Bangalore District Court
In Os. 1. Sri. Anthonyswamy vs In Os. 1) The Coffee Board Employees on 18 January, 2023
KABC0A0042232005 KABC0A0038082004
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.17515/2004 C/w
O.S.No.8209/2005
Dated this 18th day of January 2023
O.S.No.17515/2004
Plaintiffs in OS. 1. Sri. Anthonyswamy,
No.17515/2004:- S/o Late Prakashappa,
Aged about 57 years,
R/at Vishwanath Nagendhalli,
R.T Nagar Post,
Bangalore-560032.
2. Sri. V. Prakash, S/o K.Varadaraju,Aged
about 55 years,
R/at No.8, 5th Main, 6th Cross,
Sanjayanagar, Bangalore-560094.
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3. Sri. Shekar Raju K.V,
S/o K. Venkata Narasaraju, Aged about
71 years, R/at No.37, 2nd Cross, R.M.V.
Extension, Bangalore-560080.
[By Sri. H.S. Ramamurthy, Advocate]
V/S
Defendants in OS. 1) The Coffee board employees,
No.17515/2004 :- House Building Co-operative Society,
Coffee Board Building,
Dr. B.R.Ambedkar Road,
Bangalore.
2) The Special land Acquisition Officer,
Bangalore North Taluk,
Vishweshwaraiah Towers, Podium Block,
3rd Floor, Bangalore-560001.
3 The Commissioner, Bruhath Bangalore
Mahanagara Palike (BBMP),
Head Officer, N.R Square, Hudson Circle,
Bangalore.
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4 The Commissioner, Bangalore
Development Authorisity (BDA)
T.Chowdaiah Road, Kumara Park West,
Bangalore.
5 Mrs. Renu Mukunda,
W/o Mukunda Rao.N.V,
Aged about 53 years,
B3 VARS Residency,
Bhuvaneshwarinagar,
Bangalore-560093.
6 Mr. K Venkataramanna,
S/o Late J Kariyappa,
Aged about 59 years,
No.334, 6th Main,
Srinivasanilaya,
Lakshmidevinagar,
Nandini Layout,
Bangalore-560096.
7 Mr. Sheshe Gowda,
S/o Sri. Dugge Gowda,
Aged about 53 years,
C/o Gangadharappa,
8/1, 1st D Main,
Behind Hebbal, Binny Mill,
Ganganagar Extension,
Bangalore-560032.
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8 G.M. Varsha,
D/o G.M Mallikarjuna,
Aged about 20 years,
R/at 4th Main,
St. Anthony Nagar,
Adjacent to Doffee Board Layout,
Bebbal, Kempapura,
Bangalore-560024.
9 Mr. R.V.Srinivasappa,
S/o Late Venkatarayappa,
Aged about 43 years,
R/at No.289/C, Behind Government
School, Bebbal, Bangalore-560024.
10 Mr. R.M Mohite,
S/o Late M.P. Mohite,
Aged about 50 years,
11 Mrs. Sheha A Jagdale,
W/o R.M Mohite,
Aged about 46 years,
Defendants No.10&11 are R/at No.D39,
USA Staff Quarters, Bebbal,
Bangalore-560024.
12 Mr. H.Ramakrishna,
S/o Late H.Hanumaiah,
Aged about 51 years,
R/at K 50/A, Maruthi Nilaya,
13th Cross, Laxminarayanapuram,
Srirampuram,Bangalore-560021.
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13 Mrs. B.H. Padmamma,
W/o B.R Ramgamatha,
Aged about 57 years,
R/at No.3439, 3rd Cross,
Gayathrinagar,
Bangalore-560012.
14 G.M Harsha,
Aged about 23 years,
S/o G.M Mallikarjuna,
R/at 4th Main, St. Anthony Nagar,
Adjacent to coffee Board Layout,
Hebbal, Kempapura,
Bangalore-560024.
15 Sri. Keshava Murthy,
S/o Late Govindappa,
Aged about 65 years,
R/at 25/1, 1st Cross,
Kempaiah Block,
Place Guttahalli,
Bangalore-560024.
16 Mr. Shashidhara. H.K,
S/o Mr. H.S Krishna Murthy,
Aged about 43 years,
R/at No.70/1, 2nd Floor,
East Park Road,
Malleswaram, Bangalore-560003.
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17 Sri. Narayana Rao,
S/o Late Sri. Bhageshwara Rao,
Since deceased represented by his Lrs
17a Smt. K Vani Sreenath,
D/o Late Sri. Karayana Rao,
W/o Sri. K Sreenath.
17b Mr. K. Sreenath,
S/o Sri. P.S. Krishnamurthy,
Aged about 41 years,
Both are residing at No.689/B,
Coffee Board Layout,
Bebbal, Kempapura,
Bangalore-560024.
17c Smt. K.Bharathi,
D/o Late Sri. K Narayana Rao,
Aged about 41 years,
W/o Sri. M. Amruthy Rao.
17d Sri. M. Amrutha Rao,
S/o Late M. Raghavendra Rao,
Aged about 43 years,
Represented by his GPA Holder,
Smt. K Bharathi,
Both are are residing at No.689/A,
Coffee Board Layout,
Hebbal, Kempapura,Bangalore-260024.
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18 Mr. Pankaj Patel,
S/o Late Praveen Bhati A Patel,
Aged about 51 years,
R/at Coffee Board Layout,
Kempapura,
Bangalore-560024.
19 Smt. Prema Iyengar,
W/o Late M.R.N.Iyenagar,
Aged about 57 years,
20 Sri. Bharadwaj.N,
S/o Late. M.R.N Iyengar,
Aged about 34 years,
Defendant Nos.19 & 20 are
R/at No.371-32,
13th Cross, Vyalikaval,
Bangalore-560003.
21 Sri. R.Paramashivaiah,
Since deceased represented by his LRs:
21a Sri.P.Kumaraswamy,
S/o Late Paramashivaiah, Major,
21b Sri. P. Basavaraj,
S/o Late Paramashivaiah, Major,
Both are R/at B.3,
VARS Residency,
Bhavaneshwarinagar,
Bengaluru-93.
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22 Smt. Geetha Prabhakar,
W/o Prabhakar,
Age Major,
R/at No.55, IV th Cross,
Raghavendra Colony,
Bangalore-560018.
23 Sri. S. Vishveshwaraiah,
S/o Venkataramana Karanth,
Aged Major,
R/at No.571, New Thippasandra,
HAL IIIrd Stage, Indiranagar,
Bangalore.
24 Smt.N. Parvathi Bai,
W/o Late. T. Narayana Rao,
Aged major,
R/at No.64, 5th Cross,
Iind Main Road, Sriramapuram,
Bangalore-560021.
25 Sri. M Shivaramaiah,
S/o Late M. Mallaiah,
Aged Major,
R/at Iind Main Road,
12th Cross, Valkiminagar,
Bangalore-560026
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26 Sri. T.K. Mahadevappa,
S/o Late Kulledevappa,
Aged Major,
R/at No.350, 5th Main,
10th Cross 4th Cross,
6th Main Road,
Padarayanapura,
Bangalore-560026.
27 Sri. S. Ragavan,
S/o T.A.Sampath Kumar,
Aged Major,
R/at No.75, 9th Main,
Coffee Board Layout,
Hebbal Kempapura,
Bangalore-560024.
28 Sri. P.V.Thomas,
S/o P.T George,
Age Major,
R/at C/o C.J.Xavier,
No.11, 1st Cross,
Church Road,
New Thippasandra,
Bangalore-560075.
29 Sri. D.Sundaramurthy,
S/o Doreswamy M.N,
Age Major,
R/at No.7, Pete Cheluvappa Steet,
Mureddyaplya,
Bangalore-560006.
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30 Sri. M.Hombaiah,
S/o D.Madduraiah,
Age Major,
R/at Chikkadevasandra,
Krishnarajapuram,
Bangalore-30.
31 Sri. Eijaz Ahmed,
S/o H.Abdul wahad,
Frazer Town,
Bangalore-560005.
[D-1 by Sri. PPS, D-4 by Sri. KSV, D5
to 20 by Sri. P.B. Raju, D-27 by Sri.
KVH, Advocates;
D2, 3, 21 to 26, 28 to 31 - Exparte]
O.S.No.8209/2005
Plaintiffs in OS. 1. Mrs. Renu Mukunda,
No.8209/2005 W/o Sri Mukunda Rao N.V,
Aged about 47 years,
B-3 VARS Residency,
Bhuvaneshwarinagar,
Bangalore-560003.
2. Mr. K Venkataramanna,
S/o Late Sri. J. Kariyappa,
Aged about 53 years,
No.334, 6th Main,
Srinivasanilaya,
Lakshmidevinagar,
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Nandini Layout,
Bangalore-560096.
3. Mr. Sheshe Gowda,
S/o Mr. Dugge Gowda,
Aged about 47 years,
C/o Gangadharappa,
8/1, 1st "D" Main, Behind Hebbal,
Binny Mill, Ganganagar Extension,
Bangalore-560032.
4. G.M. Varsha,
D/o Sri. G.M. Mallikarjuna,
Aged about 25 years,
Residing at 4th Main, St.Anthony
Nagar,
Adjacent to Coffee Board Layout,
Hebbal, Kempapura,
Bangalore-560024.
5. Mr. R.V. Srinivasappa,
S/o Late Sri Venkatarayappa,
Aged about 37 years,
Residing at No.289/C,
Behind Government School,
Hebbal,
Bangalore-560024.
6. Mr. R.M. Mohite,
S/o Late Sri. M.P.Mohite,
Aged about 41 years,
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7. Mrs. Snehalata A. Jagadale,
W/o Mr.R. Mohite,
Aged about 41 years,
Plaintiff 6 & 7 are residing at
N.D39,
UAS Staff Quarters, Hebbal,
Bangalore-560024.
8. Mr. H. Ramakrishna,
S/o Late Sri. H. Hanumaiah,
Aged about 45 years,
Residing at K50/A, Maruthi Nilaya,
13th Cross Laxminarayanapuram,
Srirampuram,
Bangalore-560021.
9. Mrs. B.H. Padamma,
W/o B.R. Ranganatha,
Aged about 51 years,
Residing at No.3439, 3rd Cross,
Gyathrinagar,
Bangalore-560021.
10. G.M. Harsha,
Aged about 29 years,
S/o Sri. G.M.Mallikarjuna,
Residing at 4th Main,
St. Anthony Nagar,
Adjacent to Coffee Board Layout,
Hebbal, Kempapura,
Bangalore-560024.
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11. Sri. Keshava Murthy,
S/o Late Sri Gavindappa,
Aged about 59 years,
Residing at 25/1, 1st Cross,
Kempaiah Block, Palace Guttahalli,
Bangalore-560003.
12. Mr. Shashidhara H.K,
S/o Mr. H.S. Krishna Murthy,
Aged about 37 years,
Residing at No.70/1, 2nd floor, East
Park, Malleshwaram,
Bangalore-560003.
13. Sri. Narayana Rao,
S/o Late Sri Bhageshwara Rao,
Aged about 67 years,
Residing at No.63, 11th Main,
Coffee Board, Layout, Bebbal,
Kempapura, Bangalore-24.
13(a) Sri. K. Sreenath,
S/o Sri. P.S. Krishnamurthy,
Aged about 41 years,
R/at No.689/B, Coffee Board
Layout,
Bebbal, Kempapura,
Bangalore-560024.
13(b) Smt. K. Bharathi,
D/o Late K. Narayana Rao,
Aged 43 years,
W/o Sri. M Amrutha Rao,
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13(c) Sri. M Amrutha Rao,
D/o Late M. Raghavendra Rao,
Aged 43 years,
Represented by his GPA Holder,
Smt. K.Bharathi
Both 13(b) & 13(c) Residing at
No.689/A, Coffee Board Layout,
Hebbal, Kempapura,
Bangalore-560024.
14 Mr. Pankaj Patel,
S/o Late Sri Praveen Bhai A.Patel,
Aged about 45 years,
Coffee Board Layout, Kempapura,
Bangalore-560024.
15 Smt. Prema Iyengar,
W/o Late Sri. M.R.N. Iyengar,
Aged about 51 years,
16 Sri. Bharadwaj N,
S/o Late Sri. M.R.N. Iyengar,
Aged about 28 years,
Plaintiff 15 and 16 are residing at:
No.371-32, 13th Cross, Vyalikaval,
Bangalore-560003.
[By Sri. P.B. Raju, Advocate]
V/S
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Defendants in 1) Sri. Anthony Swamy,
OS. S/o Late Sri Prakashappa,
No.8209/2005 :- Aged about 61 years,
R/at Vishwanath Nagenahalli,
R.T Nagar Post,
Bangalore.
2) Sri Arogya Swamy,
S/o Late Sri Prakashappa,
R/at Vishwanath Nagenahalli,
R.T Nagar Post,Bangalore.
