Karnataka High Court
Sri. Venkatesh Reddy vs R. Gopala Krishna on 10 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 750 OF 2022
C/W
REGULAR FIRST APPEAL NO. 760 OF 2022
C/W
REGULAR FIRST APPEAL NO. 762 OF 2022
IN REGULAR FIRST APPEAL NO.750/2022
BETWEEN:
SRI. VENKATESH REDDY
S/O LATE H.M.HANUMA REDDY,
AGED ABOUT 65 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE, ITPL ROAD,
BANGALORE - 560 037.
SINCE DEAD, BY HIS LEGAL REPRESENTATIVE/HEIR
SMT. BHAGYALAKSHMI
W/O SRI. VENKATESH REDDY,
AGED ABOUT 65 YEARS,
R/AT NO.2, SLV PLAZA, ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE,
ITPL ROAD, BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
2
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE-73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA, AUSTIN TOWN,
BANGALORE - 47.
4. SRI. S.BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417, HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 - SERVICE OF NOTICE IS DISPENSED WITH VIDE
COURT ORDER DATED 21/09/2023)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5725/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
3
IN REGULAR FIRST APPEAL NO.760/2022
BETWEEN:
SMT. BHAGYALAKSHMI
W/O SRI. VENKATESH REDDY,
AGED ABOUT 55 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE,
ITPL ROAD, BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE - 73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA,
AUSTIN TOWN,
BANGALORE - 47.
4
4.
SRI. S. BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417, HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 IS SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5727/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
IN REGULAR FIRST APPEAL NO.762/2022
BETWEEN:
SMT. KAVITHA REDDY
W/O SRI. SRIKANTH,
AGED ABOUT 37 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE, ITPL ROAD,
BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
5
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE - 73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA,
AUSTIN TOWN, BANGALORE - 47.
4. SRI. S. BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417,
HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 - SERVICE OF NOTICE IS DISPENSED WITH VIDE
COURT ORDER DATED 21/09/2023)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5729/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 15.03.2024 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
6
RESERVED FOR ORDERS ON: 15.03.2024
PRONOUNCED ON : 10.06.2024
JUDGMENT
These three appeals are filed by the appellants- plaintiffs under Section 96 of CPC for setting aside the judgment and decree passed by the XXXIX Additional City Civil and Sessions Judge, Bengaluru in O.S. Nos.5725/2014, 5727/2014 and 5729/2014 for having dismissed the suit of the plaintiffs vide judgment dated 25.11.2021.
2. Heard the arguments of learned counsel for the appellants and learned counsel for the respondents.
3. The appellants are the plaintiffs and the respondents are the defendants before the trial Court 7 and the rank of the parties, before the trial Court, is retained for convenience.
4. The brief facts of the case of the plaintiff in O.S. No.5725/2014 (R.F.A No.750/2022) is that the plaintiff filed a suit for bare injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the property bearing site No.2, Khatha No.121, property No.121 situated at Kundalahallil village, K.R. Puram Hobli, now comes under the BBMP limits, measuring East to West 50 feet and North to South 45 feet, in all measuring 2250 square feet and four shops constructed thereon (hereinafter referred to as 'suit schedule property'). It is stated in the plaint that the plaintiff is the absolute owner and lawful possession of the suit schedule property having purchased the same from one Girish Anand by a registered sale deed dated 8 13.04.2012 registered at the office of Sub-Registrar, Shivajinagar (Mahadevapura), Bangalore and subsequently, got transferred all the revenue records and paid taxes.
5. It is further alleged by the plaintiff that originally, the land bearing Sy. No.121 of Kundalahalli village, K.R. Puram Hobli, East Taluk, measuring 21 guntas belonged to the vendor Girish Anand and the revenue records were also stood in the name of Girish Anand, the vendor of the plaintiff. Subsequently, the plaintiff constructed shops on a portion in the suit schedule property, secured an electricity connection and rented out the shops to the tenant, who is running a hotel in the name and style of Idly Hut. It is further contended that the defendants alleged to have been purchased the sites bearing Nos.614/A, 614/B, 614/C and 614/D from Aircraft Employees Cooperative Society 9 (hereinafter referred to as 'Aircraft Society') and trying to interfere with the peaceful possession and enjoyment of the suit schedule property. The vendor of the defendants assigned a bogus and illegal number to the alleged sale deed in favour of the defendants and they are trying to interfere with the possession of the plaintiff. It is further contended that the defendants have no manner of right, title or interference over the suit schedule property, but are trying to interfere with the same. It is further contended by the plaintiff that it could be seen from the approved layout plan, which has been approved by Bangalore Development Authority as per their reference No.BDA/TPM/D.D (W) 206/87-88 dated 03.07.1987, and it is clear that there is no existence of site numbers Nos.614/A, 614/B, 614/C and 614/D, but the defendants have manipulated the documents in order to knock out the suit schedule property and they are trying to interfere with the suit 10 schedule property. It is further contended that on 22.07.2014 at 11.35 a.m., the defendants tried to interfere with the peaceful possession of the plaintiff. Hence, the plaintiff approached the police by filing a complaint, but the police directed the plaintiff to approach the Civil Court. The cause of action arose on 22.07.2014 when the defendants tried to interfere in the suit schedule property. Hence, the plaintiff filed the suit.
