Bangalore District Court
Sri.Punchonikavil Daniel vs The Bengaluru Development on 11 December, 2015
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 11th day of December 2015.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.26962/2011
Plaintiff: Sri.Punchonikavil Daniel
Varghese, S/o.Sri.P.I.Daniel,
aged about 60 yrs, R/at.Punchoni
Gardens, Thittamel Muri,
Chebgannoor, Alleppey District,
Kerala State.
Rep. by General Power of
Attorney Holder
George Varghese,
S/o.K.N.Varghese, aged about
71 yrs, No.6, 2nd Main Road,
3rd Block, H.R.B.R. Layout,
Kalyan Nagar, Bengaluru-43.
(By Sri.B.V.Rama Moorthy, Advocate)
V/S
2 O.S. No.26962/2011
Defendant: The Bengaluru Development
Authority, by its Commissioner,
T.Chowdaiah Road, Kumara
Park East, Bengaluru.
(By Sri.P.Ravindra, Advocate)
Date of institution of the suit 11.11.2011
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Permanent Injunction
Suit for Injunction, etc.)
Date of commencement of recording 10.03.2015
of the evidence
Date on which the Judgment was 11.12.2015
pronounced
Total duration Year/s Month/s Day/s
04 01 00
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for 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.
3 O.S. No.26962/2011
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 immovable property bearing Site No.8, in City Municipal Corporation, Byatarayanapura New Katha No.159, (Old Khata No.761) situated at Hennur Village, City Municipal Corporation Byatarayanapura, Bengaluru, Ward No.30, measuring East to West 40 feet and North to South 83.4 feet, totally measuring 5004 sq. feet and bounded on:
East by: Private Property;
West by: Private Road;
North by: Site No.9, belongs to Mr.Manoji John
Thomas; and on
South by: Service Road.
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 4 O.S. No.26962/2011 entire above said land in favour of Sri.Thadathil Varghese Thomas & Sri.Varghese John for valuable sale consideration under 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 Thangamma Thomas, under absolute sale deed, and she died leaving behind Ranjan John Thomas, Sanjay John Thomas, Majonji John Thomas and Roy John Thomas as her legal heirs to succeed to her estate/schedule property by executing a Will dated 05.10.2010 and in turn they have executed sale deed dated 16.04.2007 in favour of Punchonikavil Daniel Varghese. The legal 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 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 5 O.S. No.26962/2011 amenities to the schedule property. The plaintiff has executed GPA in favour of George Varghese. 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 Mr.Suecy Koshly was not a owner of the land. The possession taken and award passed are a 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 6 O.S. No.26962/2011 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 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 7 O.S. No.26962/2011 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. 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 8 O.S. No.26962/2011 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 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. 9 O.S. No.26962/2011 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 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.Ravindra; thereafter the defendant has filed its WS.
10 O.S. No.26962/2011
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 plaintiff is not entitled for any relief, since the plaintiff has not complied with the mandatory provisions under Section 64 of the BDA Act, and this defendant has never received any notice regarding the relied sought for by the plaintiff and there is no cause of action for the suit. Totally this defendant has denied paras No.3 to 17 and it is contended that the same is to be strictly proved by the plaintiff. This defendant contended that the lands measuring 1 acre 39 guntas in Sy.No.36/2 of Hennur Village, were notified for formation of H.B.R. 1st Stage Layout vide Preliminary Notification No.BDA/ALAO/S/11/78-79 dated 27.06.1978 under Section 17 of B.D.A. Act published in the Karnataka Gazette, Part-III-I Pages 67-87 dated 20.07.1978, later acquired the said lands along with other lands vide Declaration No.HUD-567-MNX-84, dated 09.01.1985 published in Karnataka Gazette, Part-III (1) Pages 214 to 233 dated 14.03.1985 under Section 19 of the BDA Act. Further 11 O.S. No.26962/2011 it is also contended that relating to the acquisition of the above said Sy. number of Hennur Village, it was notified that original kathedar and anubhavadar by name Mr.Suey Kosly and as per RTC and other revenue records and also award was passed by the Land Acquisition vide Notification No.BDA/ALAO/A489/87-88 as the lands vested with BDA free from all encumbrances vide order dated 29.12.1986; subsequently Land Acquisition Mahazar was also drawn and a possession taken certificate is effected to BDA. It is contended that the plaintiff is having no manner of right, title or interest over the suit property has filed the above false and frivolous suit for unlawful gain and the plaintiff has not established a prima facie case and the balance of convenience does not lies in favour of the plaintiff and also further denied the rest of the plaint averments and it is strictly to be proved by the plaintiff. But, admitted that this defendant will act as per the orders of this court after disposal of this suit. Thus, this defendant prays to dismiss the suit of the plaintiff with heavy costs. 12 O.S. No.26962/2011
6. From the above said pleadings, following issues have been framed by my learned Predecessor:-
1. Whether the plaintiff proves that he is the absolute owner in suit schedule property on the date of the filing of the suit?