3) The Coffee Board Employees House
Building Cooperative Society,
Represented by its Secreatary,
No.1/1, Dr. Ambedkar Veedhi,
Behind Coffee Board Buildings,
Bangalore-560001.
4) Sri. V. Prakash,
S/o K Varadaraju,
Aged about 43 years,
R/at No.8, 5th Main, 6th Cross,
Sanjayanagar,
Bangalore-560094.
5) Sri. Shekar Raju K.V,
S/o Sri. K Venkata Narasaraju,
Aged about 64 years,
R/at No.37, 2nd Cross,
RMV Extension,
Bangalore-560080.
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[D1, 4 & 5 by Sri. H.S.
Ramamurthy, D3 by Sri. PPS/SS,
Advocates;
D2 - Exparte]
-:oOo:-
Date of Institution of suit in
OS.No.17515/2004 18/12/2004
Date of Institution of suit in
OS.No.8209/2005 25/10/2005
Nature of Suits
Declaration, Possession,
In O.S. No. 17515/2004 Mandatory Injunction &
Permanent Injunction
In O.S. No. 8209/2005 Permanent Injunction
Date of the commencement of
recording of the Evidence in
23/09/2008
Both Suits
Date on which the Judgment
was pronounced in both
18/01/2023
Suits
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Years Months Days
Total duration in -18- -01- -00-
OS.No.17515/2004
Years Months Days
Total duration in -17- -02- -24-
OS.No.8209/2005
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
.
COMMON JUDGMENT
O.S. No. 17515/2004 was initially filed for bare
injunction and then converted into a suit for declaration
of title, recovery of possession and mandatory injunction
and permanent injunction. O.S. No. 8209/2005 is a suit
for bare injunction. Both these suits are clubbed as per
orders dated 23/08/2007 passed in O.S. No.
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17515/2004 and Common evidence is recorded in both
these suits.
2. In first round of litigation, both the suits were
disposed off by common judgment dated 01/03/2011 by
decreeing OS 8209/2005 against defendant No. 1 and 2
and dismissing O.S. No. 17515/2004 and the said
common judgment was set aside by Hon'ble High Court
of Karnataka in RFA 580 and 581/2011 by judgment
dated 03/11/2011 and the suits were remanded for fresh
disposal, by observing that, the BDA would be a
necessary party to contest the matter and the suits have
to be disposed off by looking into the relevant records
that is produced by the BDA as well.
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3. The rival cases of the parties may be summarized as
follows.
4. The case of the plaintiffs in OS 17515/2004 is that,
the total extent of survey No. 18/3 of Kempapura village,
Yelahanka Hubli, Bangalore North taluk is 8 acres 28
guntas and out of the said extent, Prakashappa was the
original owner of 1 acre 11 guntas of land in survey No.
18/3 of Kempapura village, Yelahanka Hubli, Bangalore
North taluk [suit schedule property in O.S. No.
17515/2004] having purchased the same under sale
deed dated 04/11/1955 from one Munivenkatappa. It is
their further case that after the death of Prakashappa,
his sons namely plaintiff No. 1 - Anthony Swamy and his
brother - Arogya Swamy inherited the said property. By
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way of family arrangement between the brothers dated
30/05/1977 the suit schedule property was allotted in
favour of plaintiff No. 1 (this fact about family
arrangement and allotment of property to plaintiff No. 1
is not pleaded in the plaint but forthcoming from the
recitals of the sale deed executed by plaintiff No. 1 and
his family members in favour of plaintiff No. 2 and 3).
Thereby the plaintiff No. 1 became absolute owner of the
suit schedule property. When things stood thus the
special land acquisition officer issued preliminary
notification dated 22/08/1988 for acquiring extent of 5
acres 10 guntas in the said survey No. and accordingly 5
acres 10 guntas was acquired for the benefit of defendant
No. 1 - Coffee Board Employees House Building
Cooperative Society. Neither in the preliminary
notification nor final notification nor award, the name of
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for plaintiff No. 1 or his brother or their father is reflected
which means that, their land measuring 1 acre 11 guntas
has not been acquired. The RTC has continued in the
name of the plaintiff No. 1 till 1996 - 97 and thereafter
discontinued by inadvertence. On the Eastern side of the
land belonging to plaintiff No. 1, the defendant No. 1
society is in occupation of 5 acres 10 guntas of land.
Therefore, the land of plaintiff No. 1 - suit schedule
property has not been acquired and not in possession of
defendant No. 1 society. When things stood thus, the
defendant No. 1 society who are required to restrict their
layout within the acquired 5 acres 10 guntas tried to
form layout in the suit schedule property belonging to
plaintiff No. 1 on 16/12/2004 and thereby they have
interfered with the possession of Plaintiff over the suit
schedule property.
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5. On basis of above pleadings the plaintiff No. 1 (sole
plaintiff at that time) filed O.S. No. 17515/2004 initially
for bare injunction to restrain the defendant No. 1 society
(sole defendant at that time), from forming layout in the
suit schedule property and interfering with plaintiff's
possession and enjoyment of the same. Thereafter
plaintiff No. 2 and 3 have impleaded themselves in the
suit as lis-pendens purchasers having purchased 25
guntas each of suit schedule property under 2 different
sale deeds dated 07/12/2006. After remand by Hon'ble
High Court of Karnataka, in terms of the directions of the
Hon'ble High Court of Karnataka that BDA is a necessary
party the plaintiff has impleaded defendant No. 2 to 4
namely, the special land acquisition officer, the
commission, BBMP and the Commissioner of BDA.
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Defendant No 5 to 20 impleaded themselves as the site
owners having been allotted sites formed in suit schedule
property by defendant No. 1 society. Thereafter, the
plaintiff has impleaded defendant No. 21 to 31 as the site
owners claiming to have been allotted or having
purchased site formed in suit schedule property. Apart
from impleadment of the above defendants, after remand,
the Plaintiffs amended the Plaint to incorporate the reliefs
of declaration of title and recovery of possession and
mandatory injunction to direct the defendants to
demolish the illegal construction put up by them on
portions of suit schedule property and hand over the
vacant possession thereof to the plaintiffs and thereafter,
the suit was again amended to incorporate declaration
that the various sale deeds executed by defendant No. 1
society in favour of defendant No. 5 to 31 and documents
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inter-se between the said defendants in respect of sites
formed in suit schedule property are not binding on the
plaintiff.
6. In said O.S. No. 17515/2004, the defendant No. 1 -
society and defendant No. 5 to 20/the site owners
claiming to be allottees of sites formed in suit schedule
property have filed detailed written statements denying
the plaint averments. On one hand, the defence is taken
that, the father of plaintiff No. 1 lost title to the land
purchased by him measuring 1 acre 11 guntas since the
same was sold in public auction for arrears of land
revenue and purchased by one Sanjeevappa and
thereafter, there is no registered document by which the
land was reconveyed to plaintiff No. 1 or his father or
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brother. On the other hand, the defendants also took up
the plea that the plaintiff No. 1 and his brother have
received compensation in respect of 1 acre 11 guntas of
land through their attorney holder - K.H. Manjappa and
therefore the plaintiffs cannot question the acquisition.
Anyhow, the common refrain throughout the written
statement of these defendants is that, the land
measuring 1 acre 11 guntas which was originally
purchased by father of plaintiff No. 1 and now being
claimed by the plaintiffs has been acquired and falls
within 5 acres 10 guntas of acquired land and thereby,
pleading that, the plaintiff cannot claim any portion of
said acquired land which is already formed into layout,
the above defendants prayed for dismissal of the suit.
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7. The Defendant No. 4 - BDA has filed written
denying all plaint averments except the fact of acquisition
of 5 acres 10 guntas of land and pleading that the BDA is
neither the proper nor necessary party in the suit.
8. On the basis of the above pleadings, the following
issues are framed in O.S. No. 17515/2004;
1) Whether the plaintiff proves his lawful
possession and enjoyment over the
schedule land measuring 1 acre 11 guntas
morefully described in the schedule, as on
the date of the suit?
2) Whether plaintiff proves alleged
obstructions?
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3) Whether plaintiff is entitled to the relief
claimed?
4) What order or decree?
Additional issues framed on 04/12/2015
1) Whether the plaintiff proves that
defendants are to be restrained from
forming layout in the suit schedule
property?
2) Whether the plaintiffs prove that they
are the absolute owners of suit schedule
property?
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3) Whether the plaintiffs prove that they
are entitled to recover possession of suit
schedule property from the defendant?
4) Whether the plaintiff proves that some
construction is made on the suit
schedule property without permission
and sanctioned plan are liable to be
demolished?
5) Whether the plaintiffs prove that they
are entitled to relief of declaration,
permanent injunction and mandatory
injunction as sought for in the plaint?
6) Whether the court fee paid on the plaint
is insufficient?
29
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
7) What order or decree?
Additional issues framed on 27/06/2022
1) Whether the plaintiff proves that various
sale deeds between the defendants in
respect of which declaration is sought in
prayer A-3 to A-26 are illegal, null and
void and not binding on the plaintiff?
2) Whether the defendant No. 5 to 20 prove
that plaintiff has not paid adequate court
fee on the prayer of declaration in respect
of the sale deeds stated in prayer A-3 to
A-26?
30
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Facts of O.S. No. 8209/2005
9. O.S. No. 8209/2005 is filed by the site
owners/allotees from society who are the defendant No.
5 to 20 in the other suit. The case of the plaintiffs in the
present suit is in consonance with their defence taken in
the other suit i.e. out of 8 acres 28 guntas of survey No.
18/3, 5 acres 10 guntas including the land of defendant
No. 1 and 2 - Anthony Swamy and Arogya Swamy sons of
Prakashappa measuring 1 acre 11 guntas has been
acquired and therefore the said defendants cannot claim
any right in the said land and in spite of the same, they
are trying to interfere with the possession of the plaintiffs
who are the lawful allottees from the society, of sites
formed in the said land. With these pleadings, OS
8209/2005 is filed for permanent injunction to restrain
the defendant No. 1 and 2 from interfering with plaintiff's
31
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
peaceful possession and enjoyment and the right of
ingress and egress of the suit schedule 'A' property from
the main road and to the respective Properties described
in suit schedule B and also for permanent injunction to
restrain the defendant No. 1 and 2 from interfering with
the peaceful possession and construction activities in
suit schedule Properties and to restrain defendant No. 1
and 2 from causing obstruction or disturbance of the
road & other common amenities of suit schedule 'A'
property.
10. The suit schedule 'A' property in the suit is the land
measuring 1 acre 10 guntas in survey No. 18/3, which is
being claimed by the Plaintiffs in the other suit and the
suit schedule B Properties are item No. 1 to 15 which are
32
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
individual sites formed in Suit Schedule 'A' Property,
allotted to the plaintiffs.
11. In this Suit, the society is impleaded as defendant
No. 3. Subsequently, the purchasers from plaintiff No. 1
who are the plaintiff No. 2 and 3 in the other suit,
impleaded themselves as defendant No. 4 and 5 in OS
8209/2005.
12. The defendant No. 1, 4 and 5 are sailing together
and have filed written statement in consonance with the
their case in the plaint in O.S. No. 17515/2004 i.e.
pleading that 1 acre 11 guntas purchased by Prakshappa
under the sale deed of the year 1955 is not subject
matter of acquisition, thereby, pleading that, the
33
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
plaintiffs who claim to be allottees from the society
cannot claim any right over the said land, defendant No.
1, 4 and 5 have prayed for dismissal of the suit. The
defendant No. 3 society has filed written statement
supporting the case of the plaintiffs.
13. On the basis of above pleadings, the following issues
are framed in O.S. No. 8209/2005:
1) Whether the plaintiffs prove that they are
in lawful possession and enjoyment of
their respective sites in schedule B
property formed in schedule 'A' property
as on the date of the suit?
34
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
2) Whether the plaintiffs prove alleged
obstructions by defendants with their
peaceful possession over the respective
suit sites?
3) Whether the suit in the present form is
not maintainable as contended by
defendant No. 1?
4) Whether the plaintiffs are entitled for
relief sought for?
5) What order or decree?
14. In the trial, in the 1st round of litigation, on behalf of
the plaintiffs in OS 8209/2005, PW 1 to 3 were examined
and they got marked Ex. P1 to P.130. On behalf of the
plaintiffs in O.S. No. 17515/2004, the plaintiff No. 2 of
35
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the said suit was examined as DW 1 and he got marked
Ex. D 1 to 21. The secretary of the society (which is the
defendant No. 1 in O.S. No. 17515/2004 and defendant
No. 3 in OS 8209/2005) was examined as DW 2 and he
got marked Ex. D 22 to 44.
