Bangalore District Court
O.S./3386/2013 on 20 December, 2021
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IN THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL
JUDGE, [CCH-40], AT : BANGALORE CITY.
Dated on this the 20th day of December, 2021.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No.3386/2013
Plaintiff :
Girish Sanu S/o. Chandrakanth P.Sanu,
34 Years, R/o.No.E-O, Krishna Glade
Apartment, Palace Guttahalli,
Bengaluru - 560 024.
(By Sri.S.Tejus., Advocate)
/ VERSUS /
Defendants :
1. The Bangalore Development
Authority, T.Chowdaiah Road,
Bengaluru-560020, Represented by its
Commissioner.
2. The Special Land Acquisition Officer,
The Bangalore Development
Authority, T.Chowdaiah Road,
Bengaluru - 560020.
3. Smt.Sarojamma W/o.Late Konerappa,
60 Years.
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4. Smt. Suvarnamma D/o. Late
Konerappa, 47 Years.
5. Ravikumar S/o. Late Konerappa, 45
Years.
6. Smt. Gowramma D/o. Late
Konerappa, 43 Years.
7. Smt. Sujatha D/o.Late Konerappa, 41
Years.
8. Manju S/o. Late Konerappa, 40 Years.
9. Smt.Kalavathy D/o. Late Konerappa,
38 Years.
10. Gowrisha S/o. Late Konerappa, 35
Years.
Defendants No.3 to 10 are
R/o Amruthalli Village,
Yalahanka Hobli,
Bangalore North Taluk,
Bangalore District.
11. Guruprasad Sanu
S/o.Chandrakant P. Sanu,
32 Years, R/o.No.E-O,
Krishna Glade Apartment,
Palace Guttahalli,
Bengaluru - 560 024.
[Sri.P.M, Advocate for D.No.1 & 2
Sri. G.M.S.
Defendant Nos.D.3 to 11 -Ex-parte.]
***
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JUDGMENT
Plaintiff has filed the present suit against the defendants for the relief of Specific Performance of Contract, permanent and mandatory injunctions.
2. It is the case of the plaintiff that the defendants No.3 to 10 are the owners of agricultural land bearing Sy.No.43/2 measuring 12 guntas out of 3 acre 31 guntas and Sy.No.44/2 measuring 29 guntas out of 3 acres both are situated at Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk. Defendant No.11 is the general power of attorney holder of defendants No.3 to 10. The defendants No.3 to 10 have agreed to sell the suit schedule properties to plaintiff for a total sale consideration of Rs.2,50,000/- for their family necessity. After agreeing to the plaintiff's conditions, defendants No.3 to 10 have executed an agreement of sale on 18/8/2010 in favour of plaintiff. As per the said agreement to sell, plaintiff has paid consideration /4/ O.S.No.3386/2013 amount through cheque and by cash towards the sale consideration amount. The plaintiff further contended that as per the agreement to sell it is expressly understood by and between the parties that under no circumstances the termination of the agreement is contemplated. Further defendants No.3 to 10 agreed that the suit schedule property was acquired by defendants No.1 and 2 for formation of residential layout for the benefit of general public and the acquisition proceedings were challenged before the Hon'ble High Court of Karnataka. The said case is pending before the Hon'ble High Court of Karnataka. The defendants have undertaken to complete the sale transaction after the clearance of the said dispute. The plaintiff agreed to incur the expenses on behalf of defendants No.3 to 10 to clear the pending dispute in respect of acquisition proceedings. The time for performance of agreement was 11 months from the date of agreement.
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3. The plaintiff further contended that the
defendant No.3 to 10 have also executed GPA on 18.8.2010 in favour of defendant No.11. In view of the pending litigation by mutual consent it was agreed that the cheque would be encashed only after the entire matter was settled by the Hon'ble High Court. Subsequently the GPA holder of plaintiff has received entire sale consideration amount. Accordingly same has been endorsed in the aforesaid agreement of sale.
4. The suit schedule property along with other lands was notified for acquisition by the defendant No.1 and 2 for formation of Arkavathy Layout. The said acquisition was challenged by defendants No.3 to 10 along with several other land owners before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka upheld the acquisition proceedings. Against the said order, the land owners have filed S.L.P. before /6/ O.S.No.3386/2013 the Hon'ble Supreme Court of India, the Hon'ble Supreme Court also upheld the decision of Hon'ble High Court of Karnataka in the year 2010 with certain modifications. In pursuant to the Hon'ble Supreme Court order, the Government of Karnataka passed an order bearing its No.Na.AE/170/Ben Bhu Swa/2011 dated 18.3.2011 stating that the land acquired for formation of Arkavathy Layout in Bengaluru North (additional) Taluk of Yelahanka Hobli Villages namely, Jakkuru, Amruthahalli, Sampigehalli, Rachenhalli, etc., and out of Bangalore East Taluk, K.R.Puram Hobli Villages viz., Tanisandra, K.Narayanapura, Challakere and other Villages out of every acre of land 45% has to be reserved for civic amenities, 55% for residential sites and to allot 40% of the developed land i.e., 9,583 Sq.Ft. per acre to those land owners who have not availed of the compensation amount.
