Bangalore District Court
Smt. Padma Bhide vs P.T. Sadashivaiah on 8 April, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 8th day of April, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 735/2007:
PLAINTIFF : Smt. Padma Bhide,
W/o. Vigneswar K. Bhide,
Aged about 34 years,
Residing at No.1,
Jayanagar Apartments,
Opp. City Hospital,
Mangalore - 575 003.
(By Sri. D.R.Ravishankar, Advocate)
-V/S-
DEFENDANTS : 1. P.T. Sadashivaiah,
S/o. Late Thotadappa,
Aged about 64 years.
2. Smt. Parvathamma,
W/o. P.T.Sadashivaiah,
Aged about 55 years.
3. S. Nanjunda,
S/o. P.T.Sadashivaiah,
Aged about 31 years.
All are residing at Pattanagere
2 O.S.No.735/2007
Village, Kengeri Hobli,
Bangalore South Taluk,
Bangalore District.
4. The Commissioner,
Rajarajeshwarinagara City
Municipal Council,
Rajarajeshwari Nagar,
Bangalore.
5. N.R. Nagaraj,
Aged about 40 years,
S/o. Late Ramegowda,
Residing at No.6, Kathariguppe
Main Road, BSK 3rd Stage,
Bangalore - 560 085.
6. G.V. Ravindra Reddy,
Aged about 40 years,
S/o. Late G.V.Reddy,
Residing at No.26, 4th Cross,
Binny Layout, 3rd Stage,
Vijayanagar,
Bangalore - 560 040.
(By Sri. ARK, Advocate, for Defendant
No.1)
(By Sri. A, Advocate, for Defendant
No.4)
(By Sri. MDJ, Advocate, for Defendant
No.5)
(Defendants No.2, 3 & 6 placed exparte)
Date of institution of the suit: 25.01.2007
Nature of the suit:
Declaration, Mandatory
3 O.S.No.735/2007
Injunction & Perpetual
Injunction
Date of commencement of 21.09.2010
recording of evidence:
08.04.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
14 02 08
: JUDGMENT :
This suit is filed by the plaintiff against the defendants for declaration that the order of the 4th defendant dated 17.06.2006 is illegal and passed in excess of the jurisdiction vested and consequently mandatory injunction directing the restoration of katha in respect of the suit property in the name of plaintiff and for permanent injunction against the defendants No.1 to 3, 5 & 6, their agents, henchmen or anybody claiming through them from demolishing or otherwise dispossessing the plaintiff from the suit property, with costs and such other reliefs as this court deems fit in the circumstances of the case.
(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the defendants No.1 to 3 were the owners in respect of Sy.No.24/3, measuring 1 acre 35 4 O.S.No.735/2007 guntas and the 1st defendant was also the owner of Sy.No.17/1, measuring 27½ guntas, situated at Pattanagere Village, Kengeri Hobli, Bangalore South Taluk. They entered into an agreement on 29.04.1984 between defendants No.1 to 3 and REMCO (BHEL) House Building Co-operative Society Limited (hereinafter referred to as Society), the possession of the property was delivered empowering the Society to do the various acts by way of General Power of Attorney dated 14.08.1984 and a settlement deed was also executed by the defendants No.1 to 3 in favour of said Society in respect of Sy.No.24/3 and possession was handed over to the Society. In respect of Sy.No.17/1, the 1st defendant had executed an agreement on 27.02.1985 and gave the possession to the Society empowering it for various acts by executing the General Power of Attorney dated 19.08.1984 and a final settlement was entered into on 15.03.1992. Said lands were subjected to acquisition proceedings by the Special Land Acquisition Officer. If the proceedings were challenged and went up to the Hon'ble Supreme Court and the proceedings were quashed and directed that if the possession is delivered under acquisition proceedings, same has to be restored to 5 O.S.No.735/2007 the land owners after depositing the compensation by the owners. From 1984 and onwards, the defendants No.1 to 3 have executed the various documents. The Society formed a layout by developing necessary infrastructure and allotted the sites to its members. Site No.151 formed in the land of defendants No.1 to 3, measuring East- West 30 feet and North-South 40 feet was allotted in favour of Vigneshwara Bhat, the father of plaintiff. Possession Certificate was issued and katha was executed by the Society in favour of said purchaser on 07.11.1992 and it is described in the suit schedule property. The said property coming within the limits of Notified Area Committee of Sarakki. After the allotment of the site and registration, the katha in respect of the suit property was made out in the name of said purchaser. Plaintiff father gifted the suit property in her favour on 27-8-2004. Since then she continued the possession and enjoyment of the suit property, which is located within the limits of 4th defendant. Katha was changed in the name of plaintiff after collecting the assessment from time to time. The defendant No.4 recognized the plaintiff's possession and the plaintiff is in possession and enjoyment of the suit property by paying 6 O.S.No.735/2007 assessment for the year 2006-2007. The defendants No.1 to 3 have offered to waive the right by virtue of the orders of the Hon'ble Supreme Court and to confirm the earlier transaction entered into between them and Society. They executed conveyance deeds, etc. The defendants No.1 to 3 have executed declaration-cum-ratification deed on 14.02.2000 and ratified the formation of layout and sanction of certificates in favour of members by receipt of full consideration amount, delivery of possession, formation of layout, allotment and registration of conveyance in favour of the members of the Society, who have undertaken under the impression that the defendants No.1 to 3 would not claim any interest over the layout formed in Sy.Nos.24/3 & 17/1 After executing the ratification deed, defendant No.3 filed a suit in O.S.No.4755/2004 for declaration and injunction in respect of Sy.Nos.24/3 & 24/1. Though the defendants No.1 to 3 executed various documents, the defendants No.5 & 6 have obtained sale deed from defendants No.1 to 3 on 29.10.2004, in respect of area in Sy.No.24/3. However, they did not choose to get katha in their names under sale deed. Defendant No.3 filed complaint to defendant No.4, for cancellation of khatha made in the 7 O.S.No.735/2007 name of plaintiff, as per direction of Hon'ble supreme court, it was duly replied to Defendant -4, bringing to the notice of subsequent events and rectification and confirmation of earlier deed and transaction. But Defendant -4 has cancelled the khatha of plaintiff taking this advantage the Defendants -1 to 3 , 5 & 6 attempted to demolish the construction of the suit property and on 22-07-06, Defendants -5 & 6 along with many others come to the suit property with intention to trespass in to the property and put up the board illegally. On getting this information, when plaintiffs went to the suit property, Defendant-5 & 6 gave threats of dire consequences. Hence the plaintiff has constrained to file this suit, and prayed to decree it.
