Bangalore District Court
Poornaprajna House Building Co vs Smt. Rathnamma on 31 January, 2022
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated this 31st Day of January 2022
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25878/2011
PLAINTIFF: Poornaprajna House Building Co-
operative Society Ltd.,
Having its office at No.390, 9th Main
Road,Kumaraswamy Temple Road,
Hanumanthanagar,
Bengaluru-560 019.
Represented by its Secretary/Manager
Nanjappa,S/o N. Lakshmaiah.
REP BY: Sri. K.R. Krishnamurthy- ADVOCATE.
V/s
DEFENDANTS: 1 Smt. Rathnamma
W/o Muni Reddy, Major,
R/at Vaddarapalya,
Uttarahalli Hobli,
Bangalore South Taluk.
(DIED HENCE DELETED)
2 SRI. M. Devendra,
S/o Late Munireddy,
Major, R/at # 2453,
17th E Cross, 9th Main Road,
BSK II Stage, Bangalore-70.
2
O.S.No. 25878/2011
3 Sri. V.R. Narasimha Reddy, Major,
Father's name not known,
R/at # 2453,
17th E Cross, 9th Main Road,
BSK II Stage, Bangalore-70.
4 Mr. Jain Paul, Major,
Father's name not known,
R/at # 2453,
17th E Cross, 9th Main Road,
BSK II Stage, Bangalore-70.
5 Quality Healthcare Centre,
#4/5, Poornaprajna Layout,
Subramanyapura,
Uttarahalli-Kengeri Main Road,
Bangalore-61 represented by its
authorised representative.
6 Kasturaba Education Trust
#4/5, Poornaprajna Layout,
Subramanyapura,
Uttarahalli-Kengeri Main Road,
Bangalore-61 represented by its
Secretary/authorised representative.
7 Kasturaba Public School,
4/5, Poornaprajna Layout,
Subramanyapura,
Uttarahalli-Kengeri Main Road,
Bangalore-61 represented by its
authorised representative.
8 Kasturaba Composite PU College,
4/5, Poornaprajna Layout,
Subramanyapura,
Uttarahalli-Kengeri Main Road,
Bangalore-61 represented by its
Secretary/authorised representative
9 Mr. M. Nagesh Reddy,
S/o Late U.Munireddy,
Aged about 66 years,
3
O.S.No. 25878/2011
R/at # 2453,
17th E Cross, 9th Main Road,
Banashankari 2nd Stage,
Bangalore-70.
10 Mrs. M. Sathya Reddy,
D/o Late U. Munireddy,
W/o V.R.Narasimhareddy,
Aged about 60 years,
R/at # 2453,
17th E Cross, 9th Main Road,
Banashankari II Stage,
Bangalore-70.
D1 & 2 : BY SRI.K.S.C., Advocate
D3,4, 6 to 10 : EXPARTE.
D5 : By Sri. N.B., Advocate
Date of Institution of the suit 23/04/2011
Nature of the Suit (Suit on pro-note, suit
DECLARATION &
for declaration and possession, suit for
INJUNCTION
injunction, etc.)
Date of the commencement of recording
22/03/2019
of the Evidence.
Date of pronouncement of Judgment 31/01/2022
Year/s Month/ Day/
Total duration s s
10 09 08
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge
Mayohall Unit, City Civil Court
Bengaluru. (CCH - 75)
4
O.S.No. 25878/2011
JUDGMENT
Plaintiff, Poornaprajna House Building Co-operative Society Limited has filed the instant suit to declare it is owner of suit property, Mandatory Injunction directing the defendants to demolish the structure existing in the suit property, to hand over the vacant possession of the said property to it, to pay mesne profit and cost. FACTS OF THE CASE:
2. Plaintiff is the absolute owner of the land in Sy.No. 4/5, measuring 1 acre 9 guntas situate at Vaddarapalya, Utharahalli Hobli, Bangalore South (Suit property). The Government of Karnataka acquired the suit property by issuing preliminary notification u/Sec. 4(1) of Land Acquisition Act (L.A Act) dated: 11.08.1987 published in the official gazette dated: 13.08.1987 for the benefit of plaintiff and formation of layout. Final notification U/Sec. 6(1) of L.A Act dated: 30/06/1988, was issued and it was published in the official gezette dated: 21.07.1988. The Land Acquisition Officer (L.A.O) 5 O.S.No. 25878/2011 passed an award. The Government of Karnataka by invoking powers u/Sec. 47 of L.A Act took the possession of the suit property on 11.12.1988 and issued notification dated: 23.12.1998 u/Sec. 16(2) of L.A Act and it was published in the official gezetee dated: 23.12.1998. In view of Government acquired the suit land by following the procedures contemplated in L.A Act the suit property was absolutely vested in the State Government free from encumbrances. On 15/10/1999 the LAO handed over the possession of the suit property to the plaintiff society.
Therefore, plaintiff became the absolute owner of suit property. Plaintiff contents that the suit property originally belonged to 1st defendant. 2nd defendant is the son 1st defendant. Defendant 1 and 2 with a malafide intention to defeat the acquisition proceedings, during the said proceedings clandestinely constructed building in the suit property. 1st defendant challenged the validity of acquisition proceedings in the Hon'ble High Court of Karnataka by filing WP No. 11733/1988. The said writ 6 O.S.No. 25878/2011 petition was dismissed on 15.03.1994. Taking advantage of stay granted by the Hon'ble High Court of Karnataka in the above said writ petition defendants No.1 & 2 illegally changed the nature of suit property by putting illegal construction. Plaintiff contents that, the construction made by defendants 1 & 2 after the acquisition of the suit property is illegal and it is liable to be demolished. Defendants1 & 2 after putting up illegal construction in the suit property inducted defendants 3 to 8 in the said building. Since the construction of building in the suit property is illegal, the possession of defendants in the said building is unauthorized. Therefore, the defendants have no right to continue in possession of the suit property. The plaintiff society for whose benefit the suit property was acquired as owner is entitle to recover the vacant possession of the suit property by demolishing the illegal construction existing therein. On these and other grounds stated in the plaint, the plaintiff society prays to decree the suit and to grant 7 O.S.No. 25878/2011 the reliefs of declaration, mandatory injunction, recovery of possession, mense profits and cost.
3. Defendant No. 2 resisted the suit by filing written statement. He contents that, his mother the 1st defendant died on 19.01.2007. Therefore the instant suit filed against dead person is not maintainable. He contends that, defendants 3 & 4 are no way concerned to the suit property. Defendants 6 to 8 are the education institutions represented by their secretary Narayan. The said Narayan is necessary party to the suit. The legal heirs of 1st defendant are also necessary party to the suit. In view of they not made as parties, the suit is bad for non-joinder of necessary parties. 2 nd defendant contends that, the acquisition of suit property for the benefit of plaintiff Co-operative Society without the prior approval as per sec. 3(f)(6) of L.A Act is illegal. The plaintiff society is bogus and defunct. Therefore, the suit property cannot be acquired for the benefit such a society. 2nd defendant contends that, the Government 8 O.S.No. 25878/2011 has not given compensation to 1st defendant, the owner of suit property. Since 30 years the school building is existing in the suit property. He and some other defendants are running the school in the said building and it is charitable one. 2 nd defendant admitting the acquisition proceedings denied that, the Government took the physical possession of the suit property on 11.12.1998. 2nd defendant contends that, Government or plaintiff never took the possession of the suit property. Plaintiff by creating mahazar and other records falsely contending that, the Government took the possession of the suit property on 11.12.1998 and hand over the possession to the plaintiff on 15.10.1999. 2 nd defendant contends that, in view of Government or plaintiff not taken the possession of the suit property and not utilized the said property for the purpose for which it was acquired the acquisition proceedings was lapsed. He contends that, the Spl Deputy Commissioner passed an order for demolition of school building existing the suit 9 O.S.No. 25878/2011 property. His mother the 1st defendant challenged the said order by filing appeal No. 529/89 in the Karnataka Appellate Tribunal (KAT). On 11.02.1992 KAT allowed the said appeal and directed the Spl Deputy Commissioner to collect fine from 1st defendant as per Rule 108 of Karnataka Land Revenue Rules 1965. 2 nd defendant contends that, plaintiff never took the possession of the suit property. Therefore, the plaint is silent about the date of dispossession. He contends that, in the year 1988 plaintiff filed O.S.No. 3548/1988 for the relief of injunction in respect of suit property. The said suit was dismissed. Plaintiff suppressing the factum of dismissal of the said suit has filed the instant suit belatedly seeking the relief of mandatory injunction and possession. 2nd defendant contends that, the Government is necessary party to the suit. In view of Government is not made as party by issuing statutory notice u/Sec. 80 of CPC the suit is not maintainable. He contends that, plaintiff never took the possession of the suit property, 10 O.S.No. 25878/2011 Therefore, the contention of the plaintiff that, it took the possession of the suit property on 15.10.1999 therefore the cause of action for filing the suit arose on 15.10.1999 is false and imaginary. 2nd defendant contends that, after initiation of acquisition proceedings the plaintiff slept over it's right and did not take steps either to take possession of the suit property or to use it for the purpose for which it was acquired nor filed the suit in time. Therefore, the acquisition was lapsed and the reliefs sought are barred by limitation. 2nd defendant contends that, the school building of more then 20,000/- sq.ft consisting of ground, first and second floor is existing the suit property and more then 500 students are studying in the said school. In addition to school building a temple is existing the school property, Therefore, if the relief of mandatory injunction is granted he and other defendants would be put to irreparable loss and injury and untold hardship will be caused to them. He contends that, the relief of mandatory injunction is barred 11 O.S.No. 25878/2011 by law of limitation, delay and laches. Therefore, the plaintiff is not entitle for any of the relief claimed for. On these and other grounds stated in the written statement, 2nd defendants prays to dismiss the suit.