According to the Government Order, defendants
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No.3 to 10 who have consented for the acquisition on the above terms are entitled to the developed land. In pursuant to the said Government order the defendant No.1 issued notice to defendants No.3 to 10 and various other land owners to produce documents of title in order to avail the developed site in accordance with the Government Order. In view of the consent given by defendants No.3 to 10, the plaintiff is entitled to 40% of the developed land that is to be allotted to defendants No.3 to 10 which is approximately an extent of 9.5 guntas of land, since the defendants No.3 to 10 have executed an agreement of sale in favour of plaintiff and have received substantial amount from the plaintiff.
5. The plaintiff further contended that subsequently he contacted defendants No.3 to 10 for executing the registered sale deed in his favour, but the defendant 3 to 10 have postponed the same on one or the other pretext. Hence, the plaintiff apprehended that /8/ O.S.No.3386/2013 the defendants No.3 to 10 may suppress the above facts from defendant No.1 and 2 and claim the lands for themselves. The plaintiff further contended that the defendants No.3 to 10 have approached the defendant No.1 for release of 40% of the land in accordance with the Government Order and are also negotiating with third parties for alienating the schedule property. In that event, the plaintiff would be put to irreparable loss and injury. Hence, he prays for decreeing the suit. Hence, he prays for decreeing the suit.
6. After service of suit summons, the defendants No.1 and 2 have appeared through their counsels. The defendants No.3 to 11 remained absent. Hence, they were placed ex-parte. The defendants No.1 and 2 have filed written statement.
7. The defendants No.1 and 2 have filed their Written statement by denying the claim of the plaintiff.
/9/ O.S.No.3386/2013 The defendants contended that the suit of the plaintiff is not maintainable in the eye of law. The defendants No.1 and 2 further contended that the land bearing Sy.No.43/2 and 44/2 of Amruthahalli Village have been acquired and accordingly notifications have been issued and possession of the properties have been taken. Neither plaintiff nor defendants No.3 to 10 are in possession of the suit schedule property. Once the land has been acquired the suit for specific performance of contract or for bare injunction is not maintainable. The Civil Court has no jurisdiction to entertain the suit. Hence, they prayed for dismissal of the suit.
8. On the basis of pleadings and documents of both the parties, this Court has framed the following issues and additional issues :
ISSUES (1) Whether the plaintiff proves that defendants 3 to 10 have executed the sale agreement on 18/08/2010 agreeing to sell the suit properties / 10 / O.S.No.3386/2013 for sale consideration amount of Rs.2,50,000/-
and received the amount towards the sale consideration as mentioned in para.5 of the plaint?
(2) Whether the plaintiff proves that plaintiff is entitled for specific performance of agreement of sale with respect to 40% of the land in the suit schedule land?
(3) Whether the plaintiff is entitled for the reliefs as prayed for?
(4) What order or decree?
Additional Issue framed on 25.2.2020 "Whether the defendants No.1 and 2 prove that suit of the plaintiff is barred by law?"
9. Heard the arguments.
10. In order to substantiate his case, plaintiff himself examined as P.W.1 and got marked documents Exs.P.1 to P.7. The defendants have not led evidence.
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11. My findings on the above issues and additional issue are as follows :
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Addl. Issue : In the affirmative.
Issue No.4 : As per final order for the
following :
REASONS
12. Issue No. No.1 : - This issue is framed with respect to execution of agreement dated 18.08.2010 and passing of consideration as alleged in the agreement.
13. That, the plaintiff has filed the present suit for the relief of Specific Performance of contract dated 18.8.2010 and permanent injunction restraining the defendants No.1 and 2 from releasing full or at-least 40% of the developed land in Arkavathy Layout in favour of defendants No.3 to 10 pursuant to the Government / 12 / O.S.No.3386/2013 order dated 18.3.2011 and for mandatory injunction directing the defendants No.1 and 2 to release 40% of the developed land in favour of plaintiff in accordance with the Government Order dated 18.3.2011 and mandatory injunction directing the defendants No.1 and 2 to notify and intimate plaintiff regarding the allotment of 40% of the developed land and for the relief of permanent injunction restraining the defendants No.3 to 10 from alienating or encumbering suit schedule property or 40% of the land to be allotted in Arkavathy Layout pursuant to the Government Order dated 18.3.2011.
