Bangalore District Court
B.S. Koshthi 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. 6769/2006:
PLAINTIFF : B.S. Koshthi,
Aged about 51 years,
S/o. Late S.C.Koshthi,
Residing at No.381, BHEL Layout,
2nd Stage Extension,
Pattanagere,
Rajarajeshwari Nagar,
Bangalore - 560 098.
(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.
2 O.S.No.6769/2006
All are residing at Pattanagere
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 Defendants
No.1, 5 & 6)
(Defendants No.2 & 4 placed exparte)
Date of institution of the suit: 28.07.2006
Nature of the suit:
Declaration, Mandatory
Injunction & Perpetual
Injunction
3 O.S.No.6769/2006
Date of commencement of 22.09.2010
recording of evidence:
08.04.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
11 08 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.
(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 guntas and the 1st defendant was also the owner of Sy.No.17/1, measuring 27½ guntas, situated at Pattanagere Village, Kengeri 4 O.S.No.6769/2006 Hobli, Bangalore South Taluk. They entered into an agreement on 29.04.2004. It was between defendants No.1 to 3 and REMCO (BHEL) House Building Co-operative Society Limited (hereinafter referred as Society). The payment of full consideration was confirmed and 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 04.08.1984 and final settlement was entered into on 15.03.1992. Said lands were subjected to acquisition proceedings by the Special Land Acquisition Officer. The proceedings were challenged and went up to the Hon'ble Supreme Court and the proceedings were quashed and directed that if the possession was delivered under acquisition proceedings, same has to be restored to the land owners after depositing the compensation by the owners. From 1984 and 5 O.S.No.6769/2006 onwards, the defendants No.1 to 4 have executed the various documents. The Society formed a layout by developing necessary infrastructure and allotted the sites to its members. Site No.104 formed in the land of defendants No.1 to 3, measuring East-West 40 feet and North-South 62¼ feet was allotted in favour of Sundarkumar Sindi Kota. Possession Certificate was issued and katha was executed by the Society in favour of said purchaser on 04.12.1992 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 changed in the name of said purchaser. He continued the possession and enjoyment of the suit property and on 21.02.2004, the plaintiff has purchased the suit property from the said purchaser under a registered sale deed, which is within the limits of 4th defendant. Khatha 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 assessment for the year 2006-2007. The defendants No.1 to 6 O.S.No.6769/2006 3 have choosen 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 and execution of conveyance deeds, etc., the defendants No.1 to 3 have executed declaration-cum-rectification deed on 14.02.2000 and ratified the formation of layout and sanction of certificates in favour of members. On receipt of full consideration amount, delivery of possession, formation of layout etc., allotment and registration of conveyance were made 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 khatha 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.6769/2006 name of plaintiff, as per direction of Hon'ble Supreme Court. It was duly replied to defendant No.4, bringing to the notice of subsequent events and rectification and confirmation of earlier deed and transaction. But defendant No.4 has cancelled the khatha of plaintiff. Taking this advantage, the defendants No.1 to 3, 5 & 6 attempted to demolish the construction on the suit property and on 22.07.2006 at 5.30 p.m., the defendants No.5 & 6 along with many others come to the suit property and forced the tenants of plaintiff to vacate the property. On getting this information from tenants, plaintiff went to the suit property. But defendants No.5 & 6 gave threat 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 defendant No.1 has appeared through his counsel and filed written statement. The defendants No.5 & 6 on putting their appearance through their counsel, have filed the memo adopting written statement of defendant No.1 as their written statement. The defendants No.2 to 4 are placed exparte.
8 O.S.No.6769/2006
The defendant No.1 has in his written statement has denied the material allegations of the plaint averments as not maintainable in law or on facts. He has admitted ownership of defendants No.1 to 3 over Sy.Nos.24/3 & 17/1. But he denied agreements entered into with the Society, delivery of possession to it, empowering it to do the alleged acts, by executing the respective power of attorneys 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 and issue of possession certificate to the members of the Society etc., as they have no legal consequence. It is denied the plaintiff's ownership under purchase of suit property from his vendor, 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 defendant No.1 and other innocent farmers and indulged in making unlawful gains by 9 O.S.No.6769/2006 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 delivery of possession thereunder and the alleged sale transaction with defendants No.5 & 6 on 29.10.2004. Filing of suit by defendant No.3, in O.S.No.4755/2004 has no relevance with the plaintiff's case. It is denied the cancellation of khatha by defendant No.4 as without 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.24/1 & 24/3 by inheritance. Along with those lands, other lands subjected for acquisition by the Government of Karnataka, in favour of REMCO Society. But, because of activities of Society being illegal, the land owners challenged before the Hon'ble High Court of Karnataka, in Writ Petition, seeking to quash the entire proceedings and same was quashed even in the SLP No.3011 to 3019/95, before the Hon'ble Supreme Court of India and also it is directed in that SLP, to the Government to restore all the lands which were acquired, to the respective owners. Even it was reported in ILR 10 O.S.No.6769/2006 1995 Kar. 1962 (HMT House Building Co-operative Society Ltd., Vs. Syed Khader). In pursuance of the order in said Writ Petition, the properties under acquisition were restored with possession on 28.08.1997 to owners and compensation amount was paid. The property was sold to defendant No.5 under a registered sale deed. Plaintiff has no better title under the alleged deed, since Society had no marketable title. Khatha in the name of plaintiff was duly cancelled by defendant No.4 under final notice dated 17.06.2006. Plaintiff's possession over the suit property is illegal. There was direction to investigate the matter against the Society to take legal action. The Deputy Commissioner proceeded to demolish unauthorized construction of plaintiff. Identity of suit property is difficult to ascertain the