6. The facts of the case of the plaintiff-Bhagya Lakshmi in O.S. No.5727/2014 (R.F.A. No.760/2022) are that the plaintiff is absolute owner in possession of the site No.3, Khatha No.121, property No.121 situated at Kundalahallil village, K.R. Puram Hobli, now comes under the BBMP limits, measuring East to West 50 feet and North to South 45 feet, in all measuring 2250 square feet and four shops constructed thereon, which 11 was purchased from one Girish Anand by the registered sale deed dated 13.04.2012. The name of the plaintiff was mutated in the revenue records and taxes were paid, and the plaintiff is in possession of the suit schedule property, but the defendants said to be purchased the site Nos.614/A, 614/B, 614/C and 614/D, from the Aircraft Society and with the alleged sale deed, they are trying to interfere with the peaceful possession of the suit schedule property on 22.07.2014 at 11.30 a.m. Hence, the plaintiff filed the suit.
7. The facts of the case of the plaintiff-Kavitha Reddy in O.S. No.5729/2014 (R.F.A. No.762/2022) are that the plaintiff is the absolute owner in possession of the site No.4, Khatha No.121, property No.121 situated at Kundalahallil village, K.R. Puram Hobli, now comes under the BBMP limits, measuring East to West 50 feet and North to South 48 feet, in all measuring 2400 12 square feet. It is contended that the plaintiff purchased the said site from one Girish Anand on 13.04.2012 and her name was mutated in the revenue records and she is paying taxes. Since 13.04.2012, the plaintiff is in possession of the suit schedule property, but the defendants are claiming to have purchased the sites bearing Nos.614/A, 614/B, 614/C and 614/D from Aircraft Society and trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property on 22.07.2014. Hence, the plaintiff filed a suit against the defendants.
8. After receiving summons, defendant No.1 and 4 did not chose to appear before the Court and they placed ex-parte. Defendant No.2 though appeared through their counsel, but not filed any written statement O.S. No.5729/2014. Defendant Nos.1, 2 and 13 4 were placed ex-parte in O.S. No.5727/2014 and O.S. No.5725/2014.
9. Defendant No.3 appeared in all three cases and filed a similar written statement by denying the right, title and interest over the suit schedule property by the plaintiff. The suit of the plaintiff is abuse of process of law. The site Nos.2, 3 and 4 in khatha No.121 are not at all in existence, the plaintiff claiming right in respect of non-existed property. Hence, the suit is not maintainable in its present form. It is further contended that on the basis of scheme formulated by the Aircraft Society, the state government has initiated acquisition proceedings in respect of various lands situated at Kundalahalli and other villages and issued the notification under Section 4(1) of the Land Acquisition Act, vide notification No.LAQ(1)CR/468(A)80-81 dated 24.9.1981 the same 14 has been published in Karnataka gazette acquiring several survey number of the land including the entire land in Sy.No.121 of Kunadalahalli measuring 5 acres 3 guntas and subsequently the final notification has been issued and the compensation has been disbursed to the khatedar viz, Ananda Rama Reddy, whose name was notified represented by his GPA holder, who received the award amount from the Special Land Acquisition Officer (SPLO) and the SPLO handed over the possession of the property to the society on 13.12.1982 and the said society had formed the layout and after the completion or formalities, sites have been allotted to its members, defendant No.3 got site No.614/C. Accordingly, the Aircraft society allotted the site in favour of defendant No.3 vide allotment letter dated 17.6.2011, the defendant NO.3 put in possession of the said site. no objection was also issued to the defendant on 22.6.2011. The society has executed sale deed on 15 20.6.2011 in favour of defendant NO.3 and he being the purchaser of the site No.614/C, he is in peaceful possession and enjoyment of the same. the plaintiff and the vendors knowing fully about the fact filed the suit intention to harass the defendant. neither the plaintiff nor the vendor of the plaintiff have got right over the suit schedule property. The alleged sale dated 13.04.2012 is a collusive document created by the plaintiff in collusion with Girish Anand, the plaintiff cannot and shall not claim any title under the guise of the sale deed. The plaintiff in collusion with revenue authorities created document in 2012, the land has been acquired in 1982 itself, the present Kundalahalli village is under the BBMP limit, the alleged khatha, tax paid receipts, all created and concocted, the plaintiff is not at all in possession of the suit schedule property. Hence, prayed for dismissing the suit. 16
10. Based upon the pleading, the trial Court framed the similar issues, in all three suits, which are as under:
(1) Whether the plaintiff proves that he/she is in peaceful possession and enjoyment of plaint schedule property as on the date of suit?