14. The defendants No.1 and 2 appeared and have filed their written statement. The defendants No.1 and 2 took specific contention in their written statement that the suit of the plaintiff is barred under Law. The parties have produced Acquisition Notification and also RTC in respect of suit schedule property.
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15. In order to substantiate his case, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.7. The examination-in-chief of P.W.1 is nothing but replica of his plaint averments. P.W.1 deposed that defendants No.3 to 10 are the owners of the agricultural land bearing Sy.Nos.43/2 to an extent of 12 guntas and Sy.No.44/2 to an extent of 20 guntas totally measuring 32 guntas both are situated at Amruthahalli Village, Yalahanka Hobli, Bangalore North Taluk and the defendant No.11 is the general power of attorney holder of defendants No.3 to 10. The defendants No.3 to 10 agreed to sell the suit schedule property to the plaintiff for total consideration of Rs.2,50,000/- for their family legal necessity and also have executed an agreement of sale on 18.8.2010 in favour of plaintiff as per Ex.P.1. Ex.P.2 is the Government Order dated 18.3.2011. Ex.P.3 is the Notice dated 4.1.2012 issued by Deputy Commissioner, B.D.A. Ex.P.6 / 14 / O.S.No.3386/2013 is the RTC extract in respect of Sy.No.44/2 of Amruthahalli Village. The defendants No.3 to 10 have received considerable amount towards sale consideration amount. The defendants No.3 to 10 have agreed to execute the registered sale deed in favour of plaintiff within 11 months from the date of agreement of sale. The defendants No.3 to 10 agreed that the suit schedule properties were acquired by the defendants No.1 and 2 for formation of residential layout for the benefit of general public and that a case was pending before the Hon'ble High Court of Karnataka in respect of acquisition proceedings and undertook to complete the sale transaction after the clearance of above dispute. Himself has borne all the costs of litigation on behalf of defendants No.3 to 10. As per Ex.P.2 - Government Order dated 18.3.2011 the defendants No.1 and 2 are required to allot 40% of the developed land out of the suit schedule land to the owenrs who have executed / 15 / O.S.No.3386/2013 agreement to sell as per Ex.P.1. The defendants No.3 to 10 are in hurry to receive their 40% of developed land. If they are succeeded, he would be put to hardship. He is ever ready to perform his part of contract. The defendants No.3 to 10 are not ready to perform their part of contract. Therefore, he got issued lawyer's notice to the defendants No.1 and 2. The said notice duly served upon the defendants No.1 and 2. Exs.P.4 and P.5 are the Postal Receipt and Postal Acknowledgment. If the defendants No.3 to 10 have succeeded in their illegal act, he would be put to irreparable loss and injury. Hence, he prays for decreeing the suit.
16. Though P.W.1 deposed that defendants No.3 to 10 are the owners and have executed Ex.P.1, but in his cross-examination clearly admitted that defendants No.1 and 2 have acquired the suit schedule properties for formation of Arkavathy Layout. The counsel for / 16 / O.S.No.3386/2013 defendants further made a suggestion that defendants No.1 and 2 have formed the layout in the suit schedule properties and sites have been allotted to various persons, the purchasers of the sites are in possession, but the witness denied the said suggestion. P.W.1 unequivocally admitted that the suit schedule properties gave have been acquired defendants No.1 and 2.
17. That, the plaintiff claims that defendants No.3 to 10 have executed an agreement of sale on 18.8.2010 as per Ex.P.1 in respect of suit schedule properties. The burden lies upon the plaintiff to prove the execution of agreement to sell. It is the specific case of the plaintiff that the agreement to sell dated 18-8-2010 was executed by defendants No.3 to 10 in the presence of Raveendra.C. and Manju K. When this being the case, the plaintiff would have examined the said Raveendra.C. and Manju.K. who are the attesting witnesses. However, even though the attestation is not necessary for / 17 / O.S.No.3386/2013 agreement to sell, but when the execution was denied, the best mode of proving the execution is by examining the persons who were present at the time of execution. In the instant case the plaintiff has not made any such attempt to examine the attesting witnesses. The plaintiff has failed to use the source available to him to prove Ex.P.1. The non-examination of material witness is fatal to the plaintiff's case. Even the plaintiff has failed to examine the author/scribe of Ex.P.1. Thereby, an adverse inference as contemplated under Section 114(g) of the Indian Evidence Act is drawn against the plaintiff.