3. On issuance of suit summons after registering the case, the defendants No.1, 4 & 5 have appeared through their respective counsels. But the defendants No.2, 3 & 6 have not appeared before the court, hence they are placed exparte. The defendant No.1 has not filed written statement. The defendant No.4 has filed written statement and denied the material contents of the plaint averments 8 O.S.No.735/2007 as not maintainable in law. It is admitted about the activity undertaken by REMCO House Building Society and acquisition proceedings and formation of sites and the proceedings before the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court with reference to quashing of acquisition proceedings and stated that in view of the judgment of the Hon'ble Supreme Court, the Special Land Acquisition Officer had restored the land to the original land owners and a letter was issued by him on 07.03.2005 to this defendant for preventing of construction of unauthorized building in the lands returned to the land owners. The Special Deputy Commissioner has also issued a letter No.154/2004-05, dated 01.02.2005 for taking appropriate action as per the direction of the Hon'ble Supreme Court. Some of the land owners including the defendants No.1 to 3 gave representation to this defendant for cancellation of katha. One Neelakantaiah, the land owner had filed a petition before the Hon'ble Supreme Court in Case No.CCC (Civil) 224-228/2005 against this defendant and others for disobedient of the judgment. After quashing of acquisition proceeding and possession re-delivered to the land owners, the plaintiff's possession 9 O.S.No.735/2007 is illegal and unauthorized. Hence, the defendant has issued a notice and thereafter cancelled the katha. Hence, the order passed by this defendant is sustainable and it is in accordance with law. Hence, the suit is not maintainable. The site owners have filed a writ petition in W.P.No.13169/2006 for challenging the cancellation of katha by this defendant. It was allowed and remitted the matter back for fresh disposal after giving opportunity to the parties. This defendant has taken up the matter for enquiry and it was still pending consideration. There was no cause of action for the plaintiff to file this suit. Nor the plaintiff has complied with the statutory notice under section 284 of KMC Act. The suit of the plaintiff is bad for mis-joinder and non-joinder of parties as REMCO House Building Society and State of Karnataka has not made as a party to the suit and hence suit is not maintainable. On these grounds, it is prayed to dismiss the suit.
4. The defendant No.5 has filed the written statement and denied the material contents of the plaint averments as not maintainable in law. He has admitted ownership of defendants No.1 10 O.S.No.735/2007 to 3 over Sy.Nos.24/3 & 17/1. But he denied agreements of sale with the Society, delivery of possession to it empowering it to do the alleged acts, by executing the power of attorney dated 14.08.1984 and final settlement deed, receiving of full consideration amount in respect of said lands, execution of various documents to the Society, formation of layout, allotment of sites to the members, issue of possession certificate to the members of the Society etc., as no legal consequence. It is denied the plaintiff's ownership under gift deed executed in her favour by her father, in respect of suit property, and ownership and possession of plaintiff over the suit property. The acquisition proceedings had been quashed in its entirety before the Hon'ble Supreme Court of India in respect of agricultural land measuring 58 acres 37 guntas, in which the suit property includes. In spite of the decision of the Hon'ble Supreme Court of India, the Society has created the documents as if executed by this defendant and other innocent farmers and indulged in making unlawful gains by executing sale deeds in favour of several persons, which is opposed to law and procedures. It is denied the execution of declaration-cum-ratification deed and other such documents and 11 O.S.No.735/2007 delivery of possession thereunder. He asserted the alleged sale transaction with him and defendant No.6 on 29.10.2004. Filing of suit by defendant No.3, in O.S.No.4755/2004 and stated that it was pending and it was for declaration and injunction has no relevance with the plaintiff's case. It is denied the cancellation of katha by defendant No.4 adopting due process and the attempt of alleged demolition of structure by the defendants No.5 & 6 and others. There was no cause of action to file this suit. Further he has stated that he has acquired land in Sy.Nos.17/1 & 24/3, under sale deed. Along with those lands, other lands subjected for acquisition by the Government of Karnataka in favour of REMCO Society. But, because of Society activities being illegal, the land owners challenged before the Hon'ble High Court of Karnataka, in Writ Petition, seeking to quash the entire acquisition proceedings and it was quashed. The order was challenged in the SLP before the Hon'ble Supreme Court of India. It was allowed and it is directed therein to the Government to restore all the lands which were acquired, to the respective owners. In view of quashing of the acquisition proceedings by the Hon'ble High Court of Karnataka and confirmed by the Hon'ble 12 O.S.No.735/2007 Supreme Court of India and pursuant to judgment the special land Acquisition officer having redelivered the possession of Sy.No. 24/3 and 17/1 in favour of the first defendant the documents i.e. Sale deed executed by Society, possession certificate issued by the society including encumbrance katha extract and Municipal Tax Kandaym receipt referred in the plaint etc., have no legal sanctity in the eye of law. No right, title or interest can be derived under such documents. The plaintiff was never in possession of any portion of the Sy.No. 24/3 and 17/1 and the property described in the plaint schedule is not at all in existence. Khatha registered in the plaintiff's name pertaining to suit schedule property was cancelled by 4th defendant under final notice dated 17-06-06 in reference No. 5/2004-05, which is published in Vijaya Karnataka Daily News paper dated: 24-06-06. It being the final notice has notified that, the khathadars have no claimed title from original owners pertaining to the suit schedule property. On the strength of the illegal documents the plaintiff is making unlawful gain for himself, despite quashing of the entire acquisition proceedings by the Hon'ble supreme court of India in respect of the non existing suit schedule property along with 13 O.S.No.735/2007 others. She has filed this frivolous suit to harass the defendants. The alleged allottees of certain sites formed by the Remco (BHEL) House Building Co-Operative society Ltd., had preferred writ petition before the Hon'ble High court of Karnataka in W.P No. 13169/2006 challenging the cancellation of Khatha that stood in the names of the allottees which were sought to be cancelled in notification, dated: 25-08-06 and 08-09-06 which were published in the Vijaya Karnataka on 30-08-06, 05-09-06 and 10-09-06. The Hon'ble High court of Karnataka as per the final order dated 20-03-06, as quashed the final notice dated 17-06-06 and others and directed the petitioners who claim khatha from the 4th defendant for non existing sites and the impleading applicants who are the owners of their respective lands (this defendant was one of the impleading applicant in the above said writ petition) to appear before the Deputy Commissioner Bruhut Bangalore Mahanagarapalike, Rajarajeshwari Regional Office on 07-04-07. The Hon'ble High Court of Karnataka as directed the D.C B.B.M.P to pass orders strictly in accordance with law within a period of four months in terms of Hon'ble Supreme Court order. As such, the prayer 'a' sought in the 14 O.S.No.735/2007 plaint is in-fructuous and does not survive for consideration. The Suit of the plaintiff is bad for non-joinder of necessary party since the plaintiff's vendor is not made as party to the proceedings. The plaintiff has also failed to implead the purchaser from the 6th defendant, who is in possession and enjoyment of the suit schedule property. The plaintiff being not in lawful possession is not entitled for the relief as sought for. Hence, it is prayed to dismiss the suit.
