Bangalore District Court
Sri Gulab Jan N. S/O. Late Nanne Jan Saheb vs The Bangalore Development Authority on 10 November, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No. 25895 / 2009
Dated this the 10th day of November 2020
Plaintiff/s:- Sri Gulab Jan N. S/o. Late Nanne Jan Saheb,
aged about 60 years, R/at No.41, 5th cross,
Rahamathnagar, R.T.Nagar Post, Bangalore 32.
(Rep by Sri A.S.N. Advocate)
V/S
Defendant/s:- The Bangalore Development Authority,
represented by its Commissioner, Palace Road,
Bangalore.
Rep by P.R.Advocate)
Date of Institution of the suit 18/04/2009
Nature of the (Suit or pro-note, suit for declaration and Permanent Injunction
possession, suit for injunction, etc.)
Date of the commencement of recording of the Evidence. 25/01/2010
Date on which the Judgment was pronounced. 10/11/2020
Year/s Month/s Day/s
Total duration 11 06 22
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2
Judgment O.S.No.25895/2009
:J U D G M E N T:
The plaintiff filed suit against defendants for permanent injunction.
2) The brief facts of plaint averments is as under:
The plaintiff submits that he is the absolute owner of the suit schedule property mentioned below:-
SUIT SCHEDULE PROPERTY All that part and parcel of the house property presently comes under the Bangalore Mahanagara Palike property bearing Southern half portion of site Nos. 21, comprised in New CMC Khatha No.140/21, situated at Nagawara village Kasaba Hobli, Bangalore North Taluk, and previously comes under the limits of Byatarayanapura City Municipal Council Ward No.26, Nagawara village, Kasaba Hobli, Bangalore North Taluk, behind KEB, Bangalore and bounded on East by Site 3 Judgment O.S.No.25895/2009 No.12, West by Road, North by Remaining portion of the same site, South by site No.20.
The plaintiff further submits that originally the suit schedule property belongs to one Khatoon Bee. The said Khatoon Bee has acquired schedule property by virtue of registered family partition deed. The said Khatoon Bee died on 12/03/1969 leaving behind her three sons namely Chuna Mohammed Haneef, Mohammed Rahamathulla, Chunna Abdul Khuddus. These persons have sold the suit schedule property in favour of Abdul Raheem for sale consideration of Rs.7,20,000/- under registered sale deed dated: 18/01/2008 and Katha was changed in the name of Abdul Raheem in the records of CMC Byatarayanapura and Abdul Raheem has paid taxes to B.B.M.P. in respect of the suit schedule property under self assessment scheme. Subsequently the said Abbdul Raheem has sold the suit schedule property in his favour (plaintiff) for sale 4 Judgment O.S.No.25895/2009 consideration of Rs.7,20,000/- under the registered sale deed dated 01/09/2008. The KEB and BWSSBB have given power and water connections and all civic amenities are given to the suit schedule property. He has has valid title, legal right was transferred from original owner to the vendors of the plaintiff in turn to the plaintiff. The legal possession of the suit schedule property was delivered by the original owner to his vendor and in turn to him. He is in lawful possession and enjoyment of the suit schedule property. The State Government time to time has issued notifications for regularization of unauthorized construction in the Bangalore City, after collecting penalty from the unauthorized occupants for regularization of unauthorized construction. In fact his vendor has also submitted application for regularization of unauthorized construction and the same is pending consideration before the competent authority. The defendant has issued preliminary notification on 27/06/1979 followed by final notification dated 5 Judgment O.S.No.25895/2009 09/01/1985. But the possession was not taken by the B.D.A. The possession yet to remain with the owners of the land. Hence, the land was not vested with the B.D.A. For completion of land acquisition, three requirements are necessary one is notification, preliminary and final notification, passing of award and taking possession physically. In the instant case, no physical possession was taken and hence the acquisition proceedings are not completed. On 2/10/1998 the defendant authority has appointed three members committee consisting of Deputy Commissioner, Engineering Member, Town Planning Member, to inspect HBR I Stage along with Special Land Acquisition Officer to ascertain whether there is any possibility to develop the land and also to know about the built area. The three member committee after duly inspecting the each and every inch of the HBR 1 st Stage has submitted the report that some of the lands in HBR 1 st stage are fully developed or built area and the same is not possible 6 Judgment O.S.No.25895/2009 for formation of any lay out and they recommended for denotify the same after collecting penalty from the land owner. In the said report it is clearly stated that Sy.No.156/1 of Nagawara is a built up area and the same is not fit for formation of any lay out.