18. Though P.W.1 deposed about execution of agreement - Ex.P.1, but he has not identified the signatures of executants and attesting witnesses of Ex.P.1. Thereby, the version of the plaintiff that Ex.P.1 was executed in the presence of said witnesses cannot be believed.
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19. Further, on perusal of the Ex.P.1 and also on perusal of plaint and evidence, there is a gray area to the effect that who has written Ex.P.1. On perusal of the Ex.P.1 there is no signature of the scribe who has written the said document.
20. Besides, as discussed supra, the plaintiff has not examined any of the attesting witnesses who have signed Ex.P.1 nor he has examined the scribe of the document. Hence, this Court is of the opinion that the plaintiff has failed to prove the Issue No.1. Hence, I answer Issue No.1 in the negative.
21. Issue No.2 : - This issue is framed with regard to readiness and willingness of the plaintiff and entitlement of specific performance of agreement of sale with respect to 40% of the land in the suit schedule property.
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22. In order to claim the relief of specific performance of contract, plaintiff has to plead and prove his readiness and willingness to perform his part of contract. In the plaint, after referring to the agreement the blame was put at the door-step of the defendants No.3 to 10 for breaching the contract. But, on perusal of entire plaint pleadings, there is no averments as regards the the plaintiff's readiness and willingness to perform his part of contract. Thereby, the pleading of readiness and willingness is main point in a suit for specific performance of contract. It is well settled principle of law that, Section 16(c) of Specific Relief Act lays down that specific performance of contract cannot be forced in favour of a person who fails to aver and prove that, he has performed or is always been ready and willing to perform the essential term of contract which are to be performed by him. As discussed supra, on careful perusal of the plaint averments, the plaint averments / 20 / O.S.No.3386/2013 are absolutely silent with respect to readiness and willingness of the plaintiff. The plaintiff has not averred anything and the evidence adduced by him is absolutely silent with respect to his readiness and willingness.
23. In the decision reported in ILR 2016 Karnataka 2252 [Sri.Punny Akat Philip Raju, Since dead by his Lrs. vs. Sri.Dinesh Reddy], the Hon'ble High Court of Karnataka was pleased to discuss the principles of law enshrined in Section 16 of the Specific Relief Act, 1963. Para -32, 33, 36, 37 and 38 read thus :
"32. The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation makes it clear that the proof of requisite funds does not mean / 21 / O.S.No.3386/2013 he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance consideration is to be deposited in the Court such a deposit is also evidenced by documentary evidence, which is also not necessary by virtue of the explanation.
33. Money does not exist in vacuum. Money has to be necessarily in the form of physical object. It is in the nature of document. Money is deposited in banks. Money is in the nature of securities. Money is capable of being raised from borrowing. Money could be raised / 22 / O.S.No.3386/2013 by sale of properties movable or immovable. When a person claims that he is possessed of sufficient funds, he has to produce some documentary evidence, which proves his capacity to raise the funds or he possess the funds. What are the documents which, the plaintiff can produce to prove his capacity? It may be a passbook issued by a Bank where he has kept the balance sale consideration ready for payment. If he has invested his money by way of securities, he has to produce those securities before Court to show that any time he can encash the same and pay the balance consideration. Similarly, if he has kept the money in Fixed Deposit, in a Bank, that deposit receipt is the proof of his ability to raise the balance sale consideration. If he intends to borrow money from a Nationalized Bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request for such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These instances are only illustrative. There / 23 / O.S.No.3386/2013 may be several other modes by which the requisite funds are raised. But all of these instances are evidenced by documentary evidence.
24. The Hon'ble Supreme Court in a decision reported in (2011) 1 SCC 429 in the case of J.P.BUILDERS & ANOTHER VS. A.RAMADAS RAO, after referring to Section 16 of the Specific Relief Act has held at para-21 as under :
Among the three clauses, we are more concerned about clause (c). "Readiness and Willingness' is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the / 24 / O.S.No.3386/2013 essential terms of the contract which are to be performed by him.
At para 22 it is held as under :
The words 'ready' and 'willing' imply that the person was prepared to carry out the terms of the contract. The distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
At paras-25, 26 and 27, it is held as under :
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance the plaintiff must allege and prove a continuous "readiness and / 25 / O.S.No.3386/2013 willingness" to perform the contract on his part from the date of contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C.Chandiok V. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of / 26 / O.S.No.3386/2013 time. "Readiness and Willingness" to perform the part of the contract has to be determined/ ascertained from the conduct of the parties."
