Bangalore District Court
O.S./3964/2015 on 16 April, 2022
/ 1 / O.S.No.3964/2015
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 16th day of April, 2022.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 3964/2015
Plaintiff :-
Purushotham Lal Nagar S/o.Maghraji
Nagar, 55 Years, R/o.No.1058/1,
Dharmarajaswamy Temple Street,
Nagarthpet Cross, Bengaluru- 560 002.
[By Sri.N.R.Naik., Advocate]
/ VERSUS /
Defendants :-
1. The Commissioner, Bruhath Bangalore
Mahanagara Palike, Hudson Circle,
Bangalore.
2. The Commissioner, Bangalore
Development Authority, K.P. West,
Bangalore.
(Sri.T.Jayaprakash, Advocate for D.1
/ 2 / O.S.No.3964/2015
Sri.C.S.S., Advocate for D.2)
*****
Date of Institution of the suit : 28.04.2015
Suit for permanent
Nature of suit : injunction
Date of commencement of
evidence : 20.03.2018
Date on which the judgment
: 16.04.2022
is pronounced
Years Months Days
Duration taken for disposal :
06 11 18
***
JUDGMENT
Plaintiff has filed the suit against the defendants for the relief of permanent injunction restraining the defendants, their officials, agents, representative or any person claiming under or through them from dispossessing the plaintiff and interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
2. The case of the plaintiff in brief is as under :
/ 3 / O.S.No.3964/2015 One M.Gopalappa had purchased the property bearing No.91, New No.11, measuring East - West 80 Feet, North - South 30 Feet, situated at 2 nd Stage, 2nd Cross, Sevashrama Ward No.26, Okalipuram, Bengaluru under registered Sale Deed dated 8.3.1990. As per sale deed, name of said Gopalappa was entered in the B.B.M.P. records and khatha was effected in his name and he has obtained the sanction plan for construction of building over the suit schedule property. Subsequently, he sold the suit schedule property to the plaintiff and his wife under registered Sale Deed dated 27.10.2004. As per sale deed, their names have been entered in the B.B.M.P. records and khatha have been effected. Subsequently they obtained modified sanctioned plan Vide No.L.P.No. 1125/2010-2011. While granting the sanctioned plan, the concerned authorities have verified all the documents pertains to suit / 4 / O.S.No.3964/2015 schedule property. After verification they have granted permission for construction of building over suit schedule property. The plaintiff obtained loan by mortgaging the suit schedule property from Vijaya Bank, Chickpet Branch, Bengaluru for construction of building over the suit schedule property. They have paid update tax.
3. Plaintiff further pleaded that defendant No.1 issued letter on 10.12.2010 calling upon the plaintiff to produce necessary documents pertains to suit schedule property for verification. While granting the permission for construction of building, the Assistant Director of Planning Authority issued an endorsement stating that the public interest litigation has been brought in W.P.No.16200/2005 stating that the area where the suit schedule property is situated is belongs to Corporation and it is reserved for Laxman Rao Park. In the said W.P. / 5 / O.S.No.3964/2015 some of the original owners have filed their objection stating that the sites were allotted under Ashraya Scheme as well as original land owners had sold the property. The said W.P. came to be disposed off with a direction to approach Civil Court for declaration of title. The plaintiff has already constructed residential building and residing in the said property. Defendant No.1 has assessed the tax and issued khatha in the name of plaintiff. Defendant No.1 issued direction on 24.4.2015 calling the plaintiff to appear before it and place the documents pertains to suit schedule property. Defendants have no right, title or interest over the suit schedule property , even then they are making false claim over the suit schedule property and are also trying to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property. Plaintiff is in settled possession, he cannot be / 6 / O.S.No.3964/2015 evicted except under due process of law. Hence, prayed for decreeing the suit.
4. In response to suit summons, defendants appeared through their counsels and have filed their written statement. The defendants have denied the claim of the plaintiff. Defendants specifically contended that plaintiff is not at all the owner in possession of the suit schedule property. Defendant No.1 further contended that the suit schedule property has been reserved for park, the plaintiff is claiming rights over the park area. The suit of the plaintiff is barred under Section 64 of B.D.A. Act. There is no cause of action to file the suit. B.D.A. has acquired land bearing Sy.No.67 measuring 19 guntas of Okalipuram Village in the year 1959 itself and Award has also been passed in favour of Noukari Inamathi Baravaradar. Plaintiff is claiming rights over the acquired land. This Court has no / 7 / O.S.No.3964/2015 jurisdiction to entertain the suit. Hence, the suit of the plaintiff is not maintainable. Accordingly, prayed for dismissal of the suit.
