Bangalore District Court
Mohammed Rahamathulla vs Bangalore Development Authority on 17 November, 2018
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH 30)
Dated this the 17th day of November 2018
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No. 2399/2012
PLAINTIFF: Mohammed Rahamathulla,
S/o. K. Zainala Saheeb,
R/a. Kadiripalaya,
Siddalagatta Taluk,
Kolar District.
(By Sri. Navasundar, Advocate)
Vs.
DEFENDANT: Bangalore Development Authority,
Kumara Park West,
Bangalore.
Represented by it's Secretary.
(By Sri. P.V. Ravindranath,
Advocate)
Date of institution of the suit 31/03/2012
Nature of the suit (suit on
pronote. Suit for declaration and Permanent Injunction
possession suit for injunction,
etc.)
Date of the commencement of 11/03/2016
recording of the evidence.
Date on which the judgment 17/11/2018
was pronounced.
Total duration Year/s Month/s Day/s
06 07 16
2 O.S.No.2399/2012
JUDGMENT
This suit is filed for restraining the defendant from interfering with the plaintiff's suit schedule property by way of permanent injunction and for such other reliefs.
2. It is averred in the plaint that, the Southern portion of house bearing khatha No.3051 and H.L.No's.3051 & 2008 measuring East-West : 31 feet and on the Northern side 55 feet and on the Southern side 55½ feet, situated at Kacharakanahalli Village, Kasaba Hobli, Bengaluru North Taluk, belongs to Smt. B.S. Kamalamma W/o B.S. Shivappa, who purchased it from A. Rajanna S/o Aswathappa, through the registered sale deed. Smt. B.S. Kamalamma executed the registered sale deed in favour of plaintiff in respect of Southern portion of the said house on 03.12.1992. Since from the date of the said sale deed, the plaintiff is in possession and enjoyment of the suit schedule property. The defendant issued preliminary notification followed by final notification for acquisition. But, the acquisition was not taken by BDA/defendant. Yet the possession is remain with the owners of the land. It was not vested with the BDA. So, the acquisition proceedings are not completed. On 22.10.1998, the defendant authority has appointed 3 members committee consisting of Deputy Commissioner, Engineering Member and Town Planning Member, to inspect HBR 1st 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 up area. The 3 3 O.S.No.2399/2012 members committee after inspecting the place submitted the report that some of the lands in HBR 1st Stage are fully developed or built up area and they are not possible for formation of any layout and recommended for denotify the same after collecting penalty from the land owner. The suit schedule property is situated in the built up area. The entire area is well developed with innumerable number of residential sites. The defendant's possession is only a paper possession is symbolic possession and not actual possession. The defendant has not objected for change of khatha or accepting tax for the said area. So, the plaintiff is in lawful possession of the suit schedule property. The vendors of the plaintiff are lawfully delivered to the plaintiff's possession. So, the possession of the plaintiff is adverse to the interest of the defendant, which extends till today. The settled possession cannot be disturbed without any due process of law. As per Section 27 of the BDA Act, the scheme was not implemented within 5 years. Hence, the scheme is already lapsed. The boundaries are entirely different from original sale deed. The name of the original owner is not shown in the preliminary, final notification and also passing of the award. The measurement was also different. So, the suit schedule property was not acquired by the BDA. The suit schedule property is situated in Sy.No's.229 & 230 of Kacharakanahalli Village. On 26.03.2012, the defendant's subordinate officials came near the suit schedule property and tried to dispossess the plaintiff from the suit schedule property. 4 O.S.No.2399/2012 When plaintiff approached the police, they advised the plaintiff to approach the court of law. Hence, this suit.