(2) Whether the plaintiff further proves the defendants are interfering with his/her peaceful possession and enjoyment over the suit schedule property?
(3) Whether plaintiff is entitled for the relief of permanent injunction against the defendants as prayed for?
(4) What order or decree?
11. In RFA No.750/2022, the Plaintiff is examined himself as P.W.1 and documents got marked as Exs.P.1 to P.19. In RFA No.760/2022, 17 the GPA holder of Plaintiff has been examined as P.W.1 and documents got marked as Exs.P.1 to P.20. And, in RFA No.762/2022, the GPA holder of Plaintiff has been examined as P.W.1 and got marked the documents as Exs.P.1 to P.22.
12. The GPA holder of defendant No.3, in all the cases, has been examined as D.W.1 and got marked the documents as Exs.D.1 to D.26.
13. After hearing the arguments, the trial court answered the issue Nos.1 to 3 in the negative and finally dismissed the suits of the plaintiffs. Being aggrieved with the same, the appellants are before this court by filing these appeals.
14. Learned counsel for the appellant has strenuously contended that the trial court committed error in dismissing the suits of the plaintiffs since the 18 plaintiffs are able to prove their possessions for having purchased the properties from the erstwhile owners in the year 2012 itself. The Trial court did not consider the issue No.3. The Exs.P3 to P10 and P18 there is no reference regarding acquisition, the Ex.P19 is tax paid receipts, which reveals Sy.No.121. He further contended that the Land Acquisition Officer awarded the compensation only for 4 acres 13 guntas but not for 4 acres 34 guntas, the 21 guntas remained with the vendor of the plaintiff. The very documents of the defendant at Ex.D13 and Ex.D15 establishes the retention of 21 guntas, only 4 acres and 13 guntas acquired by BDA and remaining portions were retained by the land owner and the son of the land owner sold the property to the plaintiffs. It is further contended that the defendants have not produced the layout plan to show the existence of the 4 site numbers claimed by the defendants and no 19 such sites were formed by the society. The BDA normally will not approve the fraction numbers of the sites which clearly reveals the plaintiffs are in possession and enjoyment of schedule properties, when the plaintiffs are able to show their possession of their property by way of sale deed and therefore they need not file suit for declaration as observed by the trial court.
15. Learned counsel for the appellant further contended that the defendant No.3 who is respondent No.2 herein is the only person contesting the matter, the other defendants have not contested the matter. The finding of the trial court is that the entire land in sy.no.121 was acquired, is not correct. A report was prepared by the officer as per Ex.P15 which reveals there is no encroachment and plaintiffs are in possession of the sites. There is no cloud over the title of the plaintiff in order to file suit for declaration. 20 The vendor of the plaintiff obtained the Pouthikatha from the Assistant Commissioner and sold the property. The very award passed by the Land Acquisition Officer reveals the compensation paid for 4 acres 13 guntas but not for 4 acres and 34 guntas.
16. Learned counsel further contended that the society has not mentioned the sites claimed by the defendant vide site Nos. No.614/A, 614/B, 614/C and 614/D and BDA also not approved such sub-numbers when the layout plan is not produced by the defendant, the court can draw the adverse inference against them. The boundary mentioned in the property of the defendants and the boundary mentioned in the plaintiff are not matching.
17. It is further contended by the learned counsel for the appellant that the defendants have not examined any persons from the AECS society. 21 Therefore, it is contended that the judgment of trial court is liable to be set aside and decree the suit.
