Bangalore District Court
Smt. D.Bharathi vs The Commissioner on 17 January, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
z
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge
Dated this the 17th day of January 2017
PLAINTIFF: Smt. D.BHARATHI
Major of age,
W/o Sri Dorai,
Represented by the
GPA Holder
Sri Chadra Shekar,
S/o Sri Shammanna,
R/at Kodihalli Village,
HAL Sanitary Board,
Varthur Hobli,
Bangalore South Taluk.
[By Sri CJP, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Commissioner, BDA,
Kumara Park West,
Bangalore-560 020.
2. The Assistant Executive
Engineer,
Task Force, BDA,
Bangalore-20.
3. Smt. Nagamma
W/o Raman,
Hindu, Aged about years,
R/at No.29, 29 Cross,
th
Bagalar Layout,
2 O.S.3284/2001
.
Bangalore City Corporation Quarters, Bangalore-560 084.
4. Sri Kumar S/o Raman, Hindu, Major, R/at No.29, 29th Cross, Bagalar Layout, Bangalore City Corporation Quarters, Bangalore-560 084.
D1,D2 - By Sri PR, Advocate D3, D4 - By Sri SH, Advocate Date of institution of the : 2/05/2001 suit Nature of the suit : For permanent injunction Date of commencement of : 21/03/2013 recording of the evidence Date on which the : 17/1/2017 Judgment was pronounced.
: Year/s Month/s Day/s Total duration 15 8 15 (S.H. Hosagoudar) XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against defendants for the relief of permanent injunction restraining the defendant or any other person claiming thereof, they in any manner interfere with the plaintiff's peaceful 3 O.S.3284/2001 .
possession and enjoyment of the suit schedule property and for cost.
2. In brief, the plaintiff's case is as under:
The plaintiff is the true and absolute owner of the immovable property bearing No.2 of Sy.No.18/1, Kodihalli Village, Varthur Hobli, Bangalore South Taluk, HASB Assessment No.776/3, measuring East to West towards north 72 feet towards south 76 feet and North to South 30 feet bounded on the east by Sri Sommappa's property, west by Sri Huchappa's property, North by site No.1 of Sri Veeraswamy and South by private property, morefully described in the schedule.
The plaintiff submits that she acquired the said property by virtue of a registered deed of sale dated 25/6/1971 registered as document No.1700/1971-72 and has being in peaceful possession and enjoyment of the suit schedule property. As there was a discrepancy a rectification deed was executed. 4 O.S.3284/2001
.
The plaintiff submits that she has paid taxes, obtained sanction plan for construction of a building and paid up to date taxes. In terms of the sanction plan she has put up construction and is in peaceful possession and enjoyment of the suit schedule property. Defendants have no manner of right, title and interest in respect of the suit schedule property.
On 21/4/2001 the second defendant who is attached to the office of the first defendant made illegal attempts to demolish the suit schedule property on the ground that the said structure belongs to the plaintiff that she is in unauthorized construction. The plaintiff resisted the 2nd defendant and informed the second defendant by virtue of the court order in W.P.No.5959 of 1998 and other connected matters, the defendants were directed that the matter be placed before the Screening Committee and regularization of unauthorized construction is to be considered by the first defendant. The plaintiff also 5 O.S.3284/2001 .
intimated the Screening Committee and submitted a application to the Screening Committee in this behalf.
The plaintiff submits that as there was threat of demolition by the defendant he has caused a notice on 7/3/2001 as per Sec.64 of the BDA Act.
Inspite of pendency of such proceedings before the competent authority and without admitting that the property is in any manner unauthorized and as regularization process is being considered by the relevant authority. The 2nd defendant cannot take law in his own hands and demolish the construction of the plaintiff. Inspite of the above, again on 23/4/2001 the defendant has come near the suit schedule property with an intention of demolition. Hence this suit.
3. In response to the summons issued by the Court, defendants appeared through their respective counsel and defendants 1 and 2 filed joint written statement, whereas defendants 3 and 4 have filed separate written statement.
6 O.S.3284/2001
.
4. In brief, the contents of the written statement filed by defendants 1 and 2 are as under:
The suit of the plaintiff is false, frivolous and same is liable to be dismissed. The plaintiff has not issued notice as contemplated under Section 64 of the Bangalore Development Authority Act and therefore suit is bad in law and plaint is liable to be rejected.
It is submitted that land measuring an extent of 39 guntas in sy.no.18/1 of Kodihalli village has vested with the defendant authority in pursuance of the preliminary notification published in Mysore Gazette dated 21/9/1967 followed by final notification dated 15/7/1971 published in Gazette dated 29/7/1971 for formation of HAL 3rd stage layout formed by the erstwhile CITB. The notified kathedars in respect of the said land were Alusurappa s/o Muniyappa, Shamanna s/o Alusurappa and P.S.Gopalakrishna Shetty. The notices under Sections 9, 10, 11 and 14 of the Land Acquisition Act have been issued and served on the interested persons. In response to the said 7 O.S.3284/2001 .
notices, one Sri P.Gopalakrishna Shetty and Shamanna participated in acquisition proceedings and paid compensation of Rs.40,000/- per acre and Rs.50 per square yard respectively.