2. Whether the plaintiff further proves that alternatively he is the absolute owner by way of settled possession?
3. Whether the plaintiff proves interference caused by defendants?
4. Whether the plaintiff is entitle for permanent injunction?
5. Whether the defendant proves that suit of the plaintiff is liable to be dismiss for compliance of provisions of Sec.64 of BDA Act?
6. Whether the defendant proves that suit schedule property was acquired for formation of HBR 1st stage layout, the defendant is in possession of the suit schedule property?
7. What order or 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.Ranjan 13 O.S. No.26962/2011 John Thomas as a P.W.2, and also filed a another affidavit evidence of another witness by namely Sri.M.S.Narayana Murthy as a P.W.3 and Exs.P.1 to P.41 documents have been got marked. Defendant has not adduced any evidence on its behalf and also not got marked any documents on its behalf in order to disprove the case of plaintiff.
8. Ex.P.1 is the general power of attorney, Ex.P.2 is the certified copy of the sale deed dated 06.04.1965, Ex.P.3 is the certified copy of the general power of attorney dated 10.01.1980, Ex.P.4 (a) and (b) are the RTC, Ex.P.5 is the certified copy of the sale deed dated 04.02.1980, Ex.P.6 is the certified copy of the general power of attorney dated 26.05.1984, Ex.P.7 is the certified copy of the general power of attorney dated 21.04.1985, Ex.P.8 is the original sale deed dated 16.04.2007, Ex.P.9 is the form B property register, Ex.P.10 (a) to (c) are the tax-paid-receipts, Ex.P.11 (a) to (g) are the property tax receipts, Ex.P.12 is the certified copy of the judgment in O.S. No.26317/2009, Ex.P.13 is the certified copy of the decree in O.S. No.26317/2009, Ex.P.14 is the certified copy of the judgment in O.S. No.26720/2011, Ex.P.15 14 O.S. No.26962/2011 is the certified copy of the decree in O.S. No.26720/2011, Ex.P.16 is the certified copy of the judgment in O.S. No.25499/2011, Ex.P.17 is the certified copy of the judgment in O.S. No.25922/2009, Ex.P.18 is the certified copy of the decree in O.S. No.25922/2009, Ex.P.19 is the certified copy of the judgment in O.S. No.15008/2001, Ex.P.20 is the certified copy of the decree in O.S. No.15008/2001, Ex.P.21 is the certified copy of the judgment in O.S. No.15007/2001, Ex.P.22 is the certified copy of the decree in O.S. No.15007/2001, Ex.P.23 is the certified copy of the judgment in O.S. No.27068/2011, Ex.P.24 is the certified copy of the decree in O.S. No.27068/2011, Ex.P.25 is the certified copy of the judgment in O.S. No.26879/2011, Ex.P.26 is the certified copy of the decree in O.S. No.26879/2011, Ex.P.27 is the certified copy of the judgment in O.S. No.26878/2011, Ex.P.28 is the certified copy of the decree in O.S. No.26878/2011, Ex.P.29 is the certified copy of the judgment in O.S. No.26902/2011, Ex.P.30 is the certified copy of the decree in O.S. No.26902/2011, Ex.P.31 is the certified copy of the judgment in O.S. No.26899/2011, Ex.P.32 is the certified copy of the decree in O.S. No.26899/2011, Ex.P.33 is 15 O.S. No.26962/2011 the deposition of DW-1 in O.S. No.26878/2011, Ex.P.34 is the deposition of DW-1 in O.S. No.26899/2011, Ex.P.35 is the deposition of DW-1 in O.S. No.26902/2011, Ex.P.36 is the deposition of DW-1 in O.S. No.26879/2011, Ex.P.37 is the tax- paid-receipt, Ex.P.38 is the certified copy of the judgment in O.S. No.26508/2011, Ex.P.39 is the certified copy of the legal opinion given by BDA in O.S. No.26508/2011, Ex.P.40 is the certified copy of the plaint in O.S. No.26134/2013, and Ex.P.41 is the certified copy of the order sheet in O.S. No.26134/2013.
9. Heard, the learned advocate for the plaintiff and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered. In spite of sufficient time granted to the defendant's counsel, he has remained absent and not placed his arguments; hence, arguments on behalf of defendant has been taken as heard.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, 16 O.S. No.26962/2011 Issue No.3: In the Affirmative, Issue No.4: In the Affirmative, Issue No.5: In the Negative, Issue No.6: In the Negative, Issue No.7: As per final order, for the following:-
REASONS.
