Karnataka High Court
The Commissioner Bangalore ... vs H I Ramakrishnappa on 30 August, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE H. BILLAPPA
REGULAR FIRST APPEAL NO.1185/2005
BETWEEN:
1. The Commissioner,
Bangalore Development
Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore-560 020
2. The Assistant Commissioner
Enforcement Cell,
Bangalore Development
Authority,
Kumara Park West,
Bangalore-560 020
...APPELLANTS
(BY SRI K. KRISHNA, ADVOCATE)
AND:
1. Sri H.I. Ramakrishnappa,
S/o. Hanumanthappa,
Aged about 60 years,
Residing at Agrahara
Dasarahalli Village,
Bangalore North Taluk,
Bangalore-79,
2
Rep. by his GPA holder
Sri K. Srinivas
2. Sri K. Srinivas,
S/o. late Kempaiah,
Aged about 51 years,
Residing at Property
No.7 in Sy.No.37/1
Of Agrahara Dasarahalli
Bangalore North Taluk,
Bangalore-79.
...RESPONDENTS
(BY SRI K.S. NAGARAJA RAO & ASSOCIATES FOR C/R; SRI
M.L. SRINIVAS, ADVOCATE FOF C/R)
*****
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.04.2005
PASSED IN OS NO.7597/1997 ON THE FILE OF THE XVI
ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, CCH
NO.12, DECREEING THE SUIT FOR PERMANENT
INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants 1 and 2 is directed against the judgment and decree, dated 11.04.2005, passed by the XVI Additional City Civil & Sessions Judge, Bangalore, in OS No.7597/1997.
3
2. By the impugned judgment and decree, the trial Court has decreed the suit of the plaintiffs and restrained the appellants from interfering with the peaceful possession and enjoyment of the suit schedule property and from demolishing the residential house situated in the suit schedule property.
3. Aggrieved by that, the appellants/defendants have filed this appeal.
4. The respondents 1 and 2 are the plaintiffs in the trial Court. The parties will be referred to with reference to their rank in the original suit O.S. No.7597/1997.
5. Briefly stated the facts are;
The respondents 1 and 2 i.e., the plaintiffs filed suit in OS No.7597/1997 for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and from demolishing the residential house situated in the suit schedule property. The case of the respondents/plaintiffs was that the first 4 plaintiff is the owner of Sy.No.37/1 situated at Dasarahalli, Yeshwanthpur Hobli, measuring 1 acre 10 guntas. The first plaintiff's wife Smt. Lingamma acquired the said property through registered sale deed dated 15.12.1961 from one Muniswamaiah who in turn acquired the said property from Munikariyappa in the year 1961 through registered sale deed dated 25.07.1961. After the death of Lingamma, the first plaintiff succeeded to the property. The first plaintiff's wife was in possession and enjoyment of the property during her lifetime. Thereafter, the first plaintiff was in possession and enjoyment of the property. The first plaintiff executed a General Power of Attorney in favour of the second plaintiff in respect of the suit schedule property by receiving the entire sale consideration amount. Possession of two sites bearing Nos. 6 and 7 formed in Sy.No.37/1 situated at Dasarahalli village, measuring East to West 30+25 and North to South 30+20 and 2 2 5 site No.7 measuring East to West 80 ft. and North to South 35 ft. was delivered. The first plaintiff executed an affidavit also in favour of the second plaintiff admitting the receipt of the sale consideration amount and delivery of possession. The second plaintiff is in peaceful possession and enjoyment of the suit schedule property and has invested huge amount to improve the property by constructing a house in the suit schedule property. The second plaintiff has obtained electricity connection to the suit schedule property and is residing in the suit schedule property.
6. It is stated, the second plaintiff has constructed 4 square building in item No.1 of the suit schedule property and has obtained electricity and sanitary connection. The building was constructed in the year 1990. The second plaintiff has constructed 8 square building in item no.2 of the suit schedule property and has obtained electricity and sanitary connection. The defendants cannot take law into their hands and dispossess the second plaintiff from suit 6 schedule property. The BDA is bound to follow the procedure in accordance with law.
7. The second plaintiff has not obtained any licence for construction of the house in the suit schedule property. He has made application for regularization of the unauthorised construction.
8. The suit schedule property is not covered under the acquisition proceedings. There is no preliminary or final notification. No award has been passed. The possession of the suit schedule property has not been taken and the defendants 1 and 2 have no right or title in the suit schedule property and are trying to interfere with the possession. The plaintiffs got issued notice under section 64 of the BDA Act. Therefore, the plaintiffs have prayed for declaration that the second plaintiff is in settled possession and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule 7 property and from demolishing the residential house in the suit schedule property.