25. The burden of proving readiness and willingness is on the plaintiff. It is not dependent upon the admission of the defendant either in the written statement or in the evidence. Unless the plaintiff proves to the satisfaction of the Court that he was ready and willing to perform his part of the contract, the Court gets no jurisdiction to pass a decree for specific performance. Therefore, the contention of the plaintiff that, as there was no cross-examination of P.W.1, regarding readiness and willingness, the oral evidence of P.W.1 that he was ready and willing to perform his part of the contract was sufficient for the Court to decree the suit for specific performance is unfounded.
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26. In a decision reported in (2002) 9 SCC 582 in the case of Pushparani. S. Sundaram and Others vs. Pauline Manomani James (deceased) and Others, it has been held by the Hon'ble Apex Court that, "Section 16(c) of the Specific Relief Act requires that not only there be a plea of readiness and willingness but it has to be proved so". The said decision is aptly applicable to the case in hand. In this case the plaintiff has failed to prove his readiness and willingness to perform his part of contract.
27. That, by mere placing defendants ex-parte, the plaintiff will not get any rights to claim the relief. He has to prove his case independently. In a decision reported in (2012) 5 SCC 265 (C.N.Ramappa Gowda Vs. C.C.Chandregowda (Dead) by his LRs), wherein the Hon'ble Apex Court held that, "Non-filing of written statement, held, should not have penal consequences -
Court should proceed cautiously and exercise its
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discretion in a just manner - Even in absence of written statement, burden of proof would remain on plaintiff and his mere assertion in plaint affidavit would not be sufficient to discharge the burden - Where in view of non- filing of written statement despite repeated opportunities given to defendant, decree was passed without going into merits, merely on basis of affidavit filed by plaintiff, in a case involving disputed questions of fact, held, it would amount to a penal decree - If plaint indicates disputed questions of fact, court should require plaintiff to lead evidence, and on independent examination thereof, should it pass a judgment and decree." The said decision is aptly applicable to the case in hand. In this case also the plaintiff ought to have proved the fact that the defendants No.3 to 10 have executed agreement to sell as per Ex.P.1 and they have failed to execute the registered sale deed in his favour. Except the oral evidence, no documents available. It is well settled law / 29 / O.S.No.3386/2013 that, one who claims the relief, he has to have prove his case. He cannot take the weakness of the defendants as trump card. That, in a decision reported in (2019) 6 SCC 82 [Jagadish Prasad Patel (dead) through LRs Vs. Shrinath and another.] in which the Hon'ble Apex Court held that, "Plaintiff has to prove his case independently. He cannot take the weakness of the defendant." The said decision is aptly applicable to the case in hand.
28. Plaintiff has utterly failed to prove prove his readiness and willingness to perform his part of contract . Hence, I answer Issue No.2 in the negative.
29. Additional Issue : - That, on perusal of entire pleadings and documents produced by both the parties, It reveals that the suit schedule property has been acquired by B.D.A for formation of Arkavathy Layout by publishing the notification in official gazette. The counsel for the defendants No.1 and 2 has produced the official / 30 / O.S.No.3386/2013 gazette published in the Karnataka Gazette bearing No.BDA/ Commr/ALO/LA9/104/2002-03 Bengaluru dated 3.2.2003 and Notification No.UDD/192/ MNX/2004 dated 21.02.2004. On perusal of the said notifications the lands bearing Sy.No.43/2 measuring 1 acre 31 guntas and Sy.No.44/2 measuring 3 acres both situated at Amruthahalli Village, Yelahanka Hobli, Bangalore North have been acquired. As per the contention of the defendants, declaration of notification under Section 6(1) of the Land Acquisition Act was also published and possession was also handed over as per Section 16 of the Land Acquisition Act. It is the specific contention of the defendants No. 1 and 2 that as per Section 9 of C.P.C., Civil Court jurisdiction is barred. Further contended that when final notification under Section 4(1), 6(1) issued and Award under Section 12(2) of Land Acquisition Act has been passed and possession has been taken over by the defendants No.1 and 2. Hence, / 31 / O.S.No.3386/2013 the plaintiff's suit for specific performance, permanent and mandatory injunctions is not maintainable.
30. Plaintiff contended that the plaintiff filed the present suit for the relief of Specific performance of contract, permanent and mandatory injunctions, he sought for issuance of directions to defendants No.1 and 2 for release of 40% of developed land in the suit schedule property in favour of plaintiff in accordance with the Government Order dated 18.3.2011. Hence, Civil Court has got jurisdiction to entertain the suit. Therefore, he prays for decreeing the suit.