4. A perusal of plaint would show that, in the original plaint, plaintiff has made the Spl LAO as 9th defendant. On 12.07.2011 plaintiff filed memo to dismiss the suit against Spl.LAO. Accordingly the suit was dismissed against Spl.LAO.
5. In view of the contention of the 2nd defendant that, all the legal hairs of 1st defendant are not made as parties plaintiff impleaded defendant No.9 Nagesh Reddy and defendant No.10 Sandya Reddy, the children of 1st defendant.
6. After service of summons Defendant No.5 though appeared through counsel Sri.N.B. did not contest the suit by filing written statement.
12
O.S.No. 25878/2011
7. After service of summons defendants 3, 4, 6 to 10 not appeared before the court in person or through counsel. Therefore they have been placed ex-parte.
8. On the basis of aforesaid pleadings, the then presiding officer formulated the following issues on 15.11.2016.
1. Whether the plaintiff proves that plaintiff is an absolute owner of the suit schedule property as pleaded in the plaint?
2. Whether plaintiff proves that the defendants illegally entered into possession of the suit schedule property, which is acquired by the Government under the acquisition proceedings and put up an illegal construction?
3. Whether plaintiff proves that defendant No.1 to 8 can be directed to demolish the structure illegally put up by the defendants in the suit schedule 13 O.S.No. 25878/2011 property and to hand over the vacant physical possession of the suit schedule property to the plaintiff?
4. Whether plaintiff proves that the plaintiff is entitled for suit relief's claimed for?
5. What order or decree?
9. On 16.03.2021 the above issues were deleted and the following issues were formulated.
(1) Whether the plaintiff proves that, it is the absolute owner of suit property?
(2) Whether the plaintiff proves that, defendants illegally put up construction in the suit property?
(3) Whether the defendant No.2 proves that, the suit is bad for non-
joinder of necessary parties?
(4) Whether the defendant No.2 proves that, the reliefs of mandatory 14 O.S.No. 25878/2011 injunction and possession are barred by Limitation?
(5) Whether the plaintiff is entitled for the reliefs prayed for?
(6) What order or decree?
10. On behalf of Plaintiff society it's auditor was examined as PW.1. He produced 16 documents marked at Ex.P.1 to Ex.P.16. During of course of cross- examination of DW.1 by confrontation Ex.P.17 to 20 were marked. 2nd defendant examined himself as DW.1 and produced documents marked at Ex.D.1 to D.18.
11. Heard the arguments on both side. The counsel on both side in addition to submitting oral arguments filed written arguments.
12. My findings on the above issues are as under:
ISSUE NO.1: In the Negative.
ISSUE NO.2: In the Negative.
ISSUE NO.3: In the Negative
ISSUE NO.4: In the Affirmative.
15
O.S.No. 25878/2011
ISSUE NO.5: In the Negative
ISSUE NO.6: As per the final order
for the following:
REASONS
13. ISSUE NO.1: In the instant case there is no
dispute that, the suit property originally belonged to the family of defendants 1, 2, 9 and 10 and the Government of Karnataka initiated proceedings under the LA Act for the acquisition of the suit property by issuing Ex.P.3 preliminary notification u/sec. 4(1) of L.A Act, Ex.P.4 final notification u/Sec.6(1) of L.A Act and LAO passed Ex.P.5 award. There is also no disputed that, questioning the legality of issuing Ex.P.3 notification for acquisition of suit property, 1 st defendant filed WP No. 11733/1988 and Hon'ble High Court of Karnataka has dismissed the said writ petition. Ex.P.12 is the certified copy of the order passed by Hon'ble High Court of Karnataka in WP No. 11733/1988. 2nd Defendant who is contesting the suit contends that, after initiation of a acquisition proceedings the LAO or the plaintiff did not 16 O.S.No. 25878/2011 take the possession of suit property and the suit property is not utilized for the formation of layout. Therefore, the acquisition proceedings was lapsed. Therefore, plaintiff has not acquired right title and interest over the suit property.
14. Plaintiff society to prove it's ownership over the suit property examined it's auditor Hayagreevachar as PW.1. He in his examination-in-chief has reiterated and reaffirmed the plaint averments. He produced Ex.P.1 true copy of the resolution dated: 21.02.2011 passed in the plaintiff society. A perusal of Ex.P.1 would show that in the resolution dated: 21.02.2011, the Governing committee members of plaintiff society authorized its president and secretary to file suit in respect of suit property for demolition of illegal construction and to recover the possession of said property. Ex.P.2 is the true copy of certificate of registration of plaintiff society. 2nd defendant has not disputed Ex.P.1 & 2. The recitals of Ex.P.1 & 2 would 17 O.S.No. 25878/2011 support the testimony of PW.1 that, plaintiff is a registered society and in the resolution dated:
21.02.2011 the governing committee members authorized it's president and secretary to filed the instant suit.
15. PW.1 has stated that, the Government of Karnataka took the possession of the suit property on 11.12.1998 by invoking powers u/Sec. 47 of L.A Act. He stated that, the LAO handed over the possession of the suit property to the plaintiff on 15.10.1999. As I have already stated above 2nd defendant by admitting the acquisition proceedings seriously disputing the contention of plaintiff that, the government took the possession of suit property on 11.12.1998 and handed over the possession of the said property to the plaintiff on 15.10.1999.
16. 2nd defendant who was examined as DW.1 has stated that, the LAO never took the possession of the suit property. Therefore the question of LAO handing 18 O.S.No. 25878/2011 over the possession of suit property to the plaintiff would not arise. He stated that, the suit property is in the possession of 1st defendant and her children, School building is existing in the suit property and since, 1978 he and other defendants are running the school in the said building. DW.1 has stated that, in view of the government never took the possession of the suit property and the suit property is not utilized for the formation of layout, the acquisition proceedings of the suit property was lapsed.
17. Plaintiff to prove that, the LAO took the possession of the suit property on 11.12.1988 and handed over the possession of the said property to the plaintiff on 15.10.1999 in additiion to oral testimony of PW.1 is placing reliance on Ex.P.6 Order/Official Memorandum of Assistance Commissioner, Bangalore South Taluk dated: 19.03.1997, Ex.P.7 mahazar, Ex.P.8 report of Revenue Officer dated: 25.03.1998, Ex.P.9 Official Memorandum dated: 11.12.1998, Ex.P.10 19 O.S.No. 25878/2011 Gazatee Notification dated: 28.12.1998, Ex.P.11 Official Memorandum dated: 15.10.1999 and Ex.P.16 RTC. 2 nd defendant has seriously disputed EX.P.6 to 11. He stated that, plaintiff created and concocted the said documents.
