Bangalore District Court
Sri Imtiaz Ahmed vs Sri James Raju Reddy on 19 November, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 19th day of November, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.2153/2012
PLAINTIFF : Sri Imtiaz Ahmed
S/o Late Anwar Ahmed,
Aged about 61 years,
R/at Sy.No.221 & 221/1,
1st Cross, 1st Main,
HBR Layout, 1st Block,
Ramdev Garden
Kacharakanahalli,
Kalyana Nagar Post,
Bengaluru-560 043
(By Sri V. Vijayashekara Gowda,
Advocate)
VS.
DEFENDANTS : 1. Sri James Raju Reddy,
S/o D. Chorappa,
Aged about 55 years
R/at Between Govindapura-
2 O.S.No.2153/2012
Earanpalya Main Road,
Arabic College Post,
Bengaluru-560 045
2. M/s. Sonu Properties,
Represented by its
Director Mr. Sonu
No.147, 1st Floor,
Vasavi Complex,
1st Main, Seshadripuram,
Bengaluru-560 020
3. The President,
Vyalikaval Housing Co-operative
Society Limited,
Malleshwaram,
Bengaluru-560 003
(D.1 by Sri H.R. Advocate
D.2 - Exparte
D.3 by Sri K.S. Advocate)
Date of Institution of the suit : 26.03.2012
Nature of the suit : Suit for Permanent
injunction
Date of commencement of : 30.08.2017
recording of the evidence
Date on which the Judgment was : 19.11.2019
pronounced
Total Duration Years Months Days
07 07 23
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.2153/2012
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of permanent injunction to restrain the defendants No.1 to 3, their agents, servants, LRs., assigns, administrators, PA holders or anybody claiming through them from interfering with the peaceful possession and enjoyment over the suit schedule property by the plaintiff, cost and such other reliefs.
2. The case of the plaintiff is that, defendant No.1 was the erstwhile owner in respect of the lands in Sy.No.35/9 measuring 32 guntas of Erannapalya, Kasaba Hobli, Bengaluru North Taluk, as first defendant has acquired the schedule property under the registered partition deed vide registration No.5309/1961-62 registered in the office of Sub-Registrar Bengaluru North Taluk. First defendant acting upon his ownership and possession has sold the said land in Sy.No.35/9 measuring 32 guntas, or measuring East to West 250 feet and North to South 134+122/2 feet to the plaintiff under full settlement of sale agreement dated 26.02.1996 for total sale 4 O.S.No.2153/2012 consideration of Rs.3,10,000/- and received entire sale consideration in the presence of witnesses thereto and put the plaintiff in physical possession and enjoyment over the said land which is morefully described in the schedule. After executing full settlement deed of sale agreement dated 26.02.1996, first defendant has also executed notarized affidavit in favour of the plaintiff confirming the sale of the schedule property for said consideration amount and also received sale consideration amount and confirming the execution of registered GPA in favour of the plaintiff. The defendant No.1 after receiving the sale consideration amount put the plaintiff in possession and enjoyment over the schedule property. Acting upon the said GPA, which is coupled with interest and accordingly the plaintiff has developed the schedule property by forming sites together with road and plaintiff enjoyed the same as absolute owner thereof by virtue of the above mentioned deeds. By acting upon his ownership and possession, plaintiff has constructed RCC residential building consisting of ground and first floor. Ground floor consisting of two shops towards road side and two 5 O.S.No.2153/2012 residential tenements on the rear side and two residential tenements in the first floor. The plaintiff has also drilled borewell in order to supply water to his site purchasers in the said layout and also for utilization of water to his building and his tenants and obtained 20 HP electricity supply connection in the year 1998. In continuation of his ownership and possession and enjoyment by the plaintiff, he has also put up six sheds over six sites and the sites have been covered with hallow brick compound and rest of the sites are vacant and the same is enjoyed by the plaintiff without any interference or hindrance from anybody. Thus plaintiff became owner in possession and enjoyment of the schedule property since 26.02.1996. First defendant is well aware of the registered GPA executed in favour of the plaintiff and as such plaintiff has developed the schedule property and he is in continuous possession in terms of the sale agreement, affidavit and registered GPA as an absolute owner thereof.