3. The plaintiff further submits that the defendant has not taken possession. Even Mahazar drawn by the defendant has clearly shown that possession is in respect of the suit schedule property was not taken. Mere mentioning in paper that the land was vested with the authority is not sufficient and it will not amount to take physical possession. The said possession is symbolic possession and not actual possession.
Hence the defendant is not in lawful possession or in physical possession. Hence the land was not vested with the defendant authority. When the defendant has not taken possession from the land owners, and leave alone to them or owner to enjoy them physically possession amounts to 7 Judgment O.S.No.25895/2009 admitting indirectly the possessionary title of the owners. As on the date of registration of sale deed, the Khatha stands in the name of the original owners. Hence he bonafide purchaser. The defendant at any point of time objected either continuous possession and enjoyment by the plaintiff or his vendors. The possession enjoyed by him and his vendors are continuous more than three decades. Hence the defendant has lost legal right, title and interest over the suit schedule property. His vendor has put up a structure by spending huge amount running several lakhs and his vendor has put up construction after obtaining necessary sanction plan from the competent authority. The defendant has not objected the Bangalore City corporation for change of Khatha in his (plaintiff) in all relevant revenue records. The documents clearly shows that he is in lawful owner and he is in lawful possession and enjoyment of the suit schedule property and he is in settled possession. The settled possession is extended over sufficiently long period and acquiesced is by 8 Judgment O.S.No.25895/2009 the true owner. He is in physical possession of the suit schedule property over sufficiently long period to the knowledge of the defendant. At the time of construction of the building the defendant has not raised any objection for the said construction. The said construction has taken place more than one year. Even the defendant has not taken any steps either by way of filing any suits or initiating any action against him for stopping of the construction. He purchased the suit schedule property as a bonafide purchaser from his vendors who were holding Khatha in their names. At the time of execution of registered document, the vendors were enjoying the possession and the same was delivered to him. The defendant neither objected the possession and enjoyment of the suit schedule property by the vendors nor by him at any time. The lawful possession enjoyed by his vendors delivered lawfully to him. His vendor possession and also his possession is adverse to the interest of the defendant also it extends till today. He and and his vendors 9 Judgment O.S.No.25895/2009 are in possession of the property more than three decades. Hence He has proved possessory title in respect of the suit schedule property. Hence he is in settled possession, which cannot be disturbed without due process of law. The plaintiff has acquired the site legally and after investing huge amount for construction of the building the defendant is taking law into own hands and attempted to demolish the building partly without due process of law, which is violative of rule of law and arbitrary. The plaintiff further submits that as per section 27 of the B.D.A. Act, if a layout is not formed within five years, then the entire scheme will be collapsed. Based upon that the defendant cannot claim any right or interest over the suit schedule property. The B.D.A. Act is nothing but social legislation but the said social legislation cannot take away the rights guaranteed under the constitution of India. On 04/02/2009 and 06/04/2009 the defendant made threats to demolish and dispossess him from the suit schedule property. The plaintiff 10 Judgment O.S.No.25895/2009 prays to declare his rights, interest, title over the suit schedule property as he is having possessory title and he is in settled possession.
4. The plaintiff further submits that daily prospective allottees are visiting the suit schedule property and the sites will be allotted by the defendant for his favourites. The officials of the defendant and special squad often visiting the suit schedule property for fraudulent demolition. The defendant has no right to interfere with the possession of the plaintiff. The cause of action arose on 04/02/2009 and on 06/04/2009 when officials of the defendant attempted to interfere with plaintiff's possession and enjoyment of the suit schedule property. The plaintiff prays to decree suit for permanent injunction restraining the defendant, his henchmen, servants, agents, officials or anybody claiming through them or any authority through them either from interfering with his peaceful possession and enjoyment of 11 Judgment O.S.No.25895/2009 the suit schedule property and also not to dispossess him from the suit schedule property and alienating or allotting the suit property to others and not to change nature of suit property.