18. The Ld counsel for the plaintiff has strenuously contended that, Ex.P. 6 to 11 were made by public officers during the discharge of their official duty. Therefore as per illustration (e) to sec. 114 of Evidence Act, the said documents are having presumptive value. Therefore, unless contrary is proved the court has to believe the said documents as genuine. Further, he submits that, Ex.P.10 notification issued U/sec. 16(2) of LA Act, and the entry made in Ex.P.16 RTC showing plaintiff's name in the possession column are also having presumptive value. He submits that, plaintiff by producing Ex.P.6 to 11 and Ex.P.16 the public documents having presumptive value has discharged the initial burden of proving it's case that, 20 O.S.No. 25878/2011 the LAO took the possession of the suit property on 11.12.1998 and hand over the possession of the said property to the plaintiff on 15.10.1999. Therefore, the onus would shift on 2nd defendant to substantiate his contention that, the LAO did not take the possession of suit property on 11.12.1998. He submits that, the 2 nd defendant except contending that, plaintiff created Ex.P.6 to 11 has not led cogent and convincing evidence to prove his contention.
19. There is considerable force in the submission of the Ld counsel for the plaintiff that, Ex.P.6 to 11 and 16 made by public officers during the course of discharge of their official duty are having presumption value. Therefore, the court has to presume the said documents as genuine and they were prepared by following the required procedure. Therefore, the burden is on the 2nd defendant to prove that, the said documents are created and concocted, the LAO did not take the possession of the suit property, therefore, the 21 O.S.No. 25878/2011 LAO cannot hand over the possession of the suit property to the plaintiff.
20. In the civil case, the burden of proof is on the touchstone of preponderance of probabilities. Therefore, in a civil case, the court has to evaluate the evidence on record in the right perspective and to see whose contention appears to be more probable and acceptable having regard to the facts and circumstances of the case. Keeping in mind the above principle, let us first consider the documents produced by plaintiff marked at Ex.P. 6 to 11 which are having presumptive value.
21. Ex.P. 6 is the certified copy of order/official memorandum dated: 19.03.1997. A perusal of Ex.P. 6 would show that by exercising powers under section 47 of LA.Act, the Assistant Commissioner directed the Tahsildar of Bengaluru South who is also Executive Magistrate of Bengaluru south taluk to take the possession of the suit property.
22. Section 47 of Land Acquisition Act reads thus: 22
O.S.No. 25878/2011 47 Magistrate to enforce surrender. If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police and such Magistrate or the Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.
23. A bare reading of section 47 of L.A.Act, it is clear that it has to be pressed into service when there is an opposition or obstruction for taking possession of the acquired land. From the material on record, it is evidence that 1st defendant questioning the legality of acquisition of the suit property filed WP.No.11733/1988. A perusal of Ex.P. 12 order in WP.No.11733/1988 would show that the Hon'ble High Court of Karnataka has dismissed the said writ petition on 15.3.1994. In the said Writ petition, stay order was granted from taking possession of the suit property. The said stay would come to an end on 15.3.1994 on which day the above said writ petition was dismissed. 23
O.S.No. 25878/2011 It is not the case of either parties that 1 st defendant or her legal heirs challenged Ex.P. 12 order. There is no material on record to show that after dismissal of WP.No.11733/1988 there was obstruction or opposition from 1st defendant or anybody on her behalf for taking possession of suit property. It is not the case of the plaintiff that after disposal of WP.No.11733/1988, the Spl. LAO went to the suit property to take possession and the 1st defendant or her children or their agents opposed or restrained the Spl.LAO from taking possession of the suit property.
24. In Ex.P.6, the official memorandum, it is stated that the Asst. Commissioner has passed the said order on the basis of the requisition of the Spl. LAO dated:
28.01.1997. Plaintiff has not produced the said requisition of Spl. LAO to the court. Therefore, what is stated in the said requisition is not known to the court.
Thus there is no evidence to prove that before issuing Ex.P. 6 official memorandum dated: 19.03.1997, the 24 O.S.No. 25878/2011 Spl. LAO went to the suit property to take the possession and 1st defendant or her children opposed or restrained him from taking possession of the suit property to invoke the provisions of section 47 of L.A.Act. Be that as it may.
25. In Section 47 of L.A.Act, it is stated that if the Collector( Deputy Commissioner) is an Executive Magistrate, he shall exercise his Magisterial power to enforce the surrender of the land to himself and if he is not a Magistrate, he shall apply to the Executive Magistrate or the Commissioner of Police and such magistrate or Commissioner shall enforce surrender of land to the Collector( Deputy Commissioner) (Emphasis supplied).
26. In Ex.P. 3 preliminary notification, Ex.P. 4 final notification and Ex.P. 5 award, the designation of the Spl.LAO is not noted. He is only referred to as Spl.LAO Therefore, the Spl.LAO was having powers of Executive Magistrate or not is not known. If he is not 25 O.S.No. 25878/2011 having powers of Executive Magistrate, then as per Section 47 of L.A.Act, he can apply to the Executive Magistrate or Commissioner of Police to enforce the surrender of land to him. As I have already stated above, though in Ex.P. 6 official memorandum, the letter of Spl.LAO dated: 28.01.1997 is referred, the said letter is not produced to the court. Therefore, what request the Spl.LAO has made in the said letter is not known. In the said requisition, if the Spl.LAO requested the Assistant Commissioner, who also the Additional District Executive Magistrate to enforce surrender of land, he himself can exercise his magisterial powers to enforce the surrender of land to the Spl.LAO. For the reasons best known, the Assistant Commissioner (Additional District Executive Magistrate) though having powers of Executive Magistrate has directed the Tahsildar of Bengaluru South who is also the Additional District Magistrate of Bengaluru South Taluk to take possession of the suit property(Emphasis supplied). 26
O.S.No. 25878/2011
27. Under Section 47 of the LA Act the Executive Magistrate by exercising his Magisterial powers is having authority to enforce the surrender of land to the LAO. But, he himself cannot take the possession of the land. As per section 47 of LA Act, if the LAO is having magisterial powers, he can exercise the said magisterial powers to enforce the surrender of land to himself. Except the LAO having magisterial powers, the other Magistrates or Commissioner of Police have no authority to take the possession. They can only enforce the surrender of the land to the LAO. It is like execution of delivery warrant issued by the court by taking the assistance of police. The court can pass an order directing the Juridical Police to provide assistant to the Court Bailiff to execute Delivery Warrant and to hand over the possession of the property to the Dhr. But, the court can not direct the police to execute the warrant, take the possession of acquired land and to hand over to the Dhr. Therefore, the order passed by 27 O.S.No. 25878/2011 Assistant Commissioner in Ex.P. 6 memorandum directing the Tahsildar/Executive Magistrate of Bengaluru South to take the possession of the suit property(the acquired land) and then handover to Spl.LAO is not in accordance with section 47 of LA Act. Be that as it may. Now let us consider after receipt of Ex.P. 6 official memorandum whether the Tahsildar of Bengaluru south who is the Executive Magistrate of Bengaluru south taluk took the possession of the acquired land/ Suit property .
28. Ex.P. 8 is the mahazar dated: 28.03.1988 drawn by the Revenue Inspector of Uttarahalli holbi, Bengaluru South Taluk. In Ex.P. 8 it is stated that the Revenue Inspector visited to the suit property on 28.03.1998. On inspection he noticed 4 buildings in the suit property, one measuring 10X 20 feet, another measuring 35 X 60feet, yet another measuring 55 X 60feet and one more building measuring 25" X 50" X 220". In addition to the above 4 buildings, a temple 28 O.S.No. 25878/2011 measuring 10" X 20" was existing in the suit property. The Revenue Inspector has stated that after conducting spot inspection, he prepared a sketch and submitted to the Tahsildar. For the reasons best known the said sketch is not produced to the court.
