Bangalore District Court
Smt. Sharada B Shetty vs M/S Karnataka Milk Co-Operative on 3 March, 2018
C.R.P. 67) Govt. of Karnataka
Form
No.9(Civil)
Title sheet
for
Judgment in
Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
(CCH.NO.12)
PRESENT : SRI R.Y. SHASHIDHARA,
B.Com.,LL.B.,
XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
DATED THIS 3RD MARCH, 2018.
ORIGINAL SUIT NO.2408/2008
*****
PLAINTIFF: Smt. Sharada B Shetty
W/o Sri B.R. Shetty,
Major No.35 and 36,
Nagashettihalli village,
Kasaba Hobli,
Bangalore North Taluk.
(By Sri R. N., Advocate)
- Vs -
DEFENDANT: M/s Karnataka Milk Co-operative
Federation Ltd.,
Having its office at
K.M.F. Complex, Dr. M.N. Marigowda
Road, D.R. College Post,
Bangalore - 560 029.
Represented by its Chairman and
Managing Director.
(By Sri D.G.L., Advocate)
2 OS No.2408/2008
Date of institution of the suit 29-03-2008
Nature of the suit: Suit for permanent injunction
Date of the commencement of 22-08-2016
recording of the evidence:
Date on which the Judgment was 03-03-2018
pronounced
Total duration Year/s Month/s Day/s
09 11 04
JUDGMENT
This suit is filed by the plaintiff for decree of permanent injunction restraining the defendant, his agents, subordinates from interfering with her peaceful possession and enjoyment of the suit schedule property. Restraining the defendant from demolishing the building existing in the suit schedule property.
2. In the plaint it is stated that the plaintiff is the absolute owner of the suit schedule property i.e., house property bearing No.35 and 36, khatha No.285 of Nagashettihalli village, Kasaba hobli, Bangalore North Taluk. Both properties are totally measuring 60 x 80 feet (4800 sq.feet.).
3. It is stated that on 27-01-1990 the plaintiff purchased the suit schedule property through registered sale deed from one N. Ramakrishnaiah S/o Chikkayannappa. As per the sale deed she is in possession and enjoyment of the suit schedule property. As per sale deed she purchased the vacant site 3 OS No.2408/2008 along with 1 sq.feet. A.C. sheet roofed house. The name of the plaintiff entered in khatha register maintained by the Municipal authorities.
4. It is stated that the land bearing Sy.No.60/4 of Nagashettihalli village is totally measuring 7 acres 15 guntas. Out of the same only 3 acres 27½ guntas was acquired by the Government for defendant. Remaining land in the said survey number was in possession and enjoyment of the land owners who is the vendor of the plaintiff. He had formed residential layout in the portion of the land which was not acquired. The suit schedule property not falls within the acquired land and Government has not taken the possession of the same. The defendant falsely claiming that the suit schedule property is acquired by the Government. It is stated that notification issued by the Government for acquisition of property bearing Sy.No.60/4 has been declared as illegal in Writ Petition No.4695/1978 and that order was confirmed in Writ Appeal No.363/1989. Hence, the defendant has no right over any portion of the land bearing Sy.No.60/4.
5. It is stated that the suit schedule property has not acquired at any point of time by the BDA or Government. The 4 OS No.2408/2008 plaintiff has not received any notice in respect of acquisition proceedings. The defendants have no right, title and interest over the suit schedule property. In spite of the same they attempted to enter upon the suit schedule property and threatening to demolish the existing building. At that time the plaintiff had filed OS 7134/1998 before this Court. The defendant did not appear and participate in the said case. On 15-12-2002 the said suit was dismissed for default. Thereafter the officials of the defendant came to the suit schedule property and unlawfully attempted to dispossess the plaintiff from the suit schedule property. Hence, the plaintiff constrained to file this suit.