11. ISSUE No.1 & 2: 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 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 sale 17 O.S. No.26962/2011 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 Thangamma Thomas, under absolute sale deed, and she died leaving behind Ranjan John Thomas, Sanjay John Thomas, Majonji John Thomas and Roy John Thomas as her legal heirs to succeed to her estate/schedule property by executing a Will dated 05.10.2010 and in turn they have executed sale deed dated 16.04.2007 in favour of Punchonikavil Daniel Varghese. The legal 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 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 George Varghese. The plaintiff has constructed 18 O.S. No.26962/2011 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 Kosly and award was also passed in the name of Mr.Suecy Kosly and the said land was not acquired by the defendant. At that time Mr.Suecy Kosly was not a owner of the land. The possession taken and award passed are a 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 19 O.S. No.26962/2011 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 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 20 O.S. No.26962/2011 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. 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. Further the plaintiff has got examined the one Ranjan John Thomas and M.S. Narayana Murthy 21 O.S. No.26962/2011 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 Suecy Kosly from Bayamma and others. Kosly has executed a GPA in favour of George Philips; on the strength of the said GPA George has executed a registered sale deed on 10.06.1980 in favour of Thadapalli Varghese Thomas and Mr.Varghese George; they have formed layout and sold the different sites to the different persons. Later on they have sold the suit schedule property in favour of Thangamma Thomas by executing the sale deed. She died leaving behind his children namely P.D.Varghese and his brothers; Sanjay John Thomas, Manoj John Thomas, and Roy John Thomas. P.W.2 & P.W.3 stated that the mother of Varghese left behind a Will bequeathing the suit property in favour of plaintiff and his brothers and they have 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 the above said Sy. number from its original owners, 22 O.S. No.26962/2011 which is a entire developed and built up area. The plaintiff has got fenced to the property of the plaintiff and enjoying the same. Upon perusal of the cross-examination of P.W.1 stated that his son has purchased the suit property in the year 2007 from one Thangamma by verifying the all revenue records of suit survey number 36/2 of Hennur Village. He denied that the above said survey number was acquired by the BDA through preliminary and final notification for forming the layout and sites with an intention for allotting to the beneficiaries and further he denied that he himself and his son are not having any right and interest over it and he cannot say that on which date, month, and year his son purchased the suit property from Thangamma and she was not a owner of the above said suit property. It is also denied that on 27.06.1978 defendant had got issued a preliminary 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. Even upon perusal of the 23 O.S. No.26962/2011 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.
12. The plaintiff has produced the certified copy of the judgment passed in O.S. No.26508/2011 and the legal opinion given by BDA in the above said suit and also a certified copy of the plaint in O.S.No.26134/2013 filed by the Suecy Kosly and certified copy of the order sheet of the above said O.S. No.26134/2013. The suit property of the present suit is also relating to the above said Survey number of Hennur Village in which the suit property of O.S.No.26508/2011 is in existence. Even in the above said suit XIII Addl. City Civil & Sessions Judge, 24 O.S. No.26962/2011 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 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 and the defendant BDA was not got examined in that case to disprove the case of plaintiff and not proved regarding preliminary and final notification for acquisitions of the suit schedule property done and possession taken. Therefore, in the above said suit the defendant counsel 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; ultimately held that plaintiff is in peaceful possession and enjoyment of the suit schedule property as on the date of suit. Defendants have caused a threat to demolish and dispossess the plaintiff from the suit schedule property. Hence, with the above said observation, the suit 25 O.S. No.26962/2011 is decreed against the BDA. The same rulings relied in the above said judgment 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.
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). 26 O.S. No.26962/2011
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 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 also pertinent to note that defendant has not entered into witness box to prove its defence only WS is filed by stating that preliminary and final notification was published for acquiring the above said survey number and compensation award is also paid to the owners of the above said survey numbers. The counsel for 27 O.S. No.26962/2011 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 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 true that though the above said citations and awards are disclosing that the suit survey number is acquired in the year 1985 by the defendant BDA; but no any documents produced in this case to show that the BDA has formed a layout in the above said Survey number of Hennur Village and a layout and sites are formed and the same are allotted to the beneficiaries. 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 28 O.S. No.26962/2011 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 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.41. Thus, the plaintiff has successfully proved his title, settled possession and purchasing of the suit schedule property from its original owners and also a possession and enjoyment of the plaintiff over the suit schedule property. Therefore, I would like to answer above said issues No.1 & 2 in favour of the plaintiff as a Affirmative.
