Bangalore District Court
Ganesh Reddy D S Alias D.S.Ganesh vs The Bangalore Development Authority on 5 March, 2024
KABC010103032007
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XL ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-41)
::Present::
Sri. Prakash S. Helavar, B.Com., LL.M.,
XIX Addl. City Civil & Sessions Judge,
C/c. XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 5th day of March, 2024.
O.S. No.1804/2007
PLAINTIFFS :: 1. Mr. D.S.Ganesh Reddy
D.S.Ganesh S/o. Dr. Sesha
Reddy, Aged about 53 years, R/o:
No.37, 11 Block, Thyagaraj Nagar,
Bengaluru - 560 028.
2. Sri. Prashantha Ramu S/o.
A.Ramu, Aged about 33 years,
R/o. No.830, S.Buffalo, Grove
Road, Suite No.105, USA -
60089. Represented by his GPA
Holder Prasanna.R Aged about 40
years, R/o. No.721, Rama Mandir
2
O.S.No.1804/2007
Street, Palahalli Village,
Srirangapatna Taluk, Mandya
District.
3. Smt. Mamgamma W/o. Sri.
Venkata Reddy, Aged about 58
years, R/o. No.10 & 97/1, SBI
Colony, Kothapet Post, Saroor
Nagar, Hyderabad - 500 035.
(By Sri. Shanmukhappa, Advocate
for plaintiff No-1, Sri. G.H.,
Advocate for plaintiffs No.2 & 3)
V/s
DEFENDANTS :: 1. The Bengaluru Development
Authority, Sankey Road,
Bangalore - 5670 020,
Represented by its Commissioner.
2. Sri. K.B.Lakshman S/o. Late.
N.Beeranna, Aged about 58 years,
Kumar Nursery, Konanakunte,
Bangalore South Taluk.
(By Sri. K.V., Advocate for D-1
and Sri. V.Y., Advocate for D-2)
Date of Institution of the Suit :: 03.03.2007
Nature of the Suit :: Declaration &
Injunction
Date of Commencement of :: 03-06-2010
recording of evidence
3
O.S.No.1804/2007
Date on which the :: 05-03-2024
Judgment was pronounced
Year/s Month/s Day/s
Total Duration :: 17 - 02
(PRAKASH S. HELAVAR),
XIX Addl. City Civil & Sessions Judge,
C/c. XL Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGEMENT
Originally, one Mr. D.S. Ganesh Reddy @ D.S. Ganesh filed the present suit for the relief of declaration, cancellation of layout plan and consequential relief of perpetual injunction. Later, Plaintiff No.2 and 3 by name Sri. Prashanth Ramu and Smt. Mamgamma entered their appearance and prosecuted the suit.
2. The description of the suit schedule property reproduced here under:-
4
O.S.No.1804/2007 SCHEDULE PROPERTY All that piece and parcel of the non-agricultural land bearing Sy. No.39/2 situated at Raghavana Palya, Uttarahalli Hobli, Bengaluru South Taluk, measuring 4 Acres 11 Guntas including 1 Gunta of Kharab, bounded on the: East by - Land belonging to Shantharaju, West by - Land belonging to Kupamma, North by - Land belonging to Vittal Rao and South by - Road.
3. Case of the plaintiff is in nutshell as under:-
It is averred in the plaint that the plaintiff is the absolute owner and in possession of the schedule property having been purchased under registered Sale Deed dated 14.11.1990. On the basis of his application to the Revenue department, the mutation entry No.5/1991-92 was certified and hence, the name of the Plaintiff has been recorded in the record of rights. It is further averred that for the purpose of developing the schedule land, the Plaintiff filed an application before the Deputy Commissioner on 11.11.2002 under the provisions of Section 95 of the Karnataka Land Revenue 5 O.S.No.1804/2007 Act. The Deputy Commissioner passed an order as per order vide No.BDS.ALN.SR(S)224/2002-03 dated 10.12.2002 permitting the Plaintiff to use the schedule land for non-agricultural purposes. The Plaintiff remitted the conversion charge of Rs.2,31,468/- on 04.12.2002.
In view of the conversion order, the schedule land is no more an agricultural land.
4. It is further averred that the Plaintiff filed an application to the defendant No.1 Bengaluru Development Authority (herein after referred as BDA) to find out as to whether there are any acquisition proceedings pending in respect of schedule land. In response to the application, the first defendant issued an endorsement dated 09.03.2005 stating that schedule land is not acquired by the first defendant. So, the schedule property is in possession of Plaintiff as an absolute owner of the same and nobody else has any right, title and interest in the schedule property. 6
O.S.No.1804/2007
5. It is alleged that one Mr. Kumarswamy S/o. P.Munipapaiah by forging the signature of present Plaintiff created General Power of Attorney and filed O.S. No.1155/2005 for the relief of permanent injunction in respect of suit property. The fact of pendency of suit was came to the knowledge of the Plaintiff through an advocate when the Plaintiff approached the advocate for instituting the suit. Thus, the Plaintiff verified the documents which were produced in the said case and came to know that the said Kumarswamy by forging the Plaintiff's signature fabricated and created the General Power of Attorney. The said suit was came to be dismissed for non-prosecution by looking to the absence of said Sri. Kumarswamy. The Plaintiff filed criminal case No.334/2005 against Mr. Kumarswamy for the offense of forgery and fabrication. The said criminal case is pending.
6. It is further alleged that the second defendant also fabricated and created General Power of 7 O.S.No.1804/2007 Attorney by forging the signature of the Plaintiff and thus, Plaintiff filed criminal complaint against defendant No.2 and same is also pending. The Plaintiff brought to the notice at public at large about the fabrication of General Power of Attorney by way of publication in 'Sanjeevini' and 'Vijaya Karnataka' newspapers on 19.12.2005. In addition to that, the Plaintiff addressed a letter to the Sub-Registrar on 09.02.2005 informing that one Mr. Kumarswamy by forging his signature fabricated General Power of Attorney as such the authorities shall not act upon the General Power of Attorney produced by Kumarswamy. The said Mr. Kumarswamy is land grabber and he has created number of documents for wrongful gain.
