Karnataka High Court
Pawan Kumar Bhihani vs Obalappa on 15 October, 2024
Author: V Srishananda
Bench: V Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.636/2018
BETWEEN
1 . PAWAN KUMAR BHIHANI
AGED ABOUT 43 YEARS
S/O JAGADISH PRASAD BHIHANI
2 . NIRAJ KUMAR BHIHANI
AGED ABOUT 41 YEARS,
S/O JAGADISH PRASAD BHIHANI
3 . SURAJ BHIHANI
AGED ABOUT 39 YEARS,
S/O JAGADISH PRASAD BHIHANI
ALL ARE RESIDING AT #129,
11TH MAIN, 9TH BLOCK, 2ND STAGE,
NAGARABHAVI LAYOUT
BANGALORE-560 072
...APPELLANTS
(BY SRI UMASHANKAR.M.N, ADVOCATE)
AND
1 . OBALAPPA
S/O LATE RANGAPPA
AGED ABOUT 68 YEARS,
# 15, SKYLAB APARTMENT,
MADHAVANAGARA
BANGALORE-560 040
2
2 . RAVISHANKAR
S/O LATE RANGAPPA
AGED ABOUT 62 YEARS,
#27, 2ND MAIN, ATTIGUPPE
VIJAYANAGARA
BANGALORE-560 040
3 . SMT VENKATAMMA
D/O LATE RANGAPPA
AGED ABOUT 49 YEARS,
W/O HANUMANTHARAJU
#26, SANEGURUVANAHALLI
BASAVESWARANAGARA
BANGALORE-560 079
...RESPONDENTS
(BY SRI P.S.MOHAN, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER
41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 17.3.2018 PASSED IN OS NO.6887/2012
ON THE FILE OF THE XXIX ADDL. CITY CIVIL JUDGE,
BANGALORE CITY, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-
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CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE V SRISHANANDA) Present appeal is filed by the unsuccessful plaintiffs challenging the validity of the judgment and decree passed in O.S.No.6887/2012 dated 17.03.2018 on the file of XXIX Additional City Civil and Sessions Judge, Bangalore (CCH-30).
2. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking before the Court below.
3. Brief facts of the case in the nut shell are as under:
3.1. Plaintiffs filed a suit for permanent injunction on 25.09.2012 against the defendants from trespassing or interfering the peaceful possession and 4 enjoyment of the suit property including demolition of foundation and pillars standing on the suit property and such other reliefs.
4. Contention of the plaintiffs as per the plaint averments are as follows:
4.1. Plaintiffs are the absolute owners in possession and enjoyment of the site bearing No.66 formed by the BDA measuring East to West 12.20 meters and North to South 19.80 meters in all measuring 241.56 square meters situated in K.P. Agrahara, Chandra Layout, Bengaluru.
4.2. The said property was auctioned by the BDA as per the rules of the BDA as it was a corner property. Sri.Jagadish Prasad Bhihani, who was the father of the plaintiffs participated in the public auction and he having been declared as highest bidder, purchased the suit site by remitting the bid 5 amount to the BDA. Immediately thereafter, BDA executed a registered sale agreement of auction site on 24.05.1993. Thereafter, as per the rules of BDA, a regular registered sale deed was executed on 17.11.2003 by the BDA in favour of Sri.Jagadish Prasad Bhihani.
4.3. Apart from the above property, there was a margin land measuring East to West 12.20 meters and North to South 1.50 meters in all measuring 18.30 square meters which was adjacent to the auctioned site bearing No.66. Sri.Jagadish Prasad Bhihani filed an application to BDA to purchase the said margin land and a sale deed was executed by the BDA as per the rules by taking necessary sale consideration. Thus, Sri.Jagadish Prasad Bhihani became the absolute owner in respect of site No.66 and adjacent margin land and he was put in possession of the suit property and mutated the revenue entries in his name 6 and started enjoying the suit property as absolute owner in possession.
4.4. Plaint averments further reveal that father of the plaintiffs gifted the suit property in favour of plaintiffs through a registered gift deed dated 17.01.2011. It is the contention of the plaintiffs that instead of mentioning Sy.No.350/9, 350/10 and 350/11 in the sale deed, BDA has mentioned as Sy.No.349 and Sy.No.352, whereunder the auctioned site No.66 is formed. Therefore, an application was made by the plaintiffs and BDA after verification of its records, notified that mistake has crept in and therefore, executed a registered rectification deed mentioning that suit property that is site No.66 and margin land is forming part of the acquired land in Sy.No.350/9, 350/10 and 350/11 and not in Sy.No.349 and Sy.No.352. Said rectification deed was registered on 03.08.2012.
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4.5. Thereafter, plaintiffs applied for plan and license for putting up the construction. Concerned authorities after verifying the title of the plaintiffs and all other necessary documents, issued the plan and license. Therefore, plaintiffs commenced putting up of construction in the suit property and laid foundation and also erected the pillars by plaintiffs spending huge amount.
4.6. Plaint averments further reveal that it is at that juncture, defendants who have no right, title or interest over the suit property, abruptly came to the suit property on 21.09.2012 along with all other henchmen and servants and anti-social elements trying to trespass into the suit property and tried to demolish the pillars erected by the plaintiffs and also damaged the foundation laid by the plaintiffs. The defendants and their henchmen also threatened the plaintiffs with dire consequences and they gave an 8 open threat that they would come with more men and machinery and demolish the structure. Immediately, plaintiffs approached the jurisdictional police and lodged a complaint. However, police refused to receive the complaint and informed the plaintiffs that matter is of civil nature and they should approach the civil Court. Thereafter, plaintiffs filed the present suit.
5. After registering the suit, suit summons were issued. Defendants entered appearance through their counsel and filed a detailed written statement.
6. In the written statement, it is contended that plaintiffs had already filed a suit in O.S.No.26629/2011 for the relief of permanent injunction and when the said suit is still pending, the present suit is filed suppressing the earlier suit which is thus not maintainable. They further contended that contention of the plaintiffs that the suit site is a corner 9 site is incorrect and there is no cause of action to file the suit.
7. It is further contention of the defendants that to an extent of 5½ guntas in Sy.No.349/1 and property to the extent of 4 guntas of Sy.No.350/12 of Kempapura Agrahara Village, now known as Chandra Layout originally belonged to one Obalappa, who had acquired under registered sale deed dated 20.07.1931. Obalappa having become the absolute owner, was in possession of the said property and he died interstate leaving behind his only daughter Thimmakka. Thimmakka is none other than mother of the defendants and after the death of Thimmakka, all the defendants have succeeded to the estate of Obalappa which was enjoyed by Thimmakkka and they got the revenue documents transferred in their name.
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8. It is also admitted by the defendants that CITB (City Improvement Trust Board, Erstwhile BDA) has acquired the property including other properties belonged to the family of defendants.
9. It is further contended that possession of the property has not been taken by CITB or BDA. Therefore, Thimmakka and defendants continued in possession of the said property and even today, they are in possession of the suit property as suit property having constructed an ACC roofed house and Thimmakka in her lifetime, erected the compound wall measuring East to West 80 Feet and North to South 130 feet.