15. After the remand of the suits, the DW 1 is further
examination in chief and then, he was designated as DW
1 (a) and he got marked Ex. D 45 to D. 73. The plaintiff
No. 4 in O.S. No. 8209/2005 was examined as PW 4 and
he got marked Ex. P131 to 173.
16. The evidence of the suit was far from complete and
PW 1 & PW 3 and DW 1 (a) were yet to be cross
examined.
36
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
17. At that stage, this court took note of the fact that,
from the cross-examination of PW 1 which was partly
recorded, it was evident that, entire suit is to be decided
only on the basis of documentary evidence, because, the
entire suit depends upon the question whether the land
of plaintiff No. 1's father has been acquired & whether it
falls within the 5 acres 10 guntas of acquired land. This
is a question to be decided solely on documentary
evidence and no amount of oral evidence will answer the
said question. Therefore, this court gave option to all the
contesting parties to submit memo as to whether they are
agreeable for adopting the procedure of disposal of the
suit only on the basis of documentary evidence to be
marked by consent, by expunging the oral evidence
already on record. Accordingly, all the contesting parties
filed memos on 01/08/2022 and 02/08/2022 accepting
37
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the said contemplated procedure and accordingly, this
court passed detailed order dated 06/08/2022 holding
that, both the suits shall be disposed off only on the
basis of the pleadings and documentary evidence of both
sides to be marked afresh by consent, by expunging the
oral evidence on record.
18. Accordingly, after the said orders, the documentary
evidence of both sides were marked afresh by consent
and in the said documentary evidence marked by
consent, on behalf of the plaintiffs in OS 8209/2005 (site
owners and allottees) Ex. P1 to 175 have been marked by
consent.
19. On behalf of the plaintiffs in O.S. No. 17515/2004
(original landowner and lis-pendens purchasers) Ex. D1
38
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
to D 21, D 45 to D 73 and D 78 to D 85 have been
marked.
20. On behalf of the Coffee Board Employees House
Building Cooperative Society [Defendant No. 1 in O.S. No.
17515/2004 & Defendant No. 3 in O.S. No. 8209/2005]
Ex. D 22 to D 44 and Ex. D 74 have been marked.
21. On behalf of the BDA [Defendant No. 4 in O.S. No.
17515/2004] Ex. D 75 to D 77 have been marked.
22. Thereafter I have heard both sides and perused the
records of the case.
23. My answer to the issues are as follows;
39
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Answer to Issues in O.S. No. 17515/2004
Issue No. 1 to 3: In the negative
Additional issues dated 04/12/2015
No. 1 to 6: In the negative
Additional issues dated 27/06/2022
No. 1 and 2: In the negative
Issue No. 4 and additional issue
Dated 04/12/2015 No. 7 : As per final order
Answer to Issues in O.S. No. 8209/2005:
Issue No. 1 & 2 : In the affirmative
Issue No. 3: Suit is Maintainable
Issue No. 4 : In the affirmative
40
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Issue No. 5 : As per final order, the
following;
:: REASONS ::
SHORT NOTE ON PROCEDURE ADOPTED FOR
DISPOSAL OF THESE SUITS
24. Before proceeding to deal with the merits of the
case, a short digression is necessary to explain the basis
of adopting the above procedure for disposal of the suit
i.e. by expunging the oral evidence and deciding the suits
only on the basis of pleadings and documentary evidence
to be marked by consent.
41
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
25. It is to be noted that, in suits involving immovable
properties, the rights of the parties have to be determined
mainly on the basis of documentary evidence because
normally rights to immovable properties can be created /
extinguished only by registered documents. In the case
on hand, as will be discussed infra, the most important
point to be considered is whether the 1 acre 11 guntas
being claimed by plaintiff No. 1 in O.S. No. 17515/2004
forms part of the 5 acres 10 guntas of land which has
been admittedly acquired or not. On this central question
depends answer to all the issues framed in both the
suits. The question whether a particular land has been
acquired or not is a question to be decided on the basis of
the documentary evidence alone and no amount of oral
evidence can answer the same.
42
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
26. It is for this reason, considering the above
peculiarity of this case and also considering that, there
are as many as 16 plaintiffs in OS 8209/2005 and if each
one of the plaintiffs steps into the box to depose, the
completion of their evidence itself will take No. of years
and this litigation may not see the light of the day in the
near future that, this court suggested to both sides
whether they are agreeable for disposal of both the suits
on the basis of documentary evidence alone to be marked
by consent, by expunging the oral evidence already
recorded.
27. This court in making the said suggestion was
fortified by the law laid down by Hon'ble Apex Court in
the case of Ramrameshwari Devi v. Nirmala Devi,
(2011) 8 SCC 249 : (2011) 4 SCC (Civ) 1 : (2011) 3 SCC
43
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
(Cri) 481 : 2011 SCC OnLine SC 874 at page 267,
wherein it is observed as follows;
52. The main question which arises for our consideration is
whether the prevailing delay in civil litigation can be curbed? In
our considered opinion the existing system can be
drastically changed or improved if the following steps are
taken by the trial courts while dealing with the civil
trials:
a. Pleadings are the foundation of the claims
of parties. Civil litigation is largely based on
documents. It is the bounden duty and
obligation of the trial Judge to carefully
scrutinise, check and verify the pleadings
and the documents filed by the parties. This
must be done immediately after civil suits
are filed.
b. The court should resort to discovery and
production of documents and interrogatories
at the earliest according to the object of the
Act. If this exercise is carefully carried out,
it would focus the controversies involved in
the case and help the court in arriving at the
truth of the matter and doing substantial
justice.
53. According to us, these aforementioned steps may help the
courts to drastically improve the existing system of
administration of civil litigation in our courts. No doubt, it
would take some time for the courts, litigants and the
advocates to follow the aforesaid steps, but once it is
observed across the country, then the prevailing system
of adjudication of civil courts is bound to improve.
(Emphasis Supplied)
44
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
28. Be it noted that, it is not necessary that every suit
goes through the same rigmarole of recording oral
evidence and lengthy cross-examination, if oral evidence
is found to be not necessary for determination of the
questions involved in that particular suit. There is
nothing wrong in adopting unique methods for disposal
of the suits, as long as the parties give their informed
consent for the same. In this regard, I find support from
the observations made by Hon'ble Madhya Pradesh High
Court in the case of Ram Sahai v. Jai Prakash, 1992
SCC OnLine MP 187 : 1993 MP LJ 273 : AIR 1993 MP
147 at page 277, as follows;
13. In Rosily Mathew v. Joseph, AIR 1987 Ker. 42 the parties
adopted a procedure for having their dispute resolved by
appointment of a commissioner with authority to get the
compound wall constructed at the expense of the appellant
and this was in deviation from the usual procedure of
resolving the disputes. Question arose whether such
procedure could legally bind the parties. It was held:--
45
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
"It is equally well established that if the Court with
the consent of the parties or with their acquiescence
departs from the usual course of procedure
(governing the case) and decides a question of fact,
the said decision is neither appealable nor
reviewable. The parties are bound by the order
which in the circumstances of the case partakes of
the character of a consent decree. 1896 AC 136,
AIR 1936 Mad 856, AIR 1957 Mad. 95 and AIR 1961
Andh. Pra. 71 (FB) followed."
I find myself in respectful agreement with the view so taken
by Kerala High Court. The principle is supportable by rules of
fair play and doctrine of estoppel. The parties have a right to
fight battle of wits in courts of law but they cannot be
accommodated playing games of hide and seek. 'Heads I win
and tails you lose' may be a rule of prudence but is certainly
not a rule of law. A litigant cannot be permitted to
challenge to his own advantage the validity of
procedure suggested or consented to by him on the
result thereof going against him.
(Emphasis Supplied)
29. It is in the light of the above peculiar facts of the
present case and the above well-settled propositions of
law that, this court suggested to both parties and all the
consenting parties filed memos agreeing to the procedure
to dispose off both the suits on the basis of documentary
46
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
evidence to be marked by consent and expunging the oral
evidence on record.
30. Accordingly I proceed to dispose off both the suits
on the basis of the above contemplated procedure, which
is in consonance with well-recognized judicial principles.
RECAPITULATION OF DOCUMENTARY EVIDENCE ON
RECORD
31. Since the present suits have been agreed to be
disposed off only on the basis of documentary evidence to
be marked by consent and on the basis of the pleadings,
by expunging the oral evidence on record, at this stage, it
is necessary to briefly survey the documentary evidence
on record, led by both sides.
47
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
32. On behalf of the plaintiffs in O.S. No. 8209/2005,
the documents at Ex. P1 to P175 have been marked. On
behalf of the plaintiffs in O.S. No. 17515/2004, the
documents at Ex. D1 to D 21, D 45 to D 73 and D 78 to
D85 have been marked. On behalf of the Coffee Board
Employees House Building Co-operative Society, which is
the defendant No. 1 in O.S. No. 17515/2004 and
defendant No. 3 in OS 8209/2005 the documents at Ex.
P 22 to 44 and Ex. P 74 have been marked. On behalf of
the BDA which is defendant No. 4 in O.S. No.
17515/2004 the documents at Ex. D 75 to 77 have been
marked.
48
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
33. The documents marked for the plaintiffs at Ex. P1 to
P175 are as follows.
34. Ex. P1 to 3 are respectively the preliminary
notification of acquisition, final notification of acquisition
and award. Ex. P4 is a sketch issued by SLAO showing
the location of the acquired portion of 5 acres 10 guntas
in survey No. 18/3. Ex. P5 is a communication issued by
the SLAO to the secretary of the society regarding
handing over of possession of 1 acre 11 guntas and 1
acre 10 guntas of land which has been acquired in survey
No. 18/3. Ex. P6 to P 34 are the various sale deeds
executed by society in favour of defendant No. 5 to 20
and other allottees in respect of sites formed in survey
No. 18/3. Ex. P 35 to 77 are the revenue records, tax
paid receipts, encumbrance certificates & sanctioned
49
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
building plans pertaining to the properties of defendant
No. 5 to 20 and other allottees of sites in survey No.
18/3. Ex. P 78 to 81 are the photographs relating to
sites formed in Sy. No. 18/3. Ex. P 82 is Mutation Order
No. 2/1989 - 90 under which the revenue records of 1
acre 10 guntas in survey No. 18/3 has been changed into
the name of plaintiff No. 1 in O.S. No. 17515/2004 on the
basis of the sale deed of the year 1955 in favour of his
father and also on the basis of the compromise in OS
2721/1983 . Ex. P 83 is a police complaint given by the
plaintiffs in OS 8209/2005. Ex. P 84 are the orders in
WP 21109 and 21110/1989 in respect of acquisition of
land of K. Vasudevaraju and Nanjaraju and it is produced
because it is on the basis of pendency of the said
litigation that BDA refused to approve the layout plan for
formation of sites in survey No. 18/3. Ex. P 85 is another
50
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
mutation order in respect of entire extent of survey No.
18/3 being changed the name of M. Sanjeevappa and it is
of the year 1963 - 64. Ex. P 86 to 88 are RTCs & record
of rights. Ex. P 89 & 90 are mutation orders. Ex. P 91
and 90 are RTCs. Ex. P 93 is the register of original suit
to show the disposal of OS 2721/1983. Ex. P 94 to P 107
are mutation orders & RTCs. Ex. P108 and 109 are the
mutation orders regarding change of the revenue records
of 2 halves of suit schedule property in favour of the
plaintiff No. 2 and 3 of O.S. No. 17515/2004. Ex. P 110 is
again an RTC. Ex. P 111 are photographs. Ex. P112 to
114 are the award notices issued under Section 12 [2] of
The Land Acquisition Act. Ex. P 115 is a document
regarding handing over of possession of 1 acre 19 guntas
in survey No. 18/3. Ex. P 116 is the certified copy of the
preliminary notification. Ex. P 117 to Ex. P129 are the
51
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
various documents relating to site of plaintiff No. 6 in
O.S. No. 8209/2005 including the receipt for payment of
betterment charges, sanctioned plan, electricity bill, tax
paid receipts etc. Ex. P130 are again photographs
relating to site and house constructed of said plaintiff No.
6. Ex. P131 is GPA executed by plaintiff No. 4 in favour of
her father - PW 4 authorising him to depose and
represent her, in the suit. Ex. P 132 is the sale certificate
10/05/1963 under which entire extent of survey No.
18/3 along with certain others are Sy. Nos. were sold in
public auction in favour of M. Sanjeevappa for arrears of
land revenue. Ex. P133 to 139 are certified copies of sale
deeds and partition deeds of other land owners of survey
No. 18/3. Ex. P140 is the certified copy of order in RA
42/1996 - 97 filed by another landowner against
Sanjeevappa challenging the orders of Tahsildar
52
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
regarding change of Katha. Ex. P141 to 144 are revenue
records and mutation orders. Ex. P145 is another copy of
the final notification. Ex. P146 to 172 are correspondence
between society and BDA seeking approval of modified
layout plan for approving formation of sites in survey No.