5. The defendant filed written statement submitting that the suit of the plaintiff is not maintainable or on facts. The defendant denied plaint para Nos. 3 to 12. The defendant denied that the suit schedule property belongs to one Khatoon Bee, who acquired the said property in the registered partnership deed and after her demise her three sons Chuna Mohammed Haneef, Mohammed Rahamathulla and Chunna Abdul Khuddus inherited the said property and subsequently they have sold it to Abdul Raheem and said Abdul Raheem sold the suit property to plaintiff. The defendant vehemently denied that the plaintiff is the owner and lawful possession and enjoyment of the suit schedule property.
12
Judgment O.S.No.25895/2009
6. The defendant submits that the defendant authority had issued a preliminary notification for formation of Hennur-Bellary Road, I stage layout, vide Notification No.BDA//ALAO/S/11/78-79 dated 27/06/1978 and thereafter issued a final notification for the same vide No.HUD 567 MNX 84 dated 09/01/1986 and in both the preliminary and final notification indicates the names of Sreenivasa Rao, Appayyanna and this clearly indicates that neither the plaintiff nor her vendors were the lawful owners in possession of the suit schedule property. The defendant denied the allegation of the plaintiff that the suit schedule property was not taken by the defendant authority and still plaintiff is in possession of the suit schedule property. That after receiving final notification ALAO had initiated the land acquisition proceedings, against said Appanna S/o Muniyappa and an award was passed. During the proceedings, notice was served, Nagaraj Rao, Venugopalaswamy Temple Commitee, Susheela Bai, 13 Judgment O.S.No.25895/2009 Gayathri, Syed Salam Ahmed, Innayathulla Khan, Shah Zadi Bi, Mohammed Iyaz Krishnappa, Abdul Mazeed and Abdul Wajid appeared and they have filed application as interested persons and had also contested the matter. As such the defendant authority has directed to deposit the award in the Revenue deposit. Hence the defendant denied that defendant authority had appointed three members committee who had submitted a report recommending to denotify the suit schedule property. The defendant drawn the mahazar of the suit schedule property and taken possession of the suit schedule property in the year 1988 itself. After if the defendant is continued to hold the possession of the property. The suit of the plaintiff was filed for bare injunction is not maintainable as such his claim made as false that he has filed suit for declaration of title over the suit schedule property is highly irrelevant. The defendant had already taken possession of the suit schedule property and is in lawful possession and enjoyment of the 14 Judgment O.S.No.25895/2009 suit property. The plaintiff is not at all in possession of the suit schedule property. Hence plaintiff has failed to make out prima facie case and balance of convenience is in his favour and the cause of action shown is incorrect and court fee paid is insufficient. The defendant authority prays to dismiss the suit of the plaintiff with costs.
7. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff was in lawful possession of the suit schedule property as on the date of suit?
(2) Whether the plaintiff proved alleged interference?
(3) What decree or order?
8. The plaintiff examined as PW.1 and marked ExP1 to ExP12 and examined witnesses PW.2 and closed his side evidence. The defendant authority examined Anand S/o 15 Judgment O.S.No.25895/2009 Venkatappa, working as Superintendent, Additional Land Acquisition Section Bengaluru Development Authority as DW.1 and marked ExD1 to ExD7 and closed defendant's side evidence. .
9. The plaintiff and defendant counsel argued. Perused records.
10. My findings to the above Issues are as under:-
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) See final order for following:
:REASONS:
11. Issues No.1 & 2:
The plaintiff N. Gulab Jan S/o Late Nanne Jan Sabheb filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that House property bearing No.21, being 16 Judgment O.S.No.25895/2009 Southern portion, Old katha No.140, New katha No.223, property No.140/21, situated at Nagawara village, Kasaba Hobli, Bangalore North Taluk, behind KEB Bangalore, previously Byatarayanapura City Municipal counsel Ward No.26, Bangalore now comes under the limits of Bruhat Bangalore Mahanagara Palike, Bangalore measuring East to West 40 Feet, North to South 15 Feet in all measuring 600 square feet. Originally the suit schedule property belongs one Khatoon Bee. The said Khatoon Bee has acquired suit schedule property by virtue of registered family partition deed. The said Khatoon Bee died on 12.3.1969. She died leaving behind her three sons namely Chuna Mohammed Haneef, Mohammed Rahamathulla, Chunna Abdul Khuddus. These persons have sold the suit schedule property in favour of Abdul Raheem for sale consideration of Rs.7,20,000/-. The said sale deed was registered on the file of Sub-Register, Kachakaranahalli vide Book No.1, Register No.KCH-1-027000-2007-2008, stored in CD No.KCH DS dated 18/01/2008, Katha was changed in the name of Abdul Raheem. The CMC Byatarayanapura has entered the name of 17 Judgment O.S.No.25895/2009 Abdul Raheem in the assessment register. The said Abdul Raheem has also paid tax to BBMP in respect of the suit schedule property under self assessment scheme. Subsequently the said Abdul Raheem has sold the suit schedule property to him plaintiff for sale consideration of Rs.7,20,000/- on 01/09/2008 under registered sale deed.