After due enquiry as contemplated in law award came to be passed on 20/11/1974 and same was duly approved for Rs.11,390.75 by the competent authority. Entire amount was sent to Civil Court under Section 30 and 31 (2) of the Land Acquisition Act, thereafter possession of the land was taken on 30/4/1974 and same was handed over to Engineering Section for formation of the layout. After taking possession of the land the layout called 3rd stage was formed and site formed out of the said land has been allotted to the needy public.
As on the date of possession of the land there was no structure of any nature muchless as claimed by the plaintiff. The plaintiff has admittedly acquired alleged right over the schedule property under deed of sale dated 25/6/1971. Therefore, the alleged sale 8 O.S.3284/2001 .
deed is void in law and plaintiff does not acquire any right, title and interest over the suit schedule property. The structure stated to have come up in the schedule property which correspond to some portions of the site bearing no.2076 and 2077 formed by the defendant authority in HAL 3rd stage layout is temporary, unauthorized and illegal which has come up very recently. Therefore the said unauthorized shed is liable to be removed so as to enable the allottees of the sites to make use of the said site for the purpose for which they are allotted. The plaintiff is not in possession muchless in lawful possession of the suit schedule property at any point of time.
The defendant and its allottees are in possession of the suit schedule property. The defendant no.2 never made any attempt to demolish the alleged unauthorized construction. There is no cause of action for the suit. On these grounds, defendant no.1 and 2 prayed to dismiss the suit.
9 O.S.3284/2001
.
5. In brief the contents of the written statement filed by defendant no.3 are as under:
The suit of the plaintiff is not maintainable as plaintiff is very well knows that this defendant was in possession and enjoyment of the site bearing no.2072 allotted by Bangalore Development Authority which has been morefully described in the schedule hereunder. That apart, the suit is also not maintainable as even though the plaintiff is well aware that this defendant is not at all owner of the schedule site as on the date of impleading application as same has been gifted to her son Mr.Kumar vide registered gift deed dated 21/9/2002 and said donee had already constructed building consisting of ground, first and second floor on the said site after obtaining necessary sanctioned plan, license from the competent authority.
This defendant belongs to weaker section, Bangalore Development Authority allotted small site measuring 20 x 30 feet bearing No.2072 in the layout 10 O.S.3284/2001 .
formed by the Bangalore Development Authority at HAL 3rd stage, Bangalore vide allotment letter dated 15/4/1993. The Bangalore Development Authority had also delivered possession of the same to this defendant vide possession certificate dated 15/1/94 and since then this defendant was in peaceful possession and enjoyment of the same. The Bangalore Development Authority has also executed sale deed dated 27/3/2002 in favour of this defendant. Based on the said allotment, possession and approved sale deed, the Bruhat Bengaluru Mahanagara Palike had also fixed tax to the schedule site and collected taxes from this defendant and also issued katha in the name of this defendant. In the meanwhile this defendant has gifted site to her son Kumar vide Gift Deed dated 21/9/2002. Based on the said gift, Bruhat Bengaluru Mahanagara Palike also transferred katha of the said site in the name of donee i.e., said Kumar after collecting taxes from him. Thereafter Kumar after obtaining necessary sanctioned plan and license from 11 O.S.3284/2001 .
Bangalore Mahanagara Palike constructed building consisting of ground, first and second floor and enjoying the same as absolute owner. The suit is bad for non joinder of necessary parties. The plaintiff is not entitled for any relief against this defendant. On these grounds, defendant no.3 prays for dismissal of the suit.
6. In brief the contents of the written statement filed by defendant no.4 are as under:
The suit of the plaintiff is not at all maintainable both in law or on facts. This defendant is in exclusive peaceful possession and enjoyment of the property mentioned in the schedule. Earlier, property was allotted in favour of his mother and his mother has executed Gift Deed in his favour dated 21/9/2002. On the basis of gift deed katha was changed in his name. Thereafter this defendant after obtaining necessary sanction plan and license from Bangalore Mahanagara Palike and raising loans constructed building consisting of ground, first and second floor. The 12 O.S.3284/2001 .
plaintiff is not at all in possession of the property in question. Defendant no.3 also obtained decree in O.S.No.5106/98 in respect of the property in question. The plaintiff is not at all in possession and enjoyment of the property in question. The plaintiff has filed false suit. On these grounds, plaintiff no.4 prays for dismissal of the suit.
7. On the basis of the pleadings of the parties, my predecessor in the office has framed following issues:
(1) Whether plaintiff proves her lawful possession over the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves the alleged interference of defendants in the suit schedule property?
(3) Whether defendant proves that the suit schedule property is vested with it by virtue of acquisition?
(4) Whether the plaintiff is entitled for the relief of Permanent Injunction against the defendants as prayed?13 O.S.3284/2001
.
(5) Whether suit is bad for want of notice under Section 4 of B.D.A.Act?
(6) What decree or order?