5. On the basis of the pleadings of the parties, following issues have been framed by the learned IX Addl. City Civil & Sessions Judge, Bangalore City.
I S S U E S (1) Whether the plaintiff proves that the order bearing No.Raaranasa/05/04-05 and dated 17.06.2006 of 4th defendant is illegal?
(2) Whether the plaintiff is entitled to the declaration sought for?
(3) Whether the plaintiff is entitled to the perpetual injunction sought for?
(4) To what decree or order?
15 O.S.No.735/2007
6. The plaintiff has adduced evidence through her husband as PW.1 and relied upon the documents at Exs.P.1 to P.8. The defendants have failed to adduce evidence on their behalf.
7. Heard the arguments learned counsel for the plaintiff and contesting defendants. Perused the pleadings and evidence on record.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the Negative.
(2) Issue No.2 .. In the Negative.
(3) Issue No.3 .. Partly in the Affirmative.
(4) Issue No.4 As per final order for the
following:
R E A S O N S
9. Issue Nos.1 to 3:- Since these three issues are
interlinked with each other and require common discussion, hence they are taken together for common consideration to avoid repetition of facts.
10. P.W.1 who is the husband of plaintiff deposed as her power of attorney and placed reliance on documents at Exs.P.1 to P.8. Ex.P.1 is the sale deed executed by the Society in favour of father of the plaintiff by name Vignaswara Bhat; Ex.P.2 is the gift deed executed by the father of the plaintiff in her favour; Ex.P.3 is 16 O.S.No.735/2007 the katha endorsement in connection with the change of name in the katha in respect of suit property, in the name of plaintiff's father; Ex.P.4 is the endorsement pertaining to transfer of right referring to the suit property for having changed the name of plaintiff's father, in the name of plaintiff dated 03.03.2005. It is also relevant to refer the documents i.e., certified copies of order sheet, compromise decree and compromise petition in O.S.No.5471/2002, in between Society and defendants No.1 to 3 in connection with declaratory relief. It was ended in compromise which includes the suit schedule property. They are at Ex. P.6 to 8 i.e. certified copies of order sheet, decree and judgment in O.S.No.5471/2002.
11. Thus, the contents of these documents coupled with the version of P.W.1 it is revealed that the plaintiff's father purchased the suit property as member of the REMCO (BHEL) House Building Co- operative Society Limited Bangalore(hereinafter referred as the Society) and got the possession of the suit site. Thereafter he gifted it with possession to his daughter i.e. the plaintiff, under a registered deed and thereby the plaintiff is in actual possession and enjoyment 17 O.S.No.735/2007 of the suit property. The learned counsel for the plaintiff referring these documents and evidence of P.W.1, has stated that they are supporting the lawful possession of the plaintiff over the suit property based on the prima-facie title and it was on the date of filing of the suit and it has been continued also. Accordingly the title deeds as referred above that the sale deed in favour of plaintiff's father and the gift deed of plaintiff's father executing it in favour of the plaintiff, are supporting the plaintiff's case about her possession as the said deeds have been acted upon which is evidencing from the said property records. Apart from this, the defendants No.1 to 3 were parties to the suit in O.S.No.5471/2002, which was ended in compromise, in connection with the declaration title to the property purchased by the Society and other transactions of the Society and its members. Thereby it is confirmed the title of the Society and its members/claimants under them with their respective possessory right, which includes the suit schedule property also.
12. From the contents of the said documents and version of P.W.1 and the manner of cross-examination are gone through by this 18 O.S.No.735/2007 court. The undisputed facts are brought on record by the plaintiff. Because none of the defendants put forth their defence effectively, since the defendants, though the defendants No. 4, & 5 submitted their written statement and subjected P.W.1 for cross-examination. From evidence on record as considered above the possession of the plaintiff is not disputed except stating that the possession is unauthorised. Even failed to put forth their defence either by adducing the evidence of competent witness or by producing any material document, disputing the plaintiff's possessory right over the suit property as it is based on the title deeds i.e. the purchase of site from the society by father of plaintiff and the Gift deed of the plaintiff. Thus, on this count the possession of the plaintiff over the suit property was and is protected, as on the date of filing of the suit.