18/3. Ex. P173 is the orders of the land tribunal rejecting
the petition for grant of occupancy rights filed by
Prakashappa [the father of the plaintiff No. 1 in O.S. No.
17515/2004] against Sanjeevappa. Ex. P174 is order
sheet of the land tribunal in another petition filed by one
Bachanna against one Papaiah seeking occupancy rights
in respect of land measuring 1 acre 38 guntas of survey
No. 18/3. Ex. P175 is the certified copy of the judgment
in OS 4196/1994 filed by the society against one
Anthonappa s/o Arogyaswamy.
53
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
35. Insofar as the documents in D-Series are
concerned, on behalf of the plaintiffs in O.S. No.
17515/2004 the documents at Ex. D1 to D 21, D45 to D
73 and D78 to D85 are marked. These documents are as
follows.
36. Ex. D1 is the sale deed dated 07/12/2006, under
which half portion of the suit schedule property in O.S.
No. 17515/2004 has been sold by plaintiff No. 1 of the
said suit in favour of plaintiff No. 3 of the said suit. Ex.
D2 is the 11E sketch accompanying the said sale deed.
Ex. D3 is the building licence issued by the CMC for
putting up multi-storey building on property which is
subject matter of Ex. D1 sale deed. Ex. D4 is a sketch
issued by the SLAO denoting the portion of survey No.
18/3 which has been acquired. Ex. D5 to 14 are the self-
54
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
assessment forms and tax paid receipts in respect of the
tax paid by plaintiff No. 3 in O.S. No. 17515/2004. Ex. D
15 and 16 are 2 encumbrance certificates. Ex. D17 and D
18 are the preliminary and final notification of
acquisition. Ex. D 19 & 20 are the sanctioned plans
obtained by plaintiff No. 2 and 3 of O.S. No. 17515/2004
for putting up construction in the portions of survey No.
18/3 purchased by them. Ex. D 21 the sale deed dated
7/12/2006 executed by plaintiff No. 1 in favour of
plaintiff No. 2 of O.S. No. 17515/2000 for selling half
portion of suit schedule property in his favour.
37. Ex. D 22 to D 44 are the documents marked on
behalf of the society and hence recapitulated infra.
38. To continue with the documents marked for
Plaintiffs in O.S. No. 17515/2004,Ex. D 45 is again a
copy of the preliminary notification of acquisition & Ex.
55
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
D 46 is again a copy of final notification of acquisition.
Ex. D 47 is copy of the award which is already marked as
Ex. P3. Ex. D 48 is communication issued by BDA to
CMC not to issue sanctioned plan & other facilities to the
any of the sites formed in survey No. 18/3 because it is
formed without approval of layout plan. Ex. D 49 is the
certified copy of the judgment in RFA 580 & 581/2011
remanding the suits after the 1st round of litigation. Ex. D
50 to 65 are the certified copies of the affidavits of
defendant No. 5 to 20 who are also the plaintiffs in O.S.
No. 8209/2005 undertaking to remove the construction
put up by them on their respective sites in case it is
found that site allotted to them falls within the park area
or belongs to somebody else. Ex. D 66 is the letter written
by society to BDA seeking approval of modified layout
plan. Ex. D 67 is the sale deed dated 04/11/1955 under
56
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
which the father of plaintiff No. 1 has purchased suit
schedule property. Ex. D 68 and 69 are RTCs. Ex. D70
and 71 are mutation orders regarding change of Katha in
the name of plaintiff No. 2 and 3 of the basis of sale
deeds in their favour. Ex. P 72 is the letter of BDA dated
29/10/2011 not to form sites in survey No. 18/3. Ex. D
73 is copy of the modified layout plan. Ex.D 78 is the
akarband, Ex.D 79 is the Hissa Mojini, Ex.D 80 is the
Hissa Thippani, Ex.D 81 is the survey sketch, Ex.D 82 is
the atlas, Ex.D 83 is a partition deed dated 18/10/1968,
Ex.D 84 are RTCs and Ex.D 85 is MR register, ROR,
mutation order and index of lands.
39. Insofar as the documents marked for the society
which are at Ex. D 22 to 44 and Ex. D74 are concerned,
57
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Ex. D 22 is an RTC. Ex. D 23 is a sketch issued by the
SLAO showing the location of acquired land in survey No.
18/3. Ex. D 24 is a GPA and Ex. D 25 is affidavit,
purported to be executed by plaintiff No. 1 and his
brother in favour of K.H. Manjappa . However these
documents are stoutly denied by the plaintiffs in O.S. No.
17515/2004 and cannot be believed in the absence of
examining the power of attorney holder. Ex. D26 is award
notice. Ex. D 27 is again a sketch showing the location of
1 acre 10 guntas and 1 acre 11 guntas of acquired land,
whose possession has been taken over. Ex. D 28 is a
sketch showing the various portions of survey No. 18/3
which has been acquired. Ex. D 29 is communication
regarding taking over the possession of portion of
acquired land. Ex. D30 is a copy of final notification of
acquisition. Ex. D 31 to D 44 are correspondence
58
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
between the coffee Board Society and BDA in respect of
approval of modified plan. Ex. D 74 which is also marked
on behalf of the coffee Board society is an encumbrance
certificate.
40. Insofar as the documents marked for BDA, they are
at Ex. D 75 to 77 and they are respectively the modified
layout plan, letter of society to BDA and the letter of BDA
dated 29/10/2011 stating that as per the modified layout
plan there is no provision for formation of sites in survey
No. 18/3.
WHETHER THE SUIT SCHEDULE PROPERTY FORMS
PART OF ACQUIRED LAND
41. As noted supra, the main question involved in the
present suit and on the basis of which all the issues can
59
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
be easily answered is whether the land measuring 1 acre
11 guntas originally purchased by Prakashappa under
the sale deed dated 04/11/1955 is acquired or not.
42. It is the case of the plaintiffs in O.S. No.
17515/2004 (hereinafter referred to as original
landowner & their assignees) that said 1 acre 11 guntas
of land has continued in the possession of plaintiff No. 1
who sold the same to plaintiff No. 2 and 3 and it was not
the subject matter of acquisition and it does not fall
within the 5 acres 10 guntas of land which has been
acquired for the benefit of defendant No. 1 in O.S. No.
17515/2004 and defendant No. 3 in O.S. No. 8209/2005,
namely Coffee Board Employees House Building
Cooperative Society (hereinafter referred to as the
society). Per contra, it is the case of the society and the
allottees of sites from the society i.e. the plaintiffs in O.S.
60
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
No. 8209/2005 and defendant No. 5 to 20 in O.S. No.
17515/2004 (hereinafter referred to as site owners)
that said 1 acre 11 guntas of land was also subject
matter of acquisition and society has taken possession of
the same and formed layout therein and allotted 36 sites
formed in the said land to various persons and defendant
No. 5 to 31 in O.S. No. 17515/2004 are either the
allottees or assignees of such allottees.
43. If it is held that, the land measuring 1 acre 11
guntas originally purchased by Prakashappa and which
has devolved upon plaintiff No. 1 and his brother, is not
acquired, it follows that, neither the society nor the
alleged allottees from the society can claim any right, title
or possession over the same and consequently O.S. No.
17515/2004 will have to be decreed & the other suit will
have to be dismissed. On the other hand, if it is held that,
61
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
said land has also been acquired and possession of the
same has been handed over to the society, then, it means
that the original landowners or their assignees cannot
claim any right, title, much less possession over the same
and hence, O.S. No. 8209/2005 will have to be decreed &
the other suit will have to be dismissed.
44. Before I proceed to consider this important
question, it is necessary to consider another contention
of the society and its allottees which has been raised.
45. The society and its allottees have raised the
contention that, irrespective of whether the land of 1 acre
11 guntas has been acquired or not, the original owner
landowner cannot claim any right over the same for the
simple reason that, Prakashappa himself had lost title to
62
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the said land, since, the said land was sold for arrears of
land revenue and it was purchased by one Sanjeevappa
in the public auction and in this regard, reliance is
placed upon the sale certificate at Ex. P 132 which
discloses that the entire extent of 8 acres 28 guntas of
land in survey No. 18/3 was purchased by M.
Sanjeevappa S/o Muniswamappa. It is highlighted by the
society and its allottees that after the purchase of the
entire extent by said M. Sanjeevappa, there is no
registered deed executed by him in favour of either
Prakashappa or his sons. It is highlighted that, after the
said sale certificate at Ex. P132 which is dated
10/05/1963, the name of Prakashappa is not reflected in
the RTC and therafter, for the 1st time the name of
plaintiff No. 1 in O.S. No. 17515/2004 is reflected in the
RTC as per MR 2/89 - 90, which is on the basis of
63
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
judgment in O.S. No. 2721/1983. The register of original
suits pertaining to the said OS 2721/1983 is produced
and marked as Ex. P 93 which discloses that, the only
judgment passed in the said suit is that suit filed by M.
Sanjeevappa against the sons of Prakashappa has been
dismissed as withdrawn. Thereby, it is contended that,
on the basis of the said judgment, no title or right was
created in the land in favour of plaintiff No. 1 in O.S. No.
17515/2004 and when his father - Prakashappa lost all
title to the land when the land was sold to M.
Sanjeevappa in public auction for arrears of land
revenue and when there is no registered deed
reconvening the land to either Prakashappa or plaintiff
No. 1 in O.S. No. 17515/2004, it follows that, as of the
date of acquisition in 1988 - 89, plaintiff No. 1 did not
retain any land in survey No. 18/3.
64
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
46. This contention raised by the society and its
allottees cannot be accepted for the simple reason that,
the society and its allottees have themselves pleaded
that, compensation was paid to plaintiff No. 1 in O.S. No.
17515/2004 and his brother represented by their power
of attorney. This pleading is in written statement of the
society filed in O.S. No. 17515/2004 at paragraph 13
wherein it is pleaded that "the plaintiff and his brother -
Arogyaswamy have jointly executed 2 agreements dated
05/06/1989 in favour of the developer Sri Rajendra
enterprises with respect to the land measuring 1 acre 20
guntas in survey No. 18/3 (suit schedule property) and
received the total compensation of ₹ 1,55,250 by cheque
from the defendant society" [pleading paraphrased].
Similar pleading is found at Paragraph 11 of the
65
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
additional written statement of defendant No. 5 to 20 in
O.S. No. 17515/2004 dated 20/06/2022 wherein it is
pleaded that "on 4/10/1989 the plaintiff (plaintiff No. 1 in
O.S. No. 17515/2004) executed the GPA and affidavit in
favour of K.H. Manjappa being the representative of Coffee
Board Employees House Building Cooperative Society by
receiving the entire compensation amount of ₹ 1,56,250/=
through cheques in between 05/06/1989 and
04/10/1989 being the cost of suit schedule property and
handed over the possession of land to K.H. Manjappa and
in terms of the GPA plaintiff has stated that the land
measuring 1 acre 10 guntas in survey No. 18/3 i.e. Suit
Schedule Property is acquired already by government in
favour of society and plaintiff has authorized KH
Manjappa to receive the compensation amount and that
66
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the possession of the said land is handed over to K.H.
Manjappa on 04/10/1989 itself" [pleading paraphrased].
47. The execution of the said GPA in favour of K.H.
Manjappa and receipt of compensation is stoutly denied
by the original landowners & assignees. Even in the
award notice produced and got marked by the site
owners as Ex. P 112, it purports to show that the notice
was issued to Plaintiff No. 1 in O.S. No. 17515/2004
which was received on his behalf by his power of attorney
holder. Therefore, as per the case set up by the society
and allottees, the compensation was paid to plaintiff No.
1 and his brother and award notice was also issued to
Plaintiff No. 1 and his brother and the plaintiff No. 1 and
his brother had executed a GPA in favour of K.H.
Manjappa who was representative of the society.
67
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
48. The question of issuing award notice to Plaintiff No.
1 & his brother and pay compensation to them would not
arise if their father - Prakashappa had lost title to the
land in question as far back as in the year 1963. This
belies the contention of society and allottees that
Prakashappa lost title and possession under the sale
certificate at Ex. P132. Instead, it appears that,
notwithstanding the said sale certificate under which the
entire extent of survey No. 18/3 measuring 8 acre 28
guntas was sold in public auction in favour of
Sanjeevappa, the different land owners continued in
possession of their respective portions of the said survey
No. and it is for this reason that, in the year 1989,
according to the society, the compensation was paid to
plaintiff No. 1 & his brother towards 1 acre 11 guntas of
68
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
land which is the suit schedule property. The question
whether the society has proved the said receipt of
compensation by original land owners is considered infra,
but at this stage, by taking up the said plea by society
and allottees, it becomes clear that, the contention that,
in the year 1988 - 89 the plaintiff No. 1 and his brother
had lost all title and possession over suit schedule
property cannot be accepted and therefore, it is still
necessary to answer the question whether the 1 acre 11
guntas of land of plaintiff and his brother which they
inherited from their father - Prakashappa who purchased
the same under the sale deed dated 04/11/1955 which is
at Ex. D67, was subject matter of acquisition and falls
within the 5 acres 10 guntas of acquired land has to be
answered.
