the respective suits are decreed against the BDA. The rulings relied by the plaintiff in the above said judgments of the various suit are relied in the present suit in hand. The same are reproduced here;
1) AIR 1972 Supreme Court Page 2299.
2) 1989 Vol.4 SCC 131 (Krishna Ram Mahale(Dead) by his LRs v/s Mrs.Shobha Venkat Rao).
3) AIR Supreme Court Page 1674 (Puran Singh and others v/s The State of Punjab).
4) AIR 1986 Karnataka 194 (M/s.Patil Exhibitors (Pvt.) v/s The Corporation of the City of Bengaluru).
5) AIR 1999 Karnataka 1451.
6) 2005 (2) KCCR 1134 (D.Naryanappa v/s The State of Karnataka and others).
7) ILR 2000 Joh. B James Case.
37
O.S. No.27133/2011
8) ILR 1990 Karnataka Page 3148 (IIM Employees Association v/s Indian Institute of Management).
9) ILR 2000 Page 435 (P.Prabhavathi and another v/s Divisional Controller and others).
10) 2005 (2) KCCR 1134.
11) ILR 2011 Karnataka Page 3657 (Sri.R.Adikesavalu Naidu and others v/s The State of Kar. By its Secretary, U.D.D. and others).
12) ILR 2011 Karnataka Page 574 (Mrs.Poornima Girish v/s Revenue Department, Government of Karnataka and others).
13) 2011 (5) KLJ 524 (Adikesavalu Naidu and others v/s State of Karnataka and others).
14) ILR 2005 Karnataka 295 (D.Narayanappa v/s State of Karnataka).
15) AIR 1963 Bombay Page 100 (Jaiprakash Mangilal Agarwal v/s Smt.Lilabai and another).
16) AIR 1980 Kerala Page 224 (Karthiyayani Amma v/s Govindan).
All the above said citations are aptly applicable to the case of the plaintiff. During the cross-examination of P.W.1 to P.W.3 none of the single admissions taken from their mouth that the defendants have acquired the suit property layout and preliminary and final notification is published about the suit schedule property and 38 O.S. No.27133/2011 plaintiff has not legally purchased the suit schedule property from his original vendors till his purchase and also he is not in physical possession and enjoyment of the suit schedule property since last 12 years. It is appearing in this case that D.W.1 has given a evidence as contended in their WS by stating that preliminary and final notification was published for acquiring the above said survey number including the suit schedule property and compensation award is also paid to the owners of the above said survey numbers. Neither the plaintiff nor any his previous owners owned the suit schedule property as pleaded in the plaint and they are not entitled for claiming the right, title, interest over the suit schedule property and they never in possession and enjoyment of the same. Thus, the counsel for the defendant has submitted the Notification No.BDA/ALAO/S/11/78-79, dated 27th June 1978. Accordingly, in the above said notification appears survey No.36/2 measuring 1 acre 39 guntas of Hennur Village, Bengaluru North Taluk, is acquired by the BDA in the year 1984-1985 and further relied on Supreme Court Judgment of AIR 1995 Supreme Court Page No.1955 in Civil Appeal No.5753/1995 dated 27th April 1995 in 39 O.S. No.27133/2011 the case of State of Bihar v/s Dhirendra Kumar and others, wherein held that "the validity of the preliminary and final notification has to be decided by the only High Court, civil court are not having jurisdiction to go into the said matter, etc." It is also crystal and clear that defendant has not produced any documents to show that the suit schedule property of the plaintiff is coming within the acquired land and it was allotted to specific beneficiary and the plaintiff has illegally occupied the same by depriving the right of beneficiary etc. Under such circumstances, the above said documents of the defendant and citations relied by the defendant are not helpful to the case of defendant. On the other hand, the above discussed number of citations relied by the plaintiff advocate will help to the case of plaintiff. Under such circumstances, it is crystal and clear that the defendant has not succeeded to disprove the possession, right, title and enjoyment of plaintiff over the suit schedule property and the same is proved by the P.W.1 and his witnesses P.W.2 and P.W.3 and through the above discussed plaintiff's documents Exs.P.1 to P.35. Thus, the plaintiff has successfully proved his title, settled possession and purchasing of 40 O.S. No.27133/2011 the suit schedule property from its original owners and also a possession and enjoyment of the plaintiff over the suit schedule property. However, it is appearing in this case through the oral and documentary evidence of the plaintiff he is in continuous possession of the suit schedule property from the date of purchase till filing the suit, which discloses that he is in possession of the suit schedule property; but it cannot be said as plaintiff become a owner to the suit schedule property by way of adverse possession; since nowhere defendant admitted in the WS and oral evidence as the plaintiff is being in possession of the suit schedule property from more than 12 years. Under such circumstances it cannot be said that the plaintiff has succeeded to prove the plea of adverse possession against the defendant. Therefore, I would like to answer issue No.1 Fully Affirmative and issue No.2 Partly Affirmative and issue No.3 and 4 against the defendant as a Negative.