6. After service of suit summons the defendant has appeared through his counsel and resisted the case of the plaintiff by way filing written statement. In the written statement it is stated that the suit of the plaintiff is not maintainable due to non-issue of statutory notice under Section 125 of Karnataka Co-operative Societies Act. It is stated that suit schedule property and other adjacent lands of Boopasandra village were acquired by the Government of Karnataka. 4(1) notification issued on 15-1-1978. 6(1) 5 OS No.2408/2008 notification and 17(1) notification were issued. The Land Acquisition Officer has followed the procedure and acquired the above said lands and passed award. The erstwhile landlords of the land in question accepted the said award. The Land Acquisition Officer has taken the possession of the suit schedule property on 15-4-1978 from erstwhile landlords and other landlords with their signatures in the mahazar. The government has acquired and taking the physical possession of the land totally measuring 24 acres 14 guntas of Boopasandra village. Out of the same, the suit schedule property is small portion, now it is in physical possession and enjoyment of the defendant. After the acquisition the plaintiff purchased the suit schedule property. The vendor of the plaintiff had no right to execute the sale deed and the plaintiff does not derive any title of the suit property. She has no locus standi to file this suit. It is stated that in view of the dismissal of the suit OS 7134/1998 by the plaintiff and it was dismissed for non-prosecution, she is not entitled for any relief in the present suit.
7. It is stated that there is no AC sheet roofed house existing in the suit schedule property. The plaintiff obtained revenue records from the Municipal authorities by way of 6 OS No.2408/2008 created documents to claim his right over the same. Sale deed executed by the vendor of the plaintiff is void. It is denied that the suit schedule property was not acquired by the BDA or Government. It is denied that the plaintiff is owner and in possession of the suit schedule property.
8. It is stated that the suit schedule land has been acquired by the Government in the year 1978 and physical possession was taken and delivered to the defendant on 17-4-1978. Thereafter plaintiff purchased the suit property in the year 1989. Therefore, the question of issuing notice to the plaintiff in respect of acquisition is does not arise. It is denied that the defendant tried to dispossess the plaintiff from the suit schedule property and causing interference. It is stated that number of unauthorized occupants who have put up construction/hutmates and this defendant issued notice to them under the provision of Public Premises Act. The suit of the plaintiff for bare injunction is not maintainable. There is no cause of action arose to file this suit. On the above mentioned grounds the defendant prayed for dismissal of the suit of the plaintiff.
7 OS No.2408/2008
9. During the pendency of the suit the plaintiff got amended the plaint and added para 3(a) and 5(a). The defendant has filed additional written statement and denied that land in Sy.No.60/4 of Nagashettihalli village is totally measuring 7 acres 15 guntas, out of the same 3 acres 27½ guntas was acquired by the Government of Karnataka for defendant and remaining land was in possession and enjoyment of the land owners. It is denied that vendor of the plaintiff had formed layout in the remaining land in question, the plaintiff purchased the site in the said layout. It is stated that the suit schedule property has been acquired by the Government and possession of the same delivered to the Society in the year 1978 itself. It is stated that Vinayaka Housing Society had filed writ petition in respect of some portion of the land and Hon'ble Court has quashed the notification. In the writ appeal it is clarified that in so far as it relates to the petitioner in Writ Petition No.4689/78. The order passed in writ appeal will not ensure to the benefit of the plaintiff. Therefore, the defendant prayed for dismissal of the suit of the plaintiff with costs.
8 OS No.2408/2008
10. On the basis of the above said pleadings my learned Predecessor has framed the following issues :-
1. Whether the plaintiff proves her lawful possession over the suit schedule property on the date of the suit?
2. Whether the plaintiff proves the alleged interference and obstructions to such of her possession and enjoyment of the suit property by the defendant and its men and also the attempt of illegal demolition of the existing building in the suit property ?
3. Whether the suit as brought is not maintainable for non-compliance of statutory notice as required under Section 125 of the Co-operative Societies Act ?
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed ?
5. What order or decree ?
11. To prove the above said issues the husband and GPA holder of the plaintiff viz., B.R. Shetty examined as PW.1. Documents got marked as Ex.P1 to P13. Additional Director (Estate and Civil) Engineering Section of defendant examined as DW.1. Documents got marked as Ex.D1 to D10. After completion of evidence of both sides the case posted for arguments on main.