7. It is further alleged that the said Mr. Kumarswamy might have made some correspondence with the first defendant in respect of schedule property without being any right or authority. The Plaintiff also 8 O.S.No.1804/2007 lodged complaint before the first defendant with notice that 2nd defendant has created document in order to grab the schedule property. Despite, the defendant No.2 succeeded in securing the work order from the 1 st defendant in respect of property bearing No.4/1(p), 5(p), 9(p) including the schedule property. The said defendant No.2 by virtue of said work order attempting to interfere with Plaintiff's peaceful possession and enjoyment over the schedule property. The Plaintiff lodged police complaint and even before the 1 st defendant in respect of forgery and fabrication of Power of Attorney by the 2 nd defendant.
8. It is further alleged that either work order or any other order issued by the 1st defendant in respect of schedule property does not bind upon the Plaintiff. So, the work order vide No. BDA:LAQ/TP/GH/23/2000/2410/2004-05 dated 20.11.2004 does not bind upon the plaintiff and said 9 O.S.No.1804/2007 work order is null and void in relation to schedule property. It is further alleged that the defendant No.2 has also obtained layout plan from the 1 st defendant under the guise of fabricating General Power of Attorney. The said 1st defendant approved the layout plan based on the work order issued on the basis of Resolution No.279/2004 dated 04.09.2004. The said approved plan also does not bind upon the Plaintiff in relation to schedule property since, the defendant No.2 obtained the said approved plan by playing fraud upon the 1 st defendant.
9. It is further alleged that by virtue of the work order, the 2nd defendant is attempting to enter upon the schedule property and he entered into the property on 28.02.2007. The Plaintiff coming to know about the said fact rushed to the spot and resisted illegal and high handed acts of the defendant No.2 and his henchmen. So, the plaintiff left no option approached this Court for 10 O.S.No.1804/2007 seeking declaration and perpetual injunction. In view of the above said averments and allegations, the plaintiff requested for decreeing the suit.
10. In response to the summons both defendants entered their appearance through their counsel.
11. The 1st defendant denied the plaint averments as false and interalia contended that the suit is not maintainable since no statutory notice under Section 64 of the Bengaluru Development Authority Act, 1976 is not issued. The plaintiff previously had rights and title over the property but later, he does not possess the said right and much less on the date of filing the suit. The suit is filed with an intention to harass the defendant No.1. The plaintiff entered an agreement to sell with one Mr. P.M.P.Kurup on 31.10.1995 to sell suit schedule property. So, in pursuance of the said agreement to sell, the plaintiff also executed Power of Attorney dated 11 O.S.No.1804/2007 17.11.1995 in favour of the said Mr. P.M.P.Kurup. So, the plaintiff does not have any title over the schedule property. The necessary changes have been made in the records in the office of the Sub-Registrar on the basis of the said documents.
12. It is further contended that the plaintiff executed Power of Attorney dated 30.11.2002 in favour of defendant No.2 authorizing him to sell, lease and gift the suit schedule property. In addition to that, the said plaintiff executed deed of assignment on 07.10.2003 in favour of Mr. P.M.P.Kurup and in favour of defendant No.2. The deed of assignment was executed in connection with other numerous properties in the very same area. The paragraph No.8 of the said deed of assignment refers in respect of schedule property and clearly indicates that the plaintiff agreed to sell the schedule property in favour of Mr. P.M.P.Kurup as per agreement of sell dated 31.10.1995. So, the assignee 12 O.S.No.1804/2007 was put in lawful possession and agreed to assign the suit property with other properties in favour of defendant No.2 with lawful consideration. It is further contended that on 20.09.2002 an agreement of sale was came to be entered into between Mr. P.M.P.Kurup and the defendant No.2 in respect of schedule property. Mr. P.M.P.Kurup executed Power of Attorney on 07.10.2003 in favour of defendant No.2. So, Mr. P.M.P.Kurup nominated the defendant No.2 to be the lawful attorney for the schedule land.
13. It is further contended that the suit schedule property Sy. No. 39/2 measuring 4 acres and 11 guntas was identified for J.P.Nagar, 9th Stage and a preliminary notification was published in the Karnataka Gazette on 19.01.1989. Further, on 22.07.1991 the final notification was published. The land was vested with the defendant No.1 since, the acquisition proceedings were not completed. The defendant No.1 decided to develop the 13 O.S.No.1804/2007 land in accordance with 70:30 scheme. The award was not passed and acquisition proceedings were not completed since the defendant No.2 had filed an application on 05.11.2005. Later, the defendant No.1 in accordance with the Government Order No.HUD/341/MNX/95 dated 17.11.1995 agreed to grant the development of schedule property with other properties as per 70:30 scheme for group housing. In view of the said scheme, the owner is entitled to develop the sites on any particular land and will allocate 30% of the sites to the defendant No.1.
14. It is further contended that in view of the said scheme no acquisition proceedings taken place and no final award was passed. The defendant No.1 upon careful scrutiny of all the documents produced by the defendant No.2 proceeded the said scheme was granted to the defendant No.2 not only for the schedule property but also to the properties bearing Sy. No.4/1P, 14 O.S.No.1804/2007 5/P and 9/P of Raguvanapalya, Uttarahalli Hobli, Bengaluru South Taluk where the defendant No.2 was the General Power of Attorney holder. Pursuant to the acceptance of the above said scheme on 20.11.2004 a work order was issued in favour of defendant No.2. On the request being made by the plaintiff on 16.02.2006 the defendant No.1 issued notice to the plaintiff stating that the defendant No.2 developed the suit property as per the above said scheme. So, the defendant No.1 has carried out its duties based on the documents and no violation of the rights of the plaintiff.
15. It is further contended that the plaintiff is responsible for the conversion of the schedule property so, the plaintiff is the absolute owner of the suit property is false. The development of suit schedule land is covered under the above said scheme. The defendant No.2 acted on behalf of plaintiff for securing the work order so, the said work order binds upon the plaintiff. 15
O.S.No.1804/2007 The act of the defendant No.1 is completely bonafide and in the interest of public. In view of the above said contentions, the defendant No.1 requested for dismissal of the suit with exemplary costs.