31. On perusal of the contention raised by defendants, it can be said that as per Section 9 of C.P.C., Civil Court can try all the suits of civil nature unless the cognizance of such suits either expressly or impliedly barred by any other law for time being in force. But, under the Land Acquisition Act special procedure is / 32 / O.S.No.3386/2013 envisaged to effectuate public policy. The Government has got power to acquire property for the public purpose. That, before acquiring the property, issuance of notification under Sections 4(1) and 6(1) of Land Acquisition Act are mandatory. In this case, the defendants No.1 and 2 have already issued the notification as envisaged under the Land Acquisition Act. The only remedy left with the aggrieved person is to approach either under Articles 226 and 227 of Indian Constitution to the Hon'ble High Court of Karnataka or under Article 136 to the Hon'ble Apex Court. Hence, it is clear from the scheme of the Act that, Land Acquisition Act is a complete code in itself and thereby the jurisdiction of Civil Court to take cognizance of the case arising under L.A.Act by necessary implication stood barred. The Civil Court thereby is devoid of jurisdiction. Thus, this Court lacks jurisdiction to decide the matter in issue, which is falling within the domain of the Land / 33 / O.S.No.3386/2013 Acquisition Act, wherein remedy and relief both are provided.
32. Besides, on careful perusal of the Notifications dated 3.2.2003 and 21.2.2004 of Karnataka Gazette Notifications relating to acquisition of lands produced by the counsel for defendants No.1 and 2, it clearly goes to show that lands bearing Sy.No.43/2 measuring 3 acre 31 guntas and Sy.No.44/2 measuring 3 acres situated at Amruthahalli Village, Yelahanka Hobli, have been acquired. Admittedly, the said notifications have been published in the year 2003 and 2004. As per Section 81 of the Indian Evidence Act, "Presumption as to gazettes, newspapers, private acts of parliament and other documents."
33. Though the plaintiff contended that the defendants No.3 to 10 have agreed to sell the suit schedule property and have executed an agreement of / 34 / O.S.No.3386/2013 sale on 18.8.2010, but failed to prove that his vendors have got right to sell the suit schedule property as on the date of execution of alleged agreement to sell dated 18.8.2010.
34. In this case the B.D.A acquired lands bearing Sy.No.43/2 measuring 3 acre 31 guntas and Sy.No.44/2 measuring 3 acres situated at Amruthahalli Village, Yelahanka Hobli, Bangalore North and notification under Sections 4(1), 6(1) and 12(2) of Land Acquisition Act have been published in the official gazette and same have been produced in this case. Hence, judicial notice of notifications is taken.
35. On the basis of above said notifications, the lands bearing Sy.No.43/2 measuring 1 acre 31 guntas and Sy.No.44/2 measuring 3 acres situated at Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk are acquired by the B.D.A for formation of / 35 / O.S.No.3386/2013 Arkavathi Layout as per Section 16 of Land Acquisition Act, after taking possession the land vests with the State Government with absolute title free from all encumbrance. The plaintiff claims that the defendants 3 to 10 have executed an agreement to sell in his favour on 18.8.2010, but on perusal of the notification produced by both the parties, it reveals that entire bearing Sy.No.43/2 measuring 3 acre 31 guntas and Sy.No.44/2 measuring 3 acres both situated at Amruthahalli Village have been acquired by B.D.A in the year 2003 itself i.e., much prior to alleged agreement to sell dated 18.8.2010. Hence, once the property has been acquired by the B.D.A., the title and possession vests with the acquisition authority, no one will get the better title than the acquisition authority i.e., Government of Karnataka. Therefore, the alleged agreement to sell dated 18.8.2010 will not get any title or possession to the plaintiff over the suit schedule property. Besides, there / 36 / O.S.No.3386/2013 is a presumption under Section 16 of the Land Acquisition Act that once the land is acquired under the Land Acquisition Act, the possession vests with the Government.
36. Plaintiff himself produced the R.T.C. - Ex.P.6 in respect of land bearing Sy.No.44/2. On perusal of the said R.T.C. it clearly reveals that, at Column No.11 it is mentioned that, the land bearing Sy.No.44/2 of Amruthahalli Village has been acquired by B.D.A. As per Section 133 of Karnataka Land Revenue Act, any entry made in the revenue records has got presumptive value.