The plaintiff further submits that, first defendant having no manner of right, title, interest or possession over any portion of 6 O.S.No.2153/2012 the schedule property, in order to deceive and deprive the plaintiff and to extract ransom from the plaintiff is trying to alienate the schedule property in favour of the second defendant, and the second defendant is a notorious land grabber in and around Thanisandra, Govindapura, Nagavara, Hebbal and some portions of Arkavathi layout. He is being famous in purchasing 6(1) notified BDA sites and lands in order to make huge sums by colluding with concerned officials for his wrongful gains. Thus the second defendant made an attempt to purchase the absolute property of the plaintiff through first defendant by taking advantage of the RTC standing in the name of first defendant. The plaintiff has already personally contacted the second defendant in the last week of February 2010 and advised him not to purchase the schedule property, as the plaintiff is absolute owner in possession and enjoyment of the property since 1996 till this day. There is no lands vested with the first defendant and first defendant has no manner or right, title, interest or possession to sell any potion or part of the land thereto over the schedule property. Inspite of the plaintiff's requests and warning, 7 O.S.No.2153/2012 the second defendant is still making attempts to enter into contract of sale to overcome the true claim/interest of the plaintiff. First defendant is well aware that plaintiff has filed so many cases against the persons who have wrongfully claimed the schedule property and when they tried to interfere with the peaceful possession of the plaintiff, before City Civil Court and those suits are still pending for consideration. In spite of the same, the first defendant by colluding with the second defendant is making all evil adventures to grab the lawful property of the plaintiff knowing fully well that first defendant has already alienated the same in favour of the plaintiff way back in the year 1996. In order to safeguard the schedule property at the devil hands of the defendants at first instance the plaintiff has issued legal notice dated 26.02.2010. The notice issued to the second defendant is duly served upon him and the notice issued to first defendant is returned with postal endorsement as 'not claimed'. After issuance of the legal notice to defendants No.1 and 2 calling upon them to comply the demands of the plaintiff and they have started troubles in creating fraudulent and forged documents and 8 O.S.No.2153/2012 therefore plaintiff was forced to file a private complaint in PCR No.163/2010 on the file of 11th ACMM, Mayohall, Bengaluru requesting to refer the matter to K.G. Halli PS for investigation and submit report thereto with a direction to the police to inspect and to seize all such forged documents which are in the sole custody of defendants No.1 and 2. After referring the said PCR, the jurisdictional police have registered crime No.67/2011 dated 07.03.2010 for the offences punishable under Section 420, 419, 465, 466, 467, 468, 471, 472, 473, 474, 475 and 476 of IPC. After registering the criminal case against defendants No.1 and 2, K.G. Halli Police investigated the matter and summoned the defendants No.1 and 2 and warned them not to indulge with the schedule property of the plaintiff. While investigating the matter, defendants No.1 and 2 have revealed that the third defendant has acquired the schedule property for formation of residential sites for its members and therefore its name has been shown in the RTC in respect of the schedule property as the second defendant has disclosed that though he made attempts with the third defendant to acquire the lands to purchase the property by virtue 9 O.S.No.2153/2012 of the fraudulent documents created by second defendant to make profits out of their illegal dealings. Despite third defendant's name has been shown in the RTC, no possession has been taken over by the third defendant nor acquired the lands or issued any 4(1) or 6(1) notification by showing the ownership and anubhavadars names in the said notification and so also no Government has acquired the lands in order to give it to the third defendant. Therefore plaintiff was forced to issue legal notice to the third defendant as required under Section 125 of Karnataka Co-operative Societies Act to sue against the third defendant on 29.01.2012 demanding the third defendant to give up such illegal acquisition of lands, as no lands have been notified either under 4(1) notification or under 6(1) notification nor possession has been taken away by the third defendant which required under Section 16(2) of LAC Act and so also sought for explanation that without acquiring the lands through Government how could the third defendant can purchase the lands and its name has been shown in the RTC, since no opportunity has been given to the plaintiff to file his objections. If at all the BDA has acquired the 10 O.S.No.2153/2012 lands on behalf of the third defendant, if issued 4(1) and 6(1) notification, but no opportunity has been given to the plaintiff to file his objections. Therefore complaint has been lodged by the plaintiff on 09.02.2012 and accordingly after receipt of the complaint, the police authorities have issued intimation on 14.02.2012. The legal notice issued to the third defendant dated 29.01.2002 has been duly served on 31.01.2012.