29. Ex.P.7 is the true copy of mahazar obtained by plaintiff by submitting application under RTI Act. A perusal of the said mahazar would show that it was also prepared by Revenue Inspector, Uttarahalli hobli, Bengaluru south Taluk. In para No.3 of the plaint, plaintiff has stated that the Government took the possession of the suit property on 11.12.1998. In Para No.3 of examination-in-chief PW.1 has reiterated the said fact. PW.1 , the Auditor of the plaintiff's society in the cross-examination at page No.10, para No.2 has stated that he was present at the time of taking possession of the suit property by making Ex.P. 7 mahazar. He is not a signatory to the said mahazar. A perusal of Ex.P. 7 would show that 6 persons namely, 29 O.S.No. 25878/2011 Lakshmamma, Munithayamma, Venkatesh, Venkatapopa, Lakshmaiah and Venkata were put the signatures to the said mahazar as witnesses. Except the signatures, the addresses of the witnesses are not noted in Ex.P. 7 mahzar. PW.1 in the cross-examination has stated that by making Ex.P. 7 mahazar, possession of the suit property was taken and he was present at that time. To appreciate his statement, Ex.P. 7 is extracted below:
ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ತಾಲ್ಲೂಕು ಉತ್ತರಹಳ್ಳಿ ಹೋಬಳಿ ಉತ್ತರಹಳ್ಳಿ ವೃತ್ತದ ರಾಜಸ್ವನಿರೀಕ್ಷಕರವರ ರೂಬು ರೂಬು ವಡ್ಡರಪಾಳ್ಯ ಗ್ರಾಮದ ಗ್ರಾಮಸ್ಥರು ಹೇಳಿ ಬರೆಸಿದ ಮಹಜರೇನೆಂದರೆ ವಡ್ಡರಪಾಳ್ಯ ಗ್ರಾಮದ ಸರ್ವೇ ನಂ.4/5 ರಲ್ಲಿ 1-09 ಗುಂಟೆ ಜಮೀನನ್ನು ಪೂರ್ಣಪ್ರಜ್ಞ ಗೃಹ ನಿರ್ಮಾಣದ ಸಹಕಾರ ಸಂಘಕ್ಕೆ ಭೂ ಸ್ವಾಧೀನವಾಗಿರುವ ಜವಿುೕನನ್ನು ಸ್ವಾಧೀನ ನೀಡುವ ಬಗ್ಗೆ ಬೆಂಗಳೂರು ದಕ್ಷಿಣ ಉಪವಿಭಾಗ ಉಪವಿಭಾಗಾಧಿಕಾರಿಗಳಿಂದ ಪತ್ರದ ಸಂಖ್ಯೆ ಅದಿಕೃತಜ್ಞಾಪನಾ ನಂ.ಎಲ್ ಎ ಕುಳ ನಿ ಳಿ ಕ 41/96-97 ಹಾಗೂ ತಾಲ್ಲೂಕು ತಹಶೀಲ್ದಾರ್ ರವರ ಕಛೇರಿ ನಂ. LAG.CR.1/97-98. ನಾಡಕಛೇರಿ ನಂ. ಎಲ್ ಎ ಕುಳ ನಿ ಆ ಕ 1/97-98 ರ ವಿಚಾರವನ್ನು ರಾಜಸ್ವನಿರೀಕ್ಷಕರವರು ಸ್ಥಳ ತನಿಖೆಗೆ ಬಂದಿದ್ದಾಗ ನಾವುಗಳು ಸ್ಥಳದಲ್ಲಿ ಹಾಜರಿದ್ದು ಓದಿಸಿ ಕೇಳಿ ತಿಳಿದುಕೊಂಡಿರುತ್ತೇವೆ ವಡ್ಡರಪಾಳ್ಯ ಗ್ರಾಮದ ಸರ್ವೇ ನಂ.4/5 ರಲ್ಲಿ 1-09 ವಿಸ್ತೀರ್ಣವಿದ್ದು ರತ್ನಮ್ಮ ಕೋಂ ಮುನಿರೆಡ್ಡಿ ಇವರ ಹೆಸರಿನಲ್ಲಿ ಖಾತೆ ಇದ್ದು ಈ ಜಮೀನಿನಲ್ಲಿ ಮೆಕಾರೆ ವಿದ್ಯಾ ಶಾಲೆ ಇದ್ದು 2 RCC ಕಟ್ಟಡಗಳು ಇರುತ್ತೆ ಮತ್ತು ಒಂದು ದೇವಸ್ಥಾನ ಇರುತ್ತೆ ಹಾಲೆ ಶಾಲೆ ನಡೆಯುತ್ತಿದೆ. ಬೆಂಗಳೂರು ಉಪವಿಭಾಗಾಧಿಕಾರಿಗಳವರ ಅಧಿಕೃತಜ್ಞಾಪನ ಪತ್ರದ ಪ್ರಕಾರ ಜಮೀನನ್ನು ಸುಬರ್ದು ಪಡೆದು ವಹಿಸಿಕೊಡಬಹುದೆಂಬುದಾಗಿ ಹೇಳಿ ಬರೆಸಿದ ಮಹಜರು.30
O.S.No. 25878/2011
30. In Ex.P. 7 mahazar, nowhere it is stated that the possession of the suit property was taken by the Revenue Inspector. In Ex.P. 7 it was stated that 2 RCC buildings of school and one temple are existing in the suit property and the school is running in the said buildings. In the end of Ex.P. 7 mahzar, the Revenue Inspector has reiterated that as per Ex.P. 6 order the possession of the suit property would be taken. The recitals of Ex.P. 7 mahazar which I have extracted above would not support the statement of PW.1 in the cross- examination that by preparing the said mahazar, possession of the suit property was taken in his presence.
31. Ex.P. 9 is a Official Memorandum dated:
11.12.1998. In Ex.P. 9 it is stated that as per Ex.P. 6 order of Assistant Commissioner, the Tahsildar of Bengaluru south taluk took the possession of the suit property on 11.12.1998 and handed over the same to the LAO on the same day. Therefore, Ex.P. 9 is titled as 31 O.S.No. 25878/2011 handing over and taking over the possession of the land. Ex.P. 9 is typed document. Therefore, without any difficulty, it can be said that it cannot be prepared at the spot and it was prepared in the office. In Ex.P. 9, it is stated that the Tahsildar took the possession of acquired land on 11.12.1998 and handed over the same to the Spl.LAO. Ex.P. 9 is silent regarding taking possession of the buildings existing in the suit property.
32. Ex.P. 10 is the Gazette Notification regarding taking of possession of suit property. In Ex.P.10 it is not stated on which day, the Government took the possession of the suit property. Ex.P. 10 is also silent regarding taking possession of the buildings existing in the suit property.
33. Ex.P. 11 is the certified copy of official memorandum dated: 15.10.1999 regarding handing over the possession of the suit property to the plaintiff by Spl. LAO. Ex.P. 11 is also silent regarding handing 32 O.S.No. 25878/2011 over the possession of buildings existing in the suit property. Ex.P. 11 is a typed document. Therefore, by seeing the document, it can be said that it was prepared in the office . In Ex.P. 11 the Spl.LAO has put his signature. On behalf of plaintiff's society, nobody has put signature acknowledging taking possession of the suit property.
34. In the plaint and PW.1 in the evidence has baldly stated that on 11.12.1998 the Government took possession of the suit property and handed over the same to the plaintiff on 15.10.1999. In the plaint or PW.1 in the examination-in-chief has not stated regarding taking the physical possession of the buildings existing in the suit property. PW.1 in the cross-examination at page No.12 has stated that in the year 1999, the Government handed over the possession of the suit property to the plaintiff along with the buildings existing therein. He stated that at the time of taking the possession of the buildings existing in the 33 O.S.No. 25878/2011 suit property, the school was running in the said building. During the course of cross-examination of PW.1, the Ld. Counsel for the 2nd defendant confronted 6 photos. By seeing the said photos, PW.1 has admitted that they are the photos of the suit property and building depicting in the photos are existing in the suit property. In view of PW.1 has admitted the said photos they were marked at Ex.D. 1( 1 to 6). In the cross- examination at page No.13, PW.1 has stated that building depicting in Ex.D. 1 ( 1 to 6) photos were existing at the time of plaintiff taking the possession of suit property. Thus, according to PW.1, plaintiff took the possession of the suit property along with the buildings existing therein depicting in Ex.D. 1 (1to 6) photos in which buildings the school was running.