13. ISSUE No.5 & 6: That the burden of proving both the above said issues lies upon the defendant; only defendant taken a contention in WS that the plaintiff has not complied the Section 64 29 O.S. No.26962/2011 of BDA Act and suit property was acquired for formation of HBR I Stage Layout, and defendant is in possession of the suit schedule property. No any single documents produced on behalf of the defendants to support the above said case of defendant and defendant has not entered into witness box to prove the case of defendant. It is pertinent to note that defendant has not issued a notice in the name of plaintiff by stating that the above said survey number is acquired by the BDA and the possession of the plaintiff is illegal and construction made out in the suit property is also illegal. Therefore, the defendant is going to take the steps for demolition of the suit schedule property etc. Therefore, there is no need of making a detailed discussion about the above said issues. For the above said reasons and failure of the defendant to establish the case of defendant that the suit schedule property is acquired by the defendant and it is in possession of the same. Under such circumstances, there is no any hurdle to hold that defendant has failed to prove the issue No.5 and 6. Hence, I would like to answer issue No.5 & 6 against the defendant as a Negative. 30 O.S. No.26962/2011
14. ISSUE No.3 & 4: 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 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 31 O.S. No.26962/2011 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 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. But, no any documents produced that the defendant is in possession of the said property. 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 32 O.S. No.26962/2011 against the defendant as prayed for. Hence, I would like to answer issue No.3 and 4 in favour of the plaintiff as a Affirmative.
15. ISSUE No.7: In view of the my findings given to above said issue Nos.1 to 6, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is 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 without due course of law. 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.33 O.S. No.26962/2011
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 11th day of December, 2015).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - Sri.George Varghese
P.W.2 - Sri.Ranjan John Thomas
P.W.3 - Sri.M.S.Narayana Murthy.
List of documents exhibited for the plaintiff:
Ex.P.1 - GPA
Ex.P.2 - C/C of Sale Deed dated 06.04.1965
Ex.P.3 - C/C of GPA
Ex.P.4(a)&(b) - RTC
Ex.P.5 - C/C of Sale Deed dated 04.02.1980
Ex.P.6 - C/C of GPA
Ex.P.7 - C/C of GPA
Ex.P.8 - Sale Deed dated 16.04.2007
Ex.P.9 - Form B Property Register
Ex.P.10(a)to(c) - Tax-paid-receipts
Ex.P.11(a)to(g) - Property tax receipts
Ex.P.12 - C/C of Judgment in O.S.No.26317/2009
Ex.P.13 - C/C of Decree in O.S. No.26317/2009
Ex.P.14 - C/C of Judgment in O.S.No.26720/2011
Ex.P.15 - C/C of Decree in O.S. No.26720/2011
34 O.S. No.26962/2011
Ex.P.16 - C/C of Judgment in O.S.No.25499/2011
Ex.P.17 - C/C of Judgment in O.S.No.25922/2009
Ex.P.18 - C/C of Decree in O.S. No.25922/2009
Ex.P.19 - C/C of Judgment in O.S.No.15008/2001
Ex.P.20 - C/C of Decree in O.S. No.15008/2001
Ex.P.21 - C/C of Judgment in O.S.No.15007/2001
Ex.P.22 - C/C of Decree in O.S. No.15007/2001
Ex.P.23 - C/C of Judgment in O.S.No.27068/2011
Ex.P.24 - C/C of Decree in O.S. No.27068/2011
Ex.P.25 - C/C of Judgment in O.S.No.26879/2011
Ex.P.26 - C/C of Decree in O.S. No.26879/2011
Ex.P.27 - C/C of Judgment in O.S.No.26878/2011
Ex.P.28 - C/C of Decree in O.S. No.26878/2011
Ex.P.29 - C/C of Judgment in O.S.No.26902/2011
Ex.P.30 - C/C of Decree in O.S. No.26902/2011
Ex.P.31 - C/C of Judgment in O.S.No.26899/2011
Ex.P.32 - C/C of Decree in O.S. No.26899/2011
Ex.P.33 - Deposition of DW-1 in O.S.26878/2011
Ex.P.34 - Deposition of DW-1 in O.S.26899/2011
Ex.P.35 - Deposition of DW-1 in O.S.26902/2011
Ex.P.36 - Deposition of DW-1 in O.S.26879/2011
Ex.P.37 - Tax-paid-receipt
Ex.P.38 - C/C of Judgment in O.S.No.26508/2011
Ex.P.39 - C/C of Legal Opinion given by BDA in
O.S. No.26508/2011
Ex.P.40 - C/C of Plaint in O.S. No.26134/2013
Ex.P.41 - C/C of Order Sheet in O.S.No.26134/13.
List of witness examined for the defendant:
-NIL-
35 O.S. No.26962/2011
List of document exhibited for the defendant:
-NIL-
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.36 O.S. No.26962/2011
Judgment pronounced in the Open
Court(vide separate order).
ORDER
Suit of the plaintiff is 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
37 O.S. No.26962/2011
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 without due course of law.
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/-.
Draw the decree accordingly.
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
38 O.S. No.26962/2011