18. Per contra, learned counsel for the respondent supported the judgment of the trial court contending that, the suit is barred since the land in Sy.No.121 has been acquired by the BDA way back in 1982 an award has been passed, possession has been delivered to the society and in turn, the Society formed the layout and allotted sites to the members. If at all any dispute over the acquisition, the remedy available to the plaintiff to approach the High Court under writ jurisdiction, the question of filing civil suit does not arises. Here it is clear case of sale deed executed by the society in favour of the defendant. Once the plaintiff having knowledge about the sale deed of the defendant, the plaintiff suit for bare injunction is not maintainable. The plaintiff could have converted the suit into declaration and 22 possession. The defendants are in possession of the schedule property. The survey number is not mentioned in the schedule properties. Once the land has been acquired by the BDA, the owner loses the right. The father of the vendor of the plaintiff already obtained the compensation. Once the plaintiffs are aware about the sale deed of the defendant there is a cloud over the title, hence suit for bare injunction is not maintainable. The properties already comes under BBMP limit, therefore issuing RTC receiving tax by the revenue authorities source which is created documents. Out of the said land 9 guntas of kharab land has been utilized by the government for forming Hoodi- Kundalahalli road. The plaintiffs encroached the road. There is no survey number in the sale deed but it is stated in the mutation. The Exs.P1 to P19 produced by the plaintiff are subsequent to the sale deed of the defendants. The Exs.D16 and D17 are 23 the notice given to the land owner and receipt of the compensation and Ex.D18 is RTC shows the name of the society sold to the defendants. The PW1 admits the sale deed of the defendants. Therefore, the suit is barred by Section 9 of the CPC and bare injunction suit is not maintainable in view of ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY L.RS & ORS. reported in 2008 AIR SCW 2692 decided by the Hon'ble Supreme Court and hence, prayed for dismissing the appeals.
19. During the pendency of the appeal, the learned counsel for the respondent also filed interlocutory application I.A.No.1/2023 for violation of the interim order under Order 39 Rule 2A of CPC contending that, when the court granted status quo and appellants have violated the order of status quo and put up the construction. Therefore, prayed for 24 taking action against the appellants and convicting them, in accordance with law.
20. Learned counsel for the appellant by way of reply once again contended that the entire extent of land was not acquired. The award passed only for 4 acres 13 guntas therefore plaintiff proved the possession and suit for bare injunction is maintainable. The other defendant Nos.1, 2 and 4 have not filed any written statement, they are placed Ex-parte, only defendant No.3 filed written statement and the site number claimed by the defendant No.3 is No.614/C measuring 2500 sq.ft., and the DW1 admitted in the cross examination that there is no khata issued by BBMP in his name. There is no document to show the site No.614/A, 614/B, 614/C and 614/D has been formed by the society and it has to be sold by the public auction. There is no auction conducted by the society for selling the sites to the 25 defendants. Both counsels have relied upon the judgments of Hon'ble Supreme Court and hence prayed for allowing the appeal.
21. Having heard the arguments and perused the record, the point that arises for my consideration are "1) Whether all the 3 plaintiffs proves that they are in lawful possession and enjoyment of the suit schedule properties?
2)Whether the defendants are interfered with the possession and enjoyment of the suit schedule properties?
3) Whether the suit of the plaintiff for suit for injunction is not maintainable as contended by the defendant?
4) Whether the respondents also made sufficient cause for leading evidence and production of document Order XLI Rule 27 of CPC ?
5) Whether the judgment of
the trial court calls for any
interference?"