12. The PW.1 further deposed evidence that the KEB and BWSSB have given power and water connections to the suit schedule property and also all civic amenities authorities have given all connections to the suit schedule property. All these documents produced by him clearly shows that the valid title, legal right was transferred from original owner to his vendors in turn to him. The legal possession of the suit schedule property was delivered by the original vendor to his vendor in turn to him. Hence he is in lawful possession and enjoyment of the suit schedule property. The State Government time to time has issued notification for regularisation of unauthorised construction in the Bangalore City after collecting penalty from the unauthorised occupants for regularisation of unauthorised construction. In fact 18 Judgment O.S.No.25895/2009 his vendor has also submitted an application for regularisation of unauthorised construction the same is pending consideration before the competent authority. The defendant has issued preliminary notification on 27/06/1979 followed by final notification dated 09/01/1985. But the possession was not taken by the BDA. The possession yet to remain with the owners of the land. Hence the land was not vested with the BDA. For completion of land acquisition, three requirements are necessary one is notification, preliminary and final notification, passing of award and taking possession physically. In the instant case no physical possession was taken, leave alone to enjoy the same with the land owners. Hence the acquisition proceedings are not completed. On 22/10/1998 the defendant authority has appointed three members committee consists of Deputy Commissioner, Engineering Member, Town planning member, to inspect HBR 1 state along with Special Land Acquisition Officer to ascertain whether is three any possibility to develop the land and also to know about the built area. The three member committee after duly inspecting the each and every inch of the HBR 1 st stage has 19 Judgment O.S.No.25895/2009 submitted the respect that some of the lands in HBR 1 st stage are fully developed or built area and the same is not possible for formation of any layout and they recommend for denotify the same after collecting penalty from the land owner. In the said report, it is cearly stated that Sy.No.156/1 of Nagawara is a built up area and the same is not fit for formation of any layout. The suit schedule property is situated in Sy.No.156/1 of Nagavara village. The defendant has not taken possession. Even Mahazar drawn by the defendant has clearly shown that possession is in respect of the suit schedule property was not taken. Mere mentioning in paper that the land was vested with the authority is not sufficient and it will not amount to take physical possession. The said possession is symbolic possession and not actual possession. Hence the defendant is not in lawful possession or in physically possession. Hence the land was not vested with the defendant authority. When the defendant has not taken possession from the land owners, and leave alone to them or owner to enjoy them physically possession amounts to admitting indirectly the possessionary title of the owners. As on 20 Judgment O.S.No.25895/2009 the date of registeration of sale deed, the khatha stands in the name of the original owners. Hence he is bonafide purchaser. The defendant at any point of time has objected either continuous possession and enjoyment by him and his vendors. The possession enjoyed by him and his vendors are continuous more than three decades. Hence the defendant has lost legal right, title and interest over the suit schedule property. His vendor has put up a structure by spending huge amount running several lakhs. That his vendor has put up construction after obtaining necessary sanction plan from the competent authority. The defendant has not objected the Bangalore city corporation for change of khatha in his favour and in all relevant revenue records. All these documents are clearly shows that he is lawful owner and in lawful possession and enjoyment of the suit schedule property. Hence his possession is settled one. The settled possession is extended over sufficiently long period and acquiesced is by the true owner. He is in physical possession of the suit schedule property over sufficiently long period to the knowledge of the defendant. At the time of the construction of 21 Judgment O.S.No.25895/2009 the building the defendant has not raised any objection for the said construction. The said construction has taken place more than one year. Even the defendant has not taken place more than one year. Even the defendant has not taken any steps either by way of filing any suits or intiating has not taken any steps either by way of filing any suits or initiating any action against me for stopping of the construction.