13. At this juncture, it is much relevant to take up the discussion pertaining to the issue regarding challenging of legality of order passed by the defendant No.4 and whether such relief can be granted against defendant No.4 in connection with change of katha and declaration of order of defendant No.4, dated 17.06.2006 in 19 O.S.No.735/2007 No.Raaranasa/05/04-05 as illegal and passed in excess of the jurisdiction vested and consequently for mandatory injunction directing the restoration of katha in respect of the suit schedule property in the name of plaintiff. Thus, the relief claimed is against defendant No.4. Defendant No.4 is being Statutory Body governed by Karnataka Municipal Corporation Act (in short hereinafter referred to as KMC Act) represented by its Commissioner. The dispute is pertaining to the lawful possession of the plaintiff over the suit property and the interference claimed is against defendants No.1 to 3, 5 & 6 and their agents, henchmen etc., in the form of perpetual injunction restraining them from demolishing or otherwise dispossessing the plaintiff from the suit schedule property and it is the civil right claimed by the plaintiff and this Civil Court has jurisdiction to entertain the suit. Whereas the relief of declaration and mandatory injunction is pertaining to the discharge of duty and exercise of powers by defendant No.4 conferred under KMC Act and also pertaining to change of katha and it is within the exclusive jurisdiction of defendant No.4. The Civil Court has no any jurisdiction to entertain the suit to issue direction against the defendant No.4 20 O.S.No.735/2007 pertaining to restoration or change of katha. But under the Special Act, the plaintiff and defendants Nos. 1 to 3, 5 and 6 have to proceed before the competent authority established under KMC Act, to get the katha changed, with due process of law and in turn the defendant No.4 has to proceed with such applications with due explanation, if submitted by the plaintiff and the said defendants, about their rights in connection with the suit property in order to get their names entered or changed, as the case may be, with due process of law. In this connection, it is evident on record that the defendant No.4 has issued the notice calling upon him to show the cause as to why the katha in respect of the suit property to be cancelled, in view of the order passed by the Hon'ble Supreme Court of India in SLP No.3011- 3019/1995, dated 21.02.1995, i.e. quashing of land acquisition proceeding. But the plaintiff is challenging the order of cancellation Khata dated 17-6-2006. It is also made it clear by the defendant No. 5 in his W.S. at para 25 that, " The alleged allottees of certain sites formed by the Remco (BHEL) House Building Co-Operative society Ltd., had preferred writ petition before the Hon'ble High court of Karnataka in W.P No. 13169/2006 challenging the cancellation of Khatha that stood in the names of the allottees which were sought to be cancelled in notification, dated: 25-08-06 and 08-09-06 which were published in the Vijaya Karnataka on 30-08-06, 05-09-06 and 21 O.S.No.735/2007 10-09-06. The Hon'ble High court of Karnataka as per the final order dated 20-03-06, as quashed the final notice dated 17-06-06 and others and directed the petitioners who claim khatha from the 4th defendant for non existing sites and the impleading applicants who are the owners of their respective lands (this defendant was one of the impleading applicant in the above said writ petition) to appear before the Deputy Commissioner Bruhut Bangalore Mahanagarapalike, Rajarajeshwari Regional Office on 07-04-07. The Hon'ble High Court of Karnataka as directed the D.C B.B.M.P to pass orders strictly in accordance with law within a period of four months in terms of Hon'ble Supreme Court order. As such, the prayer 'a' sought in the plaint is in-fructuous and does not survive for consideration. "
Thus, the defendants have disputed the suit as it is not maintainable against the defendant No.4, because of statutory bar and also it renders in-fructuous and it does not survive for consideration.
Plaintiff has not disputed the fact that the said impugned order of the defendant No.4 was challenged before the Hon'ble High Court of Karnataka and it was set aside and matter has been remanded back to BBMP authority to reconsider the matter. So for these reasons the suit of the plaintiff is not maintainable and liable to dismissed.
14. Now coming to Issue No.3; it is relief oriented issue, as the interference of the plaintiff in peaceful possession and enjoyment of the suit property has been asserted in the plaint and deposed by the Husband of the plaintiff (PW.1) against the defendants. The main prayer regarding declaratory relief and mandatory injunction against 22 O.S.No.735/2007 the defendant No.4, which is already considered holding that it is not available before this court and the suit itself is not maintainable at this stage against the defendant No.4. But the interference is pleaded in connection with the peaceful possession and enjoyment of the suit property that, the defendants No.1 to 3, 5 & 6 are trying to dispossess her from the suit property. On going through the evidence of P.W.1 and contents of documents as referred above, are evidencing the actual possession of the plaintiff over the suit property as on the date of filing of the suit. But the claim of the contesting defendants disputing the plaintiff's lawful possession over the suit property stating that her possession is as unauthorized occupant of the suit property. Though there is cross examination by the contesting defendants, but they did not bring on record that the plaintiff was and is in actual possession of the suit property. Apart from this it is important to note that the defendants have failed to step in the witness box to face the legal consequence and to meet out the plaintiff's case of lawful possession, based on the title deeds and manner in which she acquired the title to the suit property.23 O.S.No.735/2007
15. Therefore, from the evidence on record and clear admission on the part of defendants and failure to substantiate the defense that in view of quashing of acquisition proceedings the original owners specifically in this case the defendant No. 1 to 3 have take possession with due process of law and having better title they have sold their property to defendant No. 5 and 6 and the alleged unlawful possession of the plaintiff. So an adverse inference can be drawn against the defendants No.1 to 3, 5 & 6, that they have avoided to put forth the defence in proof of the same by stepping into the witness box and face the consequence, so as to substantiate that the plaintiff's possession was unauthorized and illegal possession.
16. Apart from this, they have not substantiated what due procedure had been followed to take the possession of the plaintiff or from her erstwhile owners and it was with due process of law.
Therefore, on this count also it is failure to substantiate the defence, and to disprove the plaintiff's lawful possession which has been supported by the un-rebutted documents. The title deeds are not 24 O.S.No.735/2007 proved to be duly challenged and got them declared as null and void.