It is further submitted by the plaintiff that, on 14.03.2010 the plaintiff himself has lodged complaint before the Police Inspector of K.G. Halli, to take legal action against the defendants No.1 and 2 as they are trying to manipulate the documents and making illegal efforts with the land grabbers including the defendant No.3. Despite the police received the complaint, but they did not take any legal action against the defendants No.1 and 2 and kept pending matter for long time since the matter is in civil nature and advised the plaintiff to approach the civil Court and get prohibitory orders against the defendants so that they would be in a position to assist the plaintiff. Inspite of issuance 11 O.S.No.2153/2012 of legal notice to third defendant, he did not come forward to settle the matter nor issued any reply and when the plaintiff personally met the third defendant, its president, they told that they are not interested over the lands as their Joint Registrar of Co-operative Societies has forfeited the lands as per MR No.20/1993-94 as the third defendant Society has been debarred by the Government by virtue of the Hon'ble Supreme Court decision and thereby due to the negligent acts of the third defendant, the Joint Registrar of the Society was forced to seize the Society, but not seized the lands, because the lands are always vested with the plaintiff and third defendant has no manner of right, title, interest or possession over the suit schedule property, since the very illegal acquisition of the lands is contrary to the law. In view of the above, it is very clear that plaintiff has invested huge sums in lakhs for its development and to purchase the lands from the first defendant in the year 1996. As of now, nobody has claimed any right either the first defendant or the defendants No.2 and 3, but in the RTC the name of third defendant has been inserted, falsely though not acquired any 12 O.S.No.2153/2012 lands through Government and all of a sudden the third defendant wants to form layout knowingly full well that the plaintiff has put up hallow brick compound over the schedule property and also fenced individual sites so formed by him in the schedule property. Since the plaintiff is in lawful possession and enjoyment of the schedule property, it is in the interest of natural justice, it is required to restrain the third defendant from interfering with the peaceful possession and enjoyment of the plaintiff's suit schedule property. Hence seeks to decree the suit.
3. After service of summons, defendant No.1 has appeared before Court and has filed written statement denying and disputing the plaint averments. He has taken contention that, suit of the plaintiff for the relief of permanent injunction against defendant No.1 is not maintainable either on law or facts of the case and the same is to be rejected at the threshold. Plaintiff has filed false, frivolous, vexatious suit tainted with malafide objects, illegal motives and to grab the land and the plaintiff has indulged into a serious malpractice of abusing and 13 O.S.No.2153/2012 misusing the due process of law. The plaintiff is guilty of suppressio verrie and suggestio falsie and as such the plaintiff has not approached the Court with clean hands. He has contended that the property bearing Sy.No.35/9 of Nagavara village was acquired by the Government for the formation of residential layout for the benefit of the members of Vyalikaval House Building Co-operative Society in the year 1985-86 and delivered possession to the Society and under such circumstances, the question of execution of sale agreement and delivery of possession to the plaintiff, execution of GPA does not arise at all. He has also denied the execution of the sale agreement dated 26.02.1996, GPA and also affidavit and receiving of sale consideration amount of Rs.3,10,000/-. He says all these documents are forged and fabricated to knock of the property of the defendant. He disputes that plaintiff is in possession of the property and he has constructed building in the suit schedule property. He has also disputes second defendant made serious efforts to purchase the suit schedule property by taking undue advantage of RTC standing in the name of defendant No.1. He 14 O.S.No.2153/2012 submits that the property is acquired to third defendant. With other contentions he seeks to dismiss the suit.