69
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
49. Before proceeding further, the contention that the
plaintiff No. 1 and his brother executed GPA in favour of
K.H. Manjappa and received the compensation through
him and therefore, this is conclusive proof that their land
has also been acquired, has to be stated only to be
rejected because, as already opined by the Hon'ble High
Court of Karnataka in the judgment in RFA 580 and
581/2011 while remanding the suits, the author of the
power of attorney or the person in whose favour it was
executed has not been examined before the court and
such being the case, it is not possible to accept the
genuineness of the said GPA when the said aforestated
K.H. Manjappa in whose favour, the power of attorney is
allegedly executed and who according to the aforestated
written statement averments was, in-fact, a
70
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
representative of the society has not been examined
before the court. Therefore, the contention that, the
plaintiff No. 1 and his brother have executed a GPA and
received compensation through the GPA, is not proved
and therefore, on this ground, it cannot be held that, the
suit schedule property in O.S. No. 17515/2004 is the
subject matter of acquisition.
50. However, having considered the entire material on
record and the documentary evidence marked by consent
by both sides, I am of the view that the suit schedule
property in O.S. No. 17515/2004 which is the property
which was originally purchased by Prakashappa now
being claimed by his son - plaintiff No. 1 is also part of 5
71
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
acres 10 guntas which has been acquired for the
following reasons.
51. Firstly, there is consensus amongst all the parties
that, what has been acquired is 5 acres 10 guntas out of
total extent of 8 acres 28 guntas of survey No. 18/3. This
is clear from reading of the pleading of both sides in the 2
suits. Further, it is admitted by the plaintiffs in O.S. No.
17515/2004 (original landowner and assignees) that
what has been acquired is Eastern portion of survey No.
18/3 and the Western portion is not acquired. This is
clear from reading the plaint averments at paragraph 5 of
O.S. No. 17515/2004 wherein it is pleaded that, SLAO
issued notification to acquire an extent of 5 acres 10
guntas out of 8 acre 28 guntas of survey No. 18/3 and
72
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the remaining land is left on the Western side of the said
survey No. i.e. the suit schedule property. In other
words, it is the categorical admission by the original
landowner [Plaintiffs in O.S. No. 17515/2004] that, land
on the Western side of the survey No. is not acquired
and it was only the land on the Eastern side that was
acquired. This is further fortified by the statement made
at paragraph 7 of the same plaint that, on the Eastern
side of suit schedule property, the coffee Board
employees House building cooperative society are in
occupation to an extent of 5 acres 10 guntas of land in
survey No. 18/3 which means that, 5 acres 10 guntas
which was acquired is on Eastern side of the survey No.
According to the society also, what has been acquired is
the Eastern portion of the survey No. and the Western
portion is not acquired. This is clear from a sketch
73
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
produced by the society and marked as Ex. D 28 which
shows the location of the acquired 5 acres 10 guntas. If
Ex. D 28 which is a crucial document is closely seen, it
reveals that, as admitted by the original landowner, what
has been acquired is the land on the Eastern side of
survey No. 18/3. In fact, said sketch shows the exact
location of 1 acre 10 guntas of plaintiff No. 1 & his
brother which is situated on the Eastern side of the
survey No. in between 1 acre 10 guntas to the north
which is shown to be under litigation and 1 acre
belonging to Antonyswamy son of Argoyappa to the south
and to its Eastern side is the 1 acre 11 guntas which is
the subject matter of the consent award (land of
Argoyaswamy s/o of Sandyagappa) and on the Western
side of the said land of plaintiff No. 1 is the unacquired
land in survey No. 18/3.
74
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
52. If the said sketch at Ex. D 28 is seen in
juxtaposition with the 11 E sketch at Ex. D2 which
reflects the 1 acre 10 guntas of suit schedule property
which has been sold by plaintiff No. 1 in favour of
plaintiff No. 2 and 3, it is crystal clear that, the location
of 1 acre 11 guntas of land belonging to plaintiff No. 1
and his brother as shown in Ex. D 28 sketch and the
location of land sold by the plaintiff No. 1 in favour of
plaintiff No. 2 and 3 is one and the same i.e. on the
Eastern side of survey No. in between the land under
litigation [on north] and the 1 acre to the South. As
already noted supra, the plaintiffs in O.S. No.
17515/2004 have categorically admitted that what has
been acquired is the Eastern portion of survey No. 18/3
and Western portion is not acquired. This is also in
consonance with the sketch at Ex. D 28 which shows
75
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
that it is the eastern portion which has been acquired.
According to the original landowners (plaintiffs in O.S.
No. 17515/2004) the suit schedule property being
claimed by them is in the Western portion of the survey
No. which has not been acquired [Paragraph 5 of Plaint in
O.S. No. 17515/2004]. However, the location of the land
being claimed by them is forthcoming from the 11E
sketch at Ex.D 2, under which plaintiff No. 1 has sold
said property in 2 halves to plaintiff No. 2 and 3. Ex.D 2
sketch is an admission by the Plaintiffs of O.S. No.
17515/2004 regarding the actual location of Suit
Schedule Property being claimed by them because it is
part of the 2 sale deeds executed by Plaintiff No. 1 in
favour of Plaintiff No. 2 and 3 respectively under which
Plaintiff No. 1 has sold the 2 halves of Suit Schedule
Property to Plaintiff No. 2 and 3 [the sale deeds are at
76
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Ex.D 1 and D21] and if the said 11E sketch is looked
into, it is crystal clear that, in fact, the land being
claimed by the plaintiffs falls within the eastern half of
survey No. which has been acquired and the location of
the land sold as shown in Ex. D2 [11E sketch] perfectly
tallies with the location of acquired land of plaintiff No. 1
and his brother as shown in Ex. D 28 sketch issued by
the SLAO. From this, it can be conclusively held that, the
1 acre 11 guntas which is being claimed by the plaintiffs
in O.S. No. 17515/2004 has been acquired and it is part
of 5 acres 10 guntas of acquired land.
53. Apart from this, it is to be noted that, the
boundaries of suit schedule property and the boundaries
of the properties sold to plaintiff No. 2 and 3 by the
77
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
plaintiff No. 1 under sale deeds at Ex. D1 and Ex. D 21
do not tally with each other. As already noted supra, the
plaintiffs have admitted in the plaint in O.S. No.
17515/2004 that, it is the Eastern portion of survey No.
which is acquired and therefore, to bring the property
within the unacquired portion, the plaintiffs have been
forced to plead that, their land is in the Western portion
of the survey No. and to the East of the said land, the
society has formed layout and is in possession of 5 acres
10 guntas of land. Consequently, in the Plaint schedule
in O.S. No. 17515/2004, the Eastern boundary of suit
schedule property is shown as the property of defendant
No. 1 society. However when selling the same land of 1
acre 11 guntas (suit schedule property) in 2 halves to the
plaintiff No. 2 and 3 under the sale deeds at Ex.D 1 and
78
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
D21, the boundaries of the 25 guntas of land each sold to
plaintiff No. 2 and 3 are shown as follows;
Boundaries of 25 guntas of land sold to
plaintiff No. 3 under Ex. D 1 sale deed;
East by : Road
West by : Remaining portion sold to V
Prakash
North by : Coffee Board property
South by : Mr Suresh Property
Boundaries of 25 guntas of land sold to
plaintiff No. 2 under Ex. D 21 sale
deed;
East by : remaining portion sold to K.V. Shekar
Raju
79
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
West by : Mr. Shivaram's Property
North by : Coffee Board property
South by : Mr Suresh Property
54. Therefore, on comparison of the boundaries of the
plaint schedule property in O.S. No. 17515/2004 and the
boundaries of the property sold under Ex. D1 & Ex. 21 it
becomes clear that, in the plaint schedule, it is shown
that, the society Property is to the Eastern side, whereas,
in the sale deeds at Ex. D1 & D21 it is shown that society
property is to the northern side. As already noted supra,
it is admitted by the original land owner and his
assignees [Plaintiffs in O.S. No. 17515/2004] and also
forthcoming from the sketch at Ex. D 28 that entire
Eastern side of Sy. No. 18/3 has been acquired. If so, any
property to the South of acquired land in same Sy. No.
80
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
18/3, would also fall within the 5 acres 10 guntas of
acquired land. The boundaries as mentioned in Ex. D1
and Ex. D21 sale deeds read with 11 E sketch at Ex. D2
which accompanies Ex. D1 sale deed, clearly manifests
that the land of 1 acre 11 guntas being claimed by the
plaintiffs in O.S. No. 17515/2004 falls in Eastern portion
of survey No. 18/3 which falls within 5 acres 10 guntas
of acquired land.
55. On the basis of the above material on record, I have
no hesitation in coming to the conclusion that the suit
schedule property being claimed by the plaintiffs in O.S.
No. 17515/2004 has been acquired and falls within the 5
acres 10 guntas of acquired land.
56. Another reason for holding that, the suit schedule
property being claimed by the plaintiffs in O.S. No.
81
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
17515/2004 is part of the acquired land is that,
admittedly, as on date layout is formed in said land and
some of the site owners have also put up construction on
their respective sites. This is forthcoming from the
admission made by the plaintiffs in O.S. No. 17515/2004
in the amended plaint at paragraph 9 [d] that, "during the
pendency of the suit defendant society has allotted some
allottees put up construction on schedule property without
obtaining prior permission sanctioned plan in spite of
prohibition by BDA and violating the interim order of the
court". By the same amendment by which aforestated
Paragraph 9 [d] was incorporated into the Plaint, the
plaintiffs have incorporated, inter alia, the relief for
recovery of possession and mandatory injunction to
direct the demolition of illegal constructions put up on
the property. It is to be noted that, when the suit was
82
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
originally filed O.S. No. 17515/2004 was a suit for bare
injunction on the plea that, the plaintiff is in the lawful
possession of the suit schedule property measuring 1
acre 11 guntas out of survey No. 18/3. In the said suit by
orders dated 18/08/2005, IA No. 1 filed by the plaintiff
was allowed and temporary injunction was granted in
favour of the plaintiff (sole plaintiff at that stage) against
defendant society restraining the society from forming
layout on Western side of acquired land measuring 5
acres 10 guntas and society was restrained from
interfering with the peaceful possession and enjoyment of
suit schedule property by the plaintiff and it was made
clear that the injunction is not applicable to any portion
of 5 acres 10 guntas acquired under 4 [1] notification
dated 22/08/1988. The suit was filed in 2004 and above
injunction order was passed in 2005 and in the year
83
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
2015, IA No. 13 was filed for amendment of the plaint to
convert the suit into one for declaration, possession and
mandatory injunction which was allowed as per orders
dated 19/02/2015 and on 12/03/2015, additional court
fees of ₹ 2,34,300/= was paid by the plaintiffs. The
reason for adverting to these facts is to highlight that,
according to the plaintiffs in O.S. No. 17515/2004, the
plaintiff No. 1 was in possession of suit schedule property
measuring 1 acre 11 guntas when the suit was filed in
2004 and in 2005 itself, the plaintiff had the benefit of
the order of temporary injunction to restrain the
defendant society from forming layout and from
interfering with possession of the plaintiff over the suit
schedule property. In 2015, after nearly 10 years, the
application is filed to amend the plaint to plead that,
during the pendency of the suit and by violating the
84
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
interim injunction order, layout has been formed in Suit
Schedule Property and some of the site owners have put
up construction on the property, but, without specifying
when the layout was formed and when the interim order
was disobeyed. Therefore, when the plaintiffs have not
pleaded when they lost the possession subsequent to the
filing of the suit and instead, come up with the amended
pleading after 10 years that, after the filing of the suit,
the defendant society in violation of the interim order has
formed layout in the suit schedule property, without
specifying the date of formation of layout and without
bringing to the notice of the Court immediately regarding
the encroachment by society and formation of layout and
keeping in mind the fact that, layout cannot be formed
overnight, the only inference is that the plaintiff was the
never in possession of suit schedule property even as on
85
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the date of the suit and even as on the date of suit, it was
the society which was in possession of Suit Schedule
Property. This is another reason for holding that suit
schedule property also falls within 5 acres 10 guntas of
acquired land.
NAMES OF PLAINTIFF NO. 1 / HIS BROTHER /
FATHER / SANJEEVAPPA NOT STATED IN
ACQUISITION NOTIFICATIONS OR AWARD
57. At this stage, one contention vehemently argued by
the learned counsel for the plaintiffs in O.S. No.
17515/2004 that neither the names of the plaintiff No. 1
or his brother or even the name of M. Sanjeevappa is
reflected in the preliminary notification or final
86
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
notification or award and hence schedule property has
not been acquired, requires consideration.
58. Per contra, the contention of the counsels for the
society [Defendant No. 1] and its allottees [Defendant No.
5 to 20] is that, since, the land of father of plaintiff No. 1
- Prakashappa was sold in public auction as per Ex.
P132 in 1963 itself, the names of the plaintiff No. 1 or his
brother or father were not reflected in the RTC and
therefore there was no question of their names being
show either in the preliminary notification or final
notification and it is only in 1989 on the basis of MR
2/1988 - 89 that the name of plaintiff No. 1 was
incorporated for the 1st time in the RTC and therefore his
name is reflected in the award.
87
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
59. However, in this regard, the Learned counsel for the
plaintiffs in O.S. No. 17515 of 2004 is justified in arguing
that, if not the name of the plaintiff or his brother or
father, then at least the name of M. Sanjeevappa ought to
have been incorporated in the preliminary notification &
final notification, but it is not there.
60. In this regard I have looked into the preliminary
notification & final notification at Ex. P1 and P2 and the
award marked as Ex. P3. In the column No. 2 (Khatedars
column) or in column No. 3 (occupiers column) of
Preliminary notification at Ex. P1 the names for plaintiff
No. 1 or his brother or father or even M. Sanjeevappa is
not stated. So also in the column 2 and 3 of the final
notification at Ex. P2, the above names are not
mentioned. Even if the argument of the society and its
88
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
allottees are accepted that the names of plaintiff No. 1 or
his brother or father is not stated because their names
were not reflected in the RTC in view of the sale by public
auction of the land in favour of M. Sanjeevappa, at least
the name of M. Sanjeevappa should have been mentioned
which is conspicuous by its absence.
61. Now, let me consider the contention of the learned
counsels for society and allottees that, if not in the
preliminary and final notifications, at least, in the award,
the name of the plaintiff No. 1 is reflected. As already
noted supra, in respect of survey No. 18/3 there is
consent award for 1 acre 11 guntas of land belonging to
Arogyaswamy Son of Sandyagappa. The consent award is
only in respect of the said land of 1 acre 11 guntas and
89
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
therefore, obviously, the name of Plaintiff No. 1 cannot be
found there. Therefore it has to be seen whether in the
general award pertaining to remaining extent of 3 acres
39 guntas, the name of the plaintiff No. 1 is reflected. The
consent award is at page 21- 23 of Ex. P3. The general
award is at page 24 and 25 of Ex. P3. In this regard no
doubt, in the paragraph titled "Right, title and interest" of
the general award pertaining to survey No. 18/3 the
name of M. Sanjeevappa is mentioned as Anubhavadhar
[occupier] & the name of the plaintiff No. 1 -
Anthonyswamy is mention both as Khatedhar and
Anubhavadhar [occupier]. But the said names are
mentioned in respect of the title and interest in respect of
entire 8 acres 28 guntas of survey No. 18/3 and therefore
it is of no consequence and instead what has to be seen
is whether, the name of plaintiff No. 1 is mentioned in
90
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
respect of acquired land. In respect of the acquired land,
it is only the same names as mentioned in the
Preliminary and final notifications, which is stated & the
name of plaintiff No. 1 or his brother or father or even M.
Sanjeevappa is not mentioned in the award in respect of
the acquired land, at the paragraph 1 of page 24 of the
award at Ex. P3.
62. It was argued by Learned Counsel for the Plaintiffs
in O.S. No. 17515/2004 that, when the names of Plaintiff
No. 1 or his predecessor-in-interest is not mentioned in
the notifications and award, it means that, his land has
not been acquired.
63. While accepting the argument to the extent that,
their names are not mentioned in respect of the acquired
land in any of the acquisition notifications or the award, I
am unable to accede to the remaining portion of the
91
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
argument that, just because their names are not
mentioned, it means that, their land has not been
acquired. In this regard, it is to be noted that,
identification of the land which is acquired is a different
question and has to be answered on the basis of the
location of the acquired land. In case, the name of the
owner is not mentioned in the notifications or award,
that will be a ground to challenge the acquisition or to
seek compensation, but, mere non-mentioning of the
names will not immediately lead to the conclusion that
the land of the owner whose name is not mentioned in
the notifications or award is not at all acquired. As
already noted supra, on the basis of the admitted fact
that, what has been acquired is the Eastern portion of
the survey No. and the land being claimed by the
plaintiffs in O.S. No. 17515/2004 falls in the said
92
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Eastern portion of the survey No., I have already
concluded that the land being claimed by plaintiffs in
O.S. No. 17515/2004 is part of the acquired land of 5
acres 10 guntas. Now, if their names are not shown in
the notification or award that may be a ground to
challenge the acquisition [subject to law of limitation and
all just exceptions] or it may be a ground to seek
compensation from the government [again subject to law
of limitation and all just exceptions] but on the ground
that their names are not shown, the plaintiffs in O.S. No.
17515/2004 cannot change the location of the land being
claimed by them and say that, their land is on the Western
side of the survey No. or that their land is not part of the
5 acres 10 guntas which has been acquired. I find
support for this reasoning by the observations made by
the Hon'ble Apex Court in the case of State of
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C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Karnataka v. Narasimhamurthy, (1995) 5 SCC 524 at
page 526, as follows;
5. A reading of Section 3(1) clearly indicates
that if at any time the State Government has
the intention to acquire any land for the
purpose of providing house sites to the
weaker sections of the people who are
houseless, the State Government may, by
notification, give notice of its intention to
acquire such land. The notice as
contemplated under sub-section (1) per se
does not envisage to include the name of
the owner in the notification published
under sub-section (1) of Section 3 of the
Act. What Section 3(1) envisages is that
the notification should specify the
Government's intention to acquire the
land which is mandatory. Sub-section (2) of
the Act postulates that on publication of a
notification under sub-section (1), the State
Government shall serve notice upon the owner
or where the owner is not the occupier, upon
the occupier of the land and all such persons
known or believed to be interested therein, to
show cause within thirty days from the date
of service of notice as to why the land should
not be acquired. Therefore, when the
follow-up action is being taken under
94
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C/w O.S.No.8209/2005
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sub-section (2) of Section 3, notice shall
be served upon the owner or where the
owner is not the occupier, on the occupier
of the land and all persons known or
believed to be interested therein to show
cause as to why the acquisition should not be
proceeded with for the public purpose. In
other words, the opportunity shall be given to
the owner who is known by the entries in the
mutation proceedings or the occupier of the
land or person/persons known or believed to
be interested in the land. Admittedly, Houlabi
(the recorded owner) was given notice and
she did not appear. The mutation proceedings
did not contain the name of the first
respondent nor was it effected in the record.
Consequently, notice could not be issued to
the first respondent.
8. Under these circumstances, the High
Court was clearly in error in holding that
the notification published under Section
3(1) of the Act was vitiated by error of
law on account of omission to have the
name of the owner, viz., the first
respondent, published in the notification
under Section 3(1).
(Emphasis Supplied)
95
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
64. No doubt, the above observations were made with
reference to section 3 of the Karnataka Acquisition of
Land for Grant of House Sites Act, 1972. However, even
under section 4 of the Land Acquisition Act what is
required is to specify the land sought to be acquired and
it is not mandatory that the section 4 notification should
contain the name of the owner and occupier. In this
regard reference may be readily made to section 4 of the
Land Acquisition Act which is as follows;
Section 4 : Publication of preliminary
notification and powers of officers thereupon.--
(1) Whenever it appears to the appropriate
Government that land in any locality is needed
or is likely to be needed for any public purpose
or for a company a notification to that effect
shall be published in the Official Gazette and
in two daily newspapers circulating in that
locality of which at least one shall be in the
regional language and the Collector shall cause
public notice of the substance of
suchnotification to be given at convenient
places in the said locality [(the last of the dates
96
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
of such publication and the giving of such
public notice, being hereinafter referred to as
the date of publication of the notification.
65. Therefore merely because the name of the owner is
not mentioned in the notification, it will not vitiate the
acquisition itself nor will it mean that, said particular
land has not been acquired. Therefore, in order to identify
which is the land which has been acquired, the key to
answering the question is not to see whether the name of
the particular owner is mentioned in the notification but
to see whether from the description of the land, the said
land has been acquired or not. In the case on hand, from
the boundaries mentioned in the preliminary notification
and final notification, it is clear that what has been
acquired is the Eastern portion of the land bearing Sy.
No. 18/3, because, as per the boundaries, the Western
97
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
boundary of the acquired land is stated as remaining
portion of survey No. 18/3. As already noted supra, it is
admitted position that what has been acquired is the
Eastern portion of survey No. 18/3 and as per the 11E
sketch at Ex. P2 which is the document of the plaintiffs
themselves [Plaintiffs in O.S. No. 17515/2004] the suit
schedule land being claimed by the plaintiffs also falls
within the Eastern portion. Therefore, on this basis, I
hold that, the suit schedule property being claimed by
the plaintiffs in O.S. No. 17515/2004 has been acquired
and falls within 5 acres 10 guntas of acquired land,
notwithstanding the fact that, in the acquisition
notifications and award, the name of either the plaintiff
or his predecessor-in-interest, is not stated.
98
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
CONTENTION REGARDING ILLEGALITY OF LAYOUT
IN SY. NO. 18/3
66. Before parting to answer the specific issues raised
in the present 2 suits, one of the question to be
considered is the contention of the plaintiffs in O.S. No.
17515/2004 that, the sites formed in the suit schedule
property by the society and allotted to defendant No. 5 to
20 are illegal, since, sites are formed without BDA
approval. In this regard, reliance is placed upon the letter
of BDA (which is produced and marked on behalf of the
BDA as Ex. D 77). Ex. D 77 is the letter of BDA dated
29/10/2011, wherein, it is stated that as per the
modified layout plan dated 15/04/1995 no sites are
permissible in the survey No. 18/3 & therefore the Coffee
Board Society was directed not to form sites contrary to
the approved BDA plan and in case such sites are formed
99
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
and allotted it will be at the risk and responsibility of the
society since such sites cannot be approved under law.
67. The BDA has also produced and got marked the
layout plan at Ex. D75 which also discloses that, in
survey No. 18/3, no sites are approved and it is only
reserved for Park area and another 1 acre 19 guntas is
considered as RFD (Reserved For Future Development)
land in view of litigation pending in OS 4196/1994. In
fact, the above documents are not in dispute because the
defendant No. 5 to 20/site owners have themselves
produced and got marked the same letter of BDA dated
29/10/2011 as Ex. P1 72. In fact the entire
correspondence between the Society and the BDA is
produced by the site owners and marked as Ex. P146 to
172 which shows that in spite of repeated requests of the
society to BDA to permit formation of sites in survey No.
100
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C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
18/3 the BDA has always reiterated that sites cannot be
formed contrary to the approved plan & the area in said
Sy. No. is reserved for park and civic amenity sites.
68. Based on these documents, it was argued by
Learned counsel for plaintiffs in O.S. No. 17515/2004
that, when according to the BDA, no sites can be formed
in survey No. 18/3 and it is reserved for civic amenity
and park area, there is no question of defendant No. 5 to
20 [Plaintiffs in O.S. No. 8209/2005] claiming to be
allottees of sites formed in said survey No.
69. Per contra, in the written arguments filed by society
at page 9, it is contended that although the society had
submitted the modified layout plan for formation of 36
sites in survey No. 18/3 (32 sites already formed and 4
101
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
additional sites) as per Ex. P 151, the BDA had kept the
proposal pending in view of pendency of litigations in WP
21109 - 21110/1989 and OS 4196/1994, however, both
the said litigations were disposed off long back and
therefore, it is contended that, after the court litigations,
the BDA approved the modified plan to the extent of 54
acres 19 guntas as per the resolution dated 19/03/2002
at Ex. P158 and directed the society to pay the required
fees as per Ex. P160 which has been duly paid and on
this ground the society contends that formation of sites
in survey No. 18/3 is proper and in accordance with law.
70. It is not possible to accept this contention of the
Society for the simple reason that, whereas according to
the written arguments of the defendant No. 1, the
formation of sites in survey No. 18/3 was approved in the
102
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
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resolution dated 19/03/2002, it is forthcoming from the
document at Ex. D 77 [also produced as Ex.P 172] that
as late as 29/10/2011 the BDA specifically directed
society not form sites in survey No. 18/3.
71. However, the fact remains that, admittedly sites
have been formed in survey No. 18/3 and the society has
executed sale deeds in favour of defendant No. 5 to 20
and other site owners in respect of the said sites which
are sale deeds produced and marked as Ex. P6 to P34 &
this fact of execution of sale deeds is also admitted in the
plaint in O.S. No. 17515/2004 by amending the plaint to
incorporate the prayers of declaration that the said sale
deeds between the society and allottees are null and void
and not binding on the plaintiffs. Apart from this, the
formation of the layout and formation of sites in suit
schedule property and construction of buildings on some
103
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
of the sites is also admitted by the amending the plaint
and incorporating paragraph 9 [d] in the plaint in O.S.
No. 17515/2004 and by seeking relief of recovery of
possession and mandatory injunction.
72. The question of legality or illegality of the sites
formed in survey No. 18/3 is beyond the scope of the
present suit because in the present suit the site
owners/Plaintiffs in OS 8209/2005 are not seeking
injunction against BDA but only seeking injunction
against the previous landowners namely defendant No. 1
and 2. Therefore once it is held that the suit schedule
property forms part of 5 acres 10 guntas of land which
has been acquired for the benefit of society and it is
admitted that sites have been formed therein and
104
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
constructions have also been made and when there is no
dispute between society and allottees, in that, both of
them are sailing in the same boat and society admits that
it has executed sale deeds in respect of sites in favour of
the allottees/plaintiffs in OS 8209/2005, it follows that,
the previous landowners cannot interfere with the
possession of the site owners/allottees in respect of land
which has already been acquired. Therefore, for the
purpose of the present suits, it is not necessary to decide
the question whether the sites are formed lawfully in
survey No. 18/3 and whether the sites are formed after
the proper approval from BDA because any judgment
passed in the present suits will only be injunction against
defendant No. 1 and 2 and the same will not come in the
way of BDA taking appropriate action in accordance with
105
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
law in case the sites are formed in violation of BDA plan
or contrary to law.
73. Having recorded the above findings, I proceed to
answer the specific issues raised in the suits as follows.
Issues in O.S. No. 17515/2004
Issue No. 1:
74. In view of the above discussion wherein I have held
that the suit schedule property being claimed by the
plaintiffs in the present suit is part of the acquired land
measuring 5 acres 10 guntas acquired for the benefit of
106
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
defendant No. 1 society and when it is clear as per the
document at Ex. P5 that, the possession of the acquired
land was taken over and handed over to the society it
follows that the plaintiffs in the present suit cannot be
held to be in possession of suit schedule property which
has already been acquired. In any event, even in the
plaint in the present suit, it is categorically pleaded that
the plaintiffs have nothing to do with the acquired land
measuring 5 acres 10 guntas. Such being the case, in
view of the above finding that the suit schedule property
being claimed by the plaintiffs is part of acquired 5 acres
10 guntas whose possession has been handed over to the
society and when the plaintiff themselves plead that they
have nothing to do with acquired land it follows that, it
has to be held that, plaintiffs have failed to prove their
lawful possession of suit schedule property as on the date
107
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
of the suit and accordingly issue No. 1 is answered in
the negative.
Issue No. 2 and 3:-
75. When the plaintiffs have failed to prove their
possession of the suit schedule property as on the date of
suit, it follows that, there is no question of the plaintiffs
proving alleged interference by defendants and there is
also no question of granting permanent injunction in
favour of the plaintiffs and hence, issue No. 2 and 3 are
answered in the negative.
Additional issues framed on 04/12/2015:
Additional Issue No. 1:
76. When I have already held that the suit schedule
property of 1 acre 11 guntas being claimed by the
plaintiffs herein is part of the 5 acres 10 guntas of land
acquired for the benefit of defendant society, the plaintiffs
108
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
do not have any right to seek to restrain the defendant
No. 1 from forming the layout in the suit schedule
property. No doubt, it is contended that, as per the layout
plan approved by BDA the land in Sy. No. 18/3 has to be
reserved for civic amenity and park, as forthcoming from
the document at Ex. D 77. However, it is for the BDA to
take action in case of any violation of the layout plan by
society and the Plaintiffs being the previous landowners
whose land has already been acquired do not have any
right to seek an injunction against defendant society from
forming the layout and accordingly this additional issue
No. 1 is answered in the negative.
Additional issue No. 2 to 5:
77. Once it is held that the suit schedule property forms
part of 5 acres 10 guntas acquired for the benefit of
defendant society it follows that, the Plaintiffs cannot
109
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
claim any title or claim to be the owners of suit schedule
property and also not entitled to recover possession of
same and nor are the plaintiffs entitled to seek
mandatory injunction in respect of constructions put up
on portions of the suit schedule property and
accordingly, Additional issue No. 2 to 5 are answered
in the negative.
Additional issue No. 6:
78. This issue is raised in view of the contention raised
by Defendant No. 5 to 20 that the court fee paid is
insufficient. In this regard it is to be noted that, originally
suit was for bare injunction and therefore the court fee of
₹ 25 was paid on the plaint. Subsequently the suit was
converted into one for declaration & possession and upon
110
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
the amendment being allowed, the plaintiffs filed fresh
valuation slip valuing the suit schedule property at Rs.
43,75,000/= and paid court fee on the said market value
under section 24 (a) of the KCF&SV act of ₹ 2,34,250/=
which is reflected in the order sheet dated 12/03/2015.
It is to be noted that, the said valuation of the suit
schedule property is arrived on the basis of the sale
consideration stated in Ex. D1 and D 21 under which
suit schedule property is sold as 2 half portions to
plaintiff No. 2 and 3. Therefore it cannot be said that said
valuation valuing the suit schedule property at Rs.
43,75,000/= is without any basis. According to the
defendant No. 5 to 20, the market value of the Suit
Schedule Property runs into crores of rupees. However in
this regard they have not produced any documents. The
sale consideration as mentioned in the sale deeds of
111
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
Defendant No. 5 to 20 cannot be considered because the
said sale deeds are in respect of sites formed by society
whereas the suit schedule property herein is shown as
agricultural land and therefore, in the absence of any
other material being on record, it cannot be held that suit
valuation assigned by the plaintiffs is improper.
Accordingly, it has to be held that, the plaintiffs have
properly valued the suit and also paid sufficient court fee
and accordingly, this additional issue No. 6 is
answered in the negative.
Additional issues framed on 27/06/2022
Additional issue No. 1:-
79. In view of the above discussion when I have already
held that suit schedule property is part of the acquired
112
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
land measuring 5 acres 10 guntas it follows that the
plaintiffs cannot have any grievance against the sale
deeds of society allotting the sites formed therein to its
members nor subsequent transactions between the
allottees and subsequent purchasers and therefore I hold
that plaintiffs are not entitled to declaration in respect of
the said documents in respect of the sites formed in suit
schedule property and accordingly I answer this
additional issue No. 1 in the negative.
Additional Issue No. 2:
80. This issue is framed in view of the contention raised
by defendant No. 5 to 20 that adequate court fee is not
paid on the reliefs of declaration in respect of the various
sale deeds. However it is to be noted that, plaintiffs are
113
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
not the parties to the said sale deeds and as per the law
laid down by Hon'ble High Court of Karnataka in the case
of K L Venugopal vs Smt Vimala K Venugopal [WRIT
PETITION NO.16065/2014(GM-CPC) dated 23.02.2018] :
2018 (3) KCCR 2280 , where the plaintiff is not a party
to the document it is not necessary for the plaintiff to
seek the cancellation of the document and it is sufficient
to seek mere relief of declaration and pay court fee of ₹ 25
thereon. Therefore, the contention that, Plaintiffs have to
pay the court fee on the market value of the properties
which are the subject matter of the various sale deeds
cannot be accepted and therefore it has to be held that
the court fee paid by the plaintiffs on the reliefs of
declaration at a-3 to a- 26 is proper and in accordance
with law and accordingly I answer additional issue No.
2 in the negative.
114
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
ISSUE NO. 4 AND ADDITIONAL ISSUE NO. 7:
81. In view of above findings and having answered
above issues, I hold that the suit in O.S. No. 17515/2004
is liable to be dismissed and accordingly these issues are
answered.
ISSUES IN O.S. NO. 8209/2005
Issue No. 1 :-
82. In this suit, the land bearing Sy. No. 18/3
measuring 1 acre 10 guntas is shown as schedule 'A'
property and the sites formed therein allotted in favour of
the various plaintiffs are described as schedule B
Properties. It is the case of the plaintiffs that the plaintiffs
115
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
are the allottees from the Defendant No. 3 - society, in
possession of their respective sites described in schedule
B which is formed in schedule 'A' property. In view of the
above discussion, i have already held that schedule 'A'
property which is the same as the Suit Schedule Property
in the other suit is in-fact part of acquired area
measuring 5 acres 10 guntas which has been acquired
for the benefit of society. There is no dispute between the
society and the plaintiffs herein in so far as the allotment
of sites to the Plaintiffs is concerned since the society is
supporting the plaintiffs herein and admitting that
society has executed sale deeds in respect of schedule B
sites formed in schedule 'A' property in favour of the
respectively plaintiffs herein. In fact, the prayer in
present suit is for injunction only against defendant No. 1
and 2 who are the original landowners. When the land
116
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C/w O.S.No.8209/2005
Common Judgement
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has already been acquired and possession has been
taken over and handed to society, as already held supra,
the original landowners cannot dispute the possession of
the society or the possession of the allottees from the
society. Accordingly, I hold that, the plaintiffs have duly
proved their possession over their respective suit
schedule B sites formed in schedule 'A' property as on the
date of the suit and accordingly, answer issue No. 1 in
the affirmative.
Issue No. 2:
83. Insofar as alleged obstruction by the defendants is
concerned, as already noted supra, injunction is being
sought only against defendant No. 1 and 2 and not
117
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C/w O.S.No.8209/2005
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against the remaining defendants. The manner in which
defendant No. 1 and the purchasers of defendant No. 1
namely defendant No. 4 and 5 have contested the present
suit by contending that, the Suit Schedule 'A' Property is
not portion of acquired land and seeking relief of
mandatory injunction to demolish the construction put
up by the Plaintiffs in their respective sites is sufficient to
infer their interference over the suit schedule B sites.
Insofar as defendant No. 2 is concerned, he is is ex parte
and not contested the suit. Accordingly, I hold that,
plaintiffs have proved this issue and proved interference
by the defendant No. 1 and 2 into the Plaintiff's
possession and enjoyment of suit schedule B sites and
accordingly, I answer Issue No. 2 in the affirmative.
118
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C/w O.S.No.8209/2005
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Issue No. 3:
84. This issue is framed in view of the plea raised by
defendant No. 1 regarding maintainability of the suit in
the present form. This contention is based upon mis-
joinder of parties and mis-joinder of causes of action.
However, this contention cannot be accepted because all
the plaintiffs have common cause of action against
defendant No. 1 and 2 since defendant No. 1 claims to be
the owner of entire suit schedule 'A' property in which all
the sites of the plaintiffs are formed. Therefore, there is
no misjoinder of cause of action or misjoinder of parties
and accordingly, the suit in present form is maintainable
and accordingly, this issue is answered.
119
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
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Issue No. 4:-
85. In view of having answered Issue No. 1 and 2
holding that plaintiffs have proved their possession of
suit schedule B sites and also interference by defendant
No. 1 and 2 to their possession, it follows that, plaintiff is
entitled to relief of permanent injunction as prayed for.
However the permanent injunction can be granted only in
respect of suit schedule B sites to protect the possession
of respective plaintiffs over their respective sites and no
injunction can be granted in respect of suit schedule 'A'
property since suit schedule 'A' property is no more in
existence having been acquired and converted into
layout.
86. Further it has to be clarified that injunction granted
is only against defendant No. 1 and 2 and will not come
in the way of BDA taking any action against suit
120
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
schedule B sites if the said sites are formed without BDA
approval and contrary to law. Subject to these
observations, I hold that plaintiffs are entitled for the
relief of permanent injunction to protect their possession
of Suit Schedule B Sites, against defendant No. 1 and 2
and anybody claiming through or under them which
includes defendant No. 4 and 5 who are the purchasers
from defendant No. 1 during the pendency of the suit and
accordingly I answer issue No. 4 in the affirmative.
Issue No. 5:-
87. Having answered issue No. 1 to 4 as above, I hold
that the suit in O.S. No. 8209/2005 requires to be
decreed in aforestated terms and accordingly this issue is
answered
121
O.S.No.17515/2004
C/w O.S.No.8209/2005
Common Judgement
KABC0A0042232005 KABC0A0038082004
88. In view of the above discussion and having
answered the issues as above, I proceed to pass the
following;
:: COMMON ORDER ::
O.S. No. 17515/2004 is dismissed, with cost.
Office to draw decree accordingly. O.S. No. 8209/2005 is decreed, with cost. Permanent injunction is granted restraining defendant No. 1 and 2 and anybody claiming through or under them (which includes defendant No. 4 and 5 who have purchased the 122 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 property from the defendant No. 1 during the pendency of the suit) from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of sites described in schedule B of the suit.