13. The PW.1 further deposed evidence that he has purchased the suit schedule property as a bona fide purchaser from his vendors who were holding khatha in their names. At the time of the execution of the registered document, the vendors were enjoying the possession and same was delivered to him. The defendant neither objected the possession and enjoyment of the suit schedule property by his vendors at any time. The lawful possession enjoyed by his vendors delivered lawfully to him. His vendor possession and also his possession adverse to the interest of the defendant and also it extends till today. He is in possession of the suit schedule property based upon the registered sale deed, khatha and all relevant revenue records 22 Judgment O.S.No.25895/2009 including he is paying tax to the concerned department. These documents clearly shows that he is having legal title and interest over the suit schedule property. He and his vendors are in possession of the property more than three decades. Hence he has proved possessory title in respect of the suit schedule property. Hence he is in settled possession. The settle possession cannot be disturbed without due process of law. He not only ascertained his title in respect of the suit schedule property but also he is in settled in possession and possessory title in respect of the suit schedule property to the knowledge of the defendant more than three decades. The Rule of law to the spinal card of democracy and is the foundation of democratic society. Nobody is upper hand to take law into their own hands, either to dispossess or demolish the building. When a law abiding citizen has acquired a site legally and after investing huge amount for construction of the building with hard earned money and defendant is taking law into own hands. Attempted to demolish the building partly without due process of law is violative of rule of law and arbitrary.
23
Judgment O.S.No.25895/2009
14. The PW.1 further deposed evidence that as per section 27 of the BDA Act if a layout is not formed within five years, then the entire scheme will be collapsed. Based upon that the defendant cannot claim any right or interest over the suit schedule property. The BDA Act is nothing by social legislation but the said social legislation cannot take away the rights guaranteed under the constitution of India. The impugned action of the defendant not only unwarranted nothing but taking away the fundamental rights guaranteed by the constitution. The suit schedule property is in dilapidated condition time to time the officials of the defendant often visit that suit schedule property threatened to demolish further and attempted to throw him from the suit schedule property but their efforts became futile. By virtue of the illegal activites of the defendant not only he suffered personally but the entire family members are suffered more compared to the others. That as per the directions of the Hon'ble High Court of Karnataka that he is in lawful possession and settle in possession, hence he has to be declare his rights, interest, title over the suit schedule property as a possessory title 24 Judgment O.S.No.25895/2009 and settle in possession by way of filing this suit. On 04/02/2009 the defendant authority partly demolished the suit schedule property again on 06/04/2009 at 10.30 a.m attempted to interfere, with great difficulty he saved his possession. That he and his vendor denied the title and possession in respect of the suit schedule property from the date of final notification issued by the BDA and also vesting the land with the BDA. He has purchased the suit schedule property and put up construction therein and further he has invested huge amount for construction of the building. If the defendant is allowed to do whatever they like then equity will alter, since he is owner and he has got right over the suit schedule property. Hence balance of convenience lies in his favour. Hence there is an imminent threat of danger of demolition to the suit schedule property. The defendant at any moment will encumber the suit schedule property in order to harass him with mala fide intention and in order to incur wrongful loss to me. He has made out prima facie case. The defendant has not made out prima facie case. The defendant has given proper statement that the demolished sites will be allotted 25 Judgment O.S.No.25895/2009 immediately. He is having valid right, title and interest over the suit schedule property. Daily the prospective allotees are visiting the said schedule property and by way of indirect methods, the sites will be allotted by the defendant for my favorites. The officials of the defendant and special squad often are visiting the suit schedule property for fraudulent demolition. The defendant in order to save the existing building. He has started for repairs of the wall. The officials unnecessarily interfering with his work. If it allowed definitely the entire building will collapse and he will be put to irreparable injury and loss. The injury cannot be compensated by any means. The defendant has no right to interfere with his peaceful possession. There is an imminent threat of dispossession him. There is having valid imminent threat of dispossession. He is having valid title and interest over the suit schedule property. The defendant has not right and title over the suit schedule property. The PW.1 prays to decree the suit as prayed in the plaint. 26
Judgment O.S.No.25895/2009