16. The defendant No.2 denied the plaint averments and contended that as on the date of the suit the plaintiff had no rights over the suit land as an absolute ownership and he was not in possession. As on the date of the suit, the nature of the identity of suit land had been changed. The plaintiff transacted with the assistance of Mr. P.M.P.Kurup by receiving full sale consideration amount. The conversion was obtained in the name of plaintiff only for convenience. The conversion charges were paid by Mr. P.M.P.Kurup. The endorsement dated 09.03.2005 by the Bengaluru Development Authority is mis-interpreted. Mr. Kumarswamy is a stranger to the suit land and he had no interest over the same at any point of time. The O.S. 16 O.S.No.1804/2007 No.1155/2005 filed on false grounds has been dismissed.
17. It is further contended that the plaintiff filed false complaint on false grounds and the said criminal complaint filed against defendant No.2 only on false grounds. The plaintiff despite knowing that he had no subsisting right and possession on the date of filing police complaint and taking paper publications proceeded to file the complaint taking paper publications. The defendant No.2 is not aware in respect of allegations of plaint para No.4 with regard to the letter addressed to the Sub-Registrar on 09.02.2005 and allegations against Mr. Kumarswamy. The defendant No.1 issued work order in favour of the defendant No.2 after considering all the requirements for issuing the same and hence, the said work order is lawfully issued.
18. It is further contended that the plaintiff does not have any locus-standi to question the said validity of 17 O.S.No.1804/2007 the work order. The said work order and layout are all acted upon since, the defendant No.2 invested the huge amount to develop the property. The measure construction already made as per the layout plan so there is no illegality. The defendant No.2 is in lawful possession of the suit land even he was in possession earlier to 2007 to the full knowledge of the plaintiff and has been revealed in the letter dated 11.04.2005. There is no cause of action for the suit. The suit is not properly valued. So, on this ground suit is liable to be dismissed. The plaintiff sold land bearing Sy. No. 39/2 measuring 4 acres 11 guntas including 1 acre Kharab land situated at Raghavanapalya village, Uttarahalli Hobli, Bengaluru South Taluk to Mr. P.M.P. Kurup proprietor of M/s. Vandana Enterprises for valuable consideration of Rs.17,00,000/- by way of registered agreement dated 31.10.1995.
19. It is further contended that the plaintiff has received the total consideration amount of Rs.9,88,550/- 18
O.S.No.1804/2007 by way of cheaques dated 31.10.1995 bearing No.031867. The balance amount of Rs.7,11,450/- was paid by the said Mr. P.M.P. Kurup by way of cheque dated 15.11.1995 bearing its No.031865. The plaintiff put Mr. P.M.P. Kurup into the possession of the schedule property. The Clause- 3 of said document clearly reveals that the plaintiff delivered vacant possession to Mr. P.M.P. Kurup as an agricultural land. It is further contended that the plaintiff has executed the Power of Attorney in favour of Mr. P.M.P. Kurup and thus, the rights of the plaintiff are parted with the consideration in favour of Mr. P.M.P. Kurup. The plaintiff authorised to deal with the property in all the manner and all formalities have been completed except execution of the Sale Deed. Thus, the plaintiff has transferred all the rights to the purchaser Mr. P.M.P. Kurup. So, right of the plaintiff especially possessory right has been seized.
19
O.S.No.1804/2007
20. It is further contended that the plaintiff executed registered Power of Attorney dated 17.11.1995 in favour of Mr. P.M.P. Kurup. Under the said Power of Attorney the holder of the same was authorised to sell the schedule property either as a whole are any such divided property. As such, the Power of Attorney is irrevocable. Since, the plaintiff executed agreement to sell and Power of Attorney therefore, he is no more owner for the property subsequent to 1995. Mr. P.M.P. Kurup being the owner of land in question offered to sell the same to the defendant No.2. The said defendant No.2 accepted the said offer by way of agreement to sell dated 20.09.2002. The said vendor agreed to sell the land at the rate of Rs.14,50,000/- per acre and received full sale consideration amount by way of demand drafts for Rs.15,00,000/- and remaining Rs.5,00,000/- by way of cash. Remaining Rs.10,00,000/- was paid by way of cash and Rs.5,00,000/- by way of demand draft.
20
O.S.No.1804/2007
21. It is further contended that the said payment has been endorsed on the back page of agreement to sell. So, Mr. P.M.P. Kurup received Rs.20,00,000/- by way of cash also and remaining amount in cash. The said Mr. P.M.P. Kurup has also executed Power of Attorney dated 07.10.2003 in favour of defendant No.2. Mr. P.M.P. Kurup being the owner of various survey numbers executed an agreement to sell dated 07.03.2003 in favour of defendant No.2 including the land in question. There is clear reference in Encumbrance certificate from 01.04.1995 to 31.03.1996 in respect of land bearing Sy. No. 39/2 for having sold the said property by the plaintiff for valuable consideration. It is further contended that the land in question and other adjacent lands have been acquired by the Bengaluru Development Authority for formation of layout. The defendant No.2 moved to the State of Karnataka and Bengaluru Development Authority in 21 O.S.No.1804/2007 accordance with the scheme promulgated by them on 17.11.1995 under 70:30 scheme.
22. It is further contended that the defendant No.1 agreed for the said scheme and hence, entire property including adjacent land have been formed layout as such, they agreement between defendant No.1 and defendant No.2 was came into existence. The defendant No.1 agreed to implement the said scheme. The plaintiff having lost title over the property neither chosen to file a writ petition for challenging the acquisition proceedings nor moved to the defendant No.1 so, this fact of scheme is within the knowledge of plaintiff. Despite, only to harass the defendant No.2 the plaintiff filed the criminal case with an ulterior motive. The defendant No.2 also lodged complaint against the plaintiff informing all the above facts and illegal interference by the plaintiff. The plaintiff clearly admitted in the FIR in respect of transaction between himself and Mr. P.M.P. Kurup. The 22 O.S.No.1804/2007 Power of Attorney was came to be acted upon by Mr. P.M.P. Kurup.