8. In order to prove her case, plaintiff got examined her GPA holder as PW.1 and produced in all 19 documents marked as Ex.P1 to Ex.P19 and closed her side of evidence. On behalf of the defendants, fourth defendant is examined as DW.1 and got marked 26 documents as Ex.D1 to Ex.D26.
9. At the time of arguments, the learned counsel for the plaintiff filed memo under Order 23 Rule 1 r/w Section 151 of C.P.C to restrict his claim only to the extent of 30 feet towards East to West and 40 feet towards North to South and also concede that plaintiff would not interfere with the possession of third and fourth defendants of the property bearing site no. 2072 and rest of the suit schedule property except the property claimed above, the plaintiff hereby withdraws her suit and also produced rough sketch 14 O.S.3284/2001 .
along with this memo demarcating the property to sought injunction.
10. Advocate for defendants 1 and 2 filed objections to the said memo and also produced documents along with the memo. With the consent of both the side, it is ordered to consider memo dated 16/9/2016 filed by the plaintiff along with the main suit.
11. Heard arguments on both sides and perused entire records of the case.
12. My findings on the above issues are as under:
Issue No. 1) ............ In the affirmative; Issue No. 2) ............ In the affirmative; Issue No. 3) ............ In the negative; Issue No. 4) ............ Partly in the affirmative; Issue No. 5) ............ In the negative; Issue No. 6) ............ As per final order;
for the following:
13. ISSUE NO.1 AND 3 : Now I will consider both these issues together for the sake of 15 O.S.3284/2001 .
brevity and convenience and as evidence is also common.
14. It is the case of the plaintiff that she acquired the suit schedule property by virtue of registered sale deed dated 25/6/1971 and has been in peaceful possession and enjoyment of the suit schedule property. Further it is the case of the plaintiff that she has paid taxes obtained sanctioned plan for construction of the building and in terms of sanction plan she has put up construction and she is in lawful possession and enjoyment of the suit schedule property.
15. In this case defendants 1 and 2 appeared through their counsel and filed written statement denying the case of plaintiff. Defendants 1 and 2 contended that land measuring an extent of 39 guntas in sy.no.18/1 of Kodihalli village has vested in the defendant authority in pursuance of the preliminary notification published in Mysore Gazette dated 16 O.S.3284/2001 .
21/9/1967 followed by final notification dated 15/7/1971 published in Mysore Gazette dated 29/7/1971 for formation of HAL 3rd stage. The kathedars of the said properties participated in the acquisition proceedings and after due enquiry, award came to be passed on 20/11/1974 and same was duly approved for Rs.11,390.75 by the competent authority and entire award amount was deposited in the Civil Court. Further defendants 1 and 2 contended that the possession of the said land was taken on 13/12/1974. After taking possession of the said property, sites were formed and are allotted to needy public. Further defendants 1 and 2 contended that as on the date of suit plaintiff is not at all in possession and enjoyment of the suit schedule property and suit schedule property has already vested with Government.
16. In this case defendants 3 and 4 appeared through their counsel and filed written statement. It is 17 O.S.3284/2001 .
pertinent to note that when matter was pending for argument, at that time, advocate for the plaintiff filed memo stating that plaintiff concede that she would not interfere with the possession of the third and fourth defendant of the property bearing site no.2072 and she proceed rest of the suit schedule property except one referred to in the memo and plaintiff hereby withdraws her suit against defendant no.3 and
4. The evidence on record clearly shows that defendant no.3 and 4 are the mother and son and Bangalore Development Authority has allotted site bearing no.2072 formed at HAL 3rd stage, Bangalore measuring East to West 9.30 mtrs and North to South 6.09 mtrs.
17. Further evidence on record clearly shows that defendant no.3 has gifted the suit schedule property in favour of her son who is defendant no.4 under Gift deed dated 21/9/2002 and by virtue of the said Gift deed defendant no.4 became owner of the 18 O.S.3284/2001 .
schedule property mentioned in the written statement. Further evidence on record clearly shows that defendant no.4 has obtained necessary permission from the competent authority and constructed building consisting of ground, first and second floor and now defendant no.4 is in possession and enjoyment of the said property. Now plaintiff filed memo stating that she would not claim any relief against defendant no.3 and 4 in respect of the site no.2072 and plaintiff also admitted that defendant no.3 and 4 are the owners of site no.2072 and also conceded that she would not interfere with the possession of the third and fourth defendant and given up her claim against defendants 3 and 4 in respect of site no.2072. Hence from the memo filed by the plaintiff, it is much clear that plaintiff is not claiming any relief against defendants 3 and 4 in respect of site no.2072. Now, plaintiff is claiming relief in respect of the Bangalore Development Authority site no.2076 and 2077 of HAL 3rd stage carved out in 19 O.S.3284/2001 .
sy.no.18/1 of Kodihalli village measuring East to West 30 feet, North to South 40 feet and bounded on east by Bangalore Development Authority road, west by 4th defendants property, north by private property and south by private property.