9. The defendants 1 and 2 have filed their written statement contending that the suit is not maintainable. The plaintiff has not issued notice under Section 64 of the BDA Act. It is denied that the plaintiffs are the owners of the property bearing Sy.No.37/1, Agrahara Dasarahalli Village, measuring 1 acre 10 guntas and the first plaintiff's wife acquired the property. The averments that Lingamma acquired the suit schedule property and the first plaintiff executed General Power of Attorney and affidavit in favour of the second plaintiff and possession of the suit schedule property was delivered etc., are all denied. It is stated that the land bearing Sy.No.37/1 of Agrahara Dasarahalli Village measuring 1 acre 1 gunta has been acquired by the erstwhile CITB for formation of IVth stage, West of Chord Road Layout vide preliminary notification dated 8.01.1964 and final notification dated 28.10.1971. Thereafter, notices were 8 issued under Sections 9, 10, 11 and 14 of the Land Acquisition Act and served on Muniswamaiah, Lingamma and H.Ramakrishna. After holding enquiry, award was passed and duly approved on 17.03.1978. Thereafter, possession of 1 acre and 1 gunta in Sy.No.37/1 of Agrahara Dasarahalli Village has been taken on 28.03.1978 and possession has been handed over to the Engineering Section of the BDA. The first plaintiff has signed the mahazar and has participated in the acquisition proceedings and has requested for payment of compensation. The averments that structure has been put up and the second plaintiff is settled possession have been denied. There was no structure in the suit schedule property. The land has vested with the BDA.
10. In the additional written statement, the averments that second plaintiff has constructed building in item Nos.1 and 2 of the suit schedule property and he is in settled possession have been denied as baseless and concocted statements. It is stated, the second plaintiff is not in 9 possession much less the settled possession. It is therefore, the defendants have prayed for dismissal of the suit.
11. The trial Court has framed the following issues:
1) Whether the plaintiffs prove that they are the absolute owner in the settled lawful possession, peaceful and exclusive enjoyment of the suit schedule properties as on the date of the filing of the suit?
2) Whether the plaintiffs under further prove that defendants are trying to demolish he existing structures put up by them on the suit schedule properties and thus caused interference?
3) Whether the defendant proves that the suit is not maintainable for want of mandatory notice under section 64 of the B.D.A. Act?
4) Whether the defendant proves that the suit schedule property has been acquired for the formation of IV Stage West of Chord Road layout and the acquisition proceedings having reached its finality the same stood vested with the defendant?10
5) Whether the plaintiff is entitled to the relief as prayed?
6) To what order or decree?
12. The trial Court has answered issue Nos.1, 2, 4 and 5 in the affirmative and consequentially, has decreed the suit declaring that the second plaintiff is in settled possession and granting injunction restraining the appellants from interfering with the peaceful possession and enjoyment of the suit schedule property or demolishing the structure in the suit schedule property.
13. Therefore, this appeal.
14. The learned counsel for the appellants contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the trial Court has failed to consider the evidence on record in proper prospective. Further he submitted that the suit schedule property has been acquired vide preliminary notification dated 8.01.1964 and final notification dated 28.10.1971 and award has been 11 passed on 17.03.1978 and possession has been taken on 28.03.1978 and the first respondent has received the award amount and inspite of that, the trial Court has granted injunction which is totally incorrect. Further he submitted that, the second plaintiff claims based on the power of attorney and affidavit executed in his favour on 10.06.1985 by which time the land was already acquired and therefore, the trial Court was not justified in granting injunction. Further he submitted that the second plaintiff has not obtained any licence or plan to put up the construction and the second plaintiff being the trespasser is not entitled for any relief and therefore, the impugned judgment and decree cannot be sustained in law.
15. As against this, the learned counsel for the respondents submitted that the impugned judgment and decree does not call for interference. He also submitted that the trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the 12 impugned judgment and decree does not call for interference. Further he submitted that the second plaintiff is in settled possession of the suit schedule property and therefore, the trial Court has granted injunction and therefore, it does not call for interference. He also submitted that a rank trespasser cannot be dispossessed except in accordance with law and the second plaintiff is in settled possession and therefore, the impugned judgment and decree does not call for interference. Further he submitted that the appellants have not taken physical possession and the second plaintiff is in physical possession and therefore, he cannot be dispossessed forcibly. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1975 SC page 1674 and also of this Court reported in AIR 1986 KAR page 194, the learned counsel for the respondents submitted that a person who is settled possession cannot be dispossessed except in accordance with law.
13
16. I have carefully considered the submissions made by the learned counsel for the parties.
17. The points that arise of my consideration are:
(1) Whether the Trial Court was justified in holding that the second plaintiff is in lawful possession of the suit schedule property?
(2) Whether the impugned judgment and decree calls for interference?"