So it is the proof of her possession as lawful one. Thus it is proved by the documentary evidence i.e., sale deed(Ex.P.1) of the year 1992 of the plaintiff's father. The katha certificate, possession certificate revealing her father's name. Her father had purchased the suit property from the Society and the katha has been changed in his name in pursuance of the sale deed and the contents of the sale deed and possession certificate is evidencing the handing over of the possession to her father. Thereafter the plaintiff got it under gift deed executed by her father. These are having evidentiary value are revealing the possession of the plaintiff as on the date of filing of the suit. The possession has not been handed over actually to the real owners, after compliance in accordance with the quashing of land acquisition proceedings of the year 1995.
17. It is also notable point that the Society through whom the plaintiff is claiming the right over the suit property, had filed a suit in O.S.No.5471/2002 for declaration that the Society has acquired title against the original owners of the suit property i.e. 25 O.S.No.735/2007 defendant No.1 to 3 and others as defendants in that case. It was filed on 09.08.2002. One more prayer made thereunder was permanent injunction against the defendants not to interfere with the peaceful possession and enjoyment of the suit property either of the Society or of its members who have been allotted with sites formed by the Society. The said suit was represented by the power of attorney of defendants No.1 to 3 and representative of the Society and it was compromised as per the terms of compromise petition.
The compromise decree was passed on 02.03.2009 and decree was drawn on 11.03.2009 and thereby the present defendants No.1 to 3 represented by the power of attorney have consented for declaratory decree in favour of the Society and also the protection of possession of the Society and also its members, which includes the suit property also. It is subsequent to quashing of acquisition proceedings of the year 1995 and the compliance as per direction of the Hon'ble Supreme Court and its subsequent event and transaction entered into between defendants No.1 to 3 the original owners of the property, which includes the suit property also.26 O.S.No.735/2007
18. At this juncture, it is relevant to refer the contents of Ex.P.6, the certified copy of the order sheet in O.S.No.5471/2002, dated 02.03.2009. The portion of the order, which reads thus:
"Both the plaintiff and the defendant are permitted to enter into compromise.
At this juncture, the learned counsel for plaintiff and defendant submitted that the compromise petition was already on record. Both the plaintiff and the defendant and their respective counsels present. The GPA holder of defendant one Sri. K.Bharath Kumar filed an affidavit stating that his advocate by name Dechamma Bopaiah left this country and settled in abroad. Hence, it is not possible for him to get NOC from his previous counsel. Therefore, he pray to permit him to appoint new counsel. One Sri. Navin G.S. Advocate filed vakalath to defendant. The vakalath taken on record.
Both the plaintiff and GPA holder of defendant personally present before this court. This court personally enquired about terms of compromise petition. Both the plaintiff and the defendant personally submits that after going through the terms of compromise petition with their own will and free consent they agreed the terms and affix their signature to the compromise petition.
Perused the compromise petition. The terms mentioned in the compromise petition seems to be legal. Hence, I proceed to pass the following order:
ORDER The petition filed by the plaintiff and defendant U/O 23, Rule 3 is allowed.27 O.S.No.735/2007
Plaintiff suit is decreed as per the compromise petition.
Office is directed to draw the decree as per the terms of compromise petition.
Both the plaintiff and defendant and their respective counsels are directed to affix their signatures on the order sheet."
So also it is necessary and relevant to refer the contents of the compromise petition, which is subjected for the compromise decree and that was prevailing and binding upon the parties to it and claimers thereunder. The petition under the head of joint memo under Order 23, Rule 3 of C.P.C., which reads thus:
"JOINT MEMO UNDER ORDER 23, RULE 3 C.P.C.
Both the plaintiff and the defendants submit as follows:-
1. That the plaintiff society has filed a suit seeking a decree for declaration that the society has acquired valid right, title and interest over the suit schedule land and also for permanent injunction.
2. The defendants had filed Caveat Petition and the defendants had put in appearance after service of plaint copy, I.A., and Affidavit.
3. At the intervention of well-wishers of both the parties, both the parties have agreed for settlement on the following terms and conditions.28 O.S.No.735/2007
4. That there shall be a decree in favour of the plaintiff as prayed for.
5. That the defendants shall not have any objection for change of khata in respect of suit schedule property in favour of the plaintiff society and also in favour of its members who have purchased the sites formed in the suit schedule land.
6. That the defendants have no manner of right, title or interest including possession over the suit schedule land.
7. That the defendants shall not execute any kind of agreement or documents regarding the sale, transfer of the suit schedule land or any portion thereof in favour of any other person.
8. That the plaintiff and its members who have purchased the sites in the suit schedule land shall be free to use, enjoy and deal with the suit schedule land and the sites as the case may be and the defendants shall not have any manner of objection for the same.