10. It is also the contention of the defendants that Sri.Jagadish Prasad Bhihani, who is the father of the plaintiffs, did not derive any right, title or interest much less possession over the suit property by the 11 alleged purchase in the auction held by the BDA and therefore, he executing a gift deed in favour of the plaintiffs has not transferred any right, title or interest over the suit property and it's a sham document and thus sought for dismissal of the suit.
11. In view of the rival contestants of the parties learned Trial Judge raised following issues:
1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of this suit?
2. Whether the plaintiffs further prove that the defendants are trespassing or interfering with the plaintiffs peaceful possession and enjoyment of suit schedule property including demolition of foundation and pillars in the suit property as alleged?
3. Whether plaintiffs are entitled for permanent injunction as sought for?
4. What order or decree?
12. In order to prove the case of the plaintiff's, plaintiff No.1 got examined himself as P.W.1 and 12 placed on record thirty eight documents which were exhibited and marked as Exs.P.1 to P.38 comprising of certified copy of auction site sale agreement dated 24.05.1993, certified copy of sale deed dated 17.11.2003, certified copy of sale deed dated 15.09.2009 in respect of marginal land, certified copy of gift deed dated 17.01.2011, Rectification deed dated 03.08.2012, Encumbrance certificate from the year 2009 to 2012, Khatha extract dated 11.09.2012, Khatha certificate dated 11.09.2012, Tax paid receipt dated 24.03.2012, Possession certificate issued by BDA on 10.08.1993, Khatha letter issued by BDA on 13.12.1993, Auction site sale deed dated 17.09.2003, Marginal sale deed dated 15.09.2009, Registered gift deed dated 17.01.2011, Khatha certificate, Khatha extract, certified copy of order-sheet in O.S.No.16810/2001, certified copy of order-sheet in O.S.No.26629/2011, certified copy of the order in RFA 13 No.1753/2010, certified copy of the order in W.P.No.29819/-29822/2013, certified copy of the order-sheet in O.S.No.3356/2011, Building license issued by BBMP on 24.05.2011, Building sanctioned plan, Letter dated 08.05.2012 written by BDA to the Chandra Layout P.S., Letter dated 05.11.2011 written by Chandra Layout police to the BDA Commissioner, Sanjevani daily newspaper dated 12.01.2013, Portion of publication, 6 photographs, Negatives, certified copy of sale deed dated 05.08.2013, certified copy of sale deed dated 05.08.2013, BDA issued preliminary Gazette Notification u/s.17, dated 30.07.1977, BDA issued preliminary Gazette Notification u/s.19, dated 10.05.1978, Encumbrance Certificate for the period from 2007 to 2013, 15 Tax paid receipts.
13. As against the material evidence placed on record on behalf of the defendants Ravishankar, who is defendant No.2 got examined himself as D.W.1. As 14 many as 40 documents were placed on record on behalf of the defendants which were exhibited and marked as Exs.D.1 to Ex.D.40 comprising of certified copy of registered sale deed dated 20.07.1931,certified copy of sketch pertaining to Sy.No's.349/1 & 350/11, Encumbrance Certificate pertaining to Sy.No.349/1 for the period from 08.05.1997 to 31.03.2004, Encumbrance Certificate from the period from 01.04.2004 to 04.07.2011, Encumbrance Certificate pertaining to Sy.No.350/12 for the period from 01.04.2004 to 04.07.2011, 7 Electricity bills and receipts, certified copy of plaint in O.S.No.16810/2001, certified copy of written statement in O.S.No.16810/2001, certified copy of Judgment in O.S.No.16810/2001, certified copy of decree in O.S.No16810/2001, certified copy of order- sheet in O.S.No.3356/2011, certified copy of plaint in O.S.No.3356/2011, certified copy of written statement 15 in O.S.No.3356/2011,certified copy of the application (I.A.) u/Order XXXIX, Rule 1 & 2 of CPC submitted in O.S.No.3356/2011, certified copy of order-sheet in O.S.No.26629/2012, certified copy of the application (I.A.) u/Order XXXIX, Rule 1 & 2 of CPC submitted inO.S.No.26629/2012,certified copy of plaint in O.S.No.26629/2012, certified copy of written statement in O.S.No.26629/2012, certified copy of the application (I.A.) u/S 150 of CPC submitted in O.S.26629/2012, certified copy of objection to the application (I.A.) u/s.151 of CPC submitted in O.S.26629/2012, Electricity bill, Electricity receipt, Index of Land of K.P.Agrahara Sy.No.349/1, Index of Land of K.P.Agrahara Sy.No.350/12,Pahanipathrike pertaining t Sy.No.349/1 & 350/12, Electricity bill, Electricity receipt, Letter dated 17.06.2016 sent by Asst.Executive Engineer, BESCOM.
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14. On conclusion of recording of evidence of the parties, learned Trial Judge heard the parties in detail and by impugned judgment, dismissed the suit of the plaintiffs.
15. Being aggrieved by the same, plaintiffs have filed the present appeal on the following grounds:
That the Trial court has failed to exercise the jurisdiction vested in it in law in not considering the material documents available on record in proper percespctive and come to a erroneous conclusion and thereby dismissed the suit.
That the impugned judgment and Decree suffers from arrors apparent on the face of the record and hence, the judgment and Decree is liable to be set-aside in the above appeal.
That the Trial Court has failed to exercise the jurisdiction vested in it in law in not considering the material documents and evidence available on records in proper perceptive & thereby has come to a erroneous conclusion and proceeded to dismiss the suit.
That the Trial Court has failed to appreciate that though the Appellants have produced the original title deeds such as Sale deed Exhibit-P12, Possession Certificate Exhibit-P10, Gift deed 17 Exhibit-P14, Rectification deed Exhibit-P5, Katha certificates-P7, P8, P11, Tax paid receipts exhibits- P9, P38(15 Nos.) & though they have been marked as exhibits without any objections from the Respondents, the Trial Court in paragraph 11 of the judgment has erroneously observed that the Appellants have produced only the certified copies of the title documents and not produced the original title deeds which observation of the Trial Court is contrary to the very original docu- ments produced before the Trial Court & marked them as exhibits and the Trial Court has further observed that no explanation is putforth by the Appellants for not producing the originals which observation is also contrary to the records available in the court file & the judgment based on the above said observation is unsustainable in law & hence, the impugned judgment and decree is liable to be set- aside.
Even though the Trial Court in para of the judgment rightly observed that as per Exhibits- P35(Prl.Notification) & Exhibit-P36 (Final Notification) Sy, No.350/9 is in the name of Chikkanna, Sy, No.350/10 is Beelu & Sy, No.350/11 is in the name of Doddanarasimiah which observation supports the Appellants, however, the Trial Court has erroneously observed that the Appellants have failed to establish the acquisition of the suit schedule property and the Trial Court has further failed to appreciate that it is the specific case of the Appellants that the suit schedule property i, e.site No.66 is carved out of Sy, Nos, 350/9, 350/10 and 350/11 and not carved out of Sy, No.349, and 352 which belongs to the Respondents & even though the 2nd Respondent(DW-1) has categorically admitted this fact during the course of his evidence. However, these aspects of the matter has not been properly 18 considered by the Trial Court and thereby comes to a erroneous conclusion. Hence, the impugned judgment & decree is liable to be set-aside.
That the Trial Court further failed to appreciate that in more than one occasion the DW-1 has categorically admitted that the suit schedule property i.e., site No.66 is carved out of Sy, Nos, 350/9,350/10 & 350/11 which does not belongs to the defendants and the defendants are not concerned to the said property and which fact is also observed by the Trial Court in para 19 of the judgment. When that being the position, the Trial Court ought not to have dismissed the suit for permanent injunction and on this ground alone the Trial Court ought to have decreed the suit.
That the finding of the Trial Court in para 20 of the judgment that the Appellants/Plaintiffs have produced the tax paid receipts commencing from the year 2003 till 2017-2018, they are Exhibits P9 & P38(15 Nos.) where as they are for the Sy, Nos.349 and 352 and further observed that these tax paid receipts does not prove the possession on the suit schedule property which observation is contrary to exhibits-P-9 & P38 itself, because though tax paid receipts for the year 2003 to 2007 shows the Sy, No.349 & 352, however tax paid receipts produced for the period from 2008-2009 to 2017-2018 which clearly goes to show that those tax paid receipts are in respect of Sy, Nos.349 to 352 in which the suit schedule property bearing Sy, Nos.350/9,350/10,350/11 also comes. This aspect of the matter has been completely overlooked by the Trial Court and thereby has comes to a erroneous conclusion.
That the Trial Court in para 14 of the judgment has proceeded to observe that the defendants 19 have filed a suit in O.S.3356/2011 against the Appellant's father where she obtained decree in her favour, which observation is contrary to the records. Because, as per Exhibit-P21 I,e. order sheet of 0.5.3356/2011 which makes very clear that the said suit came to be dismissed for non- prosecution on 30.08.2014 itself & even the subject matter of the said suit 0.5.3356/2011 is Sy, No.349 & 352 and not Sy, Nos.350/9,350/10,350/11 (I,e.Suit Schedule property) & since the very suit of the defendants/Respondents was dis. missed and not decreed as observed by the Trial Court which fact is also admitted by DW-1 in his cross-examination. That though the said suit was dismissed, the Trial Court without verifying the documents has observed that the suit O.S.3356/2011 was decreed, which observation of the Trial Court is erroneous in law.
That the Trial Court has failed to appreciate that the Appellants have filed a suit in O.S.26629/2011 in respect of the property Sy, Nos. 349 & 352 and during the pendency of the said suit, since the BDA Authorities after re-survey have came to a conclusion that there was a mistake in mentioning the Sy, Nos.as 349 & 352 in the auction site sale agreement Exhibit-P1, sale deed exhibit-P12 instead of Sy, Nos.350/9,350/10 & 350/11 immediately have executed a rectification deed as per Exhibit-P5 in favour of the Appellants, by rectifying the correct Sy, Nos.as 350/9,350/10 & 350/11 (Suit Property) in place of Sy, Nos.349 &
352.
That the Trial Court has further failed to appreciate that pursuant to the execution of rectification deed exhibit-P5, since, the Respondents tried to interfere with the possession of Appellants, the 20 Appellant have filed the present suit O.S.6887/2012 and thereafter taken steps to withdraw the suit O.S.26629/2011. Hence, the question of obtaining prior permission does not arise, since that suit is one for permanent injunction. That the observation of the Trial court in this aspect is erroneous in law.
That the finding of the Trial Court that the Appellants ought to have filed the suit for declaration is totally erroneous. Because, the ownership of Appellants in respect of suit schedule property is concerned the 2nd defendant(DW-1) has clearly and categorically admitted about the title & ownership of the Appellants and he has clearly stated that the defendants/Respondents are not concerned with suit schedule property bearing Site No.66 carved out of Sy, Nos. 350/9.350/10 & 350/11 and when that being the position, the question of filing a suit for declaration in respect of suit schedule property does not arise and even otherwise the Appellants have produced relevant title documents such as Auction site sale agreement, sale deed, possession certificate, rectification deed, Encumbrance certificates, Katha certificates, Katha extracts, Tax paid receipts, which are clearly establishes the ownership as the actual & physical possession of the suit schedule property by the Appellants as on the date of the suit. However, the Trial Court failed to appreciate the said documents & dismissed the suit erroneously without application of mind. 26.That the Trial Court has failed to appreciate that in a suit for permanent injunction proving of possession as on the date of the suit by the Appellants is a paramount importance and not establishing of ownership and even otherwise, the Appellants have produced sufficient documents to 21 prove and establish the ownership and title and possession of the Appellants and these aspects of the matter has not been properly appreciated by the Trial Court and thereby comes to a erroneous conclusion and proceeded to dismissed the suit. That the Trial Court has totally misread and misunderstood the scope of the suit for permanent injunction and thereby comes to a erroneous conclusion while dismissing the suit. That the reasons assigned by the Trial Court to dismiss the suit is erroneous in law and hence, the impugned judgment and Decree is illegal and unsustainable in law & liable to be set-aside by this Hon'ble Court.
At any event of the matter, the judgment & decree passed by the court below is erroneous, illegal & unsustainable in law & interference by this Hon'ble Court is called for.
16. Plaintiffs were earlier represented by learned Advocate, Sri.Jayakar Shetty. Later on by obtaining No Objection Certificate from Sri.Jayakar Shetty, Sri.M.N.Umashankar, learned counsel represents the plaintiffs/appellants.
17. Likewise, defendants were earlier represented by Sri.T.N.Viswanatha, learned counsel 22 and later on by obtaining No Objection Certificate, Sri.P.S.Mohan, learned counsel represents the respondents/defendants.
18. Sri.M.N.Umashankar, learned counsel for the appellants/plaintiffs reiterating the grounds urged in the appeal memorandum contended that father of the plaintiffs purchased the suit property in an public auction held by the BDA and thereafter, purchased the margin land by virtue of the sale deed dated 15.09.2009. Thus, father of plaintiffs was the owner of the suit property. Therefore, he had every right to execute the gift deed in favour of plaintiffs and thereby plaintiffs have become owners of the suit property.
19. He further contended that BDA had issued possession certificate vide Ex.P.10 dated 10.08.1993 itself and thereafter, Katha letter was issued by the 23 BDA on 13.12.1993 vide Ex.P.11. He further contended that registered gift deed is dated 17.01.2011 and thereafter, Katha of the property was mutated in the name of the plaintiffs as per Exs.P.15 and 16.
20. He also contended that the property of the defendants is situated elsewhere and property of the plaintiffs is the property owned by the BDA by virtue of the acquisition and later on after allotting the sites, as per the rules and regulations of the BDA, the suit property being the corner site was auctioned by the BDA by public auction.
21. He further contended that plaintiff's father participated in the public action by virtue of the public notice issued by the BDA and since he was the highest bidder, the suit site was sold to father of the plaintiffs initially by executing the auction sale agreement and 24 later on, executing a registered sale deed and transferring the Katha in the name of the father of the plaintiffs.
22. It is also his contention that the very fact that there was a margin land which was in existence, adjacent to the property purchased by the father of the plaintiffs, shows that the margin land was also the property of the BDA and which was sold to the father of the plaintiffs by virtue of the sale deed dated 15.09.2009 that is much after the auction sale was held.
23. It is further contended that after the gift deed was executed by father of the plaintiffs in favour of the plaintiffs, when the plaintiffs noted that there is a discrepancy in the description of the property that was conveyed to the father of the plaintiffs under the registered sale deed, they made an application to the 25 BDA to rectify the mistake. BDA having noticed that there is a mistake in mentioning that the survey numbers and name of the village in the sale deed executed by the BDA in favour of the plaintiffs, executed a rectification deed on 03.08.2012 and therefore, the right, title and interest in respect of the suit property has been with the plaintiffs and they were in lawful possession of the suit property all along.
24. He further emphasized that noting the relevant aspects of the matter, when the application for plan and licence was filed by the plaintiffs with the Bruhat Bengaluru Mahanagara Palike (hereinafter BBMP for short) as the property is now under the jurisdiction of the BBMP, plan and licence in favour of the plaintiffs was issued by the BBMP and thereafter, plaintiffs have put up the foundation and raised the pillars which could be seen from the photographs filed 26 along with the suit and marked as Exs.P.27 to 32, shows that plaintiffs are in lawful possession of the suit property and therefore, dismissal of the plaintiff's suit by the Trial Court has resulted in grave miscarriage of justice and therefore, the appeal needs to be allowed.
25. He also pointed out that there is no suppression of any material fact by the plaintiffs and in fact, in paragraph No.14 of the plaint, the plaintiffs have specifically stated that there was a suit that was filed earlier in O.S.No.26629/2011 against defendant No.2 alone for permanent injunction and the cause of action paragraph in paragraph No.15, there is a specific averment that on 21.09.2012, all the defendants and their henchmen tried to trespass with the peaceful possession and therefore, second suit is initiated.
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26. He also pointed out that the schedule of the property mentioned in the plaint would go to show that site No.66 is now forming part of Sy.No.350/9, 350/10 and 350/11 which are acquired by the BDA for formation of Chandra Layout and therefore, dismissal of the suit by the trial court is incorrect and sought for allowing the appeal.
27. Per contra, Sri.P.S.Mohan, learned counsel for the respondents vehemently contended that the entire foundation of the plaint prayer itself is incorrect as the property claimed by the plaintiffs is an imaginary property.
28. He further contended that there is a specific contention taken in the written statement itself that the suit property is not the property that was available on record and it is the property of the defendants by virtue of the sale deed executed in 28 favour of Oblappa by virtue of the registered sale dated 20.07.1931, whereunder 5 ½ guntas of land was purchased in Sy.No.349/1 and 4 guntas of land in Sy.No.350/12 and therefore, suit of the plaintiffs is rightly dismissed by the trial court.
29. He further contended that the documents placed on record vide Exs.D.1 to D.6 which are the photographs and certified copy of the sale deed and certified copy of the sketch pertaining to Sy.No.349/1 and 350/12 vide Exs.D.7 and D.8 would make it clear that it is Obalappa, who was the owner of the property and after the death of Obalappa, his wife namely Thimmakka, enjoyed the property comprising in Sy.No.349/1 and Sy.No.350/12 which was the subject matter of the sale in Ex.D.7 continuously without there being any hindrance even after acquisition of the property by the CITB (erstwhile BDA). 29
30. It is his contention that Obalappa, Lakshmamma, Ravishankar and Venkatamma, together filed a Writ Petition in WP No.29819- 29822/2013 on the file of this Court which was allowed by this court after contest by order dated 31.07.2013 and there was a declaration that subject matter of the land in Sy.No.349/1 and Sy.No.350/12 is situated in Kempapura Agrahara Village, Kasaba Hobli, Bengaluru North Taluk was left out as the acquisition notification vide preliminary notification dated 30.07.1977 and final notification dated 10.05.1978 stood lapsed.
31. Sri.P.S.Mohan, learned counsel further contended that being aggrieved by the order passed by the learned Single Judge in the Writ Petition as aforesaid, BDA filed an appeal in WA No.2952/2014 and this Court by order dated 13.01.2016, permitted 30 the BDA to withdraw the appeal and thus, appeal to dismissed.
32. It is his further contention that one C.Krishnappa, who was the neighboring landowner, filed a Writ Petition in WP No.23155/2016 in respect of the land which was acquired by the BDA vide preliminary notification dated 30.07.1977 and final notification dated 10.05.1978 in respect of the land in Sy.No.350/10 measuring 0.2½ guntas of land in Jodi Kempapura Village, Kasaba Hobli, Bangalore North Taluk which was also allowed by this Court and notifications were quashed as it has lapsed and therefore, the contention of the plaintiffs that the land was acquired by the BDA and then formed the sites and auctioned the corner site which was purchased by father of the plaintiffs is perse incorrect and therefore, dismissal of the suit by the trial court vide impugned 31 judgment is thus proper and justified and sought for dismissal of the appeal.
33. It is also his contention that in fact, a suit in O.S.No.16810/2001 was filed by the defendants herein against the BDA which was decreed vide Exs.D.21 and 22. Therefore, it is the defendants who are in possession of the suit property based on their own independent title and same has been rightly appreciated by the learned Trial Judge and rightly dismissed the suit of the plaintiffs. Therefore, there is no interference called for in this appeal.
34. It is further contention of the defendants that when once there is no right, title or interest possessed by the BDA in respect of the suit property, the alleged auction sale and execution of the sale deed in respect of site No.66 and sale of margin land and later on wrongly mentioning the description and 32 boundaries by virtue of a rectification deed, BDA and plaintiffs are in collusion to dispossess the defendants from the suit property, which would result in nullifying the order passed in WP No.29819-29822/2013 which cannot be permitted by the Courts and thus, dismissal of the suit by the plaintiffs is just and proper.
35. In reply, Sri.M.N.Umashankar, learned counsel for the appellants contended that the suit filed by the defendants in OS No.16810/2001 and obtained a decree against the BDA, was the subject matter of RFA No.1753/2010 before this Court and by order dated 16.04.2013, this court set aside the judgment and degree passed in OS No.16810/2001 and matter was remitted to the Trial Court. Thereafter, parties were directed to appear before the Trial Court on 05.06.2013. However for the reasons best known to the defendants, they did not further pursue the said suit and suit came to be dismissed for non prosecution 33 on 08.11.2013 and since it has become final, defendants cannot take advantage of the decree passed in O.S.No.16810/2001.
36. He further emphasized that when the interference of the defendants were there in respect of the suit property, police wrote a letter to the BDA vide Ex.P.25. As per the said letter, BDA appointed the surveyor and surveyor went to the spot and verified the land of the plaintiffs as well as defendants and gave a report vide Ex.P.24 along with a sketch.
37. It is his case that since the survey sketch clearly depicts that the property of the plaintiffs is different from the property of the defendants, learned Trial Judge ignoring the probative value of Ex.P.24 and dismissing the suit of the plaintiffs has resulted in miscarriage of justice and thus, sought for allowing the appeal.
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38. In view of the rival contentions of the parties this Court perused the material on record meticulously. On such perusal of the material on record following points would arise for consideration:
1. Whether the plaintiffs have successfully established that they are in lawful possession over the suit property and there was an interference caused by the defendants and are thus entitled for permanent injunction against the defendants?
2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
3. What order?
REG POINT Nos.1 to 3:
39. In the case on hand, preliminary notification dated 30.07.1977 and final notification dated 10.05.1978 issued by the CITB is not in dispute. Even according to the defendants also, land in Sy.Nos.350/9, 350/10, 350/11, 349/1 and 350/12 are 35 all acquired. But the possession of the land in Sy.No.349/1 to the extent of 5½ guntas and land in Sy.No.350/12 to the extent of 4 guntas was not taken by the CITB or BDA and they continued in possession of the suit property even after final notification came to be issued.
40. There is no dispute that even after formation of Chandra Layout, since the possession of respondents in respect of the land in Sy.No.349/1 to the extent of 5½ guntas and land in Sy.No.350/12 to the extent of 4 guntas of Kempapura Agrahara Village, Kasaba Hobli, Bengaluru North Taluk was not taken by the BDA. A coordinate bench of this Court in WP No.29819-29822/2013 stated that notification issued by the BDA stood lapsed insofar as aforesaid lands are concerned.
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41. Thereafter, BDA filed Writ Appeal against the order of the learned Single Judge in WA No.2952/2014 before the division bench. But in the appeal, BDA filed a memo seeking to withdraw the appeal. Said memo was placed on record and appeal of the BDA stood dismissed as withdrawn. What are the contents of the said memo is not forthcoming on record as same is not placed by learned counsel for the defendants.
42. Be it what it may, fact remains that land in Sy.No.349/1 to the extent of 5½ guntas and land in Sy.No.350/12 to the extent of 4 guntas are out of the purview of acquisition proceedings and thereby defendants continued to be in possession of those lands.
43. While considering the interim prayer in the appeal by order dated 03.10.2018, the then learned 37 single Judge has recorded the submissions of the parties and passed the following order:
"Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The suit of the plaintiff for permanent injunction was dismissed so far as survey Nos.350/9, 350/10 and 350/11 are concerned.
3. The respondents counsel submit that he has got right over property bearing survey Nos.349/1 and 350/12 of Kempapura Agrahara, Chandra Layout, Bengaluru-40.
4. After hearing the learned counsel appearing for the parties, it is clarified that both the parties have to maintain statusquo so far as survey Nos.350/9, 350/10 and 350/11 are concerned.
5. The respondents have only claimed right over survey Nos.349/1 and 350/12 and they can enjoy the said property as they like after getting the property de-marketed.
Office to secure the records of the trial Court. List for final hearing after receipt of the records.
Learned counsel for the appellantsis directed to furnish paper book within eight weeks from today."
44. On careful perusal of the said order, it is crystal clear that all that the respondents are claiming the right over the land in Sy.No.349/1 and 38 Sy.No.350/12. In the rectification deed marked at Ex.P.5 dated 03.08.2012, the schedule reads as under:
"ZÀAzÁæ §qÁªÀuÉ, PÉ.¦.CUÀæºÁgÀ ¸ÀªÉð £ÀA.350/9, 350/10, 351/11 gÀ°ègÀĪÀ 66(CgÀªÀvÁÛgÀÄ)£Éà ¸ÀASÉåAiÀÄ ºÀgÁdÄ ¤ªÉñÀ£ÀzÀ C¼ÀvÉ ºÁUÀÆ ¸ÀjAiÀiÁzÀ ZÀPÀÄ̧A¢ F ªÀÄÄA¢£ÀAwzÉ. ¥ÀƪÀð-¥À²ÑªÀÄ: 12.20 (ºÀ£ÉßgÀqÀÄ ¥Á¬ÄAmï JgÀqÀÄ ¸ÉÆ£Éß) «ÄÃlgïUÀ¼ÀÄ GvÀÛgÀ zÀQët: 19.80 (ºÀvÉÆÛA§vÀÄÛ ¥Á¬ÄAmï JAlÄ)«ÄÃlgïUÀ¼ÀÄ MlÄÖ «¹ÛÃtð: 241.56(JgÀqÀÄ £ÀÆgÀ £À®ªÀvÉÆÛAzÀÄ ¥Á¬ÄAmï LzÀÄ DgÀÄ) ZÀzÀgÀ «ÄÃlgïUÀ¼ÀÄ ZÀPÀÄ̧A¢ ¥ÀƪÀðPÉÌ : gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ : ¤ªÉñÀ£À ¸ÀASÉå 65(CgÀªÀvÉÛöÊzÀÄ) GvÀÛgÀPÉÌ : gÀ¸ÉÛ zÀQëtPÉÌ : ¤ªÉñÀ£À ¸ÀASÉå 97(vÉÆA§vÉÛüÀÄ)"
45. Gist of it is that site No.66 is formed out of land in Sy.No.350/9, 350/10 and 350/11 situated in Kempapura Agrahara Village, Chandra Layout measuring East to West 12.20 meters and North to South 19.80 meters in all measuring 241.56 square meters.
39
46. Therefore, the site that has been auctioned in view of the plaintiffs, is not formed in the land bearing Sy.No.349/1 or Sy.No.350/12. However, there was a mistake that has been committed by the BDA in Ex.P.2 while mentioning the description of site No.66. In Ex.P.2, the schedule mentioned shows that site No.66 is formed in Sy.No.349 and Sy.No.352.
47. Assuming for a moment that said description for all practical purposes is correct, then also the land in Sy.No.349/1 to the extent of 5½ guntas and land in Sy.No.350/12 to the extent of 4 guntas are not the subject matter of the sale deed marked at Ex.P.2 and therefore, there cannot be any dispute with regard to the suit sites by the defendants.
40
48. This would take us to the question of identity of the property which is sought to be canvassed before this Court by the defendants stating that remaining land of 5½ guntas in Sy.No.349/1 and 4 guntas in Sy.No.350/12 in the plaint schedule property is concerned, in the first place, the suit sites measuring East to West 12.20 meters and North to South 18.30 meters and margin land that was purchased by the father of the plaintiffs measuring East to West 12.20 meters and North to South 1.50 meters put together, could not be equated to 9½ guntas of land which was in possession of the defendants as per the order passed in WP No.29819- 29822/2013. Admittedly, 9½ guntas of land would be 961.12 square meters.
49. In other words, what happened to the remaining portion of the land possessed by the defendants is not forthcoming on record either in the 41 form of oral evidence or any other documentary evidence placed on record.
50. On the contrary, when there was a dispute with regard to the suit property when defendants tried to interfere with the peaceful possession and enjoyment of the suit property when on going construction was in progress, plaintiffs have approached the police. The police wrote a letter which is marked at Ex.P.25 to the BDA. For the ready reference, the said letter is extracted hereunder:
"ZÀAzÁæ¯ÉÃOmï ¥ÉÆðøï oÁuÉ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ¢£ÁAPÀ 05.11.2011 gÀªÀjUÉ ªÀiÁ£Àå DAiÀÄÄPÀÛgÀÄ ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢üÝ ¥Áæ¢üPÁgÀ n.ZËqÀAiÀÄå gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ.
ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ : vÀªÀÄä ¥Áæ¢üPÁgÀ¢AzÀ ºÀAaPÉAiÀiÁVgÀĪÀ ¤ªÉñÀ£ÀzÀ ªÁ¸ÀÛªÀåªÀ£ÀÄß UÀÄwð¹PÉÆqÀ®Ä C¢üãÀ C¢üPÁjUÀ¼À£ÀÄß ¤AiÉÆÃf¸À®Ä PÉÆÃj.
G¯ÉèÃR: ZÀAzÁæ¯ÉÃOmï ¥ÉÆðøï oÁuÁ J£ï.¹.Dgï.£ÀA.94/2011, ¢£ÁAPÀ 30.10.2011.42
ªÉÄîÌAqÀ «`ÀAiÀÄ ºÁUÀÆ G¯ÉèÃR£ÀPÉÌ ¸ÀA§A¢¹zÀAvÉ vÀªÀÄä°è ¤ªÉâ¹PÉƼÀÄîªÀÅzÉãÉAzÀgÉ ¢£ÁAPÀ 30/10/2011 gÀAzÀÄ ªÀQîgÁzÀ ²æà ¹.«.VqÀØ¥Àà gÀªÀgÀÄ ¥Éǰøï oÁuÉUÉ ºÁdgÁV EzÉà ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, PÉA¥Á¥ÀÅgÀ CUÀæºÁgÀzÀ ¸ÀªÉÃð £ÀA§gï 349 ªÀÄvÀÄÛ 352 gÀ°è£À ¤ªÉñÀ£À ¸ÀASÉå 66 gÀ ¥ÀǪÀð ¥À²ÑªÀÄ 12.20 «ÄÃl¸ïð ªÀÄvÀÄÛ GvÀÛgÀ zÀQët 18.30 «ÄÃl¸ïð ºÁUÀÆ EzÀPÉÌ ºÉÆA¢PÉÆArgÀĪÀ ¥ÀǪÀð ¥À²ÑªÀÄ 12.20 «ÄÃl¸ïð GvÀÛgÀ zÀQët 1.50 «ÄÃl¸ïð ¸ÉÃj MlÄÖ ¥ÀǪÀð ¥À²ÑªÀÄ 12.20 «ÄÃl¸ïð ºÁUÀÆ GvÀÛgÀ zÀQët 19.80 «ÄÃl¸ïð CAzÀgÉ 2600 ZÀzÀgÀ CrUÀ¼À «¹ÛÃtðªÀżÀî ¤ªÉñÀ£ÀªÀ£ÀÄß ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀ¢AzÀ ºÀgÁdÄ ¥ÀæQæAiÉÄAiÀÄ ªÀÄÆ®PÀ ¢£ÁAPÀ.27/05/1993 ºÁUÀÄ 16/09/2009 gÀAzÀÄ vÀªÀÄä PÀQëzÁgÀgÁzÀ ²æà ¥ÀªÀ£ïPÀĪÀiÁg喙Á¤, ªÀÄwÛvÀgÀjUÉ ºÀAaPÉAiÀiÁVzÀÄÝ, vÀzÀ£ÀAvÀgÀ ¸ÀzÀjAiÀĪÀgÀÄ F ¸ÀéwÛUÉ ¸ÀA§A¢¹zÀAvÉ J¯Áè zÁR¯ÁwUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PɬÄAzÀ vÀªÀÄä ºÉ¸ÀjUÉ ¦.L.r.£ÀA.40-187-66 gÀ°è SÁvÉAiÀÄ£ÀÄß ªÀiÁr¹PÉÆAqÀÄ CzÉÌ ¸ÀA§A¢¹zÀ vÉjUÉ ªÀUÉÊgÉUÀ¼À£ÀÄß ¥ÁªÀw¹PÉÆAqÀÄ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀĪÀÅzÁVAiÀÄÆ, »ÃVgÀĪÀ°è gÀ«±ÀAPÀgï ªÀÄvÀÄÛ gÁeÉÃAzÀæ JA§ÄªÀgÀÄ §AzÀÄ vÁªÀÅ d«Ää£À ªÀiÁ°ÃPÀgÉAzÀÄ ºÉýPÉÆAqÀÄ vÀªÀÄä PÀQëzÁgÀjUÉ UÀ¯ÁmÉ ªÀiÁr, ¸ÀzÀj ¸ÀéwÛUÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁqÀ®Ä ¥ÀæAiÀÄw߸ÀÄwÛgÀĪÀÅzÁVAiÀÄÆ, F §UÉÎ vÁªÀÅ ªÀiÁ£Àå ¢£ÁAPÀ.19/09/2011 gÀAzÀÄ ªÀiÁ£Àå ¦æ¤ì¥À¯ï ¹n¹«¯ï ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ®AiÀÄ ¨ÉAUÀ¼ÀÆgÀÄ (¨ÉAUÀ¼ÀÆgÀÄ f¯Éè)gÀ°è N.J¸ï.£ÀA.26629/2011gÀ°è vÁvÁÌ°PÀ ¥Àæw§AzsÀPÁeÉÕAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀĪÀÅzÁV w½¹ ¸ÀzÀj DzÉñÀzÀ ¥ÀæwAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹ gÀPÀëuÉ ¤ÃqÀĪÀAvÉ PÉÆÃjzÀÝgÀ »£É߯ÉAiÀÄ°è G¯ÉèÃTvÀ ¥ÀæPÀgÀtªÀ£ÀÄß zÁR°¹PÉƼÀî¯ÁVzÀÄÝ vÀ¤SÉAiÀÄ°ègÀÄvÀÛzÉ.43
vÀ¤SÁ PÁ®zÀ°è JzÀÄgÁ½UÀ¼ÁzÀ ²æà gÀ«±ÀAPÀgï JA§ÄªÀgÀ£ÀÄß PÀgɹ «ZÁgÀuÉ ªÀiÁrzÁUÀ PÉA¥Á¥ÀÅgÀ CUÀæºÁgÀzÀ ¸ÀªÉÃð £ÀA§gï 349/1 ªÀÄvÀÄÛ 350/12 gÀ°è£À ¸ÀévÀÄÛ vÀªÀÄä vÁvÀ ¯ÉÃmï N§¼À¥Àà£ÀªÀgÀ D¹ÛAiÀiÁVzÀÄÝ F §UÉÎ vÁªÀÅ ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀzÀ «gÀÄzÀÞ ªÀiÁ£Àå ¹n ¹«¯ï ªÀÄvÀÄÛ ¸ÀvÀæ 8£Éà ¹n ¹«¯ï dqïÓ, ªÉÄAiÉÆúÁ¯ï, ¨ÉAUÀ¼ÀÆgÀÄ £ÁåAiÀiÁ®AiÀÄ¢AzÀ N.J¸ï.£ÀA.16810/2001gÀ°è ±Á±ÀévÀ ¥Àæw§AzsÀPÁeÉÕAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀĪÀÅzÁVAiÀÄÆ w½¹ CzÀgÀ ¥ÀæwAiÀÄ£ÀÄß vÀAzÀÄ ºÁdgÀÄ¥Àr¹gÀÄvÁÛgÉ.
G¨sÀAiÀÄvÀæAiÀÄgÀ zÁR¯ÁwUÀ¼À£ÀÄß ¥Àj²Ã°¹zÁUÀ vÀªÀÄä ¥Áæ¢üPÁgÀ¢AzÀ ²æà ¥ÀªÀ£ïPÀĪÀiÁgï ©ºÁ¤, ¤ÃgÀeïPÀĪÀiÁgï ©ºÁ¤, ¸ÀÆgÀeï ©ºÁ¤ JA§ÄªÀjUÉ ºÀgÁdÄ ¥ÀæQæAiÉÄAiÀÄ ªÀÄÆ®PÀ ºÀAaPÉAiÀiÁVgÀĪÀ ¸ÀévÀÄÛ PÉA¥Á¥ÀÅgÀ CUÀæºÁgÀzÀ ¸ÀªÉÃð £ÀA§gï 349 ªÀÄvÀÄÛ 352 gÀ°ègÀĪÀÅzÁVAiÀÄÆ ºÁUÀÆ ²æà gÀ«±ÀAPÀgïgÀªÀgÀ §½ EgÀĪÀ zÁR¯ÁwAiÀÄ°è PÉA¥Á¥ÀÅgÀ CUÀæºÁgÀzÀ ¸ÀªÉÃð £ÀA§gï 349/1 ªÀÄvÀÄÛ 350/12 gÀ°ègÀĪÀÅzÁVAiÀÄÆ PÀAqÀÄ §A¢zÀÄÝ, ¸ÀܼÀzÀ°è ±ÁAw¨sÀAUÀªÀÅAmÁUÀÄwÛgÀĪÀÅzÀjAzÀ ªÀÄÄAzÉ DUÀ§ºÀÄzÁzÀ C£ÁºÀÄvÀUÀ¼À£ÀÄß vÀqÉAiÀÄĪÀ ¸À®ÄªÁV vÀªÀÄä ¥Áæ¢üPÁgÀ¢AzÀ ²æà ¥ÀªÀ£ïPÀĪÀiÁgï ©ºÁ¤, ¤ÃgÀeïPÀĪÀiÁg喙Á¤, ¸ÀÆgÀeï ©ºÁ¤ JA§ÄªÀjUÉ ºÀgÁdÄ ¥ÀæQæAiÉÄAiÀÄ ªÀÄÆ®PÀ ºÀAaPÉAiÀiÁVgÀĪÀ ¸ÉÊmï £ÀA§gï 66 gÀ RavÀ ªÁ¸ÀÛªÀåªÀ£ÀÄß UÀÄgÀÄw¹ PÉÆqÀĪÀ ¸À®ÄªÁV vÀªÀÄä C¢üãÀ C¢üPÁjUÀ¼À£ÀÄß ¤AiÉÆÃf¹ «ªÁzÀªÀ£ÀÄß EvÀåxÀð¥Àr¸À®Ä C£ÀĪÀŪÀiÁrPÉÆqÀ¨ÉÃPÁV F ªÀÄÆ®PÀ PÉÆÃgÀ¯ÁVzÉ.
EzÀgÉÆA¢UÉ ¦AiÀiÁðzÀÄzÁgÀgÀ ¥ÀgÀªÁzÀ zÁR¯ÁwUÀ¼À ¥ÀæwUÀ¼À£ÀÄß ®UÀwÛ¸À¯ÁVzÉ.44
ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ, vÀªÀÄä «±Áé¹ ¸À»/-
¥ÉÆðøï E£ïì ¥ÉPÀÖgï ZÀAzÀæ¯ÉÃOmï ¥ÉÆðøï oÁuÉ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ."
51. Gist of the said letter is that Sri.C.V.Giddappa an Advocate has approached the police station stating that plaintiffs have purchased the suit site in a public auction and revenue records also stand in the name of the plaintiffs. Defendants namely Ravishankar and Rajendra, entered into the suit property and claimed that they are the owners of the suit property and therefore, there is an injunction order in O.S.No.26629/2011 and produced the copy of the interim order. Police said to have enquired Ravishankar and at that juncture, he has claimed that his grandfather - Obalappa is the owner of the land in Sy.No.349/1 and 350/12 and they have an order in their favour in O.S.No.16810/2001. Since both the 45 parties claimed rights over the property, police wrote a letter to the Commissioner, BDA to identify the site No.66 on spot by deputing an authorized official.
52. In pursuance of the said letter, Commissioner of BDA wrote a letter on 08.05.2012 marked at Ex.P.24. The said letter is extracted hereunder:
"¸ÀASÉå :¨ÉAC¥Áæ/¨sÀƸÁéC/112/12-13 ¨sÀƸÁé¢üãÁ¢üPÁjUÀ¼À PÀbÉÃj ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Ý ¥Áæ¢üPÁgÀ ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ 8/5/2012 gÀªÀjUÉ, ¥ÉÆðøï E£ïì ¥ÉPÀÖgï ZÀAzÁæ §qÁªÀuÉ ¥ÉÆðøï oÁuÉ ZÀAzÁæ §qÁªÀuÉ ¨ÉAUÀ¼ÀÆgÀÄ.
ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ:- ¥Áæ¢üPÁgÀ¢AzÀ ºÀAaPÉAiÀiÁVgÀĪÀ ¤ªÉñÀ£À ¸ÀASÉå 66gÀ ªÁ¸ÀÛªÀå UÀÄwð¸ÀĪÀ §UÉÎ.
G¯ÉèÃR:- 1. vÀªÀÄä PÀbÉÃjAiÀÄ ¥ÀvÀæzÀ ¢£ÁAPÀ :5.11.2011
2. ¸ÀªÉð¸ÀÆ¥ÀgïªÉʸÀgï gÀªÀgÀ ªÀgÀ¢ ***** 46 ªÉÄîÌAqÀ «`ÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ G¯ÉèÃTvÀ ¥ÀvÀæPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ¥Áæ¢üPÁgÀ¢AzÀ gÀa¸À¯ÁVgÀĪÀ ZÀAzÁæ §qÁªÀuÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå 66 gÀ ªÁ¸ÀÛªÀå §UÉÎ ªÀgÀ¢ PÉÆÃjzÀÝgÀ ªÉÄÃgÉUÉ ¸ÀܼÀ vÀ¤SÉ £Àqɹ ªÀgÀ¢ ¤ÃqÀ®Ä ¥Áæ¢üPÁgÀzÀ ¨sÀƸÁé¢üãÀ «¨sÁUÀzÀ ¨sÀƪÀiÁ¥ÀPÀgÀ£ÀÄß ¤AiÉÆÃf¸À¯ÁVvÀÄÛ. CzÀgÀAvÉ ¸ÀܼÀ vÀ¤SÉ £Àqɹ ¨sÀƪÀiÁ¥ÀPÀgÀÄ ¤ÃrgÀĪÀ ªÀgÀ¢AiÀÄ ¥ÀæwAiÀÄ£ÀÄß F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹zÉ.
CzÀgÀAvÉ G¯ÉèÃTvÀ ¥ÀvÀæzÀ°è w½¸À¯ÁVgÀĪÀ ¤ªÉñÀ£À ¸ÀASÉå 66 gÀ ªÁ¸ÀÛªÀåªÀÅ ¨sÀƪÀiÁ¥ÀPÀgÀ ¸ÀܼÀ vÀ¤SÁ ªÀgÀ¢AiÀÄAvÉ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, PÉAUÉÃj ºÉÆç½, PÉA¥Á¥ÀÅgÀ CUÀæºÁgÀ UÁæªÀÄ ¸ÀªÉð£ÀA.350/9, 350/10 ºÁUÀÆ 350/11 gÀ d«ÄãÀÄUÀ¼À°è M¼ÀUÉÆArzÀÄÝ, ¸ÀzÀj ¤ªÉñÀ£ÀªÀ£ÀÄß ºÀgÁdÄ ªÀÄÆ®PÀ ²æà ¥ÀªÀ£ïPÀĪÀiÁgï ©ºÁ¤ ¤ÃgÀeïPÀĪÀiÁgï ©ºÁ¤ ¸ÀÆgÀeï ©ºÁ¤ EªÀjUÉ ºÀAaPÉ ªÀiÁqÀ¯ÁVgÀĪÀÅzÁV PÀAqÀħgÀÄwÛgÀĪÀÅzÀjAzÀ ºÀAaPÉzÁgÀjUÉ ¸ÀÆPÀÛ gÀPÀëuÉ ¤ÃqÀ®Ä PÉÆÃjzÉ.
vÀªÀÄä «±Áé¹ (PÀgÀqÀÄ G¥À DAiÀÄÄPÀÛgÀÄ(¨sÀƸÁé)gÀªÀjAzÀ C£ÀĪÉÆâ¸À®ànÖzÉ.
¸À»/-
¨sÀƸÁé¢üãÁ¢üPÁjUÀ¼ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ ¨ÉAUÀ¼ÀÆgÀÄ ¥ÀæwAiÀÄ£ÀÄß:- 1. PÁAiÀÄð¥Á®PÀ EAf¤AiÀÄgï, ¥À²ÑªÀÄ G¥À «¨sÁUÀ EªÀjUÉ ªÀiÁ»w ºÁUÀÆ ªÀÄÄA¢£À PÀæªÀÄPÁÌV ªÀÄÆ®PÀ PÀqÀvÀªÀ£ÀÄß F ¥ÀvÀæzÉÆA¢UÉ ®UÀwÛ¹ PÀ¼ÀÄ»¸À¯ÁVzÉ.
2. ²æà ¥ÀªÀ£ïPÀĪÀiÁgï ©ºÁ¤ ¤ÃgÀeïPÀĪÀiÁgï ©ºÁ¤ ¸ÀÆgÀeï ©ºÁ¤ EªÀjUÉ PÀ¼ÀÄ»¸À¯ÁVzÉ."47
53. Gist of the said letter is that a surveyor was appointed by BDA to identify the site No.66 which was auctioned by BDA. Surveyor visited the suit property along with necessary documents and has specifically stated that suit site is formed in the acquired land bearing No.350/9, 350/10 and 350/11. A sketch was also annexed to Ex.P.24. In the sketch, it is clearly visible that suit property and land in Sy.No.349/1 and 350/12 are two separate and distinct properties. In fact the sketch that has been produced by the BDA not only depicts the suit sites but other lands with survey numbers. Colouration is also made in the suit sketch identifying the land comprised in different survey numbers.
54. No doubt in the cross-examination of P.W.1, an admission is obtained by the defendants that said sketch does not contain the seal of the person who has signed on the sketch. Merely non- 48 obtaining the seal would not take away the probative value of the said sketch having regard to the scope of the suit being only one for permanent injunction.
55. Trend of cross-examination would also go to show that there was no site muchless suit property at all formed by the BDA in the land which was acquired in the acquisition proceedings. The sketch itself would show that BDA had acquired number of lands in different survey numbers of Kempapura Agrahara Village, Kasaba Hobli, Bengaluru North Taluk for the purpose of formation of Chandra Layout. Because of non taking of the possession by the BDA in respect of land in Sy.No.349/1 and 350/12, the learned Single Judge of this Court in the aforesaid Writ Petition held that the acquisition stood lapsed only to the extent of land in Sy.No.349/1 and 350/12. 49
56. Admittedly, the decree that has been obtained by the defendants in O.S.No.16810/2001 was set aside by this Court in RFA No.1753/2010 and matter was remitted to the Trial Court. Parties were directed to appear before the Trial Court on 05.06.2013 without further notice and proceed with the case on merits afresh in accordance with law. But fact remains and it is not in dispute that the defendants did not chose to contest O.S.No.16810/2001 after remand and same came to be dismissed for non prosecution on 08.11.2013. So also another suit filed by the defendants in O.S.No.3356/2011 was also dismissed for non prosecution on 30.08.2014 as is admitted by D.W.1 in his cross-examination.
57. Admittedly, by then, the present suit was filed by the plaintiffs and in the teeth of pendency of the present suit, why defendants did not pursue the 50 suit in O.S.No.3356/2011 and O.S.No.16810/2001 is a question that remains unanswered.
58. At any rate, lands of the defendants in Sy.No.349/1 and 350/12 which were acquired by the CITB and the acquisition stood lapsed by virtue of the order passed by in WP No.29819-29822/2013, the defendants are at liberty to locate their land in the survey numbers and enjoy their property in accordance with law and protect their right, title or interest by approaching the Court with specific prayer.
59. Having regard to the scope of the present suit, being one for bare injunction and registered documents are in favour of the plaintiffs including rectification deed and sketch that has been marked along with Ex.P.24 which is a document furnished by the BDA, this Court is of the considered opinion that plaintiffs have successfully established that they are in 51 lawful possession over the suit property. Admittedly, the photographs produced before the Court shows that plaintiffs have put up the foundation and also raised the pillars. It is at that juncture, dispute started and last for 12 to 13 years and construction in the plaintiff's property is in the same stage.
60. Defendants land to the extent of 5½ guntas in Sy.No.349/1 and to the extent of 4 guntas in Sy.No.350/12, at any stretch of imagination, cannot be equated to the measurement of the suit site. Therefore, it is crystal clear that the suit property is the property that has been carved out of land in Sy.No.350/9, 350/10 and 350/11 by the CITB of Kempapura Agrahara Village and formed the Chandra Layout and suit site was numbered as site No.66 which is a corner site and was put to auction by issuing necessary notification of public auction and then sold in favour of father of the plaintiffs. 52
61. It is also pertinent to note that margin land was subsequently sold by the BDA in favour of the father of the plaintiffs. Defendants did not object for sale of the margin land nor public auction notice in any of the proceedings. BBMP officials after making the spot inspection and after verifying the records placed along with the application seeking grant of plan and licence, have issued the plan and licence in favour of the plaintiffs and thereafter, construction has commenced in the suit property.
62. Learned Trial Judge failed to note the probative value of all these documents in its proper perceptive in the impugned judgment. Thus, on cumulative consideration of oral and documentary evidence placed on record, it is crystal clear that plaintiffs are the owners of site No.66 and by virtue of the title deeds executed by the BDA in favour of father of the plaintiffs and registered gift deed executed by 53 father of the plaintiffs in the names of plaintiffs, plaintiffs possession over the suit property shall be considered as lawful possession.
63. Admittedly, defendants have objected for the ongoing construction, they were called to the police station, enquiry was held and therefore, plaintiffs are successful in proving that there was illegal interference by the defendants in respect of peaceful possession and enjoyment of the suit property by the plaintiffs.
64. Learned Trial Judge failed to note the over whelming material evidence placed on record on behalf of plaintiffs while appreciating the lawful possession and interference caused by the defendants in respect of the suit property. On re-appreciation of material evidence on record, this Court is of the 54 considered opinion that plaintiffs have proved their case.
65. Therefore, this Court has no hesitation whatsoever in holding impugned judgment is suffering from legal infirmity or perversity.
66. In view of the foregoing discussions, point Nos.1 and 2 are answered in affirmative. REG. POINT No.3:
67. In view of the findings of this Court on point Nos.1 and 2 as above, following:
ORDER i. Appeal is allowed.
ii. Impugned judgment and decree passed in O.S.No.6887/2012 dated 17.03.2018 is set aside.
iii. Suit of the plaintiffs is decreed with costs.
Sd/-
(V. SRISHANANDA) JUDGE KAV