12. My answer to the above issues are as follows:- 9 OS No.2408/2008
ISSUE NO.1 : In the negative
ISSUE NO.2 : In the negative
ISSUE NO.3 : In the negative
ISSUE NO.4 : In the negative
ISSUE NO.5 : As per final order for the
following :
REASONS
13. ISSUE NO.1:- In the plaint and PW.1 in his
examination-in-chief stated that the plaintiff is absolute owner and in possession of the suit schedule property. She purchased the suit property from one N. Ramakrishnaiah S/o Chikkayyannappa for valuable consideration for Rs.90,000/- through registered sale deed dated 27-1-1990. As per the sale deed the possession of the suit property handed over to her. She purchased the property consisting vacant site with 1 sq.ft. A.C. sheet roofed house. Her name entered in the khatha register maintained by the Municipal authorities.
14. To prove the above said facts, plaintiff has produced several documents and got marked in evidence of PW.1. Ex.P1 is the General Power of attorney dated 22-8-2016 executed by the plaintiff in favour of PW.1 who is her husband to prosecute and adducing evidence in this case. 10 OS No.2408/2008 She has produced original sale deed dated 16-12-1989 (registered on 27-01-1990) got marked as Ex.P9. It reveals that she purchased the suit schedule property from N. Ramakrishnaiah. As per the said sale deed the possession of the property handed over to the plaintiff. GPA holder of said Ramakrishnaiah has executed ExP9 in favour of the plaintiff. It is found that description and boundaries mentioned in the sale deed and plaint schedule are one and the same.
15. The plaintiff has produced encumbrance from 01-09- 1995 to 6-9-1996 in respect of suit schedule property. It is mentioned that on 27-1-1990 N. Ramakrishnaiah sold suit schedule property in favour of the plaintiff. She has produced mutation register extract and got marked as Ex.P11. It reveals that the suit schedule property sold by GPA holder of Ramakrishnaiah in favour of the plaintiff. Accordingly khatha has been changed in the name of the plaintiff. She has produced two tax paid receipts dated 27-1- 1990 and 25-2-1997 and got marked as Ex.P12 and P13.
16. On the basis of above said documents the plaintiff claiming her title and possession of the suit schedule 11 OS No.2408/2008 property. Per contra, the defendant has specifically denied the title and possession of the plaintiff over the suit schedule property. I am of the opinion that in this case the burden on the plaintiff to prove that she was in lawful possession of the suit schedule property as on the date of the suit with cogent oral and documentary evidence. As discussed above except sale deed, encumbrance certificate, mutation and two tax paid receipts for the year 1990 and 1997 the plaintiff has not produced documents to show that she was in possession of the suit schedule property as on the date of the suit. The plaintiff filed this suit in the year 2009. But she has not paid upto date tax to the suit property and produced the receipts before this Court. The plaintiff has not produced documents related to the suit schedule property as on the date of the suit. I am of the opinion that above mentioned documents are not establish the case of the plaintiff that she was in possession of the suit schedule property as on the date of the suit.
17. The plaintiff contended that the suit schedule property is vacant site consisting with 1 sq.ft. AC sheet roofed house. But to prove the she has not produced iota of documentary 12 OS No.2408/2008 evidence. It is true that in the sale deed it is mentioned that the suit property is comprising of 1 sq.ft. AC sheet roofed old house. Except this document she has not produced supported documents to show the existence of AC sheet house in the suit schedule property. In the encumbrance, mutation extract and tax paid receipts not mentioned about the existence of AC sheet house in the suit property. The plaintiff has not produced photographs to show the existence of AC sheet house in the suit schedule property.
18. In the plaint and PW1 in his evidence stated that plaintiff name entered in khatha register maintained by the Municipal authorities. But she has not produced the above said khatha extract before this Court. PW.1 in his cross- examination deposed against the above said pleadings that they have tried for getting khatha of the suit schedule property, but it was not issued due to acquisition of land. Therefore, I am of the opinion that the plaintiff has not proved that khatha has been registered in her name in respect of suit schedule property. Therefore, I am of the opinion that the plaintiff has not proved the existence of AC 13 OS No.2408/2008 sheet roofed house in the suit schedule property and khatha entered in her name in the suit property.
19. The plaintiff further contended that her vendor had formed layout in the land belongs to him and said land was not acquired by the Government. She further contended that in the said layout she purchased the suit schedule property. I am of the opinion that to prove that her vendor formed residential layout in the portion of the land bearing Sy.No.60/4 the plaintiff has not produced any documentary evidence. In the cross-examination PW.1 stated that he do not know about plaintiff's vendor has formed layout, on the basis of documents he saying that vendor of the plaintiff formed layout, he do not know that whether said layout has been approved or not by the concerned authorities. He further stated that the layout plan is with them and they are ready to produce before this Court. But for best known to the plaintiff she has not produced alleged layout plan before this Court. In the cross-examination of PW.1, defendant side specifically suggested that there is no layout formed by vendor of the plaintiff in the land bearing Sy.No.60/4, no existence of AC sheet roofed house in the suit schedule 14 OS No.2408/2008 property and the plaintiff is not in possession and enjoyment of the same. But PW.1 has denied the same. I have carefully perused the cross-examination of DW.1 by the plaintiff side, it is noticed that there is no suggestion put to him that the vendor of the plaintiff formed layout in the land bearing Sy.No.60/4, the existence of AC sheet roofed house and the plaintiff is in possession and enjoyment of the suit schedule property. In the plaint and evidence the plaintiff stated that she has started to reside in AC sheet roofed house existing in the suit schedule property. Per contra, her husband (PW.1) in his cross-examination stated that they are residing in the address furnished in his examination-in- chief affidavit since 1971. In the evidence affidavit of PW.1 it is mentioned that the plaintiff is residing at Lower Palace Orchid, Bangalore city. But, it is not mentioned that they are residing in the suit schedule property. I am of the opinion that this aspect also going to show that the plaintiff is not residing in suit schedule property.
20. The plaintiff contended that the land bearing Sy.No.60/4 of Nagashettihalli village is totally measuring 7 acres 15 guntas. Out of the same only 3 acres 27½ guntas 15 OS No.2408/2008 was acquired by the Government for defendant federation. Remaining land was in possession and enjoyment of the land owners who is her vendor. She further contended that her vendor - Ramakrishnaiah formed residential layout in the portion of the land which was not acquired and Government has not taken possession of the suit property, the defendant has been falsely claiming that it was acquired by Government. PW.1 in his evidence deposed as per the above said averments of the plaint. On the other hand, the defendants have specifically denied the above said contention of the plaintiff. They claiming that including suit schedule property 3 acres 27½ guntas of land in Sy.No.60/4 of Nagashettihalli village has been acquired by Government for defendant federation, after 4(1) and 6(1) notification award has been passed and possession of the property taken over. DW.1 in his examination-in-chief reiterated the averments of the written statement.
21. In order to establish its case the defendant has produced several documents and got marked in evidence. Ex.D1 is 4(1) notification dated 15-1-2978. Ex.D2 is 6(1) notification. Ex.D3 is award passed in L.A. Case 16 OS No.2408/2008 No.45/1978-79. These three documents shows that the Government has acquired land measuring 3 acres 27½ guntas out of 7 acres 8 guntas in Sy.No.60/4 of Nagashettihalli village. Ex.D4 of the letter dated 11-6-1979 given by the above mentioned Sonnegowda, Ramakrishnaiah and Venkatamma to the Sub-Divisional Assistant Commissioner, Bangalore. They stated that 3 acres 27½ guntas of land in Sy.No.60/4 has been acquired to the defendant No.1 board and accordingly award has been passed. They have no objection to payment of compensation amount in respect of lands belongs to them in favour of Srinivasa.
22. Ex.D5 is the certified copy of document for taking possession of the land. It is mentioned that land bearing Sy.No.60/4 measuring 3 acres 27½ guntas of Nagashettihalli village taken over possession on 11-06-1977. Signatures of Sonnegowda, N.C. Srinivasa, Sosegowda, N.C. Ramakrishnaiah and Venkatamma found place in the said documents. It is noticed that vendor of the plaintiff N.C. Ramakrishnaiah is also put his signature in the said document.
17 OS No.2408/2008
23. Ex.D6 is the certified copy of the statement dated 15- 7-1978 given by Sarojamma who is daughter-in-law of Venkamma. She has stated that land bearing Sy.No.60/4 measuring 3 acres 27½ guntas acquired for Bangalore Dairy. The said land was in the name of her mother-in-law viz., Venkamma W/o Chikkayanna. Said Venkamma partitioned the said property to Sonnegowda, N.C. Ramakrishnappa and N.C. Srinivasa. She retained remaining land with her. She has further stated that she took a site and cash in lieu of properties as per partition. Hence, she has no right over the property retained by Venkamma. Hence, she has no objection to pay the compensation amount to Sonnegowda, N.C. Ramakrishnappa, N.C. Srinivasa and Venkamma.
24. Ex.D7 is the certified copy of mahazar dated 15-7- 1978 drawn in the presence of village elders. In view of Ex.D6 Sarojamma given up her right in favour of Sonnegowda, N.C. Ramakrishnappa, N.C. Srinivasa and Venkamma for receiving compensation amount. Ex.D8 is the statement prepared by the Revenue Inspector, Kasaba hobli, Bangalore North taluk that Sarojamma has given no objection in the compensation amount in respect of land 18 OS No.2408/2008 acquired in question. Hence, it is decided that the compensation amount to be paid to Sonnegowda, N.C. Ramakrishnappa, N.C. Srinivasa and Venkamma. Ex.D9 is the memo forwarded to the Tahsildar, Bangalore North taluk from the office of Assistant Commissioner, Bangalore Sub- division dated 14-11-1978. It is mentioned that 3 acres 27½ of land has been finally acquired in favour of defendant federation. As per the records one Venkataramu is hakkudara of the said land and he is reported to be dead. Hence, it is requested the Tahsildar to enquire and report about legal heirs and their claims for compensation.
25. Ex.D10 is the letter dated 17-4-1978 by Tahsildar, North Taluk to Assistant Commissioner, Bangalore Sub- Division, Bangalore. It is mentioned that due to filing of wirt petition No.495/78, except land bearing Sy.No.41,42,43 and 45 of Boopasandra village other lands were handed over to the defendant. DW.1 in his cross-examination has admitted that in Sy.No.60/4 of Nagashettihalli village land measuring 7 acres 15 guntas has been acquired. During the time of acquisition khathedar of the said land was NTI Society and Srinivasa. NTI Society was khathedar of 3 acres 27 guntas. 19 OS No.2408/2008 Srinivasa and 3 others were kathedar of 3 acres 20 guntas. He has admitted that they have not related to the land measuring 3 acres 27 guntas belongs to NTI Society. He has denied that the existence of roads and sites in the land measuring 3 acres 20 guntas belongs to Srinivasa and 3 other khathedars. He has admitted that 26 acres 14 guntas has been acquired as per the notification, the persons who are related to the above said lands were filed suit against the defendant. He has admitted that the acquisition notification was quashed. But again he has stated that as per the order of the writ appeal the cancellation of notification confirmed to the petitioners of the said case only. He has denied that the suit schedule property is lying in 3 acres 27 guntas of land, the defendant has no right in land bearing Sy.No.60/4.
26. It is the specific case of the plaintiff that after acquisition of land measuring 3 acres 27½ guntas in Sy.No.60/4 her vendor and others retained remaining land, her vendor Ramakrishnaiah formed layout some portion of remained land. In that layout she purchased suit schedule property. She specifically stated that the suit schedule property is not comprising in acquired land. I have perused 20 OS No.2408/2008 Ex.D1 of the preliminary notification, Ex.D2 is final notification, Ex.D3 is award. As per these documents total 7 acres 15 guntas of land was existing in Sy.No.60/4 of Nagashettihalli village. Out of the same 3 acres 27½ guntas has been acquired by the government for the purpose of Karnataka Dairy Development Corporation Limited, Bangalore (defendant federation). As per preliminary and final notification name of khathedars of entire 7 acres 15 guntas of land is Secretary, NTI House Building Co-operative Society Limited and anubhavdar is NTI Society, Sonnegowda and Srinivasa. After acquisition of 3 acres 27½ guntas of land out of 7 acres 15 guntas remaining 3 acres 27½ guntas. That 3 acres 27½ guntas of land is in the name of NTI House Building co-operative Society. In the cross-examination of DW.1 the plaintiff side itself taken contention that NTI Society khathedar of 3 acres 27½ guntas, in the said property they have formed layout, the defendants have not related to the said land. Considering the same, I am of the opinion that the land bearing Sy.No.60/4 is totally measuring 7 acres 15 guntas, out of the same 3 acres 27½ guntas is belongs to NTI House Building Co-operative Society. 21 OS No.2408/2008 Remaining 3 acres 27½ guntas of land was in the name of the vendor of the plaintiff and four others.
27. In para 2 of award (Ex.D3) it is specifically mentioned that the Secretary of NTI Housing Board Co-operative Society is notified as khathedar and said society, Sonnegowda and Srinivasa are notified as anubhavdars for the entire land bearing Sy.No.60/4. As per index of land extract Venkaamma, Sonnegowda, Venkatarama, Ramakrishnaiah and N.C. Srinivasa were khathedars and as well as anubhavdars to an extent of 3 acres 27½ guntas of land and reaming 3 acres 27½ guntas standing in the name of NTI Society. In para 3 it is stated that out of 3 acres 27½ guntas, 1 acre was in the name of N.C. Srinivasa S/o Chikkiyennappa, 1 acre 6 guntas was in the name of Sonnegowda S/o Chikkiyennappa, 1 acres was in the name of N.C. Ramakrishnaiah S/o Chikkiyennappa (vendor of the plaintiff) 20 guntas was in the name of Venkamma and Venkataram and 1½ guntas was pot kharab. Therefore, it is clear that including 1 acre of land belongs to the vendor of the plaintiff (Ramakrishnaiah) entire 3 acres 27½ guntas of land acquired by the government and award passed as per 22 OS No.2408/2008 Ex.D3. Remaining 3 acres 27½ guntas of land was in the name of NTI House Building Co-operative Society Limited. After acquisition of land measuring 3 acres 27½ guntas there was no land remained in Sy.No.60/4. After acquisition of 1 acre of land belongs to the vendor of the plaintiff (Ramakrishnaiah) no land retained by him. The plaintiff has not produced iota of documentary evidence to show that after acquisition of 3 acres 27½ guntas of land her vendor retained land and formed residential layout. She has not produced documents to show that her vendor converted the alleged remaining land in to non-agricultural and formed residential layout. From the above discussion, I come to the conclusion that the plaintiff has miserably failed to prove that after acquisition of 3 acres 27½ guntas in Sy.No.60/4, her vendor and others were in possession and enjoyment of reaming land and her vendor formed residential layout in the above said remaining portion of land.
28. It is the case of the plaintiff that land bearing Sy.No.60/4 measuring 3 acres 27½ guntas has acquired by the Government for the defendant. In WP No.4695/78 the said acquisition notification has been declared as illegal and 23 OS No.2408/2008 it was confirmed in Writ Appeal No.363/1989. Hence, she contended that the defendant has no right over any portion of land in Sy.No.60/4.