9. Both the parties shall bear their own cost."
19. It is also important to place reliance on the W.P.No.21920/2010 (LB-BMP) c/w W.P.Nos.14665-675/2012 & 20631-796/2012, dated 13.02.2013, which has been referred by the learned counsel for the plaintiff in O.S.No.6769/2006, since these suits and also O.S.No.237/2007, being concocted to each other based 29 O.S.No.735/2007 on similar facts and circumstances of the case pertaining to the properties of each plaintiffs said to have been purchased from the original owners by Society and allotments of sites with possession to its members etc., relying upon the similar documents and the subject-matter being in dispute, as the Society has challenged the order of the defendant No.4 regarding the change of katha and also pertaining to the property purchased by the Society and the ratification deed and filing of the suit the Society against the defendants No.1 to 3 and others claiming title over the purchased property which includes the suit property also described in this case. The plaintiff in the present case claiming possessory right through the member of the Society and regarding taking of the possession and enjoying the suit property. It is much relevant to be considered in this case also by taking judicial notice of it and therefore, it is relevant as it has been passed by the Hon'ble High Court of Karnataka in the said Writ petitions and the relevant observation and legal aspect considered thereunder are much relevant for consideration of this suit particularly in respect of the possessory right of the plaintiff, as the plaintiff has sought for protection of the 30 O.S.No.735/2007 possession stating that she was in lawful possession of the suit property as on the date of filing of the suit, wherein it has been considered the events and legal aspects pertaining to the purchase of property by the Society for the purpose of formation of plots and allotment of the same to its members having aims and objections thereunder and the Housing Co-operative Society in view of the proceedings of confirmation to initiate land acquisition proceeding under Land Acquisition Act, it has been quashed ultimately by order of the Hon'ble Supreme Court by its order dated 21.02.2015. On going through the entire order passed in the said Writ Petitions and also the documents on record, it has considered the prevailing facts and circumstances of the case pertaining to the property purchased by the Society and allotment made by laying the plots in favour of its members. From the order of the Hon'ble Apex Court dated 21.02.1995, it has issued the directions to revert back the lands to the owners subject to owners depositing the amount received as compensation and to take further action with due process of law. Accordingly the process of calling upon the erstwhile land owners to deposit the amount in compliance with the order and it had been 31 O.S.No.735/2007 adhered. It is also made it clear thereunder that subsequently the Society has entered into a separate ratification agreement with the land owners to ratify the earlier privately negotiated transactions. It was between the Society and the land owners in furtherance of acquisition of the property. The formation of layout and sites was in pursuance of the power of attorney executed by the land owners. But it is not the transaction entered into at the earliest stage. It is also referred the proceedings in W.P.No.2045/2007. It was disposed of on 26.02.2007, in connection with taking of separate proceedings for change of katha by the Statutory Body based on a direction issued by the Government. It has been set aside in the said Writ Petition to re-consider the matter in accordance with law and thereafter the parties were also before the Hon'ble High Court of Karnataka in W.P.No.7364/2007 which was disposed of on 18.01.2012. It was also disposed of with a direction as in the case of order passed in W.P.No.2045/2007, in connection with direction issued to the Statutory Authority to re-consider the matter and thereafter on considering the matter as per direction, the order was passed on 05.04.2012, by the competent authority and it has been 32 O.S.No.735/2007 challenged in these Writ Petition No.21920/2010 and other clubbed matters. Hence it is much relevant to consider at this stage, as the Khata proceeding before the statutory authority of BBMP is pending for consideration as per direction on remanding the matters in Writ petitions and now prevailing is the decision of Hon'ble High Court of Karnataka in W.P.No.21920/2010.
20. In the W.P.No.21920/2010 it is also taken into account and made observation about the order of the Hon'ble Apex Court in connection with effect of the quashing of the acquisition proceeding and the liberty given to the parties to the said acquisition proceeding to enter into any further understanding in the matter, so as to protect the interest of the site purchasers who were likely to have put up construction the portion is extracted from the said decision which reads thus:
"A cumulative perusal of the decisions will indicate that the Hon'ble Supreme Court in the above referred decisions has held that a fraudulent decree would not be sustainable as the well established position of law, but the circumstance under which it has been said is also relevant since in such cases, it was considered on the facts which made it evident and the facts therein leads to that situation. Since the position is also that there should be material particulars to do so, it cannot be ignored. The question that arises for consideration in the instant case is as to whether merely because the private respondents have contended that the judgment and decree has been obtained by fraud, that in itself would be sufficient for this Court to ignore the decree and also to discard the 33 O.S.No.735/2007 ratification deed. In that regard, the contentions as noticed would indicate that the petitioner-society initially after entering into agreements with the land owners in the year 1984 had taken possession of the properties. Pursuant thereto, a layout had been formed. The roads and the common areas earmarked therein had in fact been relinquished in favour of the notified area committee i.e., the local authority which had approved the plan under the document dated 20.10.1995 (Annexure-A). The said fact would prima facie indicate that the layout had been formed round about the time when the Hon'ble Supreme court had set aside the acquisition as the said document refers to the society having executed the civil work. No doubt, all actions would be subject to the order which had been passed by the Hon'ble Supreme Court and would yield to it if there was no further inter-se arrangement between the parties. The Hon'ble Supreme Court in fact while setting aside the acquisition has left it open to the parties to enter into any further understanding in the matter, dehors the acquisition so as to protect the interest of the site purchasers who were likely to have put up construction."
21. It is also pertinent to note that in the said order passed in the said Writ Petitions, that the Society claims to have continued in possession of the property and allotted sites in the layout and in the absence of acquisition of the property being acquired for the benefit of the petitioner-Society, the agreements that had been entered into with the owners earlier were ratified by the land owners by receiving further amount and sites in certain cases and hence the declaration- cum-ratification deed has been entered into so as to ratify the earlier agreements and such other transactions and thereby it has specifically pressed upon the manner in which the documents i.e., ratification deed and other records are came into effect, so as to indicate the confirmation of title and possessory right of the society 34 O.S.No.735/2007 and its allottee members. Thus, it includes the suit property also, which was subject to acquisition proceeding and its result has quashed it, etc., as portion of acquired lands.
22. The observation made and the matter in dispute considered by the Hon'ble High Court of Karnataka in W.P.No.21920/2010 and while deciding the matter in dispute, it has made it clear regarding the legal status of the Society, its members and also the representation of defendants No.1 to 3 and specifically about the continuation of possession with the Society and purchasers of respective sites and thereby it has further made it clear and decided the matter in the said W.P.No.21920/2010 and other clubbed petitions, allowing the same, as per order dated 09.04.2010 and 05.04.2012, have been quashed and it has given liberty to the parties, to re-approach the revenue authorities for necessary orders, depending on the right that may be determined by the appropriate forum. Hence, at this juncture it is felt it necessary, in the interest of justice, to reproduce the observation and decided matter therein and it reads thus:
35 O.S.No.735/2007
"....In the instant case, when it was also brought to the notice of the authorities, the civil decrees which had been passed and there being several other transactions subsequent to the judgment of the Hon'ble Supreme Court, the respondents in any event cannot contend that the present proceedings is only with the avowed intention of the implementing the order of the Hon'ble Supreme Court. If that was the contention, it was certainly open for the land owners who were before Hon'ble Supreme court in the said contempt petition to bring to the notice of the Hon'ble Supreme court all these aspects with regard to the non- acceptability of the ratification document to regularize a transaction which had been set aside in the writ proceedings and had been upheld by the Hon'ble Supreme Court itself. When the Hon'ble Supreme court did not find disobedience and the subsequent transactions were also brought to its notice, certainly the Hon'ble Supreme Court in such circumstance would have appreciated the said contention to come to a conclusion as to whether the ratification deed relied upon by the society was in contravention of its order passed while setting aside the acquisition proceedings. When that has not been done by the Hon'ble Supreme Court, it would not be open either for the authorities or for this Court to lightly brush aside all the subsequent transactions which have taken place and merely because the land owners are now being supported by certain persons, the authorities could not have taken up the proceedings. The interest shown by such persons including respondent No.18 only in relation to the lands in this layout and the same being pursued indicates that there is more than what meets the eye but it is not necessary for this Court to advert further....."