18. It is the case of plaintiff that she is in lawful possession and enjoyment of the above said property measuring East to West 30 feet and North to South 40 feet. In this case, plaintiff produced sale deed dated 25/6/1971 which is marked as Ex.P1 and plaintiff also produced another sale deed dated 7/6/1972. On perusal of the sale deeds produced by the plaintiff it shows that plaintiff has purchased suit schedule property during the year 1971. In this case plaintiff also produced property extract for the year 1982-83 which is marked as Ex.P3. It shows that plaintiff is in possession and enjoyment of the property in question. Further this Ex.P3 shows that there is a structure in the suit schedule property. Ex.P4 is the endorsement 20 O.S.3284/2001 .
issued by the Sanitary Board. Ex.P5 is the sanction plan. It shows that plaintiff has obtained permission to put up construction in the suit schedule property. In this case plaintiff also produced Encumbrance Certificate which is marked as Ex.P6. Plaintiff also produced complaint given to Assistant Commissioner of Police which is marked as Ex.P7. In this case plaintiff also produced copy of the notice issued by Land Acquisition Officer which is marked as Ex.P8. Plaintiff also produced photographs, electricity demand bill, CD which are marked as Ex.P12 to Ex.P15. On perusal of the photographs and CD produced by the plaintiff, it clearly shows that there is a structure in the suit schedule property and plaintiff is in possession of the property claimed in the memo dated 16/9/2016.
19. In this case defendant no.4 also examined himself as DW.1 and produced in all 26 documents which are marked as Ex.D1 to Ex.D26. Defendant 21 O.S.3284/2001 .
no.4 in his evidence speaks with regard to site bearing no.2072 acquired by him and construction of building in the said property and also speaks with regard to possession of the said property.
20. It is pertinent to note that, in this case plaintiff has given up his claim against defendants 3 and 4 in respect of the site no.2072. DW.1 also in his evidence speaks with regard his ownership and possession over the site no.2072. Now, plaintiff has given up her claim against defendant no.3 and 4 and hence it is not necessary to consider the evidence of DW.1 since plaintiff is not claiming any relief against defendants 3 and 4 in respect of site no.2072.
21. It is the case of the plaintiff that she has been in settled possession of the property mentioned in memo dated 16/9/2016 since from the date of purchase of the said property. Defendants 1 and 2 contended that the property which is claimed by the plaintiff has already been acquired by Bangalore 22 O.S.3284/2001 .
Development Authority by issuing preliminary notification and final notification and possession also taken and award has been passed and site has been formed in the suit schedule property and same was allotted to needy person and plaintiff is not in possession of the suit schedule property.
22. In this case even though defendants 1 and 2 filed written statement denying the case of plaintiff but defendants 1 and 2 has not adduced any evidence in support of their contention. However, at the time of arguments, learned counsel for the defendants 1 and 2 produced xerox copy of the final notification dated 15/7/1971; copy of the award, acknowledgement of lands and notification for having taken possession of the property in question. As already stated in this case defendants 1 and 2 in their written statement contended that suit schedule property has been acquired by the Bangalore Development Authority by issuing preliminary notification and final notification, 23 O.S.3284/2001 .
but defendants 1 and 2 did not take any pain to lead oral and documentary evidence. However, the xerox copies of the documents produced by the defendants 1 and 2 shows that Bangalore Development Authority has already acquired land measuring an extent of 39 guntas in sy.no.18/1 of Kodihalli village by issuing preliminary notification dated 21/9/1967 and followed by final notification dated 15/7/1971. Further, above said xerox copies reveals that competent authority also passed award and also shows that possession of the land was taken under Section 16 (2) of the Land Acquisition Act.
23. PW.1 in his cross-examination stated that he do not know whether suit schedule property was acquired by Bangalore Development Authority. He denied that Bangalore Development Authority after formation of layout has allotted the sites including suit schedule property to the allottees. He has further denied that they have unauthorisedly constructed in 24 O.S.3284/2001 .
the portion of the site bearing no.2076 and 2077. He further denied that they have unauthorisedly constructed building and they are not in lawful possession of the suit schedule property. The above suggestion made to PW.1 by the defendants 1 and 2 clearly shows that there is a structure i.e., building in the suit schedule property.
24. In this case defendants 1 and 2 in their written statement also contended that structure stated to have come up in the schedule property which correspondent to some portion of site bearing no.2076 and 2077 formed by defendant authority in HAL 3rd stage layout is temporary, unauthorized and illegal which has come up very recently. The above said contention of the defendants 1 and 2 itself clearly shows that there are some structure in the portion of property bearing no.2076 and 2077.
25. In this case even though defendants 1 and 2 contended that said structures have come up 25 O.S.3284/2001 .
recently but defendants 1 and 2 have not adduced any evidence to show that said structure have come up recently. In this case defendants 1 and 2 did not enter into witness box and not stated the said fact on oath. Hence I draw adverse inference against defendants 1 and 2.