17. ISSUE No.5: P.W.1 to P.W.3 stated in their affidavit evidence that the officials of the defendant has attempted to demolish the building of the plaintiff situated in suit property in 41 O.S. No.27133/2011 brad day light after taking police protection on 22.10.2011 at about 8.30 a.m. and the officials of the defendant have partially demolished the house situated in the suit property without issuing notice to the plaintiff. Then the plaintiff opposed it by putting a fence with hard earned money. There is a imminent threat of dispossession interference by the defendant and also BDA at any time alienate or allot the said property to some others; if the same is done the 12 years possession and title of the plaintiff which is came from their earlier vendor; i.e., from the period of last 30 years will be loosen by the plaintiff and plaintiff will be put into hardship and monitory loss. Plaintiff is having a prima facie case over the suit schedule property with sufficient documents as above stated. Defendant made an attempt on 22.10.2011 to dispossess the plaintiff from the suit property. Hence, the cause of action arose for filing this suit for seeking declaration and permanent injunction against the defendant. The above said allegations made out against the defendant not disproved in the cross-examination of the P.W.1 to P.W.3 as the defendant has not caused the interference and not partially demolished the building of the plaintiff. It is pertinent to 42 O.S. No.27133/2011 note that only the defendant has denied the allegation of interference of the plaintiff by taking a contention that the said property is acquired by the BDA and the plaintiff is not having any right, title, interest, possession over it. On the other hand, the plaintiff has produced the number of colour photos to show that defendant has taken a steps for demolishing the portion of the plaintiff's house property situated in suit property. The above said oral evidence of P.W.1 to P.W.3 itself shows that the defendant has caused a alleged interference to the plaintiff. Further I would like to say that as already above discussed, it is held that the plaintiff is the absolute owner and in settled possession of the suit schedule property, which is not at all disproved by the defendant, when the ownership and possession is with the plaintiff and the interference of the defendant is also successfully proved by the plaintiff; it is clear that the plaintiff is entitled for the permanent injunction against the defendant as prayed for. Hence, I would like to answer issue No.5 in favour of the plaintiff as a Affirmative.
18. ISSUE No.6: In view of my findings given to above said issue Nos.1 to 5, I proceed to pass the following:- 43
O.S. No.27133/2011 ORDER.
Suit of the plaintiff is partly decreed with costs.
It is declared that plaintiff is absolute owner of the suit schedule property by way of settled possession.
Defendant and its representatives or its officials anybody claiming through the defendant are hereby permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also dispossessing the plaintiff from the suit property. Further it is ordered that the defendant and its representatives or its officials anybody claiming through the defendant are hereby permanently restrained from alienating or allotting the suit schedule property to any other person.
Advocate fee is fixed at Rs.1,000/-.44
O.S. No.27133/2011 Draw the decree accordingly.
(Dictation computerized by Stenographer, corrected and then pronounced by me in the open court on this, the 27th day of October, 2017).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - Sri.Ranjan John Thomas
P.W.2 - Sri.Raju.M.Varghese
P.W.3 - Sri.Kurien Varghese
List of documents exhibited for the plaintiff:
Ex.P.1 - C/C of sale deed dated 4.9.64
Ex.P.2 - C/C of sale deed dated 10.6.80
Ex.P.3 - Original sale deed dated 2.7.97
Ex.P.4 - Tax-paid receipts
Ex.P.5 - Self assessment tax demand register
Ex.P.6 & 7 - Form-B property registers
Ex.P.8 - C/C of GPA
Ex.P.9 & 10 - C/C of judgment & decree in
O.S.No.27068/2011
Ex.P.11 & 12 - C/C of judgment & decree in
O.S.No.26879/2011
Ex.P.13 & 14 - C/C of judgment & decree in
O.S.No.26878/2011
Ex.P.15 & 16 - C/C of judgment & decree in
O.S.No.26902/2011
45
O.S. No.27133/2011
Ex.P.17 & 18 - C/C of judgment & decree in
O.S.No.26899/2011
Ex.P.19 - C/C of judgment in O.S.No.26508/2011
Ex.P.20 & 21 - Notice/Legal Opinion & Tippani
Ex.P.22 & 23 - C/C of plaint and order sheet in O.S.
No.26134/2013
Ex.P.24 - C/C of judgment in O.S.No.26962/2011
Ex.P.25 - C/C of affidavit evidence of D.W.1 in
O.S. No.27068/2011
Ex.P.26 - C/C of affidavit evidence of D.W.1 in
O.S. No.26878/2011
Ex.P.27 - C/C of affidavit evidence of D.W.1 in
O.S. No.26899/2011
Ex.P.28 - C/C of affidavit evidence of D.W.1 in
O.S. No.26902/2011
Ex.P.29 - C/C of affidavit evidence of D.W.1 in
O.S. No.26879/2011
Ex.P.30 - Tax-paid receipt
Ex.P.31 - Encumbrance Certificate
Ex.P.32 & 33 - Colour photos
Ex.P.34 - CD
Ex.P.35 - C/C of letter dated 8.12.11 by BDA to
Smt.Manjula
List of witness examined for the defendant:
D.W.1 - Sri.Ananda.V.
List of documents exhibited for the defendant:
Ex.D.1 - C/C of Authorization letter dated
31.7.17
Ex.D.2 - C/C of Preliminary Notification
Ex.D.3 - C/C of Final Notification
Ex.D.4 - C/C of register of land notified &
acquired purposes and compensation
paid therefore
46
O.S. No.27133/2011
Ex.D.5 - C/C of Section 16 (2) Notification
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
47
O.S. No.27133/2011