37. That as per Section 58 of Indian Evidence Act, facts admitted need not be proved. The plaintiff himself admitted the fact that the entire land bearing Sy.No.43/2 measuring 3 acre 31 guntas and Sy.No.44/2 measuring 3 acres both situated at Amruthahalli Village have been acquired by the B.D.A. Hence, once the / 37 / O.S.No.3386/2013 property has been acquired the title and possession vests with the acquisition authority and no one will get the better title than the acquisition authority i.e., Government of Karnataka. Therefore, the plaintiff will not get any title or possession over the suit schedule property on the basis of the alleged agreement to sell allegedly executed by defendants No.3 to 10 in his favour. Besides, there is a presumption under Section 16 of the Land Acquisition Act that once the land is acquired the possession vests with the Government.
38. Besides, the defendants No.1 and 2 contended that the land in Sy.No.43/2 and Sy.No.44/2 situated at Amruthahalli Village have been acquired in 2003-04 itself. As per decision of our own Hon'ble High Court reported in ILR 2007 KAR 5121 (M.B.Bettaswamy Vs. The Commissioner, Bangalore Development Authority and another), wherein it is held that :-
/ 38 / O.S.No.3386/2013
"When the land is acquired and the
possession is taken, the land vests in the State. Even if the plaintiff puts up unauthorized construction, he does not have any legal right to remain in possession based on the illegal structure and it cannot be termed as a settled possession - A person who is unauthorisedly squatting on the public property, has no right to remain in possession. However, the trial Court extending the sympathy, directed the B.D.A to issue notice and evict the plaintiff in accordance with law. Such sympathy will harm the public interest, as there are several persons legally waiting for lawful allotment."
39. In another decision of the Hon'ble Apex Court reported in AIR 1996 S.C. 540 (Smt. Sneha Prabha etc., Vs. State of U.P. and another), the Hon'ble Apex Court clearly held that: "It is settled law that, any person who purchases land after publication of the notification under Section 4(1) does so at his/her peril. The object of / 39 / O.S.No.3386/2013 publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings point out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries, etc., Therefore, any alienation of land after the publication of notification under Section 4(1) does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, titles and interest in land stand vested in the state, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder. If any subsequent purchaser acquires land, his/her only right would be subject to the provisions of the Act and or to receive compensation for the land."
40. The above said decision is aptly applicable to the case in hand. Admittedly, in this case also lands / 40 / O.S.No.3386/2013 Sy.No.43/2 and Sy.No.44/2 of Amruthahalli Village, belongs to defendants No.3 to 10 have been acquired by the defendants No.1 and 2. Hence, the defendants No.3 to 10 are entitled to the benefits arising out of acquisition. The plaintiff allegedly entered into contract with defendants No.3 to 10 after publication of notification for acquisition of land under Land Acquisition Act. Therefore, plaintiff is not entitled to benefits of land policy.
41. In another decision reported in (2013) 3 SCC 66 (Commissioner, Bangalore Development Authority and another Vs. Brijesh Reddy and another), the Hon'ble Apex Court clearly held that, "Once the land has been acquired by the Government, the civil suit is not maintainable."
42. In another decision reported in (2018) 11 SCC 104 (H.N.Jaganath and others Vs. State of Karnataka and / 41 / O.S.No.3386/2013 others), in which the Hon'ble Apex Court clearly held that:
"Civil Court has no jurisdiction to
examine acquisition proceedings by
necessary implication. Civil Court lost its
jurisdiction under Section 9 C.P.C. - It is High Court which gets jurisdiction under Article 226 or Supreme Court under Article 136 of the Constitution to examine validity of acquisition proceedings - Civil suit challenging acquisition proceedings not maintainable." The above said decisions are aptly applicable to the case on hand. In this case also, the plaintiff has filed the present suit for the relief of permanent and mandatory injunctions, whereas the property has been acquired by the Government prior to the alleged agreement to sell dated 18.8.2010. Hence, by considering all the materials available on record it clearly goes to show that the defendants No.3 to 10 are / 42 / O.S.No.3386/2013 not in possession of the suit schedule properties and they have no right to alienate the suit schedule properties in favour of plaintiff as on the date of filing of the suit.