26. PW.1 in his cross-examination categorically denied that they have put up construction in the suit schedule property after filing this suit. In this case defendants 1 and 2 have not adduced any evidence to show that plaintiff has put up a construction after filing this suit. On the other hand, evidence on record clearly shows that even prior to filing of this suit plaintiff has put up construction and plaintiff is residing in the portion of the suit schedule property. In this case plaintiff also produced photographs, CD, electricity bills which are marked as Ex.P9 to Ex.P19. On perusal of the photographs and other documentary evidence produced by the plaintiff, it is 26 O.S.3284/2001 .
much clear that there are structures in the property in question and plaintiff is in possession of the said property. No doubt, from the xerox copies of the documents produced by the defendants 1 and 2, it is much clear that, even though defendants 1 and 2 have acquired the suit schedule property, but they have not taken physical possession of the property claimed by the plaintiff in accordance with law.
27. In this case plaintiff is not claiming any ownership over the suit schedule property on the basis of sale deed dated 25/6/1971 which is marked as Ex.P1. The evidence on record shows that Bangalore Development Authority has issued preliminary notification dated 21/9/1967 followed by final notification dated 15/7/1971. It shows that plaintiff has purchased suit schedule property after preliminary notification issued by the Bangalore Development Authority. Therefore, sale deed produced by the plaintiff is null and void and it does not confer 27 O.S.3284/2001 .
any right, title and interest over the property in favour of plaintiff. However, documents produced by the plaintiff clearly show that she is in possession of suit schedule property as on the date of suit. The evidence on record clearly shows that even though defendants 1 and 2 have acquired the property in question, but they have not taken physical possession of the suit schedule property. It appears that defendants 1 and 2 have taken only symbolic possession or paper possession of the suit schedule property. It is held in a decision reported in 2007 (5) Kar.L.J. 11 wherein our Hon'ble High Court of Karnataka in para no.26, 27 and 28 has held as under:
"26. As matter of fact, this Court in the year 2005 relying upon Supreme Court decision in B.N.BHAGADE's case, on the question of law referred by Division Bench to the Full Bench in writ appeals 1485/2003 clubbed with 1468/2003 and 1488/2003, made 28 O.S.3284/2001 .
a detailed discussion on this aspect of the matter by its order dated 23.12.2005.
27. In this case, it was held what is required under the Act is taking of actual possession on the spot. In the eye of law, the taking of possession will have the effect of transferring possession from the owner of the land to the state Government. It is no doubt true that the Act is silent with regard to the mode of taking possession. It is settled law by series of judgments of the Apex Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum of panchanama by the Deputy Commissioner of the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is further held 29 O.S.3284/2001 .
when the Government proceeds to take possession of land acquired by it under the Land Acquisition Act, it must take actual possession of the land since all interest in the land are sought to be acquired by it. Therefore, there can be no question of taking symbolical possession in the sense understood by judicial decisions under the provisions of the CPC., nor would possession merely on paper be enough. The Act contemplates as a necessary condition of the vesting of the land in the state Government which is the actual taking possession of the land by the proper authority. Again, such possession would have to be taken as the nature of land admits of.
28. From the above judgments, one can be sure that depending upon the facts and circumstances of each case, in particular, the nature of land, the existence of structures on the land 30 O.S.3284/2001 .
and the authority who takes over
possession, the Court has to
conclude whether actual
possession was taken over, which is a condition precedent for vesting of land in the State Government."
28. From the above decision, it is much clear that in the eye of law the taking of possession will have the effect of transferring possession from the owner of the land to the State Government. It is settled law that one of the accepted modes of the taking possession of the acquired land is recording of memorandum of panchanama by the Deputy Commissioner or Land Acquisition Officer in the presence of witnesses signed by him and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. In this case also defendants 1 and 2 even though contended that they have taken possession of the suit schedule property but they have not adduced any evidence to show that they have taken actual 31 O.S.3284/2001 .
possession from the plaintiff. In this case defendants 1 and 2 have not produced any panchanama or mahazar to show that they have taken actual possession of the acquired land. From the above decision it is much clear that, there can be no question of taking symbolic possession nor would possession merely on paper. In this case defendants 1 and 2 not at all adduced any evidence to show that they have taken actual possession of the suit schedule property after acquisition of the property in question. On the other hand, the photographs and other documents produced by the plaintiff clearly reveals that even though property has been acquired by the Bangalore Development Authority but plaintiff is in possession of the suit schedule property and there are structures in the suit schedule property. In this case even though sufficient opportunities were given to the defendants 1 and 2, but Bangalore Development Authority failed to produce documentary evidence to prove that Bangalore Development Authority has 32 O.S.3284/2001 .
taken physical possession of the suit schedule property after acquisition of the said property. From the above decision, it is much clear that, one can be sure that depending upon the facts and circumstances of the each case, in particular, the nature of land, the existence of structures on the land and authority who takes over possession, the court has to conclude whether actual possession was taken over which is a condition precedent for resting of land in the State Government.