However, it is clarified that, this judgment will not come in the way of BDA taking any action in accordance with law against suit schedule B sites if said sites have been formed without BDA approval or in any other manner, in contravention of law.
Office to draw decree accordingly. The Original of this Judgment shall be kept in the file of O.S. No. 17515/2004 and copy 123 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 thereof shall be kept in the file of O.S. No. 8209/2005.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 18th day of January 2023] (Sri. Sudindranath. S) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFFS & DEFENDANTS IN BOTH SUITS
-NIL-
[Oral Evidence already recorded is expunged as per orders dated 06/08/2022] DOCUMENTS MARKED FOR PLAINTIFFS IN O.S. NO.8209/2005 / Defendant No. 5 to 20 in O.S. No. 17515/2004 :
P-1 4 (1) Notification 22.08.1988 124 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-2 6 (1) Notification 18.03.1989 P-3 Award passed by LAO 30.01.1990 P-4 Sketch prepared by Surveyor of SLAO 20.07.1991 (Anubhavadars) P-5 Letter dated 12.01.1993 Land handed 12.01.1993 over to Coffee Board by SLAO P-6 Sale Deeds of Site owners 29.10.2004 Certified copy of sale deed P-7 C.C of the Gift deed 30.10.2004 P-8 C.C of the sale deed 07.08.1993 P-9 C.C of the rectification deed 06.07.2000 P-10 C.C of the sale deed 24.04.1993 P-11 C.C of the rectification deed 12.09.2000 P-12 C.C of the sale deed 01.04.1993 P-13 C.C of the sale deed 05.02.2003 P-14 C.C of the sale deed 17.04.1993 P-15 C.C of the rectification deed 22.07.2000 P-16 C.C of the sale deed 11.04.2003 P-17 C.C of the sale deed 23.04.1993 P-18 C.C of the rectification deed 21.05.1993 P-19 C.C of the sale deed 21.05.2003 P-20 C.C of the sale deed 10.03.2003 P-21 C.C of the sale deed 06.06.2003 P-22 C.C of the sale deed 16.04.1993 125 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-23 C.C of the rectification deed 06.11.2000 P-24 C.C of the sale deed 26.09.2003 P-25 C.C of the sale deed 25.11.2004 P-26 C.C of the sale deed 01.09.2004 P-27 C.C of the sale deed 30.07.2002 P-28 C.C of the sale deed 19.02.2003 P-29 C.C of the sale deed 16.04.1993 P-30 C.C of the rectification deed 22.06.2000 P-31 C.C of the sale deed 07.04.1993 P-32 C.C of the rectification deed 22.06.2000 P-33 C.C of the sale deed 27.09.2003 P-34 C.C of the sale deed 27.09.2002 P-35 to Five Khata certificates P-39 P-40 to Seven tax paid receipts P-46 P-47 to 30 Encumbrance certificates P-76 P-77 Sanctioned Plan Issued by Byataranapura CMC (Mohite -Plaintiff Nos.5 & 6) P-78 to 4 Photographs P-81 P-78(a) to Negatives P-81(a) P-82 MR (2)/1989-90 25.08.1989 126 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-83 Police Complaint dated 23.10.2005 23.10.2005 P-84 Writ Petition No.21109 & 21110/1989 21.12.1993 Order P-85 MR 8/1963-64 16.03.1993 P-86& 2 pahanies P-87 P-88 C.C of RTC P-89 C.C of MR P-90 C.C of MR 3,4,5 P-91 & 2 pahanies P-92 P-93 C.C of Suit register extract of OS 2721/1983 P-94 C.C of MR 2/89-90 P-95 C.C of RTC P-96 C.C of MR 3/93-94 P-97 C.C of MR 4/96-97 P-98 C.C of RTC P-99 C.C of MR 1/2001-2002 P-100 C.C of RTC P-101 to 7 No C.C of RTC P-107 P-108 C.C of MR 4/2007-2008 P-109 C.C of MR 5/2007-2008 P-110 C.C of RTC P-111 Photographs 127 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-112 Award Notice 2 Acres 29 Guntas P-113 Award Notice 1 Acre 11 Guntas P-114 Award Notice 1 Acre 10 Guntas P-115 Handing over and taking over possession 11.05.1994 11.05.1994 of 1 Acre 19 Guntas Letter P-116 16/2 Gazette Notification - Xerox Plan for 11.05.1994 1 Acre 19 Guntas P-117 Notice by CMC P-118 Receipt towards payment of approval of plan P-119 Building licence issued by CMC P-120 Sanctioned Plan P-121 12 BESCOM Bills P-122 Tax paid receipts &123 P- Two Acknowledgment issued by BBMP 124&125 P- Two Tax paid receipts 126&127 P-128 Two more Acknowledgments issued by &129 BBMP P-130 37 Photographs P-130(a) Respective negatives P-131 GPA-Varsha to GM Mallikarjuna P-132 C.C Sale certificate Reg No: 1795(64-65) P-133 C.C Sale deed Sanjeevappa to 09.08.1965 128 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 Sandayagappa s/o Sowrappa 2-20G Reg No 3165/65-66 P-134 C.C Partition deed 4814 between sons of 18.10.1965 Sandyagappa (1) Sowrappa (2) Arogyappa (3) Daveedappa (4) Aralappa. 20 G, 30G, & 1A-10G P-135 C.C Sale deed 18235/80-81- Daveedappa 09.03.1981 to M.R Raju 0A-30G P-136 C.C Sale deed 18236/80-81- Aralappa to 09.03.1981 Vasudevaraju 0A-25G P-137 C.C Sale deed 18237/80-81- Aralappa to 09.03.1981 Narasaraju. 0A-25G P-138 C.C Sale Deed 2408/68-69 Sanjeevappa 15.11.1968 to Dodda Muniyappa and Chikka Muniyappa 1A-38G P-139 C.C Sale Deed 371/971-72 Dodda 26.04.1971 Muniyappa and Chikka Muniyappa to Papaiah P-140 C.C AC RA(N) 42 (96-97) 02.07.1999 P-141 C.C RR 284 P-142 C.C RR 356 P-143 C.C MR5(81-82) P-144 C.C MR3,4,5,6 P-145 Certified copy of 6(1) declaration 18.03.1989 P-146 C.C of letter from CBE CH Society 17.10.1992 requesting BDA to approve the re-revised plan for 55A-19G 129 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-147 C.C of letter from SLAO to CBE CH 12.01.1993 Society regarding handing over of 2A-21G of land in Sy No 18/3 of Kempapura, Yelahanka Hobli, Bangalore North Taluk P-148 C.C of letter of BDA meeting subject No 31.10.1992 450/1992 decided to approve revised plan for 54A-09G P-149 C.C of letter from CBE CH Society to BDA 26.08.1994 P-150 C.C of Letter from BDA to CBE CH 15.12.1995 Society- work order with approved revised plan.
P-151 C.C of letter from CBE CH Society to BDA 27.12.1995 requesting to approve the re-revised plan for 54A-19G P-152 C.C of letter from BDA to CBE CH Society 29.01.1996 P-153 C.C of letter from CBE CH Society to BDA 14.02.1996 with request to approve the re-revise plan including 1A-10 G in Sy No 18/3 of Kempapura P-154 C.C of letter from BDA to CBE CH society. 29.02.1996 P-155 C.C of letter from BDA to CBE CH society. 21.03.1996 P-156 C.C of letter from CBE CH society to BDA. 15.07.1998 P-157 C.C of letter from CBE CH society to BDA. 05.01.2001 P-158 C.C letter meeting proceedings of BDA 19.03.2002 Subject no: 101/2002 decided to approve re-revised plan for 54A-19G P-159 C.C of letter to commissioner 06.02.2004 Byatarayanapura CMC from BDA 130 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 P-160 C.C of letter from BDA to CBE CH Society 09.04.2002 to pay Rs 5,38,000/ P-161&P- C.C of Challan and Receipt for having 05.08.2004 162 fees paid to BDA Rs 3,56,900 P-163& P- C.C of Challan and Receipt for having 30.08.2005 164 fees paid to BDA RS 1,72,100/ P-165 C.C of Letter from BDA to CBE CH 22.09.2005 Society to pay the interest Rs 50,829/ P-166& P- C.C of Challan and receipt- the amount 22.09.2005 167 paid to BDA P-168 C.C of letter to Commissioner, 07.11.2005 Bytarayanapura CMC - Take action to remove the encroachments in the Park Area P-169 C.C of letter from BDA to CBE CH society 07.11.2005 P-170 C.C of letter from BDA to CBE CH society 26.12.2007 to submit a map by adopting Total Station Survey P-171 C.C of letter from CBE HB society to BDA 22.10.2011 P-172 C.C Copy of letter from BDA to CBE CH 29.10.2011 Society P-173 C.C of LRF 2469/75-76 proceedings with 17.10.1981 final order P-174 C.C of order sheet in LRF 2658/1976/77 P-175 C.C of Judgement in OS.No.4196/1994 131 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 DOCUMENTS MARKED FOR PLAINTIFFS IN O.S. NO. 17515/2004 AND DEFENDANT NO. 1, 4 & 5 IN O.S.NO.8209/2005 D-1 C.C of Sale deed of V Prakash 07.12.2006 document no 24767 /2006 D-2 C.C of Survey sketch (enclosed to sale deed) D-2 Relevant portions in EX-D-2 (a & b) D-3 C.C of sanctioned licence D-4 C.C of 18/3 Survey No sketch D-5 to C.C of Tax paid and SAS Form D-14 and letter D-15 to C.C of Encumbrance D-16 D-17 C.C of 4(1) Notification 22.08.1988 D-18 C.C of 6 (1) Notification D-19 Apartment Sanctioned Plan obtained by Prakash & Shekar Raju D-20 Apartment Sanctioned Plan obtained by Prakash & Shekar Raju D-21 C.C of Sale deed copy of 07.12.2006 Shekar Raju document no 24764/2006 D-45 to C.C of Gazette notifications D-46 132 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 D-47 C.C of Award copy 30.01.1990 D-48 C.C of copy of letter 06.02.2004 D-49 C.C of High Court order 03.11.2011 passed in RFA 580cw 581/11 D-50 to C.C of copies of affidavits D-65 D-66 C.C of copy of letter 15.07.1998 D-67 C.C of copy of registered sale deed D-68 C.C of Two RTC extracts & 69 D-70 C.C of Two Mutation extracts & 71 D-72 C.C of BDA Letter to the 29.10.2011 CBEBCS D-73 Modified Layout plan D-78 Akarbandh D-79 CC Hissa Mojini D-80 CC Hissa Tippani D-81 CC Survey Sketch D-82 CC Atlas D-83 CC Partition Deed dt.
18/10/1968
D-84 CC RTCs (6 Nos.)
D-85 CC MR Register, ROR, MR
11/1994-95, Index of Lands 133 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 DOCUMENTS MARKED FOR DEFENDANT NO. 1 IN O.S. NO. 17515/2004 AND DEFENDANT NO. 3 IN O.S.NO.8209/2005 D-22 CC of RTC for 1986-87 D-23 CC of Joint Survey Sketch of 12.12.1988 SLAO & ADLR for 5 Acres 10 guntas of Sy. No. 18/3 D-24 CC GPA 04/10/1989 D-25 CC Affidavit 04/10/1989 D-26 CC of Award Notice 12/12/1990 D-27 CC Survey Sketch 20/07/1991 D-28 CC Survey Sketch 20/07/1991 [Anubhavdars] D-29 CC SLAO Letter 12/01/1993 D-30 CC of 16 Gazette Notification 12/01/1993 D-31 CC Layout Sanction Letter of 15/12/1995 BDA D-32 CC BDA Letter 09/04/2002 D-33 CC BDA Letter 04/07/2002 D-34 CC of Letter to BDA 26/08/2002 D-35 CC of Letter to BDA 24/09/2002 D-36 CC of Letter to BDA 11/11/2000 D-37 CC BDA Letter 12/12/2002 D-38 CC BDA Letter 06/02/2004 D-39 CC of Letter to BDA 03/09/2004 134 O.S.No.17515/2004 C/w O.S.No.8209/2005 Common Judgement KABC0A0042232005 KABC0A0038082004 D-40 CC of Letter to BDA 22/09/2005 D-41 CC of Letter to BDA 22/09/2005 D-42 CC BDA Letter 22/09/2005 D-43 CC of Letter to BDA 30/11/2007 D-44 CC BDA Letter 26/12/2007 D-74 EC for 26 years from 01/04/1964 to 31/05/1989 DOCUMENTS MARKED FOR Defendant No. 4 IN O.S. NO. 17515/2004 D-75 Modified Layout Plan D-76 Attested copy of letter 22/10/2011 D-77 Attested copy of BDA Letter 29/10/2011 XIII ADDL. CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.