"...To sum up, what is to be re-emphasized is that the khatha in fact had been effected in the name of the site purchasers by the Pattanagere, City Municipal council in the year 1998. It is in that circumstance the present revocation of the khatha is attempted. However, when subsequently the ratification agreement has been entered into and the change of khatha was made and the same not being objected to in the contempt petition, in such circumstance, when the contempt petition had been closed, it was wholly unnecessary at this juncture for either the 18th respondent to intervene or the Government to pass such orders in the guise of implementing the judgment of the Hon'ble Supreme Court, more particularly when there was a civil decree, which holds the field and when the same has not been set aside in accordance with law. Therefore, the authority who was considering this aspect of the matter in fact ought to have taken note of the judgment and decree passed in the civil suit which was still subsisting and ought to have concluded that the parties who were before it seeking revocation of the khatha would have to avail their remedies in accordance with law in a civil forum and thereafter approach the revenue office, if any change was required instead of exercising the power of review to decide upon the title, that too by brushing aside the judgment and decree which had been granted by the Civil court and commenting upon the validity of the document which was accepted by the Civil Court and also placed before the Hon'ble 36 O.S.No.735/2007 Supreme Court. In that circumstance, if the fact that the khatha had been effected as far back as in the year 1998 is kept in view, the authority could not have exercised the jurisdiction beyond the period of three years as contemplated therein or for purported implementation of orders. Furthermore, in the instant case, though the learned counsel for the statutory respondents seeks to bring it within time, while contending that the power exercised is within the period after the area came within the jurisdiction of the BBMP, such contention also cannot be accepted since the relevant point for exercising the said power would be the date on which khatha was made and not the period the BBMP had jurisdiction over the area....."
"...That apart the members of the society who had been allotted sites had obtained sanction plan from the authority which had the jurisdiction to consider the same and had also put up construction therein. In such circumstance, when the said subsequent arrangements between the parties had been entered and the position stood altered, the proceedings by the authority being guided by Government letter and other external aid cannot be sustained. Further, the petitioners have also filed an application on 17.09.2012 to produce additional document and have produced the proceedings of the Principal Secretary to government whereunder the direction issued by the Government by letter dated 16.09.2006 based on which the proceedings was earlier being sought to be justified has been withdrawn. As such the basis for the proceedings is also eroded. Hence, for all the above stated reasons, the impugned orders are not sustainable....."
23. Thus the Writ Petitions are dismissed. This court considering the suit of the plaintiff for permanent injunction cannot go into the title to the suit property though it has considered the prima-facie title and possessory right. Because neither the plaintiff has claimed it so, nor the defendants 1 to 3, 5 and 6 have claimed any relief of declaration as considered in the said decisions passed in W.P. of the year 2010 and Writ Appeal of the year 1995, making it clear that such aggrieved (applicable to the defendants also), to have 37 O.S.No.735/2007 recourse to law to get declared their title. Therefore viewed from all angles, the possession over the respective sites of the society and its members and the claimants have been protected. It will not affect the possessory right of the plaintiff. So it shall prevail as against the claims of all the defendants. The plaintiff in this case has proved her lawful possession over the suit property. The defendants No.1 to 3, 5 & 6 have not put forth any materials to show about the 'compromise decree', whether it was challenged and set aside before the competent court, with due process of law and reached its finality, so as to discard the case of the plaintiff in connection with her lawful possession over the suit property, since she has claimed the title through her father, who had purchased the suit property from the Society, as allottee member. Even there is no material put forth by contesting defendants with reference to the judgment passed in clubbed Writ Petition No.21920/2010, dated 13.12.2013, which is subsequent to this suit.
24. Under such circumstances, in view of the above discussion, the plaintiff has proved her lawful possession over the suit 38 O.S.No.735/2007 property as on the date of filing of the suit. However, unless due process of law to be followed by any of the defendants, they cannot disturb her possession, since the above referred decisions of Writ Petitions and the statute (KMC Act), have provided for the exercise of power and discharge of duty by defendant No.4 i.e., as per direction and Law with reference to change of khatha proceedings being pending / to be under consideration.
25. Apart from this the contesting defendants though, they have taken defence in their written statements disputing the possession of the plaintiff have failed to substantiate and contest the suit effectively to prove their alleged right, title and interest etc., got it declared from the civil court and it had reached its finality and it has binding force on the society and its members; so also claimer through the members as title holders, over the suit property. Since the title cannot be gone into in this case; however possessory right of the plaintiff by virtue of the said decisions of Hon'ble Apex Court and Hon'ble High Court of Karnataka, it has been considered and upheld as lawful possession. So, the possessory right of the plaintiff has to 39 O.S.No.735/2007 be protected. Otherwise the very denial and conduct of the defendants in not contesting the suit effectively either by putting forth their defence or by stepping into the witness box; and that the denial of the enjoyment of the plaintiff over the suit property, etc., are illegal and interference with the peaceful possession and enjoyment of plaintiff over the suit property. So, the injunctory relief can be granted restraining the defendants No.1 to 3, 5 & 6 from interfering with the peaceful possession and enjoyment of the suit property.
26. Thus, the plaintiff has proved the interference of the defendants No.1 to 3, 5 & 6. However, permanent injunction cannot be granted to the plaintiff, as the suit of the plaintiff is without recourse to law in connection with getting the khatha changed by virtue of the above referred documents i.e., the order passed in the said Writ Petitions by approaching the competent authority of BBMP. It is therefore, the restricted injunctory relief can be granted in favour of the plaintiff. Accordingly, the suit of the plaintiff has to be decreed against defendants No.1 to 3, 5 & 6.