35. The process of taking possession of the vacant land is different from taking the possession of building. Taking possession of vacant land would be constructive/symbolic. Because, the possession of the 34 O.S.No. 25878/2011 vacant land cannot be delivered by physically handing over the land. The possession of a building is to be handed over physically. Normally while handing over the possession of a building, the keys put on to the doors of the building would be handed over. As I have already stated above, in Ex.P. 7 spot mahazar of Revenue Inspector there is no mention regarding taking possession of the suit property. Along with Ex.P. 9 and Ex.P. 11, the documents made regarding Tahsildar taking possession of the suit property and handing over the possession to the Spl.LAO and the Spl.LAO handing over the possession of the suit property to the plaintiff, there is no mention regarding handing over the possession of buildings existing in the suit property. There is no evidence on record to show that before making Ex.P. 9, the Tahsildar and Spl.LAO went to the suit property for taking the possession of the suit property by Tahsildar physically from defendant No.1 or her children or authorised agents. PW.1 in the cross- 35
O.S.No. 25878/2011 examination at page No. 10 para No.2 has stated that since 1987 defendants 1 and 2 are running the school in the suit property. In Ex.P. 8 and 9, mahazars it is clearly stated that school buildings are existing in the suit property and school is running in the said buildings. Therefore, to take physical possession of the buildings existing in the suit property, the Tahsildar has to receive the keys of the locks put on to the doors of buildings existing in the suit property or he has to put new locks to the doors of the buildings existing in the suit property. From the recitals of Ex.P. 7 and 8 mahazars, and the admissions of PW.1 in the cross- examination , it is clear that in the year 1998-99 the school is running in the buildings existing in the suit property. To run the school, tables, chairs, desks, benches and other stationary items are required. To take the possession of the school buildings, all those items are to be removed. Ex.P. 9 is the first document made regarding taking possession of the suit property 36 O.S.No. 25878/2011 by Tahsildar. In Ex.P. 9 it is not stated from whom, the Tahsildar took the possession of the suit property. Admittedly, before making Ex.P. 9 official memorandum dated: 10.12.1998, defendant No.1 and her children were in possession of the suit property. In Ex.P. 9 it is not stated on behalf of defendant No.1 and her children, who were present to hand over the possession of the school building to Tahsildar. Mahazar was not drawn regarding taking physical possession of the buildings existing in the suit property with the signature of person handing over the possession. As I have already stated above, in Ex.P. 9 it is not stated that Tahsildar took the possession of the buildings existing in the suit property. When the Tahsildar did not take the possession of the buildings existing in the suit property by following the procedure known to law and by making necessary documents, the contention of plaintiff that on 11.12.1998, the Tahsildar handed over the possession of the suit property to the Spl.LAO cannot be accepted. 37
O.S.No. 25878/2011 When the Tahsildar did not take the physical possession of the suit property along with buildings existing therein and handed over to the Spl.LAO on 11.12.1998, the Spl.LAO cannot handover the possession of the suit property along with the buildings existing therein to the plaintiff by making Ex.P. 11. Mahazar was not annexed to Ex.P. 11 regarding handing over the possession of the suit property along with buildings existing therein to the plaintiff's representative. PW.1 except baldly stating that the plaintiff took the possession of the suit property along with the buildings existing therein has not stated in what manner and by following what procedure, the possession of buildings existing in the suit property was taken.
36. In the case of Dr. A Parthasarathy Vs State of Karnataka the Division bench of Hon'ble High Court of Karnataka has held as under:
The possession of the land belonging to the appellants is said to have been taken in the year 1986 under a 'mahazar' which cannot be relied upon, and 38 O.S.No. 25878/2011 we have no reason to disturb the finding of fact recorded by the writ Court in this regard, in para 27 of its judgment, which was on perusal of the original record and is reproduced below: The first question that falls for my consideration is, whether the possession of the land is taken by the Government from the petitioners? My answer to this question is emphatically 'no', for the following reasons:
(a) The perusal of the records reveals that the things are not done in a manner known to law. The mahazar on which all reliance is placed is deficient in more than one respect. It contains the signatures of five persons, but their names, much less their addresses, are available.
(b) The alternative portions like (i) the petitioners were present/not present (ii) BDA has taken over the possession/the owners have handed over the possession (iii) malkies are existing/not existing are retained as they are. The non-applicable portion is not even struck off. The mahazar prepared is in the cyclostyled form. It is hard to give any credence to such a mahazar.
(c) No acknowledgments for having served the copy of the mahazar on the petitioners is produced. It is also not the case of the respondent BDA that the notice calling upon the petitioners to handover the possession was sent under RPAD.
37. In the above cited judgment, it has been held that when the mahazar was not drawn in the manner known to law and it is not having the names and addresses of the mahazar witnesses, it would not establish the factum of taking physical possession of the property. In the instant case, as I have already stated above, in Ex.P. 7 mahazar, there are signatures of 39 O.S.No. 25878/2011 6 witnesses but, their names and addresses are not noted. In the said mahazar, there is no mention regarding taking possession of the suit property by Revenue Inspector. The recitals of Ex.P. 9 official memorandum would not give an indication that before making it, the Tahsildar went to the suit property and took the possession of the property physically along with the buildings existing therein in which the schools are running from defendant No.1 or her children or their agents. Mahazar was not made to evidence taking of physical possession of the suit property. Therefore, the recitals of Ex.P. 7 to 9 would not support the case of the plaintiff that on 12.09.1998 the Tahsildar of Bengaluru South Taluk, took the physical possession of the suit property along with the buildings existing therein from defendant No.1 or her children or their agents. When the Tahsildar did not take the possession of the suit property by following the procedure known to law, the contention of the plaintiff that the Tahsildar handed over the 40 O.S.No. 25878/2011 possession of the suit property along with buildings existing in the suit property to the Spl. LAO and the Spl. L.A.O handed over the possession of the property to the plaintiff on 15.10.1999 cannot be accepted.
38. In the above I have stated that section 47 of LA Act, do not permit the Tahsildar/Executive Magistrate taking possession of the acquired land and he can only enforce the surrender of land to the LAO. Therefore, Ex.P. 9 official memorandum regarding Tahsildar taking the possession of the suit property which is not permissible either u/s 16 or 47 of LA Act is perse, illegal and hence, it cannot be countenanced. It is needless to say that a document made by Public Officer without following the procedures known to law or in contravention of the provision of law, would not have any legal sanctity and the presumption available u/s. 114 of Evidence Act would not applicable to such a document.
39. The Hon'ble High Court of Karnataka in the case of V. Gundareddy Vs Secretary, Department of ... 41
O.S.No. 25878/2011 reported in ILR 2005 KAR 5692 in para No.23 has held as under:
What is surprising is, in paragraph 5 of the Affidavit filed by the Special Land Acquisition Officer, it is stated that the Mahazars were drawn while taking possession of the lands in question by the Tahsildar are missing. How and why they are missing from the records, is quite unimaginable and therefore this explanation offered by the Spl. L.A.O is rejected as it is not probable to believe and the explanation offered in this regard is most unconvincing. Therefore this Court came to the conclusion that either they are deliberately withholding those documents or no such documents are there. But, the undisputed fact remains that the Tahsildar alleged to have taken possession of the lands is the affidavit of the Spl. L.A.O who is not authorized in law to take possession of the lands but it is only the Deputy Commissioner of that District where lands are situated is empowered to take possession of the acquired lands Section 16(1)(2) of the L.A. (Mysore Amendment) Act XVII of 1961 When the word collector was deleted from Section 16(1)(2) of the L.A (Mysore Extension Amendment) Act XVII of 1961 and other provisions of the Act and in its place Deputy Commissioner was substituted, the power of Deputy Commissioner to take possession of acquired lands in Section 16(1)(2) of the Mysore L.A. Act is not changed. In the matter of taking possession of the acquired lands Deputy Commissioner is not changed and his power is not divested. The power to take possession of the acquired lands was retained with the Deputy Commissioner, obviously with some purpose and definite intention, therefore that power cannot be exercised even by the Land Acquisition Officer or any other person. Other than the Deputy Commissioner if, any other officers takes possession of acquired lands, it has to be held that 42 O.S.No. 25878/2011 possession is not taken at all as the same is without Authority of law.