3. On the basis of the pleadings and documents of the parties, my predecessor in office has framed the following issues :
1) Whether the plaintiff proves that he was in peaceful possession and enjoyment of plaint schedule property as on the date of suit?
2) Whether the plaintiff proves the alleged interference by the defendants?
3) Whether the plaintiff is entitled for the reliefs of permanent injunction against the defendants as prayed for ?
4) What order or decree?
4. In order to prove his case, plaintiff himself / 8 / O.S.No.3964/2015 examined as P.W.1 and got marked documents as Exs.P.1 to P.9. While cross-examining P.W.1, the counsel for defendants confronted 3 sale deeds, layout plan, and photograph. Witness admitted the said documents. Accordingly those documents are marked as Exs.D.1 to D.5. In support of his case, plaintiff examined one Ali Mulla as P.W.2. Though this Court has granted sufficient opportunities to the defendants to adduce evidence, even then they failed. Hence, defendants' evidence is taken as nil.
5. Heard arguments and perused written arguments filed by the counsel for defendant No.1.
6. My findings to the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
/ 9 / O.S.No.3964/2015
Issue No.4 : As per final order, for
the following:
REASONS
7. Issue Nos.1 and 2 :- These issues are
interlinked with each other. Hence, in order to avoid
repetition of facts and evidence, they are taken up together for discussion.
8. Plaintiff has filed the present suit against the defendants for the relief of permanent injunction. In order to establish his case, plaintiff himself examined as P.W.1 and got marked documents Exs.P.1 to P.9. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed that one M.Gopalappa has purchased the property bearing No.91, New No.11, measuring East - West 40 Feet, North - South 30 Feet, situated at 2nd Stage, 2nd Cross, Sevashrama, Ward No.26, Vokalipuram, Bengaluru under registered Sale / 10 / O.S.No.3964/2015 Deed dated 8.3.1990. As per sale deed, khatha was effected in his name. The said Gopalappa obtained the sanctioned plan vide LP No.32-27-98. Subsequently, he sold the said property to the plaintiff and his wife Manju under registered Sale Deed dated 27.10.2004 as per Ex.P.1. Exs.P.2 to 4 are the certified copies of the Encumbrance Certificates. As per sale deed, their names have been effected in the records and khatha has been certified. Presently khatha certificate and khatha extract are standing in their names as per Exs.P.6 and P.7. He obtained the sanctioned plan for construction of building over the suit schedule property as per Exs.P.8 and 9. By mortgaging the suit schedule property, he has obtained loan from Vijaya Bank, Chikpet Branch, Bengaluru for construction of building over the suit schedule property and has constructed building over the suit schedule property. He paid / 11 / O.S.No.3964/2015 update tax as per Exs.P.5. While granting the sanctioned plan, the concerned authorities have verified the documents pertains to the suit schedule property and have granted the permission. While granting the permission, defendant No.1 has issued letter dated 10.12.2010 calling upon him to produce necessary documents pertains to suit schedule property. The Assistant Director of Planning Authority issued an endorsement stating that the public interest litigation has been brought in W.P.No.16200/2005 stating that the suit schedule property is situated in Laxmanrao Park Area. The said W.P. has been resisted by the earlier owners. Subsequently, the said W.P. came to be disposed off with a direction to approach Civil Court for declaration. He has made huge investment and has constructed building in the suit schedule property. Defendants are no way concerned / 12 / O.S.No.3964/2015 with the suit schedule property, even then they are making obstruction to the possession of the plaintiff and are also trying to dispossess him from the suit schedule property. The acts of the defendants are illegal, high handed and unauthorised. Hence, prayed for decreeing the suit.
9. The defendants have denied the title and possession of the plaintiff over the suit schedule property. Once the defendants have denied the plaintiff's claim over the suit schedule property, the entire burden is upon the plaintiff to prove his rights over the suit schedule property.
10. Though P.W.1 claimed that he is the absolute owner in possession of suit schedule property, but in his cross-examination at page No.9 deposed that, about 100 years back B.D.A. has formed layout and suit / 13 / O.S.No.3964/2015 schedule property comes within the layout. He is having the said layout plan. Plaintiff has utterly failed to produce the alleged layout plan. Even the plaintiff has not pleaded in which survey number the suit schedule property has been carved.