26
22. In order to prove the case of the plaintiffs, the GPA holder of the plaintiff examined as PW1 and got marked 19 documents, out of which Ex.P18 is sale deed dated 13.04.2012. All these 3 plaintiffs are claiming the title and possession of the property through the Sale deed dated 13.04.2012. The case of the plaintiff is that the land in Survey No. 121 of Kundalahalli village belongs to the father of the Vendor Ananda Rama Reddy and the said land has been acquired by the BDA on behalf of the Aircraft Employees Co-operative Society Ltd., Admittedly, the land in survey number 121 was of 4 acres 34 guntas and 9 guntas kharab land. The further case of the plaintiff is that, though the entire land has been notified for acquisition, but after the completion of final notification, an award has been passed in favour of the father of the vendor and compensation was 27 awarded only for 4 acres 13 guntas including the kharab land. The remaining 21 guntas, were left out by the BDA and it was not handed over to the society for formation of the sites. The remaining property in Sy.No.121, the son of the land owner got mutated in his name, after the death of his father by obtaining the pouthikatha, formed four sites, out of which site Nos.2 to 4 were sold to the plaintiffs by sale deed. After the sale deed the plaintiff/appellants have obtained the khata and paid the taxes to the revenue authorities. On the other hand, the case of the defendant No.3 in all these three suits was that, the land in Sy.No.121 of Kundalahalli measuring 4 acres 34 guntas and 9 guntas kharab land were entirely acquired by the BDA and was given to the society. The society has formed the layout and allotted the site to its members i.e., defendant Nos.1 to 4, vide sites bearing No.614/A, 614/B, 614/C and 614/D. 28 Therefore, it is contended that by the appellant counsel that once the land has been acquired by notification, it was published in the official gazette and therefore the owners are left with only challenging the acquisition and set aside the same by filing the writ petition before the High Court and that issue cannot be decided in the civil court, as there is bar under section 9 of CPC. Admittedly defendant Nos.1, 2 and 4 did not contested the matter. Only the defendant No.3 was contested the matter and filed written statement and he is the GPA holder who lead the evidence. The Ex.D2 is allotment letter dated 17.6.2011 issued by 'Aircraft Society'. Ex.D3 is Possession certificate of the 'Aircraft Society'. Ex.D4 is no objection certificate issued by the 'Aircraft Society'. Ex.D5 to D7 are receipts for having received the money. Ex.D8 is sale deed dated 20.6.2011. Ex.D9 is the Encumbrance certificate 29 form No.15 in respect of site No.614/C. Ex.D10 is certified copy of the Notification of the BDA under Section 4(1) of Land Acquisition Act dated 24.09.1981. Ex.D11 is the publication under Section 6(1) of Land Acquisition Act dated 14.10.1982. Ex.D12 is handing over and taking over the possession dated 13.11.1982. Ex.D13 is notification under Section 16(2) of Land Acquisition Act dated 21.07.1989. Ex.D14 is survey sketch of sy.no.121 of Kundalahalli village. Ex.D15 is copy of the award. D.16 is notification under Section 12(2) of Land Acquisition Act dated 7.4.1983. Ex.D17 is the voucher dated 08.04.1983 for having received the compensation by the land owner.
23. On perusal of these documents the respondent defendant relied upon the notification issued by the BDA under section 4( 1) and 6 (1) and 30 also 16 (2) of Land Acquisition Act. In order to show the entire land has been acquired by the BDA measuring 4 acres 35 guntas and the same was handed over after final notification and award has been passed and the compensation has been received by the owner, the father of the vendor of the plaintiff. The appellant counsel also seriously disputed and contended that the Ex.D15 is the award passed by the Special Land Acquisition Officer where the award refers the acquisition of the land to an extent of 4 acres 34 guntas of land and 9 guntas of Kharab land and but the compensation was awarded only for 4.13 guntas. While passing the award, the calculation of compensation, is mentioned as under:-
"AWARD The Special Deputy Commissioner, Bangalore District, Banglaore, in preliminary notification No. LAQ DCR 468 (A)/ 80- 81 dated nil published in Karnataka Gazette dated 24.09.1981 in Page No.1309, 1310 in Part IX notified the intention to acquire land measuring 4-34 guntas in s.No.121 of Kundalahally Village, K.R.Puram Hobli, Bangalore South Taluk, Bangalore South, in favour of Aircraft Employees' Co-operative Society Ltd., Bangalore, under section 4 (1) of the Land Acquisition Act 1894 as amended by the Karnataka Act No.17 of 1961.31
Government in their Notification No.RD 61 AQB 82 dated 06/10/1982 under Section 6 of the Land Acquisition Act 1894 as amended by the Karnataka Act No.17 of 1961 have accorded sanction and the same has been published in Page No.870 and 871 in Part IX dated 14.10.1982 in the Karnataka Gazette.
Value of the lands pertaining to Kundalahally village has ready been filed at Rs.12,000/- per acre for dry lands as per re for dry lands AS PER ORDERS OF THE SPECIAL DEPUTY COMMISSIONER, Bangalore District, bangalore in No.LAQ(1) CR/253/82- 83 dated 1-1982. As such the value for dry lands in this case also fixed at Rs.12,000/- per acre, and that the award is as follows:
Amount
1) Value of 4-13 (Dry in S.No.121 51900.00 of Kundalahally village at Rs.12,000/- per acre
2) Statutory Allowance at 15% 7785.00
-------------
TOTAL 59685.00 (Rupees Fifty Nine Thousand Six Hundred and Eighty Five Only).