Point No.1
18. It is relevant to note, the suit is for permanent injunction. The suit schedule property is site bearing Nos.6 and 7 formed in Sy.No.37/1 of Dasarahalli village, Yeshwantpur Hobli, Bangalore North Taluk. The second plaintiff claims that the suit schedule property was acquired by him through General Power of Attorney and affidavit dated 10.06.1985 and he is in settled possession of the suit schedule property by putting up structure. The defendants are interfering with his possession.
14
19. The defendants have contended that the suit schedule property bearing Sy.No.37/1 of Agrahara Dasarahalli village measuring 1 acre 1 gunta has been acquired vide preliminary notification dated 8.01.1964 and final notification dated 28.10.1971. Thereafter, award has been passed on 17.03.1978 and possession has been taken on 28.3.1978. The claim of the second plaintiff that he has put up structure is baseless.
20. The second plaintiff has examined himself as PW1. He has deposed supporting the plaint averments.
21. Similarly, DWs.1 and 2 have deposed supporting the written statement averments.
22. Ex.P.1 is the sale deed dated 25.07.1961 executed in favour of one Muniswamaiah, the Vendor of the first plaintiff's wife. Ex.P.2 is the certified copy of the sale deed dated 15.12.1961 in respect of 1 acre and 1/4th of an acre in Sy.No.37/1 of Agrahara Dasarahalli village in favour of the 15 first plaintiff's wife Lingamma. Ex.P.3 is the General Power Attorney dated 10.6.1985 executed by first plaintiff in favour of the second plaintiff in respect of site Nos.6 and 7 formed in Sy.No.37/1 of Agrahara Dasarahalli Village. Exhibit P4 is the affidavit dated 10.6.1985. It stated that possession of site Nos.6 and 7 has been delivered by taking sale consideration amount of Rs.10,000/-. Ex.P.5 is electricity bills. Ex.P.6 is the copy of the legal notice dated 03.07.1997 issued by the plaintiffs to the first defendant. Ex.P.6(a) is the acknowledgment. Ex.P.7 is the copy of the application for regularization. Ex.P.8 is the receipts.
23. The defendants have produced Exs.D1 to D5. Ex.D1 is the preliminary notification dated 08.01.1964. Ex.D2 is the final notification dated 28.10.1971. Ex.D3 is the copy of the award in respect of Sy.No.37/1 measuring 1 acre 1 gunta. Ex.D4 is the mahazar dated 28.3.1978 for having taken possession of Sy.No.37/1 measuring 1 acre 1 gunta. 16
Ex.D5 is the modified plan which includes Sy.No.37/1 of Agrahara Dasaraharlli Village.
24. From the evidence on record, it is clear that the first plaintiff's wife Lingamma has purchased 1 acre and 1/4th of an acre in Sy. No.37/1 of Agrahara Dasarahalli Village through Ex.P2 sale deed. Thereafter, vide preliminary notification dated 08.01.1964 and final notification dated 28.10.1971 the land in Sy.No.37/1 measuring 1 acre and 1 gunta has been acquired. Award has been passed as per Ex.D.3. The first plaintiff has participated in the acquisition proceedings and claimed compensation. Thereafter, possession has been taken on 28.3.1978 as per Ex.D4. The first plaintiff has signed Ex.D4 mahazar. Therefore, the first plaintiff cannot contend that he had no knowledge of the acquisition proceedings. Though the first plaintiff had the knowledge of the acquisition proceedings that Sy.No.37/1 of Agrahara Dasarahalli village measuring 1 acre 1 gunta has been acquired, the first plaintiff has executed Exhibits P3 and 17 P4 i.e. General Power of Attorney and affidavit on 10.06.1985. It is clear, the documents executed by the first plaintiff in favour of the second plaintiff are subsequent to the acquisition proceedings with full knowledge of the acquisition proceedings. Therefore, the second plaintiff cannot contend that he is in lawful possession of the suit schedule property. He has not obtained any licence or sanctioned plan. But, there is structure. The possession of the second plaintiff is not lawful and therefore, injunction cannot be granted. However, the second plaintiff cannot be dispossessed forcibly. Therefore, point No.1 answered accordingly holding that the trail Court was not justified in holding that the second plaintiff is in lawful possession.
Point No.2
25. The trial Court has failed to consider the evidence on record in proper perspective. It has erred in holding that the second plaintiff is in settled possession. However, the evidence on record shows the existence of structure in the 18 suit schedule property. Therefore, though injunction cannot be granted, the second plaintiff cannot be dispossessed forcibly.
26. Accordingly, appeal is allowed and the impugned judgment and decree passed by the Trial Court in OS No.7597/1997 is hereby set aside. The suit of the plaintiffs is dismissed. However, it is made clear, the second plaintiff shall not be dispossessed forcibly. The appellants are at liberty to take appropriate action in accordance with law.
Sd/-
JUDGE Sbs*