4. Defendant No.3 has also appeared before Court and has filed written statement disputing and denying the plaint averments wherein third defendant contends that suit of the plaintiff is not maintainable either on law or facts of the case and plaintiff is utter stranger to the suit schedule property and he has no manner or right, title or interest in or over the suit schedule property, i.e., Sy.No.35/9 measuring 32 guntas of Nagavara Village. He further contends that, the suit schedule property forms portion of the entire land measuring 3 acres 38 guntas of Sy.No.35/9 of Nagavara village, which has been fully acquired by the Government of Karnataka in favour of the third defendant under the Land Acquisition Act along with other lands at Nagavara village comprised in various survey numbers and it is this third defendant which is in lawful possession and enjoyment thereof, wherein a full fledged layout has been formed by the Society with M/s. Sree Shakhti Promoters and Developers, being the 15 O.S.No.2153/2012 developer of the said layout in terms of the layout plan. The sites have been carved out in the entire land including Sy.No.35/9 and has been sold to the members of the Society long ago. The plaintiff is well aware of all the facts and has resorted to this tactics. Plaintiff is aware of the preliminary notification dated 22.12.1984/ 03.01.1985 issued by the Government of Karnataka under Section 4(1) of Land Acquisition Act followed by final notification dated 21.02.1986 issued under Section 6(1) of Land Acquisition Act. The entire land in Sy.No.35/9 has been acquired fully and notification under Section 16(2) has been issued and possession is vested in the third defendant Society. The mutation has been effected in the revenue records in the name of the Society, where M/s. Shakti Promoters and Developers has formed a full fledged layout in all the acquired lands at Nagavara Village.
The plaintiff along with another person by name Syed Shabbir said to be tenant of the plaintiff herein has filed a suit for injunction in O.S.No.7317/2008 before City Civil Court against one Mr. Lakshman, the partner of Sree Shakti Promoters and 16 O.S.No.2153/2012 Developers. The said suit was contested by filing written statement. The plaintiff did not prosecute the said suit and the same is dismissed on 25.05.2012 as not pressed. In the said written statement, the said Lakshman has taken contention that possession is with the Society and sites have been carved out and again this suit is filed with false grounds. Plaintiff ought to have filed declaration suit, since he was knowing about acquisition and also possession of the suit property by the Society. But intentionally he has not filed suit for declaration. The plaintiff knows very well that market value of the schedule property is Rs.5,76,00,000/- as on this day as per the guidelines of the Government. The plaintiff has deliberately resorted to this mischievous suit without valuing the suit under Section 24(a) of Karnataka Court Fees & Suits Valuation Act. With other contentions, defendant No.3 seeks to dismiss the suit.
5. On the basis of the above pleadings, the following issues are framed:-
17 O.S.No.2153/2012
1. Whether the plaintiff proves his lawful possession over the suit property as on the date of suit?
2. Whether the plaintiff further proves any sort of interference to his possession over the suit schedule property by the defendants?
3. Whether the plaintiff is entitled for permanent injunction?
4. What order or decree?
6. To substantiate the plaint averments, the plaintiff himself has examined as P.W.1 and Ex.P.1 to P.19 are marked. Ex.P.1 is certified copy of partition deed, Ex.P.2 is full settlement agreement of sale dated 26.02.1996, Ex.P.3 is affidavit dated 26.02.1996, Ex.P.4 is registered GPA dated 26.02.1996, Ex.P.5 to P.10 are photographs Ex.P.5(a) to P.10(a) are negatives, Ex.P.11 is legal notice, Ex.P.12 is not marked, Ex.P.13 is postal acknowledgment, Ex.P.14 is RPAD cover, Ex.P.15 is notice under Section 125 of Co-operative Societies Act, Ex.P.16 is postal receipt, Ex.P.17 is postal endorsement, Ex.P.18 is postal complaint, Ex.P.19 is RTC.