23. It is further contended that the defendant No.2 is not aware about Mr. M.Kumaraswamy personally. The plaintiff is trying to make misuse of the false complaint registered by the police. The plaintiff had filed O.S. No.1168/2005 in respect of suit land and the said suit was came to be dismissed on 04.06.2005. Subsequently, Misc. No.456/2006 was also came to be filed for restoration and same was also dismissed. The acquisition proceedings were fully completed and possession also taken and also defendant No.1 further has taken the action so, the defendant No.1 became the owner for schedule property under the above said scheme. Thus, plaintiff cannot be the owner for the property. The plaintiff has not impleaded government and other allottees though the plaintiff is having the knowledge and the said allottees are in possession of the sites. In view of the above said contentions, the 23 O.S.No.1804/2007 defendant No.2 requested for dismissal of suit with costs.
24. In view of the above said pleadings, my learned predecessor had framed the following:-
ISSUES
1. Whether the plaintiff proves that work order bearing No. BDA/TP/GH/23/2000/2410/04-05 dated 20.11.2004 issued by defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff ?
2. Whether the plaintiff is entitled for mandatory injunction against defendant No.1 to cancel the layout plan approved by it under its resolution No.279/04 dated 04.09.2004 ?
3. Whether plaintiff is entitled for Mandatory Injunction against defendant No.1 to direct it to cancel the work order issued in favour of defendant No.2 ?
4. Whether plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of suit ?24
O.S.No.1804/2007
5. Whether plaintiff proves the alleged interference by the defendants in the suit schedule property ?
6. Whether the plaintiffs are entitled for Permanent Injunction against defendants as prayed ?
7. Whether plaintiff is entitled for declaratory relief as prayed ?
8. Whether suit is bad for non-joinder of necessary parties ?
9. Whether suit is bad for want of notice under Section 64 of B.D.A. Act ?
10. What decree or order ?
25. Originally the General Power of Attorney holder of plaintiff Sri. K.Chikkapapaiah entered into witness box as PW.1 and relied upon 17 documents marked at Ex.P.1 to Ex.P.17. The said PW.1 has not been cross-examined.
25
O.S.No.1804/2007
26. Later, the General Power of Attorney holder of plaintiff No.2 by name Sri. R.Prasanna deposed as PW.2 and relied upon additional documents and they are marked at Ex.P-18 to Ex.P-45 and closed the evidence.
27. On the other hand, the Asst. Executive Engineer No.1 who is the representative of defendant No.1 has deposed as DW.1 and relied upon 8 documents marked at Ex.D-1 to Ex.D-8. One Mr. Lingaraja K.M. who is the General Power of Attorney holder of defendant No.2 has deposed as DW.2 and relied upon documents marked at Ex.D-9 to Ex.D-17 and closed the evidence.
28. Respective learned counsel for the parties submitted their written arguments. I have perused the records carefully.
29. I propose to answer to the above issues are as follows:-
ISSUE No.1 :: In the Affirmative
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O.S.No.1804/2007
ISSUE No.2 :: In the Affirmative
ISSUE No.3 :: In the Affirmative
ISSUE No.4 :: In the Affirmative
ISSUE No.5 :: In the Affirmative
ISSUE No.6 :: In the Affirmative
ISSUE No.7 :: In the Affirmative
ISSUE No.8 :: In the Negative
ISSUE No.9 :: In the Negative
ISSUE No.9 :: As per final order for
the following;
REASONS
30. ISSUE NO.1 TO 3 :: These issues are taken up together for consideration to avoid repetition of facts.
It is the specific case of the plaintiff that the Work Order bearing No.BDA/TP/GH/23/2000/2410/04-05 dated 20-11-2004 issued by the defendant No.1 in favour of defendant No.2 does not bind upon the plaintiff and same is required to be declared as null and void. Moreover, the defendant No.1 is required to cancel the Layout Plan approved by way of Resolution No.279/04 dated 04-09-2004. To prove the burden cast upon the plaintiff, basically, the plaintiff deposed as PW-1 and he 27 O.S.No.1804/2007 did not tender for cross-examination. Subsequently, the General Power of Attorney holder of plaintiff No.2 has deposed as PW-2. As can be seen from the records, the case being made out by the plaintiff Sri. D.S.Ganesh Reddy that he is the owner for the suit schedule property having been purchased under registered Sale Deed 14-11-1990 has been substantiated by the document at Ex.P-2. The said Ex.P-2 original registered Sale Deed dated 14-11-1990 clearly reveals that Smt. Thippamma and Smt. Annamma representing minor Srinivasa sold the suit schedule property in favour of plaintiff Sri D.S.Ganesh Reddy for the valuable consideration.
31. Further, the Ex.P-3 copy of MR No.3/1991-92 clearly reveals that the name of Sri. D.S.Ganesh Reddy has been mutated to the suit property as holder of the same. Further, the document at Ex.P-32 RTC extract from 1991 till 2002-03 and even later on clearly establish the fact that the name of Sri. D.S.Ganesh Reddy has 28 O.S.No.1804/2007 been recorded as a holder of the suit schedule property by virtue of registered Sale Deed dated 14-11-1990.
32. Further, the case of the plaintiff is that in order to develop the schedule property, he made an application before the Deputy Commissioner for seeking conversion of suit land into the non agricultural purpose. In this connection, the document at Ex.P-5 and even the document at Ex.P-14 both are one and the same clearly establish the fact that the Deputy Commissioner by his order dated 10-12-2002 vide order No. BDS ALN/ SR(S) 224/02-03 permitted to convert the suit schedule property from agricultural land into non agricultural purpose. The Ex.P-6 certified copy of challan goes to show that for the purpose of seeking conversion, the plaintiff paid Rs.2,31,468/- as conversion charges. Therefore, from the above said materials, it is crystal clear that the plaintiff Sri. D.S.Ganesh Reddy having been purchased the suit schedule property by virtue of registered Sale Deed applied for the conversion order 29 O.S.No.1804/2007 and the Deputy Commissioner passed an order for conversion of land into non agricultural purpose.