15. The plaintiff examined the witness PW.2/Narayana Murthy S/o Late Shamanna, he filed filed affidavit in lieu of examination in chief and deposed evidence that he know the facts and circumstances of the case. He know the plaintiff since last 20 years, the plaintiff has filed above suit against the defendant for permanent injunction and other consequential reliefs in respect of the suit schedule property. The suit schedule property was purchased by plaintiff from one Abdul Raheem in the year 2008. The said Abdul Raheem applied for change of katha in his favour and also paid tax to the CMC, Bytarayanapura. From date purchased of the suit schedule property plaintiff along with his vendors are continues possession and enjoyment of the suit schedule property. Even as on the date of the filing of the suit till today the plaintiff is in lawful possession and enjoyment of the suit schedule property. The plaintiff is in lawful possession and enjoyment of the suit schedule property from the date of the purchase of the suit schedule property till today. The plaintiff has paid tax to the concern revenue departments and also all the civic amenities 27 Judgment O.S.No.25895/2009 authorities have given power connection, water connection. The plaintiff and his family members are in possession of the suit schedule property more than several years. The plaintiff is having valid right and title and interst over the suit schedule property. That on 14/02/2009 at 10.30 AM the defendant authority attempted to interfere and to demolish the suit schedule property and with great difficulty the plaintiff along with he and also Afzal Pasha and others saved possession of the suit schedule property. Even now today the plaintiff is in lawful and peaceful possession and enjoyment of the suit schedule property. Hence there is a threat of demolition and dispossession of the property by the defendant authority without due process of law. The suit schedule property is not acquired by the Bangalore Development Authority. The entire area is fully developed and also existing building in the suit schedule property.
16. That Anand S/o Venkatappa Superintendent in Additional Land Acquisition Section, Bangalore Development Authority, Bengaluru examined as DW.1, he filed his affidavit in lieu of 28 Judgment O.S.No.25895/2009 examination in chief and deposed evidence that the above suit for permanent injunction is neither maintainable on facts nor on law and the same is liable to be dismissed in limine. That the suit schedule property comes under the land in Sy.No.156/1 of Nagavara Village, Bangalore North Taluk and this defendant authority being a statutory authority formed and developed the layouts in Bangalore City and provided basic infrastructure. The defendant authority has notified and acquired the land in Sy.No.156/1 of Nagavara Village, measuring 3 acre 28 guntas for formation of "Hennur Road and Bellary Road 1 st Stage Layout" and issued the preliminary notification No.BDA/ALAO/S/11/78-79, dated 27.06.1978 published in Karnataka Gazette dated 20.07.1978, followed by the final notification No.HUD 567 MNX 84 dated 09-01-1986. 16(2) Notification passed on 09/07/1991. That in pursuance of the notifications, the award in respect of the above said land was passed and the same was duly approved by the competent authority and the award is also passed. The possession of the and has been taken and handed over to the Engineering Section. 29
Judgment O.S.No.25895/2009 The layout has been formed and sites have also allotted to the General Public. Hence the suit schedule property is BDA property and the plaintiff has no right, title and interest over the suit schedule property.
17. The DW.1 further deposed evidence that after completion of the above acquisition proceedings, the suit schedule property vest with this defendant authority. Thus as on date of institution of the above suit the possession of the suit schedule property was already taken over by this defendant authority and as such the above suit is not maintainable and plaintiff challenged the acquisition proceedings and hence, the acquisition initiated by this defendant authority has become final and the same is valid under as per law. Hence the plaintiff has filed the above false, frivolous and baseless suit against this defendant and the same is liable to be dismissed. The DW.1 prays to dismiss the suit with costs.
30
Judgment O.S.No.25895/2009
18. The burden is on the plaintiff to prove his ownership and title and possession over the suit schedule property as on the date of suit. The plaintiff deposed the evidence as discussed above submitting that the original suit schedule property belongs to Khatoon Bee and she acquired the same property by virtue of registered partition deed and she died on 12/03/1969 leaving behind her three sons Chuna Mohammed Haneef, Mohammed Rahamathulla and chunna Abdul Khuddus. The said three persons have sold the said property to Abdul Raheem for sale consideration of Rs.720,000/- under registered sale deed and name Abdul Raheem is entered in the revenue records of CMC Byatarayanapura. Subsequently the said Abdul Raheem sold the suit schedule property to the plaintiff for Rs.7,20,000/- on 01/09/2008 and handed over the possession. The plaintiff contention that now he is in possession and enjoyment of the suit schedule property. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP12. The ExP1 is original 31 Judgment O.S.No.25895/2009 sale deed dated 01/09/.2008, it discloses that Abdul Raheem S/o late Abdul Raheem sold the suit schedule property in favour of plaintiff. The ExP7 Sale Deed dated 18/01/2008 discloses that 1. Chuna Mohammed Haneef 2. Mohammed Rahamathulla 3.Chunna Abdul Khuddus sons of KhatoonBee sold suit schedule property in favour of Abdul Raheem S/o late Abdul Salam. Thereafter one Abdul Raheem sold the suit property to the plaintiff.