29. The plaintiff has not produced Hon'ble High Court order passed in WP No.4695/78 and Writ Appeal No.363/89. But she has produced Ex.P2 is the certified copy of the order passed by Hon'ble High Court of Karnataka, Bangalore in WP No.19526/2002 (LA-RES). One Muniswamappa and another had filed the said writ petition against government and 7 others. The defendant of the present case is respondent No.6 in the said writ petition. In the writ petition they have sought for quash the preliminary notification dated 15-01- 1978 and final notification dated 08-03-1978 and award dated 05-06-1979 and all subsequent proceedings. It was filed in respect of 1 acre 2½ guntas of land in Sy.No.59/4 of Nagashettihalli village. On 22-11-2010 the Hon'ble High Court passed order and allowed the said writ petition and quashed the notification dated 15-01-1978, 18-03-1978 and award dated 5-6-1979. In para 13 of the order passed in writ petition Hon'ble High Court held as follows :
13. It is not in dispute that in respect of other lands acquired under the impugned notification in 24 OS No.2408/2008 respect of lands in Survey No.60/4 and 60/1 this Court in W.P.Nos.4695-4697/1978 vide order dated 11-10-1979 declared the notifications as illegal. Further it is not in dispute that the Division Bench of this Court in W.A.No.363/1989 vide order dated 19-08-1988 confirmed the order of learned Single Judge quashing the impugned notifications and restricted to the extent of lands involved in those petitions. But the reasoning of the learned Single Judge and Division Bench to quash the impugned notifications in respect of lands in survey No.60/4 and 60/1 are also applicable to the lands in question. Therefore, the petitioners are also entitled for the benefit of the reasoning in W.P.Nos.4695-4697/1978. On this ground also the impugned notifications are liable to be quashed.
From perusal of the Hon'ble High Court order as stated above, on 11-10-1979 it was declared that the notification in respect of land in Sy.No.60/4 and 60/1 was illegal. Above said order passed in writ petition has been confirmed in writ appeal No.363/1989. Therefore, it is clear that acquisition notification in respect of Sy.No.60/4 of Nagashettihalli village has been quashed in WP No.4695-4697/1978 and it was confirmed in writ appeal No.363/1989.
30. Ex.P14 is the copy of order dated 02-09-1999 passed by Hon'ble Supreme Court of India in Civil Appeal No.568- 621/2001. Accordingly Hon'ble Court granted the interim order that the person who already completed building in the acquired land can have reach their building through the 25 OS No.2408/2008 adjacent land free from any obstruction. It is ordered that egress and ingress to the said building will not be obstructed till disposal of the suit. Accordingly the said appeal was disposed off. DW.1 also in his cross-examination admitted the above mentioned order of Hon'ble Supreme Court.
31. At this stage I am of the opinion that even though the acquisition proceedings in respect of 3 acres 27½ guntas in Sy.No.60/4 of Nagashettihalli village has been quashed by the Hon'ble High Court, it will not help the case of the plaintiff. Because it is not the case of the plaintiff that suit schedule property is comprising in acquired land bearing Sy.No.60/4 measuring 3 acres 27½ guntas. Her case is that the suit schedule property is not comprising in acquired land. Therefore, I am of the opinion that as per the plaintiff when the suit schedule property is not a part and parcel of acquired land. Hence Hon'ble High Court and Hon'ble Supreme Court judgment/orders stated supra will not help her case. I am of the opinion that if the case of the plaintiff that suit schedule property is comprising in acquired land and constructed house then the Hon'ble Courts decisions will help her case.
26 OS No.2408/2008
32. The plaintiff has produced the certified copies of judgment and decree dated 06-01-2012 passed by 17th Addl. City Civil Judge, Bangalore in OS 8894/1997 and got marked as Ex.P3 and P4. She also produced the certified copies of judgment and decree dated 14-03-2012 passed by 17th Addl. City Civil Judge, Bangalore in OS 9768/1998 and got marked as Ex.P5 and P6. She also produced the certified copies of judgment and decree dated 21-12-2013 passed by this Court in OS 7903/2008 and got marked as Ex.P7 and P8. I am of the opinion that on the basis of the above said judgments this Court cannot decree the case of the plaintiff.
33. In view of above said discussion, I come to the conclusion that the plaintiff has not proved that after acquisition of land of 3 acres 27½ guntas in Sy.No.60/4, remaining land with her vendor, he had formed residential layout in the above said remained land and out of the same she purchased the suit property. She also not produced any documentary evidence like RTC, Mutation and other revenue documents to prove that after acquisition, her vendor had possessed remaining land and formed layout. I come to the conclusion that the plaintiff has failed to prove her 27 OS No.2408/2008 possession over the suit schedule property as on the date of the suit. Hence, I answer issue No.1 in the negative.
34. ISSUE NO.2:- In issue No.1 it is held that plaintiff has not proved her lawful possession over the suit schedule property. Therefore, I am of the opinion that when the plaintiff is not in possession of the suit schedule property, the question of alleged obstruction by the defendant is does not arise. She also has not proved the existence of building/AC sheet roofed house in the suit schedule property. Therefore, the question of defendant made an attempt for illegal demolition of the said building is does not arise. Hence, I answer the issue No.2 in the negative.
35. ISSUE NO.3:- In para 2 of the written statement the defendant contended that it is a society registered under the provisions of the Karnataka Co-operative Societies Act. Therefore, unless and until notice under Section 125 of said Act is issued 2 months in advance before the institution of the suit, this suit is not maintainable. I have perused the above said contention of the defendant. Provisions of Section 125 of the Karnataka Co-operative Societies Act, 1959 reads as follows :-
28 OS No.2408/2008
125. Notice necessary in suits - No suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left.
From perusal of the above said provisions with case on hand, I am of the opinion that in the present suit the plaintiff sought for decree of permanent injunction against the defendant in respect of suit schedule property under the provisions of Transfer of Property Act. The reliefs sought by the plaintiff in the present case is not touching the constitution, management or the business of the defendant society. I am of the opinion that there is no need to issue statutory notice to the defendant as contemplated under Section 125 of the Karnataka Co-operative Societies Act. Therefore, I come to the conclusion that the defendant has not proved that the suit is not maintainable for non- compliance of statutory notice required under Section 125 of Karnataka Co-operative Societies Act. Hence, I answer the Issue No.3 in the negative.
29 OS No.2408/2008
36. ISSUE NO.4:- In view of my findings on issue No.1 and 2 plaintiff has failed to prove her possession over the suit schedule property as on the date of the suit. She also not proved the alleged interference of the defendant over the suit schedule property. Hence, I come to the conclusion that she is not entitled the relief of permanent injunction against the defendant as prayed in the suit. On the other hand, suit of the plaintiff is liable to be dismissed. From looking into the facts and circumstances of the case, the parties are directed to bear their own costs. Therefore, I answer the issue No.4 in the negative.
37. ISSUE NO. 5:- In view of the findings on issue No.1 to 4, I proceed to pass the following order:-
ORDER The suit of the plaintiff is dismissed.
No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 3rd day of March, 2018).
(R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.30 OS No.2408/2008
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 B.R. Shetty
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P-1 General Power of attorney dt: 22-8-2016
Ex.P-2 Cc of order passed in WP No.19526/02 dt:
22-11-2010
Ex.P-3 & P-4 Cc of judgment and decree in OS 8894/1997 dt:
3-12-1997 Ex.P-5 & P-6 Cc of judgment and decree passed in OS 9768/1998 dt: 14-3-2012 Ex.P-7 & P-8 Cc of judgment and decree passed in OS No.7903/2008 dt: 21-12-2013 Ex.P-9 Original sale deed Ex.P-10 Encumbrance certificate Ex.P-11 Mutation register extract Ex.P-12 & 13 Tax paid receipts. Ex.P-14 Cc of order passed in Civil Appeal No.568-621/2001 dt: 15-1-2001 LIST OF WITNESSES EXAMINED FOR DEFENDANT:-
DW.1 Manjunath H.S. LIST OF DOCUMENTS MARKED FOR DEFENDANT:- Ex.D-1 Cc of 4(1)notification dt: 15-01-1978 Ex.D-2 Cc of declaration notification US 16 R/w Sec.17(1) of L.A. Act Ex.D-3 Cc of award in LAC case No.45/78-79 Ex.D-4 Cc of letter dt: 11-6-1979 Ex.D-5 Letter of taking possession of acquired land dt: 11-4-1978 Ex.D-6 Cc of mahazar dt: 15-11-1978 Ex.D-7 Cc of another mahanazar dt: 15-11-1978 Ex.D-8 Cc of javabu dt: 15-11-1978 Ex.D-9 Cc of Memo dated 14-11-1978 Ex.D-10 Cc of letter dt: 17-04-1978 (R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE. 31 OS No.2408/2008 ORDER The suit of the plaintiff is dismissed. No costs. Draw decree accordingly. (Vide separate Judgment) (R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.