33. It is contended by the plaintiff that he requested the 1st defendant Bangalore Development Authority to confirm as to whether the schedule property has been acquired by the Bangalore Development Authority and as to whether there is an acquisition proceedings. In response to the request dated 18-02-2005, the defendant No.1 Bangalore Development Authority issued an endorsement at Ex.P-49 dated 09-03-2005. Upon perusal of the said Ex.P-49 it clearly reveals that the suit schedule property has been notified under Final Notification dated 22-07-1991, but no award has been passed and even the possession was not taken by the BDA (Bangalore Development Authority) in respect of the schedule property.
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34. It is pertinent to note that, the DW-1, who is the representative of defendant No.1 relied upon Ex.D-2 Final Notification dated 22-07-1991. The said notification goes to show that the suit schedule property has been notified under Final Notification for the purpose of formation of layout called Jayaprakash Narayana Nagar 9th Stage. The said DW-1 relied upon Ex.D-3 another Government Notification dated 29-07-2007. The said notification goes to show that the preliminary notification published in the Gazette dated 19-01-1989 and Final Notification dated 22-07-1991 withdrawn from the acquisition of lands. Meaning thereby, the present suit schedule property, which is shown as Sl.No.7 has been withdrawn from the acquisition proceedings. However, by virtue of Resolution No.264/2002 dated 14-01-2003, the Bangalore Development Authority introduced a 70:30 Group Housing Scheme. So, the suit property has been left out from the final notification. 31
O.S.No.1804/2007
35. The Ex.D-4 dated 10-08-2007 letter addressed by the Commissioner, Bangalore Development Authority, Bangalore to the Government makes clear that there is no possibility by the B.D.A. to take any action in respect of present suit schedule property for preparation of sketch and development of the property on account of the fact that the present suit (O.S.No.1804/2007) is pending before the Court. Meaning thereby, the very said document clearly establishes the fact that no development has been initiated for the present schedule property and even no sketch has been prepared. This information presupposes that the defendant No.1 does not have possession of the suit property.
36. It is pertinent to note that, the Hon'ble High Court of Karnataka in WP Nos.8804 to 8815/1996 (Ex.P-
41) in the case of Sri. Ram Mohan Menon and others Vs. State of Karnataka, represented by its Chief Secretary, Vidhana Soudha and another quashed the 32 O.S.No.1804/2007 Government Order No. HUD/341/MNX/95 dated 17-11-1995 70:30 the Group Housing Scheme. The Government of Karnataka challenged the said Judgment of the Hon'ble High Court of Karnataka in Writ Appeal No.2248-2259/1999 (Ex.P-42) in the case of The State of Karnataka and another Vs. Ram Mohan Menon. The Hon'ble High Court of Karnataka Division Bench dismissed the said Writ Appeal by confirming the order passed by the Hon'ble Single Judge. It is also clear from the materials that the Hon'ble High Court of Karnataka in Writ Petition No.3334/2000 quashed the Government Order No.HUD/341MNX/95 dated 17-11-1995. Further, the Hon'ble High Court of Karnataka in Writ Petition No.3254/2005 in the case of Mr. K. Radhakrishna and others Vs. Bangalore Development Authority and another (Ex.P-43) connected with Writ Petition No.10820/2007 on 13-04-2016 again quashed the Government Order No. No.HUD/341MNX/95 dated 17-11-1995.
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37. Therefore, it is crystal clear from the records that the order passed by the B.D.A. bearing its No. BDA/TP/GH/23/2000/2410/04-05 dated 20-11-2004 is required to be declared as null and void. Because, in view of the judgment of the Hon'ble High Court of Karntaka, the resolution passed by the B.D.A. under Ex.D-6 Resolution No.264/2992 dated 14-01-2003 does not remain for any consideration.
38. It is quite natural that the defendant No.1 must have the knowledge of the judgments of the Hon'ble High Court of Karnataka and even the defendant No.2 must have the knowledge about the said decisions. But the DW-1, who is the representative of defendant No.1 Assistant Executive Engineer-I by profession completely pleaded his ignorance during his cross-examination stating that he does not aware and he does not know that the Writ Appeal, which was filed by the Government was came to be dismissed by confirming the order 34 O.S.No.1804/2007 passed in W.P.No.8804 to 8815/1996. Further, the said DW-1 pleads ignorance stating that he does not know that the defendant No.1 withdrawn the resolution as soon as the Hon'ble High Court of Karnataka passed the order in W.P.No.8804 to 8815/1996 and permission is not accorded to one Mr. Pakash, who sought permission to develop his property in 70:30 Group Housing Scheme. The said DW-1 being the responsible Officer of the B.D.A. failed to answer to the material questions posed to him during cross-examination. So, his conduct goes to show that his intention to shirk from the liability.
39. The General Power of Attorney holder of defendant No.2 states that the 1st plaintiff sold the suit schedule property in favour of Sri. P.M.P. Kurup by way of registered Agreement of Sale dated 31-10-1995 and delivered the possession to him. In addition to that, the plaintiff executed registered Power of Attorney dated 17-11-1995 in favour of Sri. P.M.P. Kurup. So, the 35 O.S.No.1804/2007 plaintiff has lost his title over the schedule property. The said P.M.P. Kurup executed Special Power of Attorney in favour of 2nd defendant as per Ex.D-13. Therefore, the said defendant No.2 got the work order from the defendant No.1 and to develop the suit schedule property got prepared the layout plan under 70:30 Group Housing Scheme. So, the present plaintiffs cannot claim right over the suit schedule property by virtue of illegal Sale deeds dated 20-09-2007 and 16-06-2008.
40. As can be seen from the records, it is quite evident that as soon as the 1 st plaintiff D.S.Ganesh Reddy purchased the suit schedule property, took paper publication as per Ex.P-7 on 09-12-2005 bringing to the notice of public at large that the present defendant No.1 by creating certain documents in the name of plaintiff making transactions in respect of suit schedule property and even the said defendant No.2 attempted to get the title over the schedule property by forged document. 36
O.S.No.1804/2007 Therefore, the criminal case has been filed before the Thalaghattapura Police Station in Cr.No.334/2005. Therefore, public is informed to not to make any transactions with the said defendant No.2. So, it is evident from the said Ex.P-7 that at the initial stage itself Sri. D.S.Ganesh Reddy informed to the public at large about the illegal act and conduct of defendant No.2. So, the document at Ex.D-13 the Special Power of Attorney cannot be termed that Mr. P.M.P. Kurup authorised the present defendant No.2 to do all the acts in respect of the suit schedule property.
41. No doubt, the GPA holder of defendant No.2 has relied upon the Ex.D-10 certified copy of Agreement to sell dated 31-10-1995. Upon perusal of the said document, it is no doubt clear that the Sri D.S.Ganesh Reddy agreed to sell the suit schedule property in favour of P.M.P. Kurup and appearing that the possession has been delivered. It is also appearing from the Ex.D-11 37 O.S.No.1804/2007 Power of Attorney of D.S.Ganesh Reddy that he appointed Mr. P.M.P. Kurup by way of Power of Attorney to deal with the suit schedule property. But upon careful scrutiny of the said document Ex.D-11 the plaintiff never authorised P.M.P. Kurup to get the conversion order.
42. The document at Ex.P-10 is an Agreement to Sell and thus, Sri. P.M.P. Kurup cannot confer his title over the suit property unless Sri D.S.Ganesh Reddy executes registered Sale Deed in his favour. The said document is only by virtue of part performance and hence, it cannot be termed that Mr. P.M.P. Kurup has acquired complete title over the schedule property. So, on the basis of said document Mr. P.M.P. Kurup or the present DW-2 have not derived any title over the schedule property to transact either with the defendant No.1 or with any body else. It is significant to note that the defendant No.2 has not produced any documents to show that the agreement holder attempted to get the 38 O.S.No.1804/2007 registered Sale Deed by filing suit for specific performance.
43. It is also seen from the records that the DW-2 has relied upon Ex.D-9 Agreement of Assignment dated 07-10-2003. The said document is unregistered and basically it is a notarized copy. So, it is evident that the said document has not even properly stamped, which is compulsorily registrable. In such circumstances, Mr. P.M.P. Kurup does not have any right over the suit schedule property to assign the present DW-2 in respect of the schedule property, since the document does not have any evidentiary value in the eye of law. Therefore, whatever the transactions have been made out either by Mr. P.M.P. Kurup or by the present defendant No.2 or the PA holder of defendant No.2 with the defendant No.1 do not survive for any consideration.
44. It is significant to note that the DW-1 and even the DW-2 during their evidence categorically state that 39 O.S.No.1804/2007 the possession of the suit schedule property is with the defendant No.1 and DW-2 has developed the suit schedule property and the purchasers are in possession of their respective sites. In order to substantiate this particular evidence, absolutely no supportive evidence is placed. On the other hand, as I stated supra, Ex.P-9 is crystal clear that the Bangalore Development Authority itself has given an endorsement stating that no award is passed and no possession was taken by the B.D.A. Under these circumstances, the defendant No.1 has taken the possession and the defendant No.2 has developed the suit property cannot be believed. Hence, the testimony of DW-1 and 2 that the possession is basically vest with Bangalore Development Authority (BDA) and parted the same with respective purchasers falls on the ground.
45. It is evident from the records produced by the plaintiffs at Ex.P-5 that the Deputy Commissioner has already issued conversion order in favour of plaintiff Sri. 40 O.S.No.1804/2007 D.S.Ganesh Reddy and such being the fact, when the said document is taken into consideration with that of the endorsement dated 09-03-2005 at Ex.P-49 issued by the B.D.A. it is quite evident that the possession is / was with the plaintiff No.1 and he subsequently delivered the possession to M/s. Gangaram Rao Trade Links by virtue of registered Sale Deed at Ex.P-19 and later, its Managing Partner sold out the schedule property in favour of present plaintiffs No.2 & 3 as per Ex.P-20. This fact has been clearly admitted by the DW-2 during his cross-examination at page No.14 at para No.24.
46. Further, the said DW-2 also admitted that the plaintiff lodged complaint against defendant No.2 alleging that the defendant No.2 has created General Power of Attorney dated 30-11-2002. But he pleads ignorance stating that he is not aware that the plaintiff No.1 filed complaint to the defendant No.1 stating that defendant No.1 should not continue any transactions 41 O.S.No.1804/2007 with defendant No.2 or his attorney holder on the basis of that General Power of Attorney dated 30-11-2002. The said DW-2 also pleads ignorance stating that he is not aware that the plaintiffs No.2 and 3 installed sign board to the suit schedule property. If at all the case of defendant No.2 is taken as true in respect of possession, then certainly, the DW-2 denied to the suggestion in respect of installation of sign board by the said plaintiffs No.2 & 3. So, from this testimony, it is quite evident that the plaintiffs are in possession of the property but none else.
47. It is also evident from the admission being made by DW-1 & 2 in their cross-examination that the DW-2 sought permission of the BDA on 25-02-2002 for implementation of 70:30 Group Housing Scheme and Ex.D-7 Relinquishment Deed does not indicate about the inclusion of present suit schedule property. So, it is evident that the defendant No.2 and even the present DW-2 having full knowledge about non existence of 42 O.S.No.1804/2007 70:30 Group Housing Scheme and even non existing of Resolution of defendant No.1 they attempted to get the work order from the defendant No.1 just to cause loss to the plaintiffs and deprive their right.
48. As I states supra, the Ex.D-17 has no evidentiary value in the eye of law and even other wise it is evident from the said document at page No.9 wherein, it has been clearly mentioned about the time for completion of the assignment within a period of one month. But in this regard, there is no satisfactory evidence placed by the defendants as to why the same has not complied with. Moreover, as can be seen from the records, the DW-1 being the responsible person failed to produce the original records in respect of the authorisation and other documents said to have been given by the plaintiff No.1 in favour of P.M.P. Kurup and said so called P.M.P. Kurup authorised the present defendant No.2 to transact with defendant No.1. So, this goes to show that the defendants in active collusion with 43 O.S.No.1804/2007 the anti social elements attempted to knock off the property of the plaintiffs.
49. Though there has been a complaint by the plaintiff No.1 to the defendant No.1 against one Kumaraswamy, P.M.P. Kurup and against the present defendant No.2 in respect of allegations and creating of some records pertaining to suit schedule property, still the defendant No.1 indulged in issuing the work order in favour of defendant No.2 though having complete knowledge that the 70:30 Group Housing Scheme of the defendant No.1 has been quashed by the Hon'ble High Court of Karnataka and even the said 70:30 Group Housing Scheme is not presently under recognition. Therefore, on scrutiny of entire records, it is opined that the plaintiffs successfully established the case made out by adducing oral evidence and with supported documents as narrated above. As such, I answer Issue No.1 to 3 in the affirmative.
44
O.S.No.1804/2007
50. ISSUE NO.4 :: While answering Issue No.1 to 3 it is held that the plaintiff No.1 established the possession over the suit schedule property and the said possession has been subsequently delivered to M/s. Gangaram Rao Trade Links and in turn, the Managing Partner of M/s. Gangaram Rao Trade Links delivered the possession to the present plaintiffs No.2 & 3. On the other hand, the defendants No.1 & 2 utterly failed to prove their defence and thus, I answer Issue No.4 in the affirmative.
51. ISSUE NO.5 :: In view of the detailed reasons stated above, it is quite evident that there has been an interference to the plaintiffs possession and the act of the defendants is crystal clear that their intention to cause wrongful loss to the plaintiff. Thus, the plaintiffs have established the alleged interference by the defendants. As such, I answer Issue No.5 in the affirmative.
45
O.S.No.1804/2007
52. ISSUE NO.6 :: The plaintiffs successfully established their case with oral and documentary evidence. Therefore, the plaintiffs are entitled for the relief of permanent injunction. As such, issue No.6 is answered in the affirmative.
53. ISSUE NO.7 :: It is held while answering Issue No.1 to 3 that on the basis of created documents the defendant No.2 along with other anti social elements succeeded to get the work oder from the 1 st defendant and even the 1st defendant approved the layout plan and retained the same even having been quashed the 70:30 Group Housing Scheme by the Hon'ble High Court of Karnataka. Therefore, the plaintiffs (plaintiffs No.2 & 3) being the owners of suit schedule property are entitled for the declaratory relief as sought for. As such Issue No.7 is answered in the affirmative.
54. ISSUE NO.8 :: The defendants specifically contended that the suit is bad for non joinder of 46 O.S.No.1804/2007 necessary parties. As can be seen from the records, the 1st defendant itself informed to the Government by way of letter at Ex.D-4 contending that no development has been initiated to the suit schedule property and even no sketch map has been finalized on account of pendency of this suit. Therefore, the pendency of this suit is within the knowledge of Government thus, the Government is not necessary party. Moreover, the Ex.D-3 itself clear that the suit schedule property has been left out from the acquisition proceedings, which was published in preliminary and final notification. Under such circumstances, I find no reason to accept the contentions raised by the defendants. Accordingly, I answer Issue No.8 in the negative.
55. ISSUE NO.9 :: The defendants specifically contended that the suit is not maintainable, since the plaintiff failed to issue prior notice as per Section 64 of the Bangalore Development Authority Act. In this connection, Section 64 of the Bangalore Development 47 O.S.No.1804/2007 Authority Act, 1976 has been extracted and reproduced hereunder;
Section 64 of Bangalore Development Authority, Act 1976 - Notice of suit against the Authority - (1) No suit or other proceedings shall be commenced against the authority or any member or any Officer or servant of the authority or against any person acting under the direction of the authority, the member or Officer of the authority for anything done, or purporting to have been done, in pursuance of the Act or a rule, regulation or bye-law made hereunder without giving to the authority one month's previous notice in writing of the intended suit or other proceedings, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceedings nor after tender of sufficient amends.
(2) A suit to obtain an urgent or immediate relief against the authority or any member or any Officer or servant of the authority in respect of any act done or purporting to be done by such Officer or servant in his official capacity may be instituted with the leave of the Court, without 48 O.S.No.1804/2007 serving any notice as required by sub-section(1) but the Court shall not grant relief in the suit whether inter alia or otherwise except after giving to the authority, Officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of relief prayed for in the suit.
56. Upon careful perusal of the above said provision of law, it makes abundant clear that there cannot be any suit against the Bangalore Development Authority without issuing one month previous notice in writing of the intended suit or other proceedings and cause there of, nor after six months from the accrual of the cause of action of such suit or other proceedings nor after tender of sufficient amends.
57. As per Sub-section (2) of Section 64, which makes clear that the suit may be instituted with the leave of the Court without serving any notice as required by Sub-section(1) of Section 64 of the Act. So, the clause one mandates to issue prior one month notice. 49
O.S.No.1804/2007 Whereas, sub-section(2) of Section 64 makes relaxation in case of urgency.
58. In the case on hand, the plaintiff filed Interlocutory Application on the date of filing the suit for seeking dispensation for issuance of statutory notice to the defendant No.1 and sought permission to institute the suit. The Court after having heard, passed an order on 06-03-2007 accepting the reasons stated by the plaintiff in the application and dispensed from issuance of statutory notice to the defendant. Therefore, the contention of the defendants that the suit is bad for want of notice under Section 64 of the Bangalore Development Authority does not survive for consideration. Accordingly, I answer Issue No.9 in the negative.
59. ISSUE NO.10 :: In view of my findings on Issues No.1 to 9, I proceed to pass the following;
ORDER The suit filed by the plaintiffs is decreed.
50
O.S.No.1804/2007 It is declared that the Work Order bearing No.BDA/TP/GH/23/2000/ 2410/04-05 dated 20-11-2004 issued by the 1st defendant in favour of the 2nd defendant is null and void.
Therefore, the 1st defendant is directed to cancel the layout plan approved by it vide its Resolution No.264/2002 dated 14-01-2003.
Further, the defendant No.2, his men, his agents, his contractors, workers, servants or any person or persons acting under or through him are restrained from in any way interfering with the plaintiff's peaceful possession and enjoyment of the schedule land or in any way meddling with the same.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 5th day of March, 2024.) (PRAKASH S. HELAVAR), XIX Addl. City Civil & Sessions Judge, C/c. XL Addl. City Civil & Sessions Judge, Bengaluru City.