43. On careful perusal of plaint prayer it reveals that the plaintiff is seeking for specific performance of Agreement dated 18.8.2010, for issuance of permanent injunction restraining the acquisition authority i.e., defendants No.1 and 2 from releasing the 40% developed land to defendants No.3 to 10 and for mandatory injunction directing defendants No.1 and 2 to release the 40% developed land in favour of plaintiff. The plaint prayer reads thus :
"aa) Judgment and decree for the specific performance of the agreement dated 18.8.2010 entered into between the plaintiff and defendants No.3 to 10 with respect 40% of the developed land in the suit schedule lands and direct the defendants No.3 to 10 to / 43 / O.S.No.3386/2013 execute registered sale deed in favour of the plaintiff with respect to 40% of the developed land in the suit schedule lands as the defendants No.3 to 10 are entitled for only 40% of the developed land in the suit schedule lands and direct the defendants 3 to 10 to put the plaintiff in the physical possession of the 40% of the developed suit schedule lands which is going to be granted/ allotted in favour of defendants No.3 to 10.
a) for grant of permanent injunction restraining the defendants No. 1 and 2 from releasing full or atleast 40% of the developed land in Arkavathy Layout in favour of the defendants No.3 to 10 pursuant to Government order dated 18.3.2011;
b) for grant of mandatory injunction directing the defendants No.1 and 2 to release 40% of developed land in favour of plaintiff, in accordance with the Government order dated 18.3.2011;
c) : For grant of mandatory injunction directing the defendants No.1 and 2 to notify / 44 / O.S.No.3386/2013 and intimate plaintiff as to above i.e., (a) or
(b) as the case may be.
d): Grant permanent injunction restraining defendants No.3 to 10 from alienating or encumbering the suit schedule properties or 40% of the land to be allotted in Arkavathy Layout, pursuant to Government Order dated 18.3.2011."
Hence, on perusal of the plaint prayers it clearly reveal that the plaintiff is challenging the acquisition notifications and seeks for issuance of directions to the acquisition authority for release of 40% developed land in his favour which is barred under the Land Acquisition Act.
44. Besides, it is well settled law that once the property is acquired by the Government under the Land Acquisition Act or even if a preliminary notification is issued for acquisition of the property, the Civil Court has no jurisdiction to entertain the suit. In this case also, the / 45 / O.S.No.3386/2013 properties have been acquired by B.D.A in the year 2003-04 itself. Hence, this Court has no jurisdiction to entertain the suit. If at all the plaintiff is aggrieved by any acquisition proceedings, he has to approach the appropriate forum for his redressal.
45. Thus, prima facie as per gazette notification No.UDD 193 MNX 2004 Bangalore dated 23.2.2004, this Court can conclude that as on the date of filing of the suit, i.e., 27.4.2013 the possession of lands Sy.No.43/2 and 44/2 of Amruthahalli Village were taken and same were vested with B.D.A. Hence, the present suit filed by the plaintiff for the relief of specific Performance of contract, permanent and mandatory injunctions on 27.04.2013, the same is subsequent to acquisition of land. Therefore, for the above discussion and above said decisions, the suit for permanent and mandatory injunctions and specific performance filed by the plaintiff is not maintainable as it is barred under Land Acquisition / 46 / O.S.No.3386/2013 Act.
46. In this case, as discussed supra, the properties have been acquired by B.D.A and as on the date of alleged agreement of sale dated 18.8.2010 the defendants No.3 to 10 are not at all in possession of the suit schedule property. Hence, I am of the view that once the properties have been acquired by the Government under Land Acquisition Act under Section 16 of the Land Acquisition Act possession vests with the Government, thus the suit for specific performance, permanent and mandatory injunctions is not maintainable and Civil Court has no jurisdiction to try the suit. The suit of the plaintiff is barred under Land Acquisition Act. Hence, I answer Additional Issue in the affirmative.
47. Issue No.3:As discussed supra, plaintiff has failed to prove due execution of agreement to sell dated 18.8.10 and further failed to prove Issue No.2. Hence, he is not / 47 / O.S.No.3386/2013 entitled for any relief. Accordingly, I answer Issue No.3 in the negative.
48. Issue No.4 : - For the foregoing reasons, I proceed to pass the following Order:-
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 20th day of December, 2021.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Girish Sanu
2. List of documents exhibited for plaintiff:
Ex.P1 Sale agreement dated 18.8.2010 / 48 / O.S.No.3386/2013 Ex.P2 Government order dated 18.3.2011 Ex.P3 Copy of the notice dated 4.1.2012 issued to Deputy Commissioner, B.D.A. Ex.P.4 & 5 Postal acknowledgements Ex.P6 RTC extract pertaining to Sy.No.44/2 of Amruthahalli.
Ex.P.7 C/c of Karnataka Government
proceedings dated 18.3.2011.
3. List of witnesses examined/documents
exhibited on behalf of defendants:
- NIL -
(KHADARSAB),
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***
/ 49 / O.S.No.3386/2013
20/01/2022
Judgment pronounced in the Open Court (vide separate Judgment) :
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(KHADARSAB), XXXIX A.C.C. & S. Judge, Bangalore City.
/ 50 / O.S.No.3386/2013