11. P.W.1 deposed that he has purchased the suit schedule property from one Gopalappa, but has not produced the earlier title deeds in respect of suit schedule property. P.W.1 further deposed in his cross- examination at page Nos.10 and 11 that, at the time of purchasing the suit schedule property there was one old house and same was demolished in the year 2013-14 and new building has been constructed. But, the plaintiff has utterly failed to produce document in order to establish that there was residential house in the suit schedule property as on the date of Ex.P.1. - Sale Deed.
/ 14 / O.S.No.3964/2015
12. P.W.1 further deposed that he has constructed building over the suit schedule property by obtaining loan from the Vijaya Bank. Hence, the original sale deed pertains to suit schedule property is with the bank. P.W.1 in his cross-examination at page No.12 deposed that the mortgage deed in respect of the suit schedule property has been registered. If at all the plaintiff has constructed the building by obtaining loan from the bank by mortgaging the suit schedule property, there should be a mortgage deed to that effect. But, the Plaintiff utterly failed to produce iota of document to show that the suit schedule property has been mortgaged to Vijaya Bank. P.W.1 in his cross- examination at page No.12 further deposed that he has paid the entire loan amount to the bank. If at all the plaintiff has discharged the loan, definitely the bank authority will return the original sale deed to the / 15 / O.S.No.3964/2015 plaintiff. Plaintiff has utterly failed to produce original sale deed in respect of the suit schedule property.
13. PW.1 admitted in his cross-examination that Exs.D.1 to D.3 are the Sale Deeds pertains to suit schedule property. P.W.1 in his cross-examination at page Nos.16 and 17 deposed that suit schedule property has been carved in Sy.No.67 of Okalipuram. The said land has been acquired by the B.D.A., accordingly, notifications under Section 6(1) has been published on 4.6.1959. P.W.1 further admits that Ex.D.4
- Layout Plan pertains to Sy.Nos.65 to 69 of Okalipuram Village. On perusal of Ex.D.4 it reveals that said layout plan pertains to Okalipuram, II Stage, Bangalore. The said layout has been formed in Sy.No.65 to 69 of Okalipuram, Bangalore. On perusal of entire evidence of P.W.1, it reveals that the entire land bearing Sy.Nos.65 to 69 of Okalipuram Village has been acquired by the / 16 / O.S.No.3964/2015 then CITB in the year 1959 itself and layout has been formed and same has been allotted to various persons. Plaintiff being aware about the acquisition of the entire land bearing Sy.No.67 of Okalipuram has filed the present suit.
14. In support of his case, plaintiff examined one Ali Mulla as P.W.2. PW2 deposed that plaintiff is in possession of the suit schedule property. Though P.W.2 deposed in his examination-in-chief that plaintiff is in possession of the suit schedule property, but in his cross-examination at page No.4 deposed that, since 2004 he is working as a Manager in the plaintiff's shop. P.W.2 further deposed that he is not in a position to depose regarding the suit schedule property number, measurement and boundaries. If at all P.W.2 is having knowledge about the suit schedule property, definitely he would depose about the boundaries of the suit / 17 / O.S.No.3964/2015 schedule property. But, he failed to depose the same. On perusal of entire evidence of P.W.2, it reveals that, in order to help the plaintiff he is deposing false.
15. One more contention of the plaintiff is that adjoining properties owners have filed W.P. No.16200/2005 on the file of Hon'ble High Court of Karnataka. In the said W.P., the Hon'ble High Court of Karnataka directed the parties to approach the Civil Court for declaration of their title. As per directions of the Hon'ble High Court of Karnataka, Plaintiff has not filed comprehensive suit. Though the plaintiff being aware about the denial of his title over the suit schedule property, he has filed the suit for bare injunction.
16. In a decision reported in (2008) 4 SCC 594 (Anathulla Sudhakar Vs. P.Buchi Reddy (Dead) By LRs / 18 / O.S.No.3964/2015 and others), wherein the Hon'ble Apex Court held that, "If complicated question of title involved could be examined only in a title suit for declaration and for consequential reliefs and not in a suit for injunction simpliciter." The said decision is aptly applicable to the case in hand. Hence, the suit of plaintiff for bare injunction is not maintainable.