51O.S.No.1804/2007 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) PLAINTIFF'S SIDE ::
PW-1 :: K.Chikkapapaiah
PW-2 :: R.Prasanna
(b) DEFENDANTS SIDE ::
DW-1 :: B.H.Parashuramappa
DW-2 :: K.M.Lingaraja
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) PLAINTIFF'S SIDE :
Ex.P-1 :: Original General Power of
Attorney
Ex.P-2 :: Original Sale Deed dated
14.11.1990
Ex.P-3 :: Certified copy of M.R. No.5/91-92
Ex.P-4 :: Certified copy of
M.R.No.22/2002-03
Ex.P-5 :: Certified copy of Conversion
order dated 10.12.2002 passed
by the Special Deputy
Commissioner
Ex.P-6 :: Certified copy of the Challan for
having paid the conversion
charges
52
O.S.No.1804/2007
Ex.P-7 :: Public notice issued in
Sanjayvani news paper by the
plaintiff
Ex.P-7(a) :: Relevant portion of the notice Ex.P-8 :: RTC extract Ex.P-9 :: Covering Letter issued by BDA Ex.P-10 :: Copy of Notification dated 27.07.1990 Ex.P-11 :: One more Notification (De-
notification) issued by the BDA dated 27.09.2007 Ex.P-12 :: Copy of Resolution dated 14.01.2003 Ex.P-13 :: Copy of one more Resolution dated 04.09.2004 Ex.P-14 :: Copy of Work order dated 20.11.2004 issued by the BDA Ex.P-15 :: Certified copy of the Layout Map issued by the BDA Ex.P-16 & Ex.P-17 :: Copy of application submitted to BDA under RTI Act with Acknowledgment Ex.P-18 :: Notarised copy of General Power of Attorney dated 15.12.2006 53 O.S.No.1804/2007 Ex.P-19 :: E/c/c registered Sale Deed dated 12.09.2007 Ex.P-20 :: E/c/c registered Sale Deed dated 20.09.2007 Ex.P-21 :: E/c/c registered Rectification Deed dated 18.10.2007 Ex.P-22 :: Certified copy of registered Sale Deed dated 16.06.2008 Ex.P-23 :: Certified copy of General Power of Attorney dated 15.12.2006 Ex.P-24 & Ex.P-25 :: Certified copy Judgment and Decree in O.S. No.491/2005 Ex.P-26 :: Certified copy of Order in RFA.No.355/2010 Ex.P-27 & Ex.P-28 :: Copy of Encumbrance certificate for the period from 01.04.1930 to 14.02.1957 and from 15.02.1957 to 31.03.1980 Ex.P-29 :: Copy of Encumbrance certificate for the period from 03.05.2012 Ex.P-30 :: Copy of Encumbrance certificate for the period from 01.06.1989 to 31.03.2004 Ex.P-31 :: Copy of Encumbrance certificate for the period from 01.04.2004 to 15.11.2011 54 O.S.No.1804/2007 Ex.P-32 :: Copy of RTC extracts from 1970 to 2007-08 Ex.P-33 :: Certificate dated 13.04.2010 issued by BBMP Ex.P-34 :: Khata Certificate issued by BBMP Ex.P-35 :: Khata Certificate dated 13.04.2010 issued by BBMP Ex.P-36 :: Acknowledgment for the year 2011-12 issued by BBMP Ex.P-37 :: 17 Property tax receipts issued by BBMP Ex.P-38 :: Acknowledgment for the year 2010-11 issued by BBMP Ex.P-39 :: Acknowledgment for the year 2013-14 issued by BBMP Ex.P-40 :: Registered Confirmation Deed dated 10.11.2011 Ex.P-41 :: Certified copy of Judgment in W.P. No.8804 to 8815 of 1996 Ex.P-42 :: Certified copy of W.A. No.2248 to 2259 of 1999 Ex.P-43 :: Certified copy of Judgment in W.P. No.3254/2005 C/w.
10820/2007 55 O.S.No.1804/2007 Ex.P-44 & Ex.P-45 :: Bank Challans Ex.P-46 :: Certified copy of Order in R.A.(S) No.99/2010-11 Ex.P-47 :: Certified copy of W.P. No.41296 & 41297/2012 Ex.P-48 :: Certified copy of order passed in R.A.(S) No.99/2010-11 Ex.P-49 :: Certified copy of Endorsement issued by BDA dated 09.03.2005 Ex.P-50 :: Certified copy of Judgment W.P. No.28814-28818/2000 dated 29.07.2002 II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) DEFENDANTS SIDE :
Ex.D-1 :: Authorization letter dated
30.01.2023 Ex.D-2 :: Copy of Final notification dated 27.07.1991 Ex.D-3 :: Copy of Notification Ex.D-4 :: Copy of letter dated 10.08.2007 Ex.D-5 :: Copy of work order dated 20.11.2004 Ex.D-6 :: Copy of letter dated 02.04.2005 56 O.S.No.1804/2007 Ex.D-7 :: Copy of Relinquishment Deed in favour of BDA Ex.D-8 :: Copy of statement of detail of sites hand over to BDA Ex.D-9 :: General Power of Attorney dated 12.08.2022 Ex.D-10 :: Certified copy of Agreement to Sell dated 31.10.1995 Ex.D-11 :: Copy of Power of Attorney dated 17.11.1995 Ex.D-12 :: Encumbrance certificate from 01.04.1995 till 31.03.2004 Ex.D-13 :: Certified copy of Special Power of Attorney dated 07.10.2003 Ex.D-14 :: Certified copy of Conversion order dated 10-12-2002 Ex.D-15 :: Certified copy of Resolution No.264/2002 dated 14.01.2003 Ex.D-16 :: Certified copy of Resolution No.279/2004 dated 04.09.2004 Ex.D-17 :: Copy of Agreement of Assignment dated 07.10.2003 (PRAKASH S. HELAVAR), XIX Addl. City Civil & Sessions Judge, C/c. XL Addl. City Civil & Sessions Judge, Bengaluru City.