40. In the above cited judgment, it is clearly stated that as per section16 of L.A.Act, only the Collector(Dy.Commissioner) is having authority to take the possession of the acquired land and the Tahsildar has no authority to take possession of the said land. Therefore, the contention that the Tahsildar took the possession of the acquired land cannot be accepted. As per the ratio laid down in the above cited judgment, the contention of the plaintiff that on 12.09.1998 the Tahsildar took the possession of the suit property would fall on the ground. In view of my aforesaid findings and having regard to the recitals of Ex.P. 9 to 11, I am of the considered opinion that the said documents are not made in the manner known to law by the Public Officers having competency to make. Therefore, the said documents are not having any legal sanctity and thus, they cannot be relied upon as genuine documents. Hence, the said documents would not help the plaintiff 43 O.S.No. 25878/2011 to prove taking of physical possession of suit property in the manner known to law. In view of the above, I hold that 2nd defendant by showing legal flaws ie., incompetency of the officer making Ex.P. 9 official memorandum and its recitals discharged the onus of rebutting the presumption initially drawn in respect of Ex.P. 7 to 11 as per illustrations to section 114 of Evidence Act and Section 16(2) of Land Acquisition Act. When the 2nd defendant successfully dislodged/rebutted the presumption initially drawn in respect of Ex.P. 7 to 9 in the manner known to law, there is no necessity for him to examine independent witnesses to prove the negative ie., Tahsildar and the Spl. LAOdid not take the possession of the suit property and therefore the Spl. LAO did not hand over the possession of the suit property to the plaintiff on 15.10.1999.
41. Admittedly, the Government has initiated acquisition proceedings inter alia to acquire the suit property to entrust it to the plaintiff for the formation of 44 O.S.No. 25878/2011 layout to allot sites to the persons entitled for allotment. Therefore, after acquisition, plaintiff has to act as trustee to achieve the purpose of acquisition ie., formation of layout to allot the sites to the persons entitled for allotment. Having regard to the purpose for which the suit property was acquired without any difficulty, it can be said that the suit property was not acquired to make the plaintiff as owner of the suit property to enjoy it as it likes. It was acquired to entrust to the plaintiff with certain obligations. Therefore, if the contention of the plaintiff that it took the possession of the suit property on 15.10.1999 is accepted for a while, plaintiff has to establish that after taking possession it starts work of forming layout in the suit property. PW.1 has stated that plaintiff took the suit property along with the buildings existing therein in which the school is running . To form the sites the buildings are to be demolished. Plaintiff has not stated anything regarding taking steps for the demolition of 45 O.S.No. 25878/2011 buildings existing in the suit property. Ex.P.13 is approved layout plan for forming sites in the acquired lands shown in Ex.P.3 preliminary notification and Ex.P. 4 final notification. PW.1 has stated that while forming layout in the acquired land as per Ex.P.13 layout plan, the possession of the suit property was not taken therefore, in the said layout plan, the suit property is shown as vacant property/land. When such is the case, if the plaintiff would have taken the possession of the suit property on 15.10.1999, it would have started the process of forming layout in the suit property measuring 1 acre 9 guntas. Absolutely, there is zero evidence to show that after 15.10.1999 the day on which the plaintiff alleged to have taken the possession of the suit property it commenced the work of forming layout in the said property.
42. In the plaint and PW.1 in the evidence has stated specific dates of taking possession of the suit property by the Tahsildar and handing over to Spl.LAO 46 O.S.No. 25878/2011 and inturn the Spl.LAO handing over the possession of the property to the plaintiff. Plaintiff has filed the instant suit for recovery of possession of suit property after demolishing the buildings existing therein. The plaint is silent about the date of plaintiff's dispossession from the suit property. PW.1 in the examination-in- chief has also not stated the date of taking re- possession of suit property by defendants 1,2, 9 and 10 by illegally dispossessing the plaintiff.
43. Plaintiff is a registered society having office in Bengaluru. It is having Governing committee consisting of 9 members. When such is the case, as stated by PW.1 in the cross-examination after the plaintiff taking possession of the suit property along with the building existing therein depicting in Ex.D. 1 ( 1 to 8) photos consisting of ground, 1st and 2nd floor, if the defendants illegally retook the possession of the suit property and the buildings existing therein, there would be some action from the plaintiff. Plaintiff atleast could 47 O.S.No. 25878/2011 have given complaint to the police regarding illegal dispossession and taking forcible possession of the suit property by defendants. There is no explanation from plaintiff why it did not take any step nor complained to anybody regarding illegal dispossession and taking forcible possession by defendants. Thus, absolutely there is no pleadings or evidence to show that after the plaintiff alleged to have taken the possession of the suit property on 15.10.1999, on a particular day defendants illegally dispossessed the plaintiff from the suit property and unauthorisedly took possession. The fact that plaintiff neither pleaded nor PW.1 stated about date of dispossession and taking repossession of suit property by defendants in the plaint or evidence would support the contention of 2nd defendant that plaintiff never taken the possession of the suit property, therefore, it is not able to say on which day defendants taken re-possession of the suit property by dispossessing the plaintiff. In view of my aforesaid 48 O.S.No. 25878/2011 findings, I hold that on threadbare evaluation of the material on record, the contention of the defendant No.2 that plaintiff never taken the possession of the suit property appears to be more probable and acceptable.
44. Section 24 of the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act 2013( 2013 Act) reads thus:
Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.-(1) Notwithstanding anything contained in this Act, in any case of land acquisitionproceedings initiated under the Land Acquisition Act, 1894,--
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the 49 O.S.No. 25878/2011 proceedingsof such land acquisition afresh in accordance with the provisions of this Act:Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified inthe notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act
45. As per clause 2 of Section 24 of 2013 Act, if the physical possession of the land acquired as per the provisions of LA Act 1894, 5 years or more prior to commencement of 2013 Act was not taken , acquisition would lapse. Therefore, as per the said provision, in view of plaintiff failed to prove that it took the physical possession of the suit property on 15.10.1999, the acquisition would lapse. The Hon'ble High Court of Karnataka in the case of V. Gunda Reddy cited above, has stated that if the possession of the land is not taken for more than 12 years from the date of final notification, the acquisition proceedings would automatically lapse. From the material on record would show that final notification regarding acquisition 50 O.S.No. 25878/2011 of suit property was made on 21.07.1988. The legal hurdles to take the possession of the suit property come to an end on 15.03.1994 on which day, the writ petition filed by 1st defendant challenging the acquisition of suit property was dismissed. After 15.3.1994, absolutely there is no impediment to take the physical possession of the suit property and to form layout therein to achieve the purpose of acquisition. The instant suit was filed on 3.4.2011. Thus, for 17 years after all the legal impediments to take the possession of suit property come to an end, plaintiff neither took the possession of the suit property nor made any work to form layout in the said property. Therefore, as per the judgment of Hon'ble High Court of Karnataka in the case of V. Gunda Reddy cited supra and section 24(2) of 2013 Act, the acquisition proceedings in respect of suit property would automatically lapse. When such is the case, the contention of plaintiff that as on the date of the suit, it 51 O.S.No. 25878/2011 was the absolute owner of suit property cannot be accepted.
46. Plaintiff has produced Ex.P. 15 mutation and Ex.P. 16 RTC of the suit property. In view of my aforesaid findings, the said documents are not helpful to the plaintiff to prove that as on the date of the suit, it was the owner of the suit property.