3. The defendant has appeared through his counsel and submitted in the written statement that, the plaintiff has not complied with the mandatory requirement of Section 64 of the Bangalore Development Authority Act, 1976. He has not issued the statutory notice to this defendant before instituting the suit. The plaintiff has not approached the court with clean hands and suppressed the material facts. The defendant formulated an Improvement Scheme for the Formation of a Layout known as 'HENNUR-BELLARY ROAD I STAGE LAYOUT' and in furtherance of the same issued preliminary notification under Section 17(1) & (3) of the Act in No.BDA/ALAO/S/11/78-79, dated 27.06.1978. Sy.No.230 of Kacharakanahalli, measuring 4 acres 23 guntas out of which the suit schedule property is also carved out. So, the subject-matter of acquisition by this defendant. The revenue records shows one Siddappa S/o Doddapanna and A. Narayana Reddy S/o Ankappa Reddy are notified Khatedars and Anubhavadars of the said survey number. Pursuant to the issuance of notification, the objections were called from notified Khatedar and Anubhavadar and after considering the objections, the scheme was placed before the State Government for approval. Accordingly, the final notification was issued on 09.01.1986. Sy.No.230 of Kacharakanahalli is also included in the final notification, which found in Sl.No.344 of final notification. 5 O.S.No.2399/2012 Thereafter, they issued notices under Sections 9 & 10 of the land Acquisition Act, 1894, and a mahazar was drawn by Engineering Section on 24.02.1987. Hence, the defendant authority has taken the possession of the entire extent of 4 acres 23 guntas of land. It is also reflected in the revenue records. So, the plaintiff has not derived any right, title or interest over the suit schedule property. The possession was taken over and handed over to the Engineering Section of this defendant on 24.02.1987. So, the plaintiff does not deserve any right, title or interest in respect of suit schedule property, as per the sale deed dated 03.12.1992. So, the predecessors of the plaintiff have no title over the suit schedule property prior to the execution of the sale deed. The incident of 26.03.2012 is not within the knowledge of the defendant. After taking possession, the suit schedule property is handed over to the Engineering Section for formation of layout. The plaintiff has not made out any ground for granting the interim as well as final relief as sought in the plaint. Hence, prays for dismissing the suit with exemplary costs.
4. The defendant has submitted in the additional written statement that, the plaintiff is breathing hot and cold simultaneously which is impermissible in law. The reply to the application filed by the defendant on 08.01.2013 seeking better particulars under Order VII, Rule 3 were furnished to the defendant by filing a memo dated 30.11.2013 in the above case stating that the suit schedule properties are situated in Sy.No.230 6 O.S.No.2399/2012 of Kacharakanahalli. However, the plaintiff contends that the suit property is situated partly in Sy.No.229 and partly in Sy.No.230 of Kacharakanahalli. The said fact is not evidenced by any document except the bald allegations made in the application. Sy.No.229 measuring 1 acre 15 guntas is a kharab land, Sy.No.230 of Kacharakanahalli is measuring an extent of 4 acre 23 guntas which is a dry land. The suit schedule property is carved out of said lands is subject-matter of acquisition and the same is to be found at Sl.No's.218 & 219 of the preliminary notification. As per the relevant revenue records existed on the date of publication of the preliminary notification, the revenue record reflects the fact that Sy.No.229 is shown as 'Thopu Burial Ground'. In respect of Sy.No.230, the notified Khatedar and Anubhavadar of the said survey number are one Siddappa S/o Doddapanna and A. Narayana Reddy S/o Ankappa Reddy. Sy.No's.229 & 230 of Kacharakanahalli are included in the final notification and the same is to be found at Sl.No's.343 & 344. After the publication of the declaration under Section 19 of the Act, notices were issued to the interested persons and after considering their objections, award came to be passed in respect of land in Sy.No.230 of Kacharakanahalli on 19.05.1986 and the same was sent for approval of the State Government. As Sy.No.229 is a Government land, no award is passed. The plaintiff is not the bonafide owner of the suit schedule property. His vendor did not have right, title or interest over the suit property on the date on 7 O.S.No.2399/2012 which it was conveyed to the plaintiff. The sale deed and other revenue records do not confer any right on the plaintiff as the same are executed by a person who had no title to the property in question. The averment therein that suit property comes partly in Sy.No.229 and partly in Sy.No.230 is hereby denied. The said averment is not substantiated by any documentary evidence. No survey sketch is produced to demonstrate the same. The notification would reflect the boundaries of the land in each survey number sought to be acquired. In respect of Sy.No's.229 & 230 of Kacharakanahalli boundaries are mentioned. Assuming but not conceding, if at all the plaintiff has got any right in the suit property, he is entitled only for the compensation and not for the possession of the acquired land subject to proving his title. Hence, prays for dismissing the suit.
5. In proof of their case, the plaintiff has got examined himself as P.W.1 and relied upon the documents Exs.P.1 to P.23. PWs.2 & 3 were also examined. On behalf of the defendant, the DWs.1 & 2 were examined. Exs.D.1 to D.4 were marked.
6. Heard arguments.
7. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues on 19.02.2014, as under:
ISSUES (1) Whether the plaintiff proves that, he is in possession of the suit schedule property as owner?8 O.S.No.2399/2012
(2) Whether he further proves the alleged interference by the defendant on 26.03.2012?
(3) Whether suit is not maintainable for not issuing notice under Section 64 of Bangalore Development Authority Act?
(4) What order or decree?
8. My findings to the above issues and additional issues are as under:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : As per final order for the following:
REASONS
9. Issue No.1:- It is a suit for bare injunction. Plaintiff claims the title and lawful possession in the suit schedule property. Defendant herein is BDA represented by the Commissioner. Plaintiff suit based upon his title. The suit schedule property is Southern portion of house bearing khatha No.3051 and House List No's.3051 & 2008 measuring East-West :
31 feet and on the Northern side 55 feet and Southern side 55½ feet, situated at Kacharakanahalli Village, Kasaba Hobli, Bengaluru North Taluk, with boundaries as East : Road, West :
Portion of same property HL 2008, North : Property of Shivappa Setty, and South : Private property. In the pleading, it is contended that the suit schedule property is existing in Sy.No.230 of Kacharakanahalli Village. Whereas, he has subsequently amended the plaint claiming it is situated in Sy.No's.229 & 230 of Kacharakanahalli Village. The strong contention of the defendant is, the suit schedule property is in Sy.No.230 of Kacharakanahalli 9 O.S.No.2399/2012 Village. Both Sy.No's.229 & 230 are acquired by BDA prior to the plaintiffs purchase of the suit schedule property. The vendor of the plaintiff has no legal right to alienate the schedule property. So, the plaintiff is not in lawful possession of the schedule property. The defendant's officials were never caused interference on 26.03.2012. In the pleadings, it is contended that A. Rajanna S/o Aswathappa was the owner of earlier vendor of the schedule property and he sold the same to Smt. B.S. Kamalamma W/o B.S. Shivappa. Thereafter, Smt. B.S. Kamalamma executed the sale deed in favour of plaintiff on 03.12.1992, and since then they are in continuous possession of the suit schedule property.
10. In support of the same, the plaintiff herein deposed himself as P.W.1 and produced the sale deed of his vendor and his sale deeds were marked as Exs.P.1 & P.3. Encumbrance Certificates, Demand Register extract, Khatha, Tax Demand Extract and Tax Receipts were marked as Exs.P.2 & P.4 to P.24.
11. On perusal of Ex.P.3 the vendor's sale deed shows, it was executed in the year 1990, along with his house portion. It shows the original vendor A. Rajanna is residing at Rajajinagar. A. Rajanna sold it to B.S. Shivappa Shetty and Shivappa Shetty sold the schedule property to the plaintiff on 03.12.1992. It is not Smt. B.S. Kamalamma as narrated in the plaint. It is pertinent to note that, both Exs.P.1 & P.3/sale deeds are absolutely silent about survey number, it only refer the khatha and house number. So, in what manner the plaintiff concludes it is existing in 10 O.S.No.2399/2012 Sy.No.230 and how he rectified it Sy.No.230 is not elaborated. The sale deed clearly shows they are Southern portion of house property. Whereas, in the cross-examination P.W.1 replies that it is a vacant site and also says it was purchased from B.S. Shivappa Shetty. So, his pleading in respect of Smt. B.S. Kamalamma is not proper. The plaint pleading says the said schedule property belongs to Smt. B.S. Kamalamma W/o B.S. Shivappa and she acquired the same from A. Rajanna. Whereas, the document reveals A. Rajanna sold the property to B.S. Shivappa Shetty and B.S. Shivappa Shetty directly sold it to the plaintiff. It is true that, his pleading is not narrated that the BDA was acquired the Sy.No's.229 & 230, by giving preliminary and final notifications and the same was purchased by the plaintiff. He was not narrated that, whether BDA was taken possession of the schedule property? It is pertinent to note that, in the cross- examination as well as in the plaint pleading, plaintiff stressed that BDA was formed committee of Deputy Commissioner, Engineering Section and Town Planning Department. They inspected the suit schedule property and gave report saying that, both survey numbers were covered by built up area and BDA cannot acquire the same. Whereas, copy of the said report is not produced before the court. The plaintiff is claiming his lawful possession based on this report. So, the non-production of this report clearly effects the plaintiff's claim on lawful possession. It is also pertinent to note that, without paying the betterment fee he 11 O.S.No.2399/2012 pays the tax to the schedule property. It is also his own admission that, after purchasing the schedule property, the same was not informed to the BDA and prior to constructing the shed, they have not obtained permission from the concerned department. BDA has informed him that the Kacharakanahalli Sy.No.230 is not acquired property. He was not knowing the preliminary and final notifications of acquisition of suit property. He denied the suggestion that, the notifications shows the names of Shivappa Shetty and Rajanna. So, this denial also reveals that the plaintiff is aware of acquisition proceedings referred by the defendant. However, he denied the suggestion that BDA acquired the Sy.No's.229 & 230 of Kacharakanahalli Village. He is not knowing the acquisition of property and it's notification dated 27.06.1978 & 09.01.1986, and the final notification of the acquisition proceedings of 19.05.1986. He is not knowing that the BDA was acquired the property and delivered the possession to the Engineering Section, and it is in the possession of BDA since 30.07.1987. So, prior to his purchase, the schedule properties are in the possession of BDA and no right was transferred to the plaintiff. One Vijaya Shetty has also purchased the property after the acquisition and not acquired any right or title of the schedule property. So, in respect of defence, P.W.1 gave the denial reply. However, the denial of entry of B.S. Shivappa Shetty and A. Rajanna says he knew about the acquisition proceedings. 12 O.S.No.2399/2012
12. To corroborate his possession, the plaintiff/P.W.1 has examined 2 witnesses by name, Kemp Reddy (P.W.2) and M.C. Jayaram (P.W.3). Both were deposed in the chief-examination that, they know the plaintiff from his childhood. But, plaintiff is aged 55 years and PWs.2 & 3 respectively aged 62 & 65 years. Kempa Reddy (P.W.2) is the resident of Nagawara, Kalyan Nagar Post, Bengaluru. M.C. Jayaram (P.W.3) is the resident of Hennur Village (Ring Road), Kalyan Nagar Post, Bengaluru. But, plaintiff (P.W.1) is the resident of Kadiripalaya, Siddalagatta Taluk, Chikkaballapur District. So, this address also clearly shows the plaintiff is not in peaceful possession of the schedule property.
13. In the cross-examination P.W.2 replies that, he knows plaintiff from the last 30 years and plaintiff purchased the property in the year 1992 but he forgotten the vendor's name. He denied the suggestion of the acquisition.
14. In the cross-examination P.W.3 replies that, he knows plaintiff from the last 34 years. The schedule property has a compound, a shed and a house. It was purchased in the year 1992. He was not knowing the acquisition proceedings. So, their evidence also shows they are tutored witnesses.
15. On behalf of the defendant, one Superintendent of Addl. Land Acquisition Office, Bengaluru, deposed as D.W.2. He deposed as in written statement in respect of acquisition of "HENNUR BELLARY ROAD I STAGE LAYOUT", and specifies that the schedule property is carved out of Sy.No.230 and it is not 13 O.S.No.2399/2012 partly in Sy.No's.229 & 230, and denied the plaintiff's settled possession of the suit schedule property.
16. In the cross-examination D.W.2 admits that, he was not visited the schedule property personally. He cannot specify the details of the schedule property. He cannot say the measurement. The original kathedars are Siddappa, Doddapapanna, Narayanareddy and Ankanna. He has verified the documents of Sy.No.230. In the cross-examination further he says that, he is not knowing in which survey number the schedule property is existing and he has not seen it personally. They deposited the amount to the court in the name of Siddappa, Doddapapanna, Narayanareddy and Ankanna. There is no document whether these persons received the award amount or not. Personally, he has not verified the documents of A. Rajanna. It is pertinent to note that, this witness is deposed as an official witness. So, he deposed on the basis of documents. He is not knowing that, whether Sy.No's.229 & 230 were remained as revenue sites, they were not filed the layout plan. He denied the suggestion that, although Sy.No's.229 & 230 were belongs to Smt. B.S. Kamalamma, it was not mentioned her name in the notification. Whereas, the plaintiff has no document to show on the entry of Kamalamma's name in the revenue records of schedule Sy.No's.229 & 230 in the period of 1978. They were not produced the order copy of the award. He is not knowing that the schedule property is now fully developed built up area. He denied the 14 O.S.No.2399/2012 suggestion that, they were not issued notification to the original owners of the schedule property. They are not knowing that, whether they issued objection to BBMP or CMC as not to issue any khatha and to cancel the licence of electricity permission. Whereas, the defendant herein produced the preliminary and final notifications, they are marked as Exs.D.2 & D.3. Ex.D.4 is the proceedings under Section 16(2) of the Land Acquisition. On perusal of Exs.D.2 & D.3 shows both Sy.No's.229 & 230 are notified for acquisition. Sy.No.229 is referred as "Thopu Burial Ground". In the cross-examination the plaintiff has not confronted these documents. The crucial document is, plaintiff produced the writ petition order/Ex.P.25, dated 29.08.2000, wherein the plaintiff was also one of the petitioners and it is in respect of regularization of sale allotment. On perusal of the same order at page No.4 shows BDA took contention that "they acquired the land of Sy.No.230 of Kacharakanahalli and specified that they have not traced the building claimed to be in possession of the petitioners. The petition is filed based on Section 38(C)(2) of the BDA Act. But, it was repealed by Ordinance 4 of 2000. So, the Hon'ble High Court Judge held the petitioners are not entitled for any relief under the said provision and not passed any relief to the petitioners". So, appreciating all these facts shows the plaintiff says it is a portion of building. But, plaintiff's claim is a vacant site. However, as rightly argued by the defendant prior to the plaintiff's sale transaction of suit property, it was acquired and it 15 O.S.No.2399/2012 is in the possession of BDA. In such circumstances, the vendors of the plaintiff have no right to alienate the schedule property. So, when they have no right to alienate, no valid title and right transferred to the plaintiff.
17. The defendant refers the citations (1) (2013) 3 SCC 66 in the case of Commissioner, Bangalore Development Authority & another Vs. Brijesh Reddy & another, wherein it reads thus:
"Civil Court is devoid of Jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under LA Act - Only right available to aggrieved person is to approach High Court under Art.226 and Supreme Court under Art.136 of Constitution with self- imposed restrictions on their exercise of extraordinary power
- On facts held, civil suit filed by plaintiffs for permanent injunction restraining Defendants 1 and 2 i.e. BDA, from interfering with peaceful possession and enjoyment of schedule property was not maintainable - High Court erred in remitting matter to trial court when suit itself was not maintainable - Constitution of India - Arts.300-A, 226 and 136 - Civil Procedure Code, 1908, S.9.
2. On 28-9-1965 a Notification was issued by the State Government proposing to acquire several lands including the suit land being Survey No.23/10 of Ejipura measuring 22 guntas for formation of Koramangala Layout. The original khatedars who were notified were one Papaiah. Thimmaiah, Patel Narayan Reddy, Smt. Rathnamma, Smt. Perumakka (Defendant 3 in the suit), Munivenkatappa and Chikkaabbaiah, the husband of the 3rd defendant. After holding an enquiry, the Land Acquisition Officer passed the award on 7-9-1969. Thereafter, 10 guntas of land held by Smt. Rathnamma was taken into possession on 28-11-1969 and the remaining 12 guntas held by Defendant 3 was taken into possession on 22-7-1978 and then the LAO handed over the entire land to the Engineering Section. The layout was formed, sites were allotted to the intending purchasers.
3. According to the respondents herein, thy purchased 12 guntas of land under a registered sale deed dated 15-11-1995 from Perumakka, the 3rd defendant in the suit. Originally the said land belonged to Chikkaabbaiah, husband of the 3rd defendant. Chikkaabbaiah mortgaged the said property to Patel Narayan Reddy on 26-2-1985. Thereafter, the said property was reconveyed in favour of Chikkaabbaiah. After the death of Chikkaabbaiah, his wife 16 O.S.No.2399/2012 Perumakka (the 3rd defendant in the suit) was the absolute owner and in possession of the property."
In this case also the facts are also exactly same as of this suit. After issuance of notification and acquisition of property and LAO is delivering the schedule property to the Engineering Section. The respondent claims purchasing the property after all these transactions. So, I consider it is proper to appreciate the ratio above referred. The plaintiff's contention is that, defendant/BDA has not taken possession of the schedule property and schedule property vested with the original owners does not holds water. (2) The citation ILR 2008 Kar. 2506 in the case of The Commissioner, Bangalore Development Authority Vs. M/s. Addi Housing Industries Limited & others, wherein it reads thus:
"Once the land stood divested from the owner and vested with the acquiring authority, no one can lay any claim to the acquired land - A person who purchases the land subsequent to the issuance of Acquisition Notification will not get any valid title to the land - ON FACTS, HELD, Admitted facts on record clearly establishes the fact that plaintiffs are not in settled possession of Scheduled sites and at best the same may be litigious possession - The plaintiffs in their pleading and also in the evidence admit that the defendants demolished the structures put up on the schedule land - Undisputed material on record establishes that schedule lands are divested from the owner khatadar and vested with the BDA - The registered sale deeds in favour of first plaintiff subsequent to the vesting of schedule land in favour of defendant/BDA does not confer any valid title - The possession of the first plaintiff is not lawful - The Trial Court has not considered the evidence on record and the question of law involved in the case - The judgment and Decree is liable to be set aside."
Both citations are aptly applies to the case in hand. 17 O.S.No.2399/2012
18. To rebut the same, plaintiff herein refers the citations as follows:
(1) Laws (Kar) 2013 2 195.
(2) ILR 2005 Kar. 295.
(3) ILR 2005 Kar. 339.
(4) Laws (Kar) 2004 1111.
(5) AIR 1984 Patna 191.
(6) AIR 1972 SC 2299.
(7) AIR 1980 Kerala 224.
The case referred in the above suit were not applies to the case in hand i.e., the matter referred herein is fact of de-notification and also incomplete of scheme of forming layout. BDA completed the scheme of forming layouts and some in respect of BDA abandoned it's scheme. Whereas, here in this suit, it is not the contention that, BDA has abandoned the scheme or de-notification order has been passed. So, there is no statutory role to conclude that the scheme of BDA are cancelled to de-notify the acquisition proceedings. Without production of order of de-notification, it cannot be concluded that the plaintiff or his vendor acquired passes right on the schedule property.
(8) The citation ILR 1999 Kar. 1451 in the case of Sathyam @ Ramaiah & others Vs. Karnataka Milk Federation Co-operative Ltd., is in respect of settled possession. The above ratio is also not applicable to the case in hand. Accordingly, I hold Issue No.1 in the 'Negative'.
19. Issue No's.2 & 3:- It is submitted in the plaint that, on 26.03.2012, the defendant tried to dispossess the plaintiff from the suit schedule property, as their subordinate officials came 18 O.S.No.2399/2012 near the suit schedule property. Plaintiff resisted the illegal act of the defendant and then the defendant threatened the plaintiff with dire consequences with limbs and proclaimed that they would come at any moment. So, the plaintiff approached the police station and lodged the complaint where police advised the plaintiff to approach the Civil Court. In the written statement, the defendant denied all the facts. It is submitted that, since the settled possession to the Engineering Section i.e., formation of layout, the question of interference from the defendant's authority does not arises. Prior to this suit, plaintiff along with others approached the Hon'ble High Court of Karnataka, where it concluded that the petitioner is not entitled for relief in respect of the award. The defendant herein produced the documents showing that, as per the revenue records, Siddappa S/o Doddapanna and A. Narayana Reddy S/o Ankappa Reddy were the owners of Sy.No.230. Plaintiff failed to dispute the same. The plaintiff also failed to produce any copy of police complaint to corroborate, they approach the police authority seeking protection.
20. In the cross-examination P.W.1 replied that, on 26.03.2012, some people came representing BDA, R.T. Nagar Office and they showed the schedule property's documents. There is no evidence of threatening with dire consequence. Although PWs.2 & 3 deposed about interference, their evidence itself reveals that they are not neighbours of the suit schedule property and instead of that they tried to improve the case by saying P.W.2 19 O.S.No.2399/2012 replies on the said date, BDA officials came and tried to demolish the building. P.W.3 replies that, BDA officials came to demolish the building and he also says site No.237. So, all these evidence shows, plaintiff failed to prove the interference as alleged in the plaint. D.W.2 admitted that, they were not produced the documents to show that all the connected persons were issued preliminary and final notifications. It is pertinent to note that, since Sy.No.229 is the "Thopu Burial Ground", no award was passed to the Government property and award was passed on Sy.No.230 only. It was elaborated in the additional written statement. Plaintiff failed to produce the documents to show that, Smt. B.S. Kamalamma is the kathedar of the suit schedule property. There is no suggestion made in respect of the alleged date of incident. D.W.2 replied that, he was not knowing anything personally. So, all these facts shows plaintiff failed to prove the interference.
21. Plaintiff refers the citations (1) ILR 1999 Kar. 1464 in the case of Shri. Narayan Ganesh Shindagi Vs. The Commissioner, Corporation of the City of Belgaum & another. Whereas, on perusal of the same shows, in that referred case the Municipal Authority came on the General Holiday time and demolished the premises. But, there is no such incident occurred in this suit. The ratio does not applies to the case in hand.
(2) The citation AIR 1984 Patna 191 in the case of Janki Ram & another (Appellants) Vs. Amir Chand Ram & others (Respondents), 20 O.S.No.2399/2012 wherein it was discussed in respect of partition suit. The ratio does not applies to the case in hand.
(3) The citation LAWS (KAR) 2013-2-195 in the case of K.L. Ramesh Vs. Bangalore Development Authority. On perusal of the same shows, it is in respect of de-notification. Whereas, in this suit the plaintiff has not produced the de-notification, hence it does not applies to the case in hand.
(4) The citation ILR 2005 Kar. 295 in the case of D. Narayanappa Vs/ The State of Karnataka, by it's Secretary, Housing & Urban Development Department, Bangalore & others, where BDA has abandoned the scheme. But, herein BDA has not taken defence on abandoning the scheme. Plaintiff also not produced any material. So, the ratio discussed herein not applies to the case in hand.
(5) The citation LAWS (KAR) 2004 1111 in the case of D. Narayanappa Vs. State of Karnataka, wherein it was discussed in respect of demolishing the structures and formation of sites. In this suit it is alleged defendant's officials came near the schedule property and caused the threat. So, the demolition structure does not arises. So, the ratio does not applies to the case in hand. (6) The citation AIR 1972 SC 2299 in the case of M. Kallappa Setty (Appellant) Vs. M.V. Lakshmi Narayana Rao (Respondent), and the citation AIR 1980 Kerala 224 in the case of Karthiyayani Amma (Appellant) Vs. Govindan (Respondent), wherein it was discussed in respect of Specific Relief Act and plaintiff's possession of the 21 O.S.No.2399/2012 schedule property. So, the ratio does not applies to the case in hand.
(7) The citation ILR 1999 Kar. 1451 in the case of Sathyam $ Ramaiah & others Vs. Karnataka Milk Federation Co-operative Ltd., wherein it was adjudicated on interim application. So, the ratio of interim stage cannot be applied to the adjudication on merit. (8) The citation (1989) 4 SCC 131 in the case of Krishnaram Mahale (Dead) by his LRs (Appellant) Vs. Mrs. Shobha Venkat Rao (Respondent), where it is opined "Occupant in possession cannot be disposed without recourse to law." Whereas, plaintiff herein claims his title and lawful possession. The plaintiff failed to prove settled possession. So, the ratio cannot be applied herein. (9) The citation AIR 1975 SC 1674 in the case of Puran Singh & others (Appellant) Vs. The Sate of Punjab (Respondent), wherein it was adjudicated in respect of trespasser in possession and nature of possession required for exercising right against other including true owner. So, the ratio herein does not applies to the case in hand.
(10) The citation AIR 1963 Bombay 100 in the case of Jaiprakash Mangilal Agarwal (Appellant) Vs. Smt. Lilabai & another (Respondents), where it is held in the Evidence Act. Section 114, "the state of affairs which is shown to exist at one time in the past is presumed to continue as it was, and in respect of record of rights entry". Whereas, herein plaintiff produced the khatha document cannot be presumed the title document so far 22 O.S.No.2399/2012 defendant proved the acquisition proceedings. The vendors of the plaintiff have no right to alienate the schedule properties. When the defendant is authority Government Body, one cannot expect to it to challenge the private persons' revenue documents. The acquisition proceedings is Government Act has presumption of the knowledge. So, this ratio also not applies to the case in hand. (11) The citation ILR 2000 Kar. 4134 in the case of John B. James & others Vs. Bangalore Development Authority & another. Whereas, this case was produced and marked as Ex.P.25 and I have already discussed the said ratio, where the petitioner is also one of the party in the said writ petition.
(12) The citation ILR 2011 Kar. 574 in the case of Mrs. Poornima Girish Vs. Revenue Department, Government of Karnataka & others, wherein it was discussed in respect of acquisition challenging the petitioner has continued to remain in possession and occupation of building construction on acquired land, wherein the Hon'ble Judge has quashed the preliminary and final notifications. However, in this court, plaintiff's prayer is restricted to his title and possession. The order referred above is restricted to the petitioner of the said writ petition only. So, the ratio cannot be applied herein.
(13) The citation 1986 Kar. 194 in the case of M/s. Patil Exhibitors (Pvt) Ltd., (Appellants) Vs. The Corporation of the City of Bangalore (Respondent), wherein it was discussed on landlord and tenant's relationship.
23 O.S.No.2399/2012(14) The citation (2008) 4 SCC 594 in the case of Anathula Sudhakar (Appellant) Vs. P. Buchi Reddy (Dead) by his LRs & others (Respondent), wherein it was elaborately discussed on declaration and possession. So, appreciating the same shows the subject of this suit and above ratios, are quite different. (15) The citation LAWS (KAR) 2013-9-68 in the case of The Bangalore Development Authority Vs. M.S. Narayana Murthy, Bangalore. It is also in respect of challenging the acquisition proceedings. All these facts shows this court cannot deal with the subject of acquisition. So, the ratio does not applies to the case in hand.
22. The plaintiff's counsel herein refers the various judgments of City Civil & Sessions Judge, Bengaluru. Whereas, so far these are not precedent to this court. There is no necessity to deal with the various judgments mentioned in page No's.7 to 9 of the memo for citations filed by the plaintiff. Hence, appreciating all the above contentions, the defendant proved the acquisition proceedings and also deposit of the award amount. Plaintiff failed to prove the original kathedar is vendor of the plaintiff. So, in such circumstances, there is no material to show that either to the vendor or plaintiff has valid title and possession in the suit schedule property. In such circumstances, I consider plaintiff failed to prove the settled possession and is not entitled for the relief. Accordingly, I hold Issue No's.2 & 3 in the 'Negative'. 24 O.S.No.2399/2012
23. Issue No.4:- In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is dismissed.
No order as to costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 17th day of November, 2018) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bengaluru City.
ANNEXURE List of witnesses examined for the plaintiff's side:-
P.W.1 Mohammed Rahamathulla P.W.2 Kemp Reddy P.W.3 M.C. Jayaram
List of documents exhibited for the plaintiff's side:-
Ex.P.1 CC of registered sale deed dated 03.12.1992. Ex.P.2 Encumbrance Certificate for the period from 01.04.2004 to 22.03.2012.
Ex.P.3 CC of registered sale deed dated 02.07.1990 in respect of D.S. Shivappa Shetty.
Ex.P.4 Demand Register for the year 1991-1992 issued by Kacharakanahalli Panchayath.
Ex.P.5 Certificate issued by BBMP dated 27.02.2015. Ex.P.6 Tax particular list issued by Byatarayanapura CMC for the year2004-2005.
Exs.P.7}{ Challens in respect of tax paid to BBMP (7 in No's.).
to P.13}{
Exs.P.14)( Tax receipts (7 in No's.).
to P.20}{
Ex.P.21 CC of order in W.P.No's.17251-255/2000.
25 O.S.No.2399/2012
Ex.P.22 Challen in respect of tax paid to BBMP.
Ex.P.23 Tax receipt.
List of witnesses examined for the defendant's side:-
D.W.1 Renukappa D.W.2 V. Ananda
List of documents exhibited for the defendant's side:-
Ex.D.1 Authorization letter of BDA dated 04.09.2017.
Ex.D.2 CC of Notification dated 27.06.1978. Ex.D.3 CC of Notification dated 09.01.1986. Ex.D.4 CC of proceedings of land acquisition under Section
16(2) published in the Gazette Notification dated 30.07.1987.
XXIX Addl. City Civil Judge, Bengaluru City.
26 O.S.No.2399/2012Judgment pronounced in open Court, vide separate judgment.
ORDER Suit is dismissed.
No order as to costs.
Draw the decree accordingly.
XXIX Addl. City Civil Judge, Bengaluru City.