29. In this case, even though defendants 1 and 2 contended that they have taken possession of the suit schedule property by issuing notification under Section 62 of the Land Acquisition Act dated 13/12/1974, but in this case there is no cogent evidence on record to show that Bangalore Development Authority has taken actual possession of the suit schedule property by drawing mahazar. In view of the above referred decision if acquired property 33 O.S.3284/2001 .
has to vest with the Government, taking of actual possession by drawing mahazar which is a condition precedent for vesting of land in the State Government. But in this case there is no cogent evidence on record to show that Bangalore Development Authority has taken actual possession of the suit schedule property. Therefore, suit schedule property not at all vested with the Government. The evidence on record clearly shows that there are structures in the suit schedule property and plaintiff is in possession of the property in question since from the date of purchase i.e., from 25/6/1971 till date.
30. It is also held in a decision reported in Civil Appeal No.3604 of 2011 between Banda Development Authority, Banda vs. Motilal Agarwal decided on 26/4/2011 by the Hon'ble Apex Court of India, wherein in para no.34 of its Judgment, it is held as under:
34 O.S.3284/2001
.
"The principles which can be culled out from the above noted judgments are:
i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant,
the act of the concerned State
authority to go to the spot and
prepare a panchanama will
ordinarily be treated as
sufficient to constitute taking of possession.
iii) If crop is standing on the
acquired land or building/
structure exists, mere going on
the spot by the concerned
authority will, by itself, be not sufficient for taking possession.
Ordinarily in such cases, the concerned authority will have to give notice to the occupier of the building /structure or the person who has cultivated the land and take possession in 35 O.S.3284/2001 .
the presence of independent witnesses and get their signatures on the panchanama.
Of course, refusal of the owner of the land or building / structure may not lead to an inference that the possession of the acquired land has not been taken.
iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/ designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v) If beneficiary of the acquisition is an agency / instrumentality of the State and 80% of the total compensation is 36 O.S.3284/2001 .
deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken."
31. From the above decision, it is much clear that if building or structure exists on the acquired land mere going on the spot by the concerned authority will by itself be not sufficient for taking possession. Ordinarily in such cases, the concerned authority will have to give notice to the occupier of the building / structure and take possession in the presence of independent witnesses and get their signatures on the panchanama.
32. In this case evidence on record clearly shows that there are structures in the suit schedule property and plaintiff is in possession of the suit schedule property. The evidence on record clearly 37 O.S.3284/2001 .
shows that Bangalore Development Authority has not at all given any notice to plaintiff prior to taking actual possession of the suit schedule property. Further, the officials of the Bangalore Development Authority not at all drawn mahazar in the presence of witnesses at the time of taking actual possession of the suit schedule property. As already stated in this case defendants 1 and 2 have not adduced any evidence to show that they have taken actual possession of the suit schedule property in presence of witnesses by drawing panchanama. Hence from the evidence on record it is much clear that Bangalore Development Authority has not taken possession of the acquired land in accordance with law. Mere symbolic possession or paper possession or mere going on the spot by the concerned authority will by itself be not sufficient for taking possession. Hence defendant no.1 and 2 have utterly failed to prove that they have taken actual possession of the suit schedule property. On the other hand, evidence on record clearly shows that 38 O.S.3284/2001 .
even though suit schedule property which is claimed by the plaintiff has been acquired by the Bangalore Development Authority, but Bangalore Development Authority has not taken actual possession of the suit schedule property in accordance with law as per the principles laid down in the above referred decisions.
33. From the evidence on record it is much clear that there are structures in the suit schedule property even prior to filing of this suit and plaintiff is in possession of the suit schedule property since from the date of purchase of the suit schedule property i.e., 25/6/1971. Plaintiff proved her possession over the property bearing site no.2076 and 2077 measuring East to West 30 feet and North to South 30 feet. Accordingly, I answer issue no.1 in the affirmative and issue no.3 in the negative.
34. ISSUE NO.2: Plaintiff contended that defendants are making illegal attempts to demolish the structure belongs to the plaintiff and causing 39 O.S.3284/2001 .
interference in her peaceful possession and enjoyment over the suit schedule property.
35. In this case plaintiff has given up her claim against defendants 3 and 4 in respect of site no.2072. Hence the question of considering the interference by the defendants 3 and 4 does not arise at all.
36. The evidence on record clearly shows that there are structures in the suit schedule property and plaintiff is in possession of the said property since from the date of purchase. Even though plaintiff is in possession of the suit schedule property since from the date of purchase i.e., from 25/6/71 but defendants 1 and 2 contended that they have already taken possession of the property claimed by the plaintiff. But in this case defendants 1 and 2 have not adduced any evidence to prove that they have taken actual possession of the property claimed by the plaintiff. Hence the contention of the defendants 1 and 2 that they have taken possession of the suit schedule 40 O.S.3284/2001 .
property even though they have not actually taken physical possession of the suit schedule property in accordance with law, the contention of defendants 1 and 2 itself amounts interference in the possession of the plaintiff over the property in question. Plaintiff proved issue no.2. Accordingly, I answer issue no.2 in the affirmative.
37. ISSUE NO.5: Now I will consider issue no.5 and thereafter I will consider issue no.4. Defendant No.1 and 2 contended that suit is bad for want of notice under Section 64 of the Bangalore Development Authority Act.