The entire amount of compensation together with the interest 5% per annum from the date of handing over possession till the of payment is to be paid to Sri C.V.Anantha Murthy who is the Power of Attorney Holder in this case. The Land Revenue shall abate from the year 1982-83.
Amount
The Establishment charges at 10% 5970.00
Auidt charges at Rs.1% 597.00
-----------
Total Rs. 6567.00
-----------"
24. On careful reading of the award passed by the Land Acquisition Officer, the award has been 32 passed and the compensation award is only to the extent of 4 acres and 13 guntas of land in Sy.No.121 and not for entire land 4 acres 34 guntas which was alleged to be acquired by the BDA. Though, Ex. D17 is voucher where the owner obtained the compensation for Rs.59,685/- which is only for 4 acres 13 guntas but not for 4 acres 34 guntas. The appellant plaintiff counsel categorically contended that the Government or BDA handed over only 4 acres 13 guntas to the society, the remaining land was not given to the society. It is left for the road, it spill over the land which was subsequently got mutated by the son of the land owner and he has formed 4 sites and sold to the plaintiffs. It is also contended that after leftover the piece of land by the Land Acquisition Officer was belonging to the owner. The son of the owner of the land acquired the property as legal heir of the land owner and he has 33 formed 4 sites and sold to the plaintiffs under the sale deed. Admittedly, the plaintiffs are claiming right over the property through the sale deed and subsequent to the purchase, the plaintiffs have obtained the RTC in their name prior to that the Girish Anand son of the land owner obtained the RTC in his name for remaining 21 guntas.
25. Ex.P1 is the General power of attorney dated 02.04.2018 executed by Smt.Kavitha Reddy in favour of Venkatesh Reddy. Ex.P2 to 10 are the tax paid receipts for having made payment to the BBMP. Ex.P11 is the complaint made by the AECS dated 02.07.2014 stating that the plaintiffs have encroached the government road unauthorisedly. This document Ex.P11 reveals the plaintiffs are in possession of the suit schedule properties. Hence, the society has filed the complaint to the BMTF. The FIR 34 also has been registered as per Ex.P13, where the Joint Director of Town Planning was the complainant. The BMTF after the enquiry have filed B final report as per Exs.P14 and 15, which reveals that the plaintiffs are in possession and enjoyment of the properties. Whereas the boundaries mentioned by the respondent/defendant claiming site 614 A,B,C, D are different the defendant Nos.1, 2 and 4 not contested the matter, only third defendant contested the matter where he is claiming title over the Site No.614/C of the site.
26. During the pendency of the appeal, the learned Counsel for the respondents has filed an interlocutory application in I.A. No.5/2023 under Order 41 Rule 27 of CPC for production of additional documents contending that they were not able to produce these documents in the trial Court and later, 35 it was obtained by the respondents from their Society and produced the same. It is submitted that those documents were not able to be produced at the time of leading evidence by the defendant. Hence, prayed for taking those documents as additional evidence. The respondents' Counsel produced the copy of the resolution passed by the Society, the allotment of sites to the respondents by the Society on 17.06.2011 and the sale deed executed by the Society. These documents in respect of allotment of sites were already produced by the respondent in the trial. Though the resolution is not produced before the trial Court, but the resolution of the Society is produced hereunder. The respondent also produced the copy of the layout plan. Perused the same and taken into consideration as additional evidence and on perusal of the layout plan, there is no reference in respect of site No.614/A, B, C and D. Only the sites 36 were formed mentioned in the layout plan, totally 1645 sites. The copy of the layout plan is not properly visible. However, the appellants' counsel produced the blue print of the layout plan, which clearly reveals that there are no sites formed by the Society as stated in the sale deed of the defendant. The category of sites mentioned in the plan was 30 x40 sites - 156 in number, 30 x 40 sites - 200 in number, 30 x 50 sites - 440 in number, 40 x 60 sites
- 520 in number, 50 x 80 sites 190 in number, and odd sites 139, which reveals that there are no sites formed by the Society which was sold to the defendant measuring 25 x 100 ft. in Site No.614/A, as per the possession certificate and sale deed.
27. On the other hand, the appellants' counsel produced some of the documents obtained from the BDA under the Right to Information Act, where it is 37 stated by the BDA authorities that there is no approved layout plan for these site Nos.614 A/B/C and D. The copy of the approved plan also produced before the court which reveals that there were no sites formed by the Aircraft Society vide Nos.614 A/B/C/D. The approved plan does not reveals these sites claimed by the defendants in their written statement under the sale deed said to be executed by the Aircraft Society. The approved plan issued by the BDA clearly reveals it was marked in yellow where this land were adjacent to the layout formed by the society adjacent to the road on the south eastern side. As per layout plan, the sites were stopped at the site Nos.614 and 615 on the eastern side and it appears the Aircraft Society without any approval from the BDA, they have tried to form the sites by giving site numbers in fractions as 614/A/B/C/D. Normally the BDA would not approve such a fraction 38 number of sites, which clearly reveals, the society trying to sell these spill over land which is adjacent to their layout. Therefore, it cannot be said there is a cloud over the title of the plaintiff, whereas it is clear case of the plaintiff that though the land was acquired by the BDA, but award has been passed only for 4 acres 13 guntas but not for acre 34 guntas. There was 21 guntas left over, which was belonging to the land owner and after death of the land owner, the son obtained the pauthikhatha and the RTC also obtained in his name. Thereafter, he formed the site and sold, even if it is taken as consideration, as per the complaint made by the society to the BDA-BMTF and FIR has been registered his land has been unauthorizedly occupied by the plaintiff, whereas the plaintiff claims right through the sale deed and through the land owners who have sold the properties and thereafter they have paid the taxes, 39 mutated in their names. Such being the case, once the defendants came to know they are claiming the title through sale deed they become lawful possession and enjoyment of suit schedule property. Therefore, the defendant would have filed suit for declaration to declare the site Nos.614/A, 614/B, 614/C and 614/D belonging to the society and formed legally by obtaining the approved plan. But no such attempt was made by the defendant, they also not examined the officials of the society and defendant not produced the approved layout plan in order to show that the sites were approved by the BDA and the layout was formed by the society and claims right over the property. Therefore, in my considered opinion, there is no cloud over the title of the plaintiff in order to file suit for declaration. On the other hand, plaintiff is able to prove they are in possession and enjoyment of the property after obtaining sale 40 deed, which is lawful, until it is declared as null and void and set aside by the court. Therefore, section 9 of the CPC will not bar for filing the suit for bare injunction. Therefore, I hold the plaintiffs were successful in proving the lawful possession and enjoyment of the schedule properties in these three suits, whereas defendant failed to show the suit for bare injunction was not maintainable, as contented by the defendant.
28. I am aware the principle laid down by the Hon'ble supreme court in case of Anathula Sudharkar Vs P Buchi Reddy & Ors reported in (2008) 4 SCC 594 in paragraph No.21, where the Hon'ble Supreme Court held as under;
"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and 41 possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ).
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
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(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
29. In view of the aforementioned judgment of Anathula Sudharkar's case stated supra wherein the suit for injunction filed by the plaintiff due to interference of the defendants. Therefore, suit for bare injunction is maintainable as the plaintiff claims title through the sale deed executed by the son of the land owner. In view of the award passed by the Special Land Acquisition Officer not awarding the 43 compensation for 4 acres 34 guntas and award was only 4 acres 13 guntas. Therefore, when the defendant Nos.1, 2 and 4 have not contested the matter, not filed the written statement, not lead any evidence except defendant No.3, though he claims property through the sale deed executed by the Aircraft Society but the society itself does not have any right over the property, for selling the site to the members much less defendant No.3. The approved plan also not revealed the site numbers claimed by the defendants in the written statement. The BDA also issued a letter that there is no modification of the approved plan, which was issued by the BDA in favour of Aircraft Society in 1989. Such being the case, there is no existence of site Nos.614/A, 614/B, 614/C or 614/ D. Hence, if at all defendant wants to establish the right over the property, they have to file suit for declaration and injunction by examining the 44 BDA authorities for having approved the modified plan, if any. The Aircraft Society members,or their Secretary or President to show these sites were formed, out of the land acquired and allotted to the society and sold to the respondent/defendant. Such being the case, I am of the view, the trial court failed to consider the lawful possession and enjoyment by the plaintiff over suit schedule property and answered the issue No.1 in all the cases negative, which is not correct. Therefore, it is liable to be interfered and held that plaintiff have proved their lawful possession and enjoyment of the suit schedule property stated in the plaint. Therefore, even if the documents of the respondent is considered as additional evidence, those documents is not useful to the defendant as there is no approved layout plan for the society in order to allot the sites and by taking advantage of the spill over lands, they may be sold to the defendants. 45 Therefore, the I.A.No.5/2023 filed by the respondent under Order 41 Rule 27 of CPC is liable to be rejected. Accordingly, answer the point No.1 in the affirmative in favour of the appellant/plaintiff, and point NO.3 negative as against defendant No.3.