19. The ExP2 is tax paid receipt by Abdul Raheem, ExP3 is self declaration assessment of property by Abdul Raheem, ExP4 is self declaration of property tax in Form No.3 issued by CMC Byatarayanapura discloses the name of Abdul Raheem S/o Late Abdul Salam as owner of property No.140/21 of Nagawara village. The ExP5 is encumbrance certificate of suit schedule property for the period from 01/04/1995 to 31/03/2004 and ExP6 is Encumbrance Certificate for the period from 01/04/2004 to 23/05/2004 32 Judgment O.S.No.25895/2009 wherein there is entry regarding the sale of suit schedule property by Chuna Mohammed Haneef and others.
20. The ExP8 is certified copy of the judgment in O.S. 15008/2001 of CCH 22, ExP9 is certified copy of the judgment and decree in O.S.No.25922/2009 of Addl.City Civil Court Bengaluru (CCH 29). The ExP10 is the certified copy of the Judgment in O.S.No.26317/2009 Addl.City Civil Court Bengaluru (CCH 22). The ExP11 is the certified copy of the Judgment in O.S.26245/2009 of City Civil Court Bengaluru (CCH 22). The ExP12 is certified copy of the Judgment in OS.No.26720/2011 of Addl.City Civil Court Bengaluru (CCH 21). The ExP8 to ExP12 are the certified copies of Judgments of Additional City Civil Courts Bengaluru filed by the plaintiffs of the said suits against the Bengaluru Development Authority Bengaluru. The said judgments are not applicable to the present case on hand. 33
Judgment O.S.No.25895/2009
21. The plaintiff has to prove his lawful ownership and possession over the suit schedule property. As per the defendant the Bengaluru Development Authority has acquired the entire land bearing Sy.No.156/1 of Nagawara vilage, Bengaluru north taluk for formation of Hennur- Bellary Ist stage layout and issue preliminary and final notification and also taken possession of the entire land. Hence the question of possession of plaintiff in the suit schedule property does not arise. The Superintendent of Additional Land Acquisition, Bengaluru Development authority examined as DW.1 and deposed in his evidence that in supports the oral evidence marked ExD1 to ExD7. The ExD1 is Authorization letter to the DW.1 issued by their Higher Officer for appearing before the court for the evidence. The ExD2 is Preliminary Notification No.BDA/ ALAO/S/11/78-79 dated 27/06/1978 discloses the land bearing Sy.No.156/1 measuring 38 acres 28 guntas of Nagawara village was acquired and it was belongs to 34 Judgment O.S.No.25895/2009 Srinivasarao, Appayyanna, ExD3 is Certified copy of final notification No. HUD 567 MNX 84 dated 9 th January 1985 passed by the Housing and Urban Development Secretariat regarding acquisition of land bearing Sy.No.156/1 of Narawar village and ExD4 Award copy discloses the name of Srinivasarao and Appayyanna are the notified khathedars of 3 acres 28 guntas. Out of which award passed relating to 2 acres 01 guntas of Nagawara village. The ExD5 is Mahazar drawn by the Assistant Executive Engineer, No.2 Sub-division, BDA Bengaluru U/S 6 of the Land Acquisition Act taking possession of the land bearing Sy.No.156 measuring 2 acres 01 guntas of Nagawara village. The ExD6 is Possession Certificate of the land bearing Sy.No.156/1 measuring 2 acres 01 guntas of Nagawara village regarding taking possession of the BDA. The ExD7 is copy of notice issued U/S 16(2) of Land Acquisition Act in the Karnataka Gazette intimating the holders of the land about acquisition of the lands of Hennur 35 Judgment O.S.No.25895/2009 village, Rajarakanahalli, of Nagawara village. Therefore, all the documents produced by the DW.1 marked at ExD2 to ExD7 discloses that an extent of 2 Acres o1 guntas bearing Sy.No.156/1 of Nagawara village was acquired by the BDA for formation of Hennur-Bellary Road.