38. In this case, plaintiff has produced copy of the statutory notice dated 7/3/2001 issued under Section 64 of the Bangalore Development Authority Act to the Bangalore Development Authority. Further, in this case, plaintiff also produced copy of the acknowledgement for having received the statutory notice by the Bangalore Development Authority. These 41 O.S.3284/2001 .
documents are available in the file but plaintiff has not got marked the same as exhibits. Plaintiff has filed this suit on 2/5/2001 before Vacation Court, Bangalore. Even though plaintiff has not got marked the above said document, it is much clear that prior to filing of this suit plaintiff has issued statutory notice as required under the provisions of Bangalore Development Authority Act.
39. Plaintiff has produced notice issued by Land Acquisition Officer, Bangalore Development Authority, Bangalore which is marked as Ex.P8. It shows that prior to filing of this suit, plaintiff has issued notice to Bangalore Development Authority and Land Acquisition Officer attached to the office of Bangalore Development Authority has in turn issued notice dated 21/9/2001 calling upon the plaintiff to produce documents pertaining to suit schedule property. On perusal of this Ex.P8, it shows that prior to filing of this suit plaintiff has issued notice to the 42 O.S.3284/2001 .
Bangalore Development Authority. The object of section 64 is that defendant be given an opportunity to consider his possession and stand and to make amends or settle the claim if he is so advised. From Ex.P8, it appears that prior to filing of this suit plaintiff has issued notice and plaintiff has not filed this suit surprisely without the knowledge of defendant no.1 and 2.
40. It is also important to note that plaintiff has filed this suit only for bare injunction. It appears that plaintiff has filed this suit before Vacation Court during the year 2001 and obtained leave of the court to institute the suit. It appears from the order sheet that as matter was urgent, this court has granted the permission to plaintiff to institute the suit and notice has been dispensed with. Moreover in this case, defendants 1 and 2 have not adduced any evidence in support of their contention. Defendants 1 and 2 failed 43 O.S.3284/2001 .
to prove issue no.5. Accordingly, I answer issue no.5 in the negative.
41. ISSUE NO.4: In this case, plaintiff sought for the relief of Permanent Injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property and also sought for declaration that plaintiff is in settled possession of the property in question. As already stated in this case plaintiff has given up his claim against defendants 3 and 4 in respect of site no.2072. Hence suit against defendants 3 and 4 is liable to be dismissed.
42. In this case, plaintiff sought relief of Permanent Injunction in respect of the Bangalore Development Authority site no.2076 and 2077 of HAL 3rd stage carved out in sy.no.18/1, Kodihalli village measuring East to West 30 feet and North to South 40 feet. While answering issue no.1, it is held that plaintiff is in lawful possession over the suit schedule 44 O.S.3284/2001 .
property. From the evidence on record it is much clear that, plaintiff has purchased the suit schedule property under registered sale deed dated 25/6/1971 and she is in settled possession of the suit schedule property. The evidence on record shows that even though Bangalore Development Authority has acquired the property claimed by the plaintiff by issuing preliminary notification and final notification, but Bangalore Development Authority has not taken actual and physical possession of the suit schedule property in accordance with law as held in a decision reported in 2007 (5) Kar.L.J. 11 and Civil Appeal No.3604 of 2011 between Banda Development Authority, Banda vs. Motilal Agarwal decided on 26/4/2011 by the Apex Court of India. The evidence on record clearly shows that plaintiff is in settled possession of the suit schedule property and there are structures in the suit schedule property. Even though Bangalore Development Authority has acquired the property claimed by the plaintiff, but it 45 O.S.3284/2001 .
has not taken actual possession of the said property in accordance with law. Hence settled possession of the plaintiff is to be protected by issuing injunction. Defendants 1 and 2 cannot forcibly evict the plaintiff from the suit schedule property without due process of law.
43. The evidence on record clearly shows that there is a structure in the suit schedule property and plaintiff is in possession of the property in question as on the date of suit. It is pertinent to note that, Hon'ble Supreme Court of India in a decision reported in (2013) 3 SUPREME COURT CASES 66, in between Commissioner, Bangalore Development Authority and another vs. Brijesh Reddy and another, it is held that Civil Court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under Land Acquisition Act. But, it is pertinent to note that our Hon'ble High Court of Karnataka in a decision 46 O.S.3284/2001 .
reported in LAWS(KAR)-2013-9-68/KCCR-2014-1- 668 in between The Bangalore Development Authority vs. M.S.Narayana Murthy, Bangalore has held that even if the answer would be that it falls in the acquired area then if possession or occupation is established even if it is unauthorized, that necessarily a Civil in nature for which the suit for eviction has to be filed by filing separate suit. In the said decision also, Hon'ble High Court of Karnataka has discussed above referred decision of Hon'ble Supreme Court of India reported in (2013) 3 SUPREME COURT CASES 66.
44. The Hon'ble High Court of Karnataka in the above referred decision, it is held that even if Bangalore Development Authority has acquired suit schedule property and plaintiff is in possession of the suit schedule property and even if it is unauthorized, then it is for the Bangalore Development Authority to 47 O.S.3284/2001 .
take appropriate action in accordance with law by filing necessary suit.