30. Re.Point No.2: As regards to the interference by the defendant, the defendant themselves claiming the property under the sale deed and allotment letter issued by the Aircraft Society and are trying to interfere in the suit schedule property of the plaintiff and claiming the title and also contested the matter by defendant No.3. Therefore, it is nothing but interference by the defendant. Thereby the plaintiff were successful in proving the interference of the defendant over the suit schedule property and possession of the plaintiff. Accordingly, answered the point No.2, in favour of the appellant/plaintiff. In view of the findings, I am of 46 the view that the trial court committed error in dismissing the suit of the plaintiff as the defendant failed to prove the contention that the suit schedule property belongs to them which was found formed layout by the society and they failed to show that there was any approved plan for the fraction of 614 the sites bearing Nos.614/A, 614/B, 614/C and 614/D. That apart, merely some complaint has been filed by the aircraft society that the appellant were encroaching the government property, on perusal of the records, the BDA left over some property almost more than 30 guntas, including Kharab towards the road and this land where the plaintiff sale deed was executed by the vendor is spill overland situated in between the road and the layout formed by the society. Therefore, the trial court not properly appreciated the evidence on record and dismissed 47 the suit. Therefore, the same is required to be interfered by this court and liable to be set aside.
31. The learned counsel for the respondents has filed an interlocutory application No.1/2023 under Order XXXIX Rule 2A of CPC along with an affidavit of respondent No.3 contending that during the pendency of the appeals, the interim order of status quo was operating and in spite of the order passed by this Court to maintain the status quo over the suit schedule property, the appellants have put up constructions over the disputed property and hurriedly made constructions, thereby, they have violated the order of this Court, which amounts to contempt. Therefore, the Court requires to take action against the appellants and to punish them for violation of the Court order.
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32. In support of his contentions, the learned counsel for the respondents has produced some photographs dated 25.04.2023 which reveals that there is some construction under progress. It is contended by learned counsel for the respondents that though the respondents moved a Criminal Contempt Petition in CCC No.286/2023, the same was withdrawn with liberty to file application under order XXXIX Rule 2A of CPC. Therefore, prayed for allowing the application and to punish the appellants.
33. The learned counsel for the appellants has filed statement of objections at length contending that the order of status quo is passed in favour of the appellants by the Court as well as High Court with regard to the possession of the suit schedule property. Accordingly, the appellants have maintained the status quo with regard to possession during the pendency of the suit as well as in the 49 appeals. Therefore, there is no contempt committed by the appellants and denied all the averments in the application and prayed for dismissing the application.
34. On perusal of the records, there is an order of status quo passed by this Court and the appellants said to be put up construction during the pendency of the appeal. However, the application under Order XXXIX Rule 2A of CPC is required to be considered by holding a separate enquiry and the respondents are liable to prove the case against the appellants for having committed the contempt of Court and violation of the interim order. Therefore, in these appeals, this Court cannot hold an enquiry and enquiry should be held separately.
35. Therefore, this Court requires the office to register the separate Miscellaneous case against the 50 appellants under Order XXXIX Rule 2A of CPC for enquiry.
36. Accordingly, I pass the following:
ORDER
i) All the three appeals are allowed.
ii) The I.A.No.5/23 filed by the respondent Under order 41 Rule 27 of CPC is hereby dismissed.
iii) The judgment of dismissal by XXXIX Additional City Civil and Sessions Judge, Bengaluru in O.S. Nos.5725/2014, 5727/2014 and 5729/2014 are hereby set aside.
iv) The suits of the plaintiffs are decreed.
v) The defendants or their henchmen or anybody claiming under the defendants are hereby permanently restrained from interfering with the peaceful possession and enjoyment of suit schedule property of the plaintiff.51
vi) Office is directed to register a separate miscellaneous case against the appellant for the purpose of enquiry in respect of the Interim application No.1/2023 filed under Order XXXIX Rule 2A of CPC.
vii) No order as to the cost.
Sd/-
JUDGE CS/AKV CT:SK