18 O.S.No.2153/2012
From the defendants side no witnesses have been examined. But during cross-examination Ex.D.1 to 4 are confronted and marked. Ex.D.1 is order sheet in O.S.No.7317/2008, Ex.D.2 is plaint in O.S.No.7317/2008, Ex.D.3 is memo to withdraw filed in O.S.No.7317/2008, Ex.D.4 is written statement filed in O.S.No.7317/2008
7. Heard the arguments and perused the records.
Learned counsel for plaintiff has filed written arguments along with one citation.
8. My findings on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: As per final order, for the following:-
REASONS
9. Issue No.1:- Plaintiff has filed this suit against the defendants for the relief of permanent injunction claiming that, he is owner of the suit property. According to him, defendant No.1 19 O.S.No.2153/2012 who is owner of the property who acquired it through registered partition deed, which is produced at Ex.P.1, has sold the same by executing Ex.P.2, which is full settlement sale agreement dated 26.02.1996 by accepting the sale consideration amount of Rs.3,10,000/- and he put the plaintiff into possession of the suit schedule property. He has also bases his claim on Ex.P.3 and P.4. Ex.P.3 which is affidavit dated 26.02.1996 wherein it is mentioned that James Raju Reddy has sold the property and possession is delivered. Even Ex.P.4 is registered GPA dated 26.902.1996 executed by defendant No.1 in favour of plaintiff. Except these documents, there are no other documents to prove the ownership of the plaintiff over the suit schedule property.
10. On appreciation of Ex.P.2 to P.4, it is clear cut case of the plaintiff that, the transaction between defendant No.1 and plaintiff is a GPA transaction. Law regarding GPA transaction is settled by the Hon'ble Supreme Court in Suraj Lamps Case and in the said decision Hon'ble Supreme Court has clearly held that general power of attorney sale transaction are not sale 20 O.S.No.2153/2012 transaction at all and this type of transaction is not recognized by the law. In that decision it is made clear that if there is GPA sale transaction, then treating the GPA as agreement, the purchaser has to enforce the agreement by filing necessary suit before competent Court of law. In this case on the basis of GPA, khatha of the property is not transferred in the name of the plaintiff. When there is no title document showing ownership of the plaintiff over the suit schedule property, I am of the opinion that plaintiff has failed to prove his ownership over the suit property.
11. Apart from that, plaintiff himself has admitted during cross-examination at page No.17 at para 4 that:
"Again I approached defendant No.1 to register the property by that time, it was acquired for Vyalikaval Housing Co-operative Society. I have not mentioned these facts in my plaint. I have not produced any documents to show that why suit schedule property is not registered in my favour."
The definite contention of defendant No.3 is that, suit property is acquired by the Government for Vyalikaval Housing 21 O.S.No.2153/2012 Co-operative Society Limited, and even plaintiff has not disputed that suit property is not acquired for the Society, but his contention is the property continuously to be in his possession. But there are no other records to show that Sy.No.35/9 measuring 32 guntas of Nagavara village is dropped from the acquisition proceedings and it is relevant to note that plaintiff is claiming suit schedule property, i.e., Sy.No.35/9 measuring 32 guntas of Erannapalya, whereas he has produced Ex.P.19, which is RTC of Nagavara Village and the said property covered under Ex.P.19 is stated to have been acquired to the defendant No.3. When the property is acquired under the Land Acquisition Act, as held by the Hon'ble Supreme Court of India in Commissioner, BDA and another vs. Brijesh Reddy and another reported in (2013) 3 Supreme Court Cases 66, that when once the property is acquired under the Land Acquisition Act, the jurisdiction of the Civil Courts are barred under Section 6 of the said Act. Here in this case also the suit property is appears to have been acquired by the State Government in favour of Vyalikaval Housing Co-operative Society Ltd. When once 22 O.S.No.2153/2012 acquisition proceedings are initiated, this Court has no jurisdiction to entertain any sort of declaration or bare injunction suit.