47. The Ld. Counsel for the plaintiff placing reliance on the judgment of Hon'ble Supreme Court of India in the case of Birjesh Reddy reported in (2013) 3 SCC 66 has strenuously contended that the Civil Court has no jurisdiction to decide the legality of the acquisition proceedings. It is settled law that Civil Court has no jurisdiction to decide the validity or legality of the acquisition proceedings. Ex.P. 12 is the order of the Hon'ble High Court of Karnataka dismissing the writ petition filed by 1st defendant questioning the illegality of acquisition proceedings of the suit property. The said order reached finality. 52
O.S.No. 25878/2011 Therefore, in the instant case, the questionof legality or validity of acquisition proceedings of the suit property is not in question. The contention of defendant No.2 is that after commencement of acquisition proceedings and even after dismissal of WP.No.11733/1988 on 15.03.1994 the plaintiff did not take the possession of the suit property, therefore, the acquisition would lapse. The civil court is having jurisdiction to decide the factum of physical possession over the immovable property. Therefore, the above cited judgment will not come in the way of considering the defence of 2 nd defendant that the plaintiff did not take the physical possession of the suit property, therefore, the acquisition of suit property would lapse as per sec. 24(2) of 2013 Act. In view of my aforesaid findings, I hold that plaintiff failed to prove that at the time of filing the suit, it was the owner of the suit property. In view of the above, I answer Issue No.1 in the Negative. 53
O.S.No. 25878/2011
48. ISSUE NO.2:- Plaintiff baldly contends that after commencement of acquisition proceedings, 1st defendant illegally put up construction in the suit property. Plaintiff has not stated in which year the 1 st defendant started the construction in the suit property and in which year the construction of buildings depicting in Ex.D. 1( 1 to 6) photos was completed. 2 nd defendant in para No.13 of the written statement which was filed on 13.11.2013, has contended that since 30 years, he and other defendants running the school in the suit property. Therefore, according to him, the school building is existing in the suit property since 1983. Plaintiff by placing reliance on observation made in Ex.P. 5 award and Ex.P. 14 spot panchanama contends that at the time of issuance of final notification, no structure was existing in the suit property. After issuance of preliminary notification, defendant No.1 and her children illegally put up construction in the suit property. Plaintiff placing 54 O.S.No. 25878/2011 reliance on averments made in Ex.P. 17, the Writ petition in WP. No.11733/ has contended that in the said writ petition, 1st defendant has stated that by obtaining licence, she started the construction of school building in the suit property. Therefore, the contention of 2nd defendant that school building is in existence in the suit property since 1983 cannot be accepted.
49. PW.1 in the cross-examination, has admitted that since 1987, 1st defendant and her children are running the school in the suit property. Further he stated that the buildings depicting in Ex.D.1(1 to 6) photos consisting ground, first and 2nd floor were existing in the suit property in the year 1999. In Ex.D. 8 order dated: 11.02.1992 passed by KAT in Appeal No.529/1989 filed by 1st defendant questioning the order dated: 19.07.1989 passed by the Dy. Commissioner for the demolition of school building existing in the property it has been held that 1 st defendant constructed the building by investing more 55 O.S.No. 25878/2011 than Rs. 40,00,000/-, therefore, instead of demolition of said building, fine can be imposed on her. Therefore, having regard to the observation made in Ex.D. 8 order would show that in the year 1989 the school building was existing in the suit property. Plaintiff contends that 1st defendant by stating false facts obtained Ex.D. 8 order. The Dy. Commissioner has not challenged Ex.D. 8 order. Therefore, it reached finality.
50. In the plaint plaintiff has not stated in which year, 1st defendant and her children constructed the buildings in the suit property. In the cross-examination of DW.1, nothing has been elicited to show in which year the school building was constructed in the suit property. It is needless to say that the construction made in the suit property after the commencement of acquisition proceedings is illegal. While answering issue No.1 I have held that plaintiff failed to prove its ownership over the suit property as on the date of the suit. In view of plaintiff is not having any right over the 56 O.S.No. 25878/2011 suit property without giving finding regarding in which year the 1st defendant and her children constructed the school buildings in the suit property, it can be said that plaintiff has no authority to question the legality or otherwise of the building existing in the suit property. In view of the above and in view of my findings on issue No.1, Issue No.2 is to be answered in the Negative. Accordingly Issue No.2 is answered in Negative.
51. ISSUENO.3:- 2nd defendant has contended that the suit is bad for non-joinder of necessary parties for not making the State of Karnataka and all the children of 1st defendant as parties to the suit. To cure the defect of non-joinder of necessary parties, plaintiff impleaded defendant No.9 and 10, the children of 1 st defendant. From the material on record would show that 1st defendant is having 3 children viz, 2 nd, 9th and 10th defendants. In view of all the children of 1st defendant are made as parties, this suit cannot be said to be non-joinder of necessary parties on the count of 57 O.S.No. 25878/2011 non inclusion of all the legal heirs of 1 st defendant as parties.
52. Plaintiff has filed the instant suit to declare that it is the owner of the suit property, mandatory injunction for demolition of structure existing in the suit property and recovery of possession of the said property from the defendants. Thus, plaintiff has filed the instant suit on the basis of its personal right over the suit property. Therefore, the contention of 2 nd defendant that the State Government is necessary party to the suit is not sustainable. In view of the above, I hold that 2nd defendant failed to prove that the suit is bad for non-joinder of necessary parties. According I answer Issue No.3 in the Negative.
53. ISSUE NO.4:- 2nd defendant has contended that the relief of mandatory injunction is barred by limitation. The Ld. Cousnel for the 2nd defendant has strenuously contended that article 113 of Limitation Act is applicable to the relief of mandatory injunction. 58
O.S.No. 25878/2011 As per the said article the suit is to be filed within 3 years when the right to sue accrues.
54. The Ld. Counsel for the plaintiff contends that in view of plaintiff has sought the relief of possession article 65 of Limitation Act would apply and as per the said article, the limitation to file the suit for possession on the basis of title is 12 years from the date when the possession of the defendant becomes adverse. He submits that in the instant case, 2nd defendant has not put-forth the defence of adverse possession. Therefore, his contention that the suit is barred by limitation is not sustainable. In support of his arguments, he placed reliance on the judgment of Hon'ble Supreme Court of India in the case of Sopanrao and Another Vs Syed Mehmood and others reported in (2019) 7 SCC 76. In para No.9 of the said judgment, it has been held that as under:
It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend 59 O.S.No. 25878/2011 that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.
That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants.
55. As per Article 65 of Limitation Act, the suit for possession of immovable property on the basis of title is to be within 12 years from the date when the possession of the defendant become adverse to the plaintiff. It is 60 O.S.No. 25878/2011 needless to say that plaintiff can seek the relief of possession of a immovable property over which he is having right,title and interest. If the plaintiff is the owner of a vacant site or land and it continues to remain vacant or having temporary structure as per the judgment in the case of Sopanrao and another cited supra on the basis of title, he can file the suit for possession within 12 years from the date when the possession of the defendant become adverse to him. In the same way if the plaintiff is the owner of a building and the defendant is in unauthorised occupation of the said building on the basis of title, plaintiff can file a suit for possession within 12 years from the date when the possession of defendant become adverse. If the plaintiff is the owner of vacant site and the defendant encroached upon or illegally occupied the said vacant site and start putting up permanent structure, the law will not permit the plaintiff to keep quite, allow the defendant to put up illegal construction by investing 61 O.S.No. 25878/2011 huge amount and enjoy it for 10-11 years and then file a suit for possession and mandatory injunction. The relief of mandatory injunction is an equitable relief. If the plaintiff is sleeping over his right and allowing the defendant to put up illegal construction and enjoy it continuously without any interruption for a considerable period of time and belatedly filed a suit seeking the relief of mandatory injunction after the lapse of 10-11 years, it is not only barred by limitation but, also barred by delay and latches.
56. There is no specific provision in the Limitation Act for the suit for mandatory injunction. Therefore, as rightly submitted by the Ld. Counsel for defendant, the residuary article section 113 would apply. PW.1 in the cross-examination has stated that in the year 1988, plaintiff came to know about the illegal construction by 1st defendant and her children over the suit property. After came to know about the illegal construction, plaintiff filed O.S.No. 3548/1988 seeking the relief of 62 O.S.No. 25878/2011 injunction. Plaintiff did not prosecute the said suit. Therefore, the said suit was dismissed for non- prosecution. Admittedly, the suit property is acquired to entrust it to the plaintiff for the formation of layout. Therefore, after issuance of final notification u/s 6(1) of LA Act,it is the duty of the plaintiff to take necessary steps to protect the suit property to use it for the formation of layout. 1st defendant filed writ petition No.11733/1988 challenging the legality/validity of the acquisition proceedings and obtained stay from taking possession of the suit property. The stay granted by the Hon'ble High Court of Karnataka restraining the LAO from taking the possession of the suit property would not come in the way of plaintiff taking steps in accordance with law to prevent the 1st defendant and her children from putting up construction and changing the nature of the suit property. As I have already stated above in the year 1988 though plaintiff initiated legal proceedings by filing O.S.No. 3548/1988 63 O.S.No. 25878/2011 restraining the defendants 1 and 2 from putting up structures in the suit property. The plaintiff did not prosecute the said suit diligently. After dismissal of WP.No.11733/1988 on 15.3.1994, absolutely there is no legal impediment either for taking possession of the suit property or steps for demolition of building existing therein. In the plaint, plaintiff though referred to about dismissal of WP.No.11733/1988 on 15.3.1994 has not stated after dismissal of the said Writ petition why immediately it did not take steps in accordance with law for the demolition of building existing in the suit property and to take the vacant possession of the said property for formation of layout.