17. As discussed supra, P.W.1 unequivocally admitted that land bearing Sy.No.67 of Okalipuram Village has been acquired by B.D.A. under the B.D.A Act.
18. Plaintiff claims that, he is in possession of the suit schedule property, though the defendants have issued notifications under the B.D.A. Act for acquisition of land bearing Sy.No.67, but plaintiff is in possession of the suit schedule property. Plaintiff is in settled / 19 / O.S.No.3964/2015 possession, he cannot be evicted except under due process of law. Hence, suit is to be decreed.
19. Per contra, defendants contended that the land bearing Sy.No.67 of Okalipuram Village has been acquired by B.D.A., once the land has been acquired, the Civil Court has no jurisdiction to entertain the suit, hence, the suit of the plaintiff is not maintainable. Accordingly, prayed for dismissal of the suit.
20. In this case PW.1 himself in his cross- examination at page No.17 unequivocally admitted that, the land bearing Sy.No.67 measuring 19 guntas has been acquired by B.D.A. and notifications under Section 6(1) of B.D.A. Act has been issued and same has been published in the gazette. PW.1 himself admitted the acquisition of said land. It is well settled law that, admitted facts need not be proved. It is also / 20 / O.S.No.3964/2015 settled law that, admissions made in the evidence are the best admissions. In a decision reported in [2012] 8 Supreme Court Cases 516 (Ahmedsaheb [dead] by L.Rs and others Vs. Sayyed Ismail) wherein the Hon'ble Apex Court held that, "It is needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and same does not need any further corroboration". The said decision is aptly applicable to the case in hand. In this case also P.W.1 in his cross-examination unequivocally admitted that the land bearing Sy.No.67 of Okalipuram Village has been acquired by B.D.A. Plaintiff being aware about the acquisition of land bearing Sy.No.67 of Okalipuram Village has filed the present suit claiming that he is in possession of the suit schedule property.
21. Admittedly, the land bearing Sy.No.67 of Okalipuram Village has been acquired by B.D.A. On / 21 / O.S.No.3964/2015 perusal of contention raised by the defendants, it can be said that as per Section 9 of C.P.C. the Civil Court can try all the suits of civil nature unless the cognizance of such suit either expressly or impliedly barred by any other law for time being in force. But, under Land Acquisition Act special procedure is envisaged to effectuate public policy, the Government has got power to acquire property for public purpose. That, before acquiring property issuance of notice under Sections 4(1) and 6(1) of Land Acquisition Act is mandatory. 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 of Indian Constitution to the Hon'ble Supreme Court. Hence, it is clear from the scheme of the Act that Land Acquisition Act is a complete code in itself and thereby jurisdiction of the Civil Court to take / 22 / O.S.No.3964/2015 cognizance of the matter arising under Land Acquisition Act by necessary implication stood barred. The Civil Court thereby is devoid of jurisdiction. Thus, the Court lacks jurisdiction to decide the matter in issue, which is falling within the domain of Land Acquisition Act wherein remedy and relief both are provided.
22. Once the 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., B.D.A. Besides, there is a presumption under Section 16 of the Land Acquisition Act that once the land is acquired the possession vests with the acquisition authority.
23. That, in a decision of our own Hon'ble High Court reported in ILR 2007 KAR 5121 (M.B.Bettaswamy Vs. The Commissioner, Bangalore / 23 / O.S.No.3964/2015 Development Authority and another), wherein it is held that:-
"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."
24. In another decision reported in AIR 1996 SC 3377 (Tamil Nadu Housing Board Vs. A.Viswam [Dead by LRs]), the Hon'ble Apex Court held at para No.9 as under:
"It is settled law by series of Judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchanama by him/them and that would constitute taking possession of the land as it would be / 24 / O.S.No.3964/2015 impossible to take physical possession of the acquire land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land."
25. In the above said decisions, the Hon'ble Apex Court and Hon'ble High Court of Karnataka clearly held that, after passing of award, the land vests with the Government free from all the encumbrances, then the land owner thereafter cannot ask for restitution of possession even if land it is not used for the purpose for which it was acquired. The ratio laid down in the above decisions are aptly applicable to case in hand.
26. As discussed supra, plaintiff has admitted the acquisition proceedings, his only contention is that though the notifications have been issued, the possession vests with him and he is in settled / 25 / O.S.No.3964/2015 possession, he cannot be evicted except under due process of law.