12. Apart from this, the plaintiff who is claiming ownership over the suit schedule property has failed to produce the title documents and the documents which he relied upon, i.e., Ex.P.2, P.3 and P.4 are not the title documents which will help the plaintiff. When he has failed to prove the ownership over the suit property, and in view of the acquisition proceedings, it cannot be held that he is in lawful possession over the suit property as on the date of filing the suit. Hence issue No.1 is held in the 'negative'.
13. Issue No.2:- When the plaintiff has failed to prove issue No.1, question of interference does nor arise, because he only in his pleadings at page No.10 para 10 has clearly mentioned that:
"When the plaintiff personally met the 3rd defendant to its President representing 3rd defendant society they told that, they are not interested over the 23 O.S.No.2153/2012 lands as their Joint Registrar for Co-operative Societies has forfeited the lands as per MR No.20/1993-94 as the 3rd defendant Society has been debarred by the Government by virtue of the Hon'ble Supreme Court decision and thereby, due to the negligent acts of the 3rd defendant, the Joint Registrar of the Society was forced to seize the Society, but not seized the lands, because the lands are always vested with the plaintiff and thereby the 3rd defendant has no manner of right, title, interest or possession over the suit schedule property."
The very important is para No.11 wherein it is mentioned that:
"As of now, nobody has claimed any right either the 1st defendant or the defendants No.2 and 3, but in the RTC the name of third defendant has been inserted."
It clearly shows that there is no interference by the defendants and when the property is acquired by the State Government as contended by defendant No.3, plaintiff himself has failed to prove his possession over the suit property and hence 24 O.S.No.2153/2012 question of interference does not arise. Hence issue No.2 is answered in the 'negative'.
14. Issue No.3:- When the plaintiff is not the owner of the property and when he is not in possession of the suit property and when the land is acquired by the Government for the defendant No.3 Society under the Land Acquisition Act, and when the suit of the plaintiff itself is barred under Section 6 of the Land Acquisition Act, plaintiff is not entitled for any reliefs as claimed in the suit. Hence this issue is held in the 'negative'.
15. Issue No.4:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 19th day of November, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 25 O.S.No.2153/2012 SCHEDULE All that piece and parcel of landed property bearing No.sy.35/9 measuring 32 guntas or measuring East to West 250 sq.ft and North to South 134 + 122 by 2 feet situated at Earanapalya, Kasaba Hobli, Bengaluru North Taluk, together with RCC residential building consisting of ground and first floor bearing 20 HP electricity connection with 6 sheds o sites with hallow brick compound and rest of vacant sits and the same is bounded on:
East by: PWD Road leads to Earanapalya
West by: Property of brothers of Ist of you
North by: 30 feet Road
South by: Property of Allalappa
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Imtiaz Ahmed
(b) Defendant's side : N I L
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Certified copy of partition deed
26 O.S.No.2153/2012
Ex.P.2: Certified copy of agreement for sale
Ex.P.3: Certified copy affidavit
Ex.P.4: Certified copy of general power of attorney
Ex.P.5 to 6 photographs
P.10:
Ex.P.5(a) to Negatives
P.10(a) :
Ex.P.11: Copy of legal notice
Ex.P.12: Not marked
Ex.P.13: Postal acknowledgment
Ex.P.14: Unserved RPAD cover
Ex.P.15: Copy of legal notice
Ex.P.16: Postal receipt
Ex.P.17: Endorsement issued by postal authority
Ex.P.18: Copy of application filed before postal
authority
Ex.P.19: RTC
(b) Defendants side :
Ex.D.1: Certified copy of order sheet in
O.S.No.7317/2008
Ex.D.2: Certified copy of plaint in
O.S.No.7317/2008
Ex.D.3: Certified copy of memo in
O.S.No.7317/2008
Ex.D.4: Certified copy of written statement in
O.S.No.7317/2008
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.