40 O.S.No.735/2007
27. However, the plaintiff is not entitled for any relief against the defendant No.4, as BBMP being Statutory Body / local Government, having independent authorities, who have to exercise the powers and discharge the statutory duties in case of effecting / changing of khatha. Civil Court cannot issue direction by possessing mandatory injunction. There is statutory bar also to entertain such suits by the Civil Court. What is discussed and remedy made available to the plaintiff is her possessory right (civil right) based on title, which has been incidentally dealt with about confirmation of title of Society and the consequence of sale of sites by the Society being rectified and thereby the plaintiff's title claimed under sale deed (of members of the Society and claimants under such members), has been duly protected and confirmed by the defendants No.1 to 3, the original owners of the suit property, prior to their sale transaction with defendants No.5 & 6. The plaintiff's lawful possession by virtue of subsequent understanding and confirmation-cum-ratification deed and compromise decree, etc., is thus protected. At this juncture without better title to the suit property, though the sale deeds executed in favour of defendants No.5 & 6, have no sanctity to have 41 O.S.No.735/2007 their (defendants No.1 to 4, 5 & 6) legal claim over the suit property, as they failed to contest this suit and avail the opportunity to disprove the possession of plaintiff as on the date of suit. Whatever right or interest, if any under law, over the suit property and whether it was declared right of the defendants concerned and that it was not held that, it has been extinguished by laps of time under Limitation Act, etc., are being material records, have not been produced by these defendants.
28. Because, by filing the suit, the plaintiff has made open claim of their lawful possession based on title, in the year 2006, itself and plaintiff has asserted the absolute ownership of her predecessor- in-title i.e., Society and further as member of Society openly and to the exclusion of any other persons including defendants No.1 to 3 and defendants No.5 & 6, who are claiming through defendants No.1 to 3. The sale transaction through Society to its members was during 1992, which has been ratified by the owners, defendants No.1 to 3 and confirmed the title of the purchasers on account of sale deeds executed by Society, by virtue of said compromise decree (Ex.P.15). 42 O.S.No.735/2007 Till today after laps of more than 14 years, these defendants have not challenged the sale deeds and got them declared null and void with due process of law, before any Civil Court, since the Hon'ble Apex Court made it clear that quashing of acquisition proceedings does not come in the way of subsequent legal consequences, after entering into understanding / rectification of sale transaction. There is irrevocable power of attorney executed by the defendants No.1 to 3, it has not been duly cancelled by the defendants No.1 to 3. Apart from this, they have received excess amount from the Society towards the sale transactions of Society in favour of its members, subsequent to compliance of the order of the Hon'ble Apex court. So, whatever sale transaction entered into by the Society is on behalf of these owners, as their authorized agents. The confirmation-cum- ratification deed being legal and enforceable transaction pertaining to the plaintiff's possession over the suit property, etc., has been upheld in said writ proceedings. So, plaintiff is entitled for decree against defendants No.1 to 3, 5 & 6. Therefore, in view of the above discussion and conclusion arrived at, said Issue Nos.1 & 2 are 43 O.S.No.735/2007 answered in the 'Negative' and Issue No.3 is answered 'Partly in the Affirmative'.
29. Issue No.4:- In view of the above discussion and conclusion arrived at, this court has hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby partly decreed.
In the result, the defendants No.1 to 3, 5 & 6 or their agents, servants or any other person claiming through them, are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, without due process of law.
Suit against the defendant No.4, is hereby dismissed.
However, the defendant No.4 while considering the application / representation of the respective parties i.e., plaintiff, defendants No.1 to 3, 5 & 6 in respect of the suit property to effect the katha, has to discharge the duty and exercise the power under Law prevailing specifically KMC Act by following due procedure in the light of decision rendered by the Hon'ble Supreme Court of India in SLP No.3011- 3019/1995, dated 21.02.1995 and the Hon'ble High Court of Karnataka in W.P.No.21920/2010 44 O.S.No.735/2007 (LB-BMP) c/w W.P.Nos.14665-675/2012 & 20631- 796/2012, dated 13.02.2013 and also the judgment passed in this suit.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 8th day of April 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Vignesh K. Bhide
List of the documents marked for the plaintiff:
Ex.P.1 Sale deed dated 07.11.1992.
Ex.P.2 Gift deed dated 27.08.2004.
Ex.P.3 Katha endorsement.
Ex.P.4 Endorsement in respect of right transfer.
Ex.P.5 Special Power of Attorney.
Ex.P.6 Certified copy of the order in O.S.No.5471/2002.
Ex.P.7 Certified copy of decree in O.S.No.5471/2002.
Ex.P.8 Certified copy of joint memo in O.S.No.5471/2002.
45 O.S.No.735/2007
List of the witnesses examined for the defendants:
- NIL -
List of the documents marked for the defendants:
- NIL -
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.46 O.S.No.735/2007
Judgment pronounced in the open Court (vide separately) ORDER Suit of the plaintiff, is hereby partly decreed.
In the result, the defendants No.1 to 3, 5 & 6 or their agents, servants or any other person claiming through them, are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, without due process of law.
Suit against the defendant No.4, is hereby dismissed.
However, the defendant No.4 while considering the application / representation of the respective parties i.e., plaintiff, defendants No.1 to 3, 5 & 6 in respect of the suit property to effect the katha, has to discharge the duty and exercise the power under Law prevailing specifically KMC Act by following due procedure in the light of decision rendered by the Hon'ble Supreme Court of India in SLP No.3011- 3019/1995, dated 21.02.1995 and the Hon'ble High Court of Karnataka in W.P.No.21920/2010 (LB-BMP) c/w W.P.Nos.14665-675/2012 & 20631- 796/2012, dated 13.02.2013 and also the judgment passed in this suit.
Parties are directed to bear their own costs.
Draw up the decree accordingly.
47 O.S.No.735/2007(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
48 O.S.No.735/200749 O.S.No.735/2007 50 O.S.No.735/2007