45. In this case, evidence on record clearly shows that even though Bangalore Development Authority has acquired suit schedule property by issuing preliminary and final notification but it has not taken actual and physical possession of the suit schedule property and possession is with the plaintiff and plaintiff is in lawful possession and enjoyment of the suit schedule property since 1971.
46. Further evidence on record clearly shows that there are structures in the suit schedule property. Defendants also not seriously denied the possession of the plaintiff over the suit schedule property. Further, defendants also not seriously denied about the existence of structures in the suit schedule property. The evidence on record clearly shows that defendants 1 and 2 are trying to demolish the structures existing in the suit schedule property 48 O.S.3284/2001 .
and also trying to dispossess the plaintiff. But, evidence on record clearly shows that plaintiff is in possession and enjoyment of the property claimed by her. Therefore, plaintiff is entitled for the relief of Permanent Injunction as sought for. However, liberty is reserved to the Bangalore Development Authority to take appropriate action in accordance with law by filing necessary suit to take possession of the suit schedule property. Therefore, plaintiff is entitled for the relief of injunction as sought for. Accordingly, I answer Issue no.4 in the affirmative.
47. ISSUE NO.6: In this case plaintiff also sought for the relief of declaration declaring that plaintiff is in settled possession of the property. While answering issue no.4, it is held that plaintiff is in possession of the property since from the date of purchase i.e., from 25/6/1971. The evidence on record clearly shows that even though Bangalore Development Authority has acquired the property in 49 O.S.3284/2001 .
question but it has not taken actual and physical possession of the property in question from the plaintiff. The plaintiff is in settled possession of the suit schedule property since from 1971. Therefore, plaintiff is entitled for the relief of declaration that he is in settled possession of the suit schedule property. Further, plaintiff is also entitled for the relief of Permanent Injunction. Thus, from my above discussions and reasoning, the suit of the plaintiff is deserves to be decreed. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby decreed.
It is declared that plaintiff is in settled possession of the suit property mentioned in the memo dated 16/9/2016 filed by him.
Defendants 1 and 2 or anybody acting under them or through them are 50 O.S.3284/2001 .
restrained by order of injunction from demolishing the structures existing in the property claimed by the plaintiff in the memo dated 16/9/2016 and dispossessing the plaintiff from the suit schedule property.
However, Bangalore Development
Authority is at liberty to take
appropriate action in accordance with law by filing necessary suit for eviction of the plaintiff.
The suit against defendants 3 and 4 is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs. Draw decree accordingly in respect of the property mentioned in the memo dated 16/9/2016 filed by the plaintiff.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 17th day of January 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.51 O.S.3284/2001
.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Chadrashekar
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Kumar
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 25/6/1971 Ex.P 2 Certified copy of the sale deed dated 7/6/1972 Ex.P 3 Certified copy of the tax assessment list Ex.P 4 Certified copy the endorsement issued by the sanitary board Ex.P 5 Certified copy of the sanctioned plan Ex.P 6 Certified copy of encumbrance certificate Ex.P 7 Certified copy of the letter dated 13/6/2002 Ex.P 8 Letter issued by Bangalore Development Authority Ex.P 9 And Electricity demand bills Ex.P 10 Ex.P 11 General Power of Attorney of plaintiff D.Bharathi 52 O.S.3284/2001 .
Ex.P 12 Photographs And Ex.P 13 Ex.P 14 CD Ex.P 15 Electricity bill Ex.P 16 To Photographs Ex.P 19
4. List of the documents marked for the defendants:
Ex.D1 Allotment letter
Ex.D2 Challan dated 9/7/1993
Ex.D3 Possession Certificate
Ex.D4 Sale deed
Ex.D5 Katha certificate
Ex.D6 Gift Deed
Ex.D7 Katha certificate
Ex.D8 Katha extract
Ex.D9 Receipt
Ex.D10 Sanction plan
Ex.D11
to Tax paid receipts
Ex.D14
Ex.D15 Deviation affidavit
Ex.D16
To Two photographs with CD
Ex.D18
53 O.S.3284/2001
.
Ex.D19 Certified copy of written statement in O.S.5106/98 Ex.D20 Certified copies of depositions in to O.S.No.5106/98 Ex.D22 Ex.D23 Certified copies of Judgment and and Decree in O.S.No.5106/98 Ex.D24 Ex.D25 Certified copy of Commissioner And report and mahazar Ex.D26 [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby decreed.
It is declared that plaintiff is in settled possession of the suit property mentioned in the memo dated 16/9/2016 filed by him.
Defendants 1 and 2 or anybody acting under them or through them are restrained by order of injunction from demolishing the structures existing in the property claimed by 56 O.S.3284/2001 .
the plaintiff in the memo dated 16/9/2016 and dispossessing the plaintiff from the suit schedule property.
However, Bangalore Development
Authority is at liberty to take
appropriate action in accordance with law by filing necessary suit for eviction of the plaintiff.
The suit against defendants 3 and 4 is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly in respect of the property mentioned in the memo dated 16/9/2016 filed by the plaintiff.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
57 O.S.3284/2001.
58 O.S.3284/2001.