57. In para No.6 of the plaint, plaintiff has stated that defendant is in illegal occupation of the suit property since 10 years. According to the plaintiff it took the possession of the suit property on 15.10.1999 and after it took the possession defendants illegally re- took the possession of the said property. Even if the 64 O.S.No. 25878/2011 said contention is accepted, there is no explanation in the plaint as to why the plaintiff kept quite for 10 years and allowed the plaintiff to change the nature of the suit property and to remain in settled possession of the said property. Without pleadings PW.1 for the first time, in the evidence has stated that the land owners of adjacent lands of suit property challenged the acquisition proceedings by filing appeal in the Hon'ble High Court of Karnataka and also in the Hon'ble Supreme Court of India and in the year 2007, the said dispute was resolved in the Hon'ble Supreme Court of India. Plaintiff neither pleaded nor produced any document pertaining to the legal proceedings in the Hon'ble High Court of Karnataka or in the Hon'ble Supreme Court of India by the adjacent land owners of suit property questioning the legality of acquisition. Even if the said statement of PW.1 without pleadings or documents is accepted for a while, filing of Writ petition by adjacent land owners of the suit property questioning the 65 O.S.No. 25878/2011 legality of acquisition of their lands cannot be considered as impediment for the plaintiff for taking steps in respect of suit property. From the material on record would show that though in the year 1988, plaintiff came to know about making of construction of building by 1st defendant and her children in the suit property, it kept quite for more than 23 years and filed the instant suit in the year 2011. As contended by plaintiff if the limitation is calculated from 15.10.1999, the relief of mandatory injunction sought in the year 2011 ie., after 11 years is barred by limitation. In view of the above, I hold that 2 nd defendant has proved that the relief of mandatory injunction is barred by limitation. Accordingly, I answer Issue No.4 in the Affirmative.
58. ISSUE NO.5: 2nd defendant contends that his mother, the 1st defendant died on 19.01.20107. Therefore the instant suit filed against the dead person is not maintainable.
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59. Plaintiff has filed the instant suit against 10 defendants. Defendant No.2,9 and 10 are the children of 1st defendant. In the acquisition proceedings, 1 st defendant is shown as owner of the suit property. Therefore, the plaintiff filed the instant suit by making 1st defendant as party. In the cross-examination of PW.1, nothing has been elicited to show that plaintiff despite having knowledge of death of 1st defendant in the year 2007, filed the suit against her. Since the instant suit is filed against 10 defendants including the children of 1st defendant who are her legal heirs, it is maintainable against defendants 2 to 10. In view of the above, I hold that the contention of 2 nd defendant that in view of 1st defendant died prior to the institution of instant suit, the suit against all the defendants is to be dismissed as not maintainable cannot be accepted. In support of my view I place reliance on the judgment of Hon'ble High Court of Karnataka in MFA No.1805/2010 67 O.S.No. 25878/2011 (Sri. Shanmugham and others Vs Sri Muthu and others) D.D.4.7.2013.
60. 2nd defendant contends that as per section 63 of 2013 Act, this court has no jurisdiction to try the instant suit. Section 63 of 2013 Act reads thus:
Jurisdiction of civil courts barred.-No civil court (other than High Court under article 226 orarticle 227 of the Constitution or the Supreme Court) shall have jurisdiction to entertain any disputerelating to land acquisition in respect of which the Collector or the Authority is empowered by or under this Act, and no injunction shall be granted by any court in respect of any such matter.
61. A bare reading of section 63 of 2013 Act, it is clear that civil court has no jurisdiction to entertain any dispute relating to land acquisition in respect of which the Collector( Dy. Commissioner) or the authority empowered by or under the said Act is having jurisdiction to decide. Plaintiff has filed the instant suit for the relief of declaration, mandatory injunction, possession and recovery of mesne profits. The Collector or any other authority under the 2013 Act is not having jurisdiction to decide the suit for the relief of 68 O.S.No. 25878/2011 declaration, mandatory injunction and possession. Therefore, the contention of 2nd defendant that this court has no jurisdiction to try the instant suit is not sustainable.
62. While answering the issue No.1, I have held that the plaintiff failed to prove that as on the date of the suit, it was the owner of the suit property. In view of my said finding plaintiff is not entitled for the relief of declaration.
63. While answering issue No.4, I have held that the relief of mandatory injunction is barred by limitation, delay and latches. In the instant case, after the relief of declaration, the relief of mandatory injunction is the main relief, because, without getting the relief of mandatory injunction, plaintiff is not entitled to recover the vacant possession of the suit property. In view of my finding on issue No.1 and 4 that plaintiff failed to prove its ownership over the suit property and the relief of mandatory injunction is 69 O.S.No. 25878/2011 barred by law, delay and latches, plaintiff is not entitled for the relief of mandatory injunction. In view of plaintiff is not entitled for the relief of declaration and mandatory injunction, it is not entitled to recover the vacant possession of the suit property and for recovery of mesne profits. In view of my reasons and findings on issue no.1 to 4, plaintiff is not entitled for the relief of declaration, mandatory injunction, possession and mesne profits. Accordingly I answer Issue No.5 in the Negative.
64. ISSUE NO.6: In view of my reasons and findings on above Issues I pass the following:
ORDER Plaintiff's suit is dismissed.
No order as to costs.
****** (Dictated to the Judgment-writer, transcript thereof corrected and then pronounced by me in the open court on this the 31st day of January 2022) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 70 O.S.No. 25878/2011 ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 Sri. Hayagreevachar LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Original board resolution Ex.P.2 Certified copy of Registration certificate Ex.P.3 Certified copy of notification issued u/sec.4(1) of Land Acquistion Ex.P.4 Certified copy of Final notification issued u/sec. 6(1) of Land Acquisition Act Ex.P.5 Certified copy of the Award with respect Ex.P.6 Certified copy of the Official Memorandum with
respect to exercise of Extraordinary power by the Asst. Commissioner Ex.P.7 Certified copy of Spot Mahazar conducted by Revenue Officer writ Sy.No.4/5 Ex.P.8 Certified copy of Report submitted by Revenue Officer writ Sy.No.4/5 Ex.P.9 Certified copy of the Official Memorandum writ handing over and taking over possession of land bearing Sy.No. 4/5.
Ex.P.10 Certified copy of the Notification issued U/sec.
16(2) of Land Acquisition Act dated 23/12/1998 published in the official Gazette of Karnataka Ex.P. 11 Certified copy of the official Memorandum writ handing over of possession of land bearing Sy.No. 4/5 Ex.P. 12 Certified copy of the order passed by the High Court of Karnataka, at Bangalore in WP No.11733/1988 71 O.S.No. 25878/2011 Ex.P.13 Certified copy of the Approved Layout Plan Ex.P.14 Mutation extract Ex.P.16 RTC LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 Sri. M. Devendara LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D. 1 Photograph
Ex.D. 2 Certified true copy of certificate of Registration
Ex.D. 3 Certified true copy of list of office bearers of
Macaule education society
Ex.D. 4 Certified copy of the order sheet in
O.S.No.3548/88
Ex.D. 5 Certified copy of the registered partition deed
dated:26.06.2003
Ex.D. 6 Tax paid challan and receipt
Ex.D. 7 Encumbrance certificate
Ex.D. 8 Copy of the order of KAT in appeal no.529/89
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)