22. The plaintiff in his plaint schedule mentioned the suit schedule property site No.21 comprises in new CMC katha No.140/21 situated at Nagawara village, Kasaba hobli, Bengaluru North taluk. The plaintiff contending that he has purchased the suit schedule property from previous owner Abdul Raheem under registered sale deed and he has obtained the suit property to register sale deed from the previous owner Chuna Mohammad Haneef and others and Chuna Mohammed Haneef obtained the said property from their mother by successon and said Khatoon Bee acquired the said property under the partition. But the plaintiff has 36 Judgment O.S.No.25895/2009 not produced documents standing in the name of Khatoon Bee acquired under the partition. The plaintiff has not produced the said partition deed under which Khatoon bee obtained the suit property and entered her name in the concerned revenue records relating to the suit schedule property and after he death name of her 3 sons Chuna Mohammed Haneef, Mohammed Rehamathulla, Chunna Abdul Khuddus appeared in the revenue records. Further the plaintiff has not produced any documents to show that his vendor name Abdul Raheem appeared in the record of rights. Further the plaintiff has not produced khatha extract and khata certificate issued by the BBMP Bengaluru standing in his name as on date of filing the suit because the plaintiff contending the suit schedule property is now comes under the jurisdiction of BBMP. Further the plaintiff has not produced the tax paid receipt of the suit schedule property by name from the date of filing the suit. Further the plaintiff has not clarified in which Survey Number Suit schedule 37 Judgment O.S.No.25895/2009 property formed the lay out plan of the suit schedule property and sketch of the suit schedule property is also not produced. Hence mere sale deed in the name of plaintiff is not sufficient to believe his version that he is absolute owner and in peaceful possession of the suit schedule property and defendant caused interference to the possession. Therefore the plaintiff failed to prove that he is in lawful possession of the suit schedule property as on the date of suit and defendant caused interference with his possession of the suit property. Hence the plaintiff is not entitle for the relief of permanent injunction as prayed in the plaint. The plaintiff failed to prove Issues No.1 and 2. Therefore I answer Issues No.1 and 2 in Negative.
23. Issue No.3:-
In view of above discussion I proceed to pass following:
:ORDER:38
Judgment O.S.No.25895/2009
The suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer,. Computerized by her, the corrected on line and then taken printout, corrected, signed and pronounced by me in the open court on this 10 th day of November 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : Gulab Jan
PW2 : M.S. Narayana Murthy
PW3 :
OCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 Sale Deed
ExP2 to 4 Rax paid receipts
ExP5 & 6 Encumbrance Certificates
ExP7 Sale Deed executed by Chunna
Mohammed Haneef and others
ExP8 Certified copy of Judgment and Decree in
O.S.No.15008/2001
39
Judgment O.S.No.25895/2009
ExP9 Certified copy of Judgment and Decree in
O.S.No.25922/2009
ExP10 Certified copy of Judgment and Decree in
O.S.No.26317/2009
ExP11 Certified copy of Judgment and Decree in
O.S.No.26245/2009
ExP12 Certified copy of Judgment and Decree in
O.S.No.26750/2011
WITNESSES EXAMINED FOR THE DEFENDANT:
DW1 : Anand S/o Vnkatappa
DOCUMENTS MARKED FOR THE DEFENDANT:
ExD1 Authorizaion letter
ExD2 Certified copy of preliminary notification
dated 27/06/1978
ExD3 Certified copy of fina notification dated
09/01/1985
ExD4 Certified copy of award
ExD5 Certified copy of mahazar for hving taken
possession
ExD6 Certified copy of handing over possession
40
Judgment O.S.No.25895/2009
ExD7 Certified copy of notice u/s 16(2) of LA
Act.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE
21/10/2020
Plaintiff by Sri. KP
Defs by Sri. PR
for judgment
Judgment pronounced in the open court
(Vide separate detailed Judgment)
41
Judgment O.S.No.25895/2009
Judgment pronounced in the open court
(Vide separate detailed Judgment)
The suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE