Bangalore District Court
Gangadharaiah R S vs Beml Employees Co Operative Society Ltd on 10 January, 2024
KABC010230352012
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. SANTHOSHKUMAR SHETTY N., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 10 th DAY OF JANUARY, 2024
O.S.No.8581/2012
Plaintiffs:- 1. Sri.R.S.Gangadaraiah,
Aged about 57 years,
S/o.late R.Shivanna,
Residing at No.124,
Pattanagere,
Rajarajeshwarinagar,
Bangalore - 560 098.
2. Sri.R.Chandrashekaraiah,
Aged about 53 years,
S/o.late R.Shivanna,
Residing at No.123,
Pattanagere,
Rajarajeshwarinagar,
Bangalore - 560 098.
3. Smt.Mangalamma,
Aged about 55 years.
2 O.S.No.8581/2012
4. Sri.P.M.Shivakumar,
Aged about 32 years.
Plaintiffs No.3 and 4 are the wife
& son of late R.S.Mallikarjunaiah
& Residing at No.122, Pattanagere,
Rajarajeshwarinagar,
Bangalore - 560 098.
5. Smt.Chandramma,
Aged about 55 years,
D/o.late R.Shivanna,
W/o.Sri.Neelakantaiah,
R/of Kadabagere Village,
Dasanapura Hobli,
Bangalore North Taluk.
(By Adv. Sri.Vachan B.)
Vs.
Defendant:- The BEML Employees' Co-operative
Society Ltd., (R), BEML Complex,
New Thippasandra,
Bangalore -560 075.
Represented by its Secretary.
(By Adv. Sri.B.E.Shreedhar)
Date of institution of the suit : 05.12.2012
Nature of the suit : Permanent Injunction
Date of commencement of : 01.12.2014
Recording of the evidence
3 O.S.No.8581/2012
Date on which the Judgment : 10.01.2024
was pronounced
Total Duration : Years Months Days
11 01 05
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiffs for the relief of permanent injunction to restrain the defendant, its office-bearers, agents or anybody claiming through defendant from interfering with their peaceful possession and enjoyment over the suit schedule property and for the cost of the suit.
2. The brief facts of the case of the plaintiffs is that, the plaintiffs No.1, 2 and 5 are the children of late R.Shivanna, plaintiff No.3 is his daughter-in-law and plaintiff No.4 is his grandson. The land bearing Sy.No.230, measuring 3 acres 17 guntas, situated at Halagevaderahalli Village, Kengerli Hobli, Bangalore South Taluk was the Inam Land and the Occupancy Right was granted in favour of R.Shivanna in respect of said property as per the Order passed by the Special Deputy Commissioner under Inam Abolition Act. The defendant is a Society, registered under the provisions of the Karnataka Co-operative Societies Act. As per the Final Notification of Government of Karnataka, several lands have been 4 O.S.No.8581/2012 acquired for the benefit of defendant, including land bearing Sy.No.230, measuring 3 acres 17 guntas. Then R.Shivanna made an application to the Government of Karnataka for De-notification of 17 guntas of land in the said survey number, which is on the North-East Corner. Accordingly, said land was denotified as per Order No.RD/117/AQB/89 dated 04.08.1989 under Section 48(1) of the Land Acquisition Act. While forming the layout, the defendant formed 40 feet width road on the western side of the denotified property. Hence denotified property has been clearly demarcated in Sy.No.230 of Halagevaderahalli Village. The land bearing Sy.No.230 of the Halagevaderahalli Village was bounded on: Sy.No.61 on the eastern side; Oni on the western side; survey Nos.228 and 229 on the northern side and Sy.No.231 on the southern side. The land bearing Sy.No.61 which is on the eastern side of Sy.No.230, is a Government land. The Government also acquired Sy.Nos.228, 229 and 231 of Halagevaderahalli Village for the benefit of defendant Society. After De-notification, the plaintiffs being the legal heirs of deceased R.Shivanna are in possession and enjoyment of the 17 guntas of land, which is the suit schedule property herein. Though 8 guntas of land was mentioned as denotified, actually the plaintiffs are in possession of 17 guntas. The plaintiffs got divided the aforesaid 17 guntas and put up constructions in the major portion of the denotified area. On 15.11.2012, the office-bearers of defendant along with its workmen and followers made a frivolous attempt to interfere with the possession and enjoyment of the plaintiffs over the suit schedule 5 O.S.No.8581/2012 property. Their illegal act was resisted by the plaintiffs. Hence this suit was filed for the aforementioned reliefs.
3. In response to the suit summons, the defendant appeared through its counsel, filed the written statement and contended that, the plaintiffs are in possession of 8 guntas in Sy.No.230 of Halagevaderahalli Village. It is false to say that, in the aforesaid De-notification dated 04.08.1989, the boundaries of the denotified land are not correctly mentioned, either by mistake or inadvertence. It is false that, the plaintiffs are in possession and enjoyment of 9 guntas in Sy.No.230 of Halagevaderahalli Village. It is false that, the plaintiffs by dividing the aforesaid 9 guntas, have put up constructions on the major portion of the denotified land. The plaintiffs might have put up construction in the denotified land, measuring 8 guntas. The defendant is a Housing Society, registered under the provisions of Karnataka Co-operative Societies Act. Hence institution of suit without issuing notice to the defendant under Section 125 of the said Act is not maintainable. Denying various other allegations, prayed for dismissal of the suit with cost.
4. On the basis of the pleadings of the parties, my predecessor-in-office has framed the following issues for determination:-
ISSUES
1. Whether the plaintiffs prove that, they are in possession of the suit schedule property?6 O.S.No.8581/2012
2. Whether the plaintiffs prove the interference of defendant?
3. Whether the plaintiffs are entitled for relief as sought for?
4. What order or decree ?
5. After settlement of issues, the plaintiff No.1 has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.23 were marked through him and closed their side. On behalf of the defendant, its President by name Sri.D.M.Nagesh has entered into the witness box as DW-1 and Ex.D.1 to Ex.D.9 were marked through him and closed its side.
6. Heard the arguments of the learned counsel for plaintiffs and defendant.
7. My findings on the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: In the affirmative.
Issue No.4: As per final order below
for the following:
REASONS
8. Issues No.1 & 2:- Since both these issues are interconnected, taken up together for discussion to avoid repetition. The specific case of the plaintiffs is that, the land bearing Sy.No.230 of Halagevaderahalli Village was measuring 3 acres 17 guntas. As per the Inam Abolition Act, the Occupancy Right was granted in favour of R.Shivanna, in respect of said 3 7 O.S.No.8581/2012 acres 17 guntas. Thereafter, the entire property, measuring 3 acres 17 guntas was acquired by the Government for the benefit of defendant Society. However, R.Shivanna made an application before the Government for De-notification of 17 guntas of land in the said survey number and his application came to allowed on 04.08.1989. Since the date of said De-notification, said R.Shivanna and after his death, the plaintiffs being his legal heirs are in possession and enjoyment of the said 17 guntas of land, which the suit schedule property herein.
9. Initially, this suit was filed in respect of 9 guntas of land in Sy.No.230 of Halagevaderahalli Village. Thereafter, the plaintiffs filed an application for amendment of plaint seeking permission to claim the relief of injunction with respect to 17 guntas of land in the said survey number. But the I.A. filed by them came to be dismissed. Feeling aggrieved by the said Order, plaintiff No.1 has preferred the Writ Petition in W.P.No.6093/2017 on the file of Hon'ble High Court of Karnataka and it came to be allowed on 20.08.2018 and thereby the plaintiffs were permitted to carry out amendment as prayed for.
10. In his oral evidence, PW-1 has reiterated the averments made in the plaint. The documents marked on his behalf at Ex.P.1 is the RTC Extract. Ex.P.2 is the Endorsement issued in the Office of Special Deputy Commissioner, Inam Abolition Act dated 20.01.1964 in respect of granted land. Ex.P.3 is the certified copy of Order Sheet in Case No.27/1959-1960 on the file of the Special 8 O.S.No.8581/2012 Deputy Commissioner. Ex.P.4 to Ex.P.7 are the xerox copies of RTC Extracts issued under RTI Act in respect of Sy.No.230/2 and 230 of Halageholerahalli Village. Ex.P.8 is the RTC Extract of Sy.No.230 for the year 2014-2015. Ex.P.9 is the xerox copy of Form of Agreement. Ex.P.10 is the xerox copy of Indemnity Bond.
Ex.P.11 is the Hand Sketch prepared by the Retired Survey Supervisor in respect of Sy.No.230. Ex.P.12 is the attested copy of Map in respect of Sy.No.230 and Sy.No.225 issued by the ADLR., Bangalore. Ex.P.13 is the certified copy of Gazette Notification in respect of 4(1) Notification dated 09.05.1988. Ex.P.14 is the attested copy of Notification issued under Section 6 of the Land Acquisition Act dated 31.12.1988. Ex.P.15 is the attested copy of Possession Letter issued by the Special Land Acquisition Officer dated 10.08.1989. Ex.P.16 & Ex.P.17 are the computerised copies of RTC and Ex.P.18 & Ex.P.19 are the computerised copies of Mutation Register Extract. Ex.P.20 is the certified copy of Mutation Order in M.R.No.74/65-66. Ex.P.21 is the certified copy of Order passed in R.A(S) 335/2017-18. Ex.P.22 is the certified copy of Rectification Order passed in R.A(S) 335/2017-18. Ex.P.23 is the certified copy of Plan.
11. Per contra, the defendant by denying the averments made in the plaint has taken contention that, the plaintiffs might have put up construction in 8 guntas of land, which was denotified. But they have denied the alleged right, title and interest of the plaintiffs over 9 guntas of land, for which the plaintiffs claimed the relief of injunction initially. However after amendment, the plaintiffs 9 O.S.No.8581/2012 sought for injunction in respect of entire 17 guntas of land in Sy.No.230 of Halagevaderahalli Village. But the defendants did not file any additional written statement by denying the relief claimed by the plaintiffs towards larger extent of land.
12. In his oral evidence, DW-1 has reiterated the contentions taken in the written statement. The documents marked on behalf of the defendant at Ex.D.1 is the Letter of Authorisation given to DW-1 to depose in this matter. Ex.D.2 to D.9 are the colour Photographs and C.D. in respect of suit schedule property.
13. As the defendant has taken contention that, the suit of plaintiff is not maintainable without issuance of notice under Section 125 of the Karnataka Co-operative Societies Act, the learned counsel for plaintiffs has vehemently argued that, as this suit is one for permanent injunction, no need to issue statutory notice and suit is maintainable. Since this suit was not filed in respect of any act touching the constitution, management or business of the Society, no notice is required to be issued as mandated under Section 125 of the Karnataka Co-operative Societies Act. In support of said contention, he relied on the decision of our Hon'ble High Court in the case of N.Lakshman Vs. Smt.Lakshmi Devi and others, reported in 2019 (3) KCCR 2362. In the said decision, it was held as under;
"If a suit is instituted against a Co-operative Society or any of its office bearers in respect of any act touching the constitution, management or business of the Society, the notice is required to be issued as mandated 10 O.S.No.8581/2012 under Section 125 of the Act. Plaintiffs have not sought any reliefs against defendant Nos.5 and 6 in respect of constitution, management or business of the Co- operative Society, but have placed reliance on the documents executed by the President and Secretary of the Co-operative Society viz., defendant Nos.5 and 6. Therefore, Section 125 of the Act has no application to the obtaining factual matrix of the case. The Trial Court has rightly held that relief in the suit is not based on an act committed by the Society. The Trial Court neither suffers from any jurisdictional integrity nor any error apparent on the face of record warranting interference of this Court in exercise of revisional jurisdiction."
14. In support of aforesaid contention, the learned counsel for plaintiffs has relied on other decision of our Hon'ble High Court in the case of Karnataka State Co-operative Consumers Federation Ltd., Rep. by its Managing Director Vs. Smt.Lakshmamma @ Venkatalakshmamma, reported in ILR 2010 KAR 2936. In the said decision, it was held as under;
"To institute a suit for recovery of the leased premises from a Co-operative Society, the issue of Notice under Section 125 of the Act is not necessary - Such a Notice is required for institution of a suit against the Co-operative Society in respect of any act touching the Constitution, Management or Business of the Society."
15. As stated supra, this suit was instituted by the plaintiffs against the defendant, which is a Co-operative Society for the relief of permanent injunction. In this suit, the plaintiffs are not going to question any act touching the constitution, management or business of the Society. As such, the contention taken by the defendant that, suit of the plaintiff is not maintainable for non-
11 O.S.No.8581/2012issuance of notice under Section 125 of the Karnataka Co- operative Societies Act is not sustainable. Accordingly, this court did not find any force in the said contention.
16. As stated earlier, initially this suit was filed by the plaintiff seeking the relief of injunction to an extent of 9 guntas of land in Sy.No.230 of Halagevaderahalli Village. Later on, they got amended the plaint and sought for the relief to an extent of 17 guntas in the said survey number. In this background of the matter, I have carefully gone through the pleadings of the parties and their evidence before the court, both oral and documentary. The specific case of the plaintiffs is that, the land bearing Sy.No.230 of Halagevaderahalli Village is totally measuring 3 acres 17 guntas and same was regranted in the name of R.Shivanna under the Inam Abolition Act. To substantiate their contention, the plaintiffs have relied upon the documents marked at Ex.P.3, Ex.P.16, Ex.P.18 to Ex.P.23. Ex.P.3 is the certified copy of Order Sheet/Order passed by the Special Deputy Commissioner for Abolition of Inam, Bengaluru in Case No.27/1959-1960. It is clear that, in the said proceedings, R.Shivanna was the Applicant in respect of land bearing Sy.No.230, measuring 3 acres 17 guntas of Halagevaderahalli Village. Accordingly, in the Order dated 21.11.1962, the Kathedar Shivanna was registered as Occupant in respect of said property. Ex.P.16 is the RTC for the year 2019- 2020 in respect of total extent of land in Sy.No.230 of Halagevaderahalli Village. As per said RTC, 17 guntas came to be entered in the name of sons of R.Shivanna. Ex.P.18 and Ex.P.19 12 O.S.No.8581/2012 are the Mutation Orders in M.R.Nos.H8 and H10, for the year 2018-2019 and as per the said Orders, 17 guntas of land came to be mutated in the name of Mallikarjuna R.S., who is none other than the husband of plaintiff No.3 and father of plaintiff No.4. Ex.P.20 is the Mutation Order in M.R.No.74/65-66. As per said Order, 3 acres 17 guntas of Halagevaderahalli Village came to be mutated in the name of R.Shivanna. Ex.P.21 is the certified copy of Order passed by the Deputy Commissioner in Revenue Appeal No.335/2017-18. Ex.P.22 is the certified copy of Amended Order passed by him in the said proceedings. The operative portion of the Order is read as under;
"ಬಬಗಳರ ನಗರ ಜಲಲ , ಬಬಗಳರ ದಕಕ ಣ ತಲಲ ಕ, ಕಬಗರ ಹಹಬಳ, ಹಲಗವಡರಹಳಳ ಗಗ ಮದ ಸ.ನ.230 ರಲಲ ಶವಣಣ ರವರ ಮಕಕ ಳದ ಮಲಲ ಕರರನಯಯ , ಗಗಧರಯಯ , ಚದಗ ಶಖರಯಯ ರವರ ಹಸರಗ ಈಗಗಲ ಇರವ 0-08 ಗಬಟ ಜಮಹನನ ಜತಗ 0-09 ಗಬಟ ಸರಸ ಒಟಟ 0-17 ಗಬಟ ಎಬದ ಪಹಣ ಕಲ 9 ರಲಲ ನಮದಸಲ ವಶಷ ತಹಶಹಲಲ ರ, ಬಬಗಳರ ದಕಕ ಣ ತಲಲ ಕ ರವರಗ ಆದಶಸದ."
17. On perusal of the contentions taken by the Representative of the defendant, it is his defence that, the plaintiffs might have put up construction in the denotified land, measuring 8 guntas only and they are not entitled to seek relief in respect of 9 guntas of land, which is one gunta more than the land shown in the De-notification. In the recitals of documents relied by the plaintiffs, it is clear that, though the regrant was made in the name 13 O.S.No.8581/2012 of R.Shivanna for an extent of 3 acres 17 guntas; while acquiring the said land for the benefit of defendant, the extent was shown as 3 acres 8 guntas. However, it is not in dispute that, after De- notification, only 3 acres of land in that survey number was given to the benefit of defendant. Hence reasons to believe that, the remaining extent of land in said survey number is with the plaintiffs. It is also not in dispute that, as on the date of suit, the extent of said land was shown as 3 acres 8 guntas. But in the Survey Report, extent was shown as 3 acres 9 guntas. It seems that, relying on the Survey Report, the plaintiffs have instituted this suit for remaining extent of 9 guntas only. Later on, certain developments have been taken place. The plaintiffs after going through the Order passed in Ex.P.3, made an application for amendment of plaint, seeking permission to sought the relief of injunction for the entire extent of 17 guntas of land. Though their application came to be rejected by this court, the Writ Petition filed by plaintiff No.1 was allowed and thereby the plaintiffs were permitted to amend the plaint as prayed for.
18. On perusal of both oral and documentary evidence, DW-1 in the course of his cross-examination has clearly admitted that, they are claiming right to an extent of 3 acres in the said survey number. Further admitted that, apart from said 3 acres of land, they did not acquire any piece of land in the said survey number. Further admitted that, excluding 3 acres of land, they are not having claim in the said survey number. Further admitted that, in Ex.P.16 the extent of land bearing Sy.No.230 was shown as 3 14 O.S.No.8581/2012 acres 17 guntas. But, he pleaded ignorance about the Order passed by the Deputy Commissioner in Ex.P.21 and Ex.P.22. The explanation offered by him is that, they were not made as parties in the said proceedings.
19. The Order passed in Ex.P.21 and Ex.P.22 makes it very clear that, the Competent Authority, being satisfied with the claim made by the plaintiffs, allowed the Appeal and thereby passed an Order to effect Khatha in the name of plaintiffs with respect to 17 guntas of land in said survey number. Added to that, the extent shown in Ex.P.3 makes it very clear that, in all 3 acres 17 guntas of land was granted in favour of R.Shivanna under the Inam Abolition Act. Since only an extent of 3 acres of land was acquired for formation of layout by defendant, the preponderance of evidence is in favour of the plaintiffs to hold that, they are in possession of 17 guntas of land in Sy.No.230 of Halagevaderahalli Village.
20. As the defendant has denied the right, title and interest of the plaintiffs over the suit schedule property, the interference caused by the defendant can be inferred. With these observations, Issues No.1 and 2 are answered in the affirmative.
21. Issue No.3: While answering the aforementioned issues, this court has come to the conclusion that, the preponderance of evidence is in favour of the plaintiffs to hold that, as on the date of suit, the plaintiffs are in possession and enjoyment of suit schedule property, measuring 17 guntas, situated in Halagevaderahalli Village. Further, the plaintiffs have 15 O.S.No.8581/2012 proved the interference caused by the defendant. As such, the plaintiffs are entitled for the relief of injunction as prayed for. With these observations, Issue No.3 is answered in the affirmative.
22. Issue No.4: In view of the above discussions, this court proceed to pass the following:-
ORDER Suit of the plaintiffs is decreed as under;
The defendant, its office-bearers, agents or anybody claiming through defendant are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property.
Parties are directed to bear their own cost.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, on this the 10th day of January, 2024) (SANTHOSHKUMAR SHETTY N.) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.16 O.S.No.8581/2012
ANNEXURE List of witnesses examined for plaintiffs:
PW.1 : Sri.R.S.Gangadaraiah List of documents exhibited for plaintiffS:
Ex.P.1 : RTC
Ex.P.2 : Endorsement issued by the Special
Deputy Commissioner
Ex.P.3 : Certified copy of Order Sheet in
Case No.27/1959-1960 before the
Special Deputy Commissioner
Ex.P.4 to 7 : Copies of RTC Extracts
Ex.P.8 : RTC
Ex.P.9 : Copy of F O R M - 'D'
Form of Agreement
Ex.P.10 : Xerox Copy of Indemnity Bond
Ex.P.11 : Sketch Map
Ex.P.12 : Attested true copy of Map
Ex.P.13 : Certified copy of Gazette Notification
Ex.P.14 : Attested true copy of Notification
Ex.P.15 : Attested true copy of Possession Letter
Ex.P.16 & 17: Computerised copies of RTCs
Ex.P.18 & 19: Computerised copies of Mutation
Register Extracts
Ex.P.20 : Certified copy of RTC
Ex.P.21 : Certified copy of Order passed in
R.A(S) 335/2017-18
Ex.P.22 : Certified copy of Rectification Order
in R.A(S) 335/17-18
Ex.P.23 : Certified copy of Plan
Ex.P.23(a) : Portion in Ex.P.23
List of witnesses examined for defendant :
DW.1 : Sri.D.M.Nagesh
List of documents exhibited for defendant:17 O.S.No.8581/2012
Ex.D.1 : Authorisation Letter
Ex.D.2 to 7 : Photographs
Ex.D.8 : C.D.
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.