27. In a decision reported in AIR 2012 SUPREME COURT 1727 in case of Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack documentary evidence Sequeria (Dead) through L.Rs, wherein the Hon'ble Supreme Court held at para No.81 as under :
"Due process of law : Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent / 26 / O.S.No.3964/2015 Court "
The said decision is aptly applicable to the case in hand.
28. It is well settled law that an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. Injunction may be granted even against the true owner of the property, only when the person seeking relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him, except in due process of law. The dispute regarding land acquisition is settled and it is held against plaintiff, under such circumstances the suit for permanent injunction is not maintainable against true owner.
29. That, in a recent decision of Hon'ble Apex Court reported in 2022 SCC OnLine SC 258 [Padhiyar / 27 / O.S.No.3964/2015 Prahladi Chenaji Vs. Maniben Jagmal Bhai (deceased) in which Hon'ble Apex Court held that, "Relief of permanent injunction against true owner cannot be granted when title in dispute is settled against plaintiff." The said decision is squarely applicable to the case in hand. Plaintiff cannot seek the injunction against the true owner.
30. It is well settled law that a person who approaches the Court for granting relief, equitable or otherwise is under a solemn obligation to candidly and correctly disclose all the material important facts which have bearing on the adjudication of the issues raised in the case. He owes a duty to the Court to bring out all the facts and desist from concealing or suppressing any material facts within his knowledge or which he could have known by exercising due diligence expected of a person of ordinary prudence.
/ 28 / O.S.No.3964/2015
31. It is a well settled principle of law that, in a suit for injunction, the plaintiff who is seeking the assistance of the court, he has to prove that as on the date of filing of the suit he is in possession over the suit property. If he fails to prove his possession he is not entitled for the relief of injunction. As discussed supra, the land bearing Sy.No.67 of Okalipuram Village, Bengaluru has been acquired by B.D.A. P.W.1 himself in his cross-examination admitted that entire land has been acquired by BDA in the year 1959 itself. Plaintiff being aware about the acquisition proceedings has filed the present suit. As discussed supra, once the land has been acquired, the Civil Court has no jurisdiction to entertain the suit.
32. That, in order to claim the relief of permanent injunction, the plaintiff has to establish his existing right over the suit schedule property. But, in this case, / 29 / O.S.No.3964/2015 plaintiff has failed to establish his existing rights and possession over the suit schedule property. As discussed above, as the plaintiff is not at all in possession over the suit property and it is shown that, defendant is in possession over the suit property, the question of alleged interference will not arise. Hence, I answer issue No.1 and 2 in negative.
33. Issue No.3:- As discussed on Issue Nos.1 and 2, plaintiff has utterly failed to prove his possession over the suit schedule property and the alleged obstruction by the defendants to his possession over the suit schedule property. Hence, plaintiff is not entitled for any relief. Accordingly, I answer Issue No.3 in the negative.
34. Issue No.4:- For the forgoing reasons, I proceed to pass the following:
/ 30 / O.S.No.3964/2015
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, this the 16th day of April, 2022).
(KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Purushotham Lal NJagar P.W.1 : Alimulla
2. List of documents exhibited for plaintiff :
Ex.P1 C/c Sale deed dt 27/10/2004
Ex.P2 C/c Encumbrance Certificate form
No.15 dated 14/12/2015
Ex.P3 C/c E.C form No.15 dated 5/11/2011
Ex.P4 C/c E.C form No.16 dated 26/9/2011
/ 31 / O.S.No.3964/2015
Ex.P5 Tax paid receipt dated 10/11/2012
Ex.P6 Khatha certificate dated 17/1/2015
Ex.P7 Khatha extract dated 17/1/2015
Ex.P8 Approved plan dated 19/4/2008
Ex.P9 Approved plan dated 28/10/2010
3. List of witnesses examined on behalf of defendants :
- NIL -
4. List of documents exhibited for the defendants:
- NIL -
Ex.D.1 : C/c of Sale Deed dated 28.3.1959
Ex.D.2 : C/c of Sale Deed dated 27.7.1959
Ex.D.3 : C/c of sale deed dated 8.3.1990
Ex.D.4 : C/c of layout plan of Sy.No.67
Ex.D.5 : photograph.
(KHADARSAB),
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***
/ 32 / O.S.No.3964/2015
16/04/2022
Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER Suit of the plaintiff is hereby dismissed with costs. Draw decree accordingly.
(KHADARSAB) 39th A.C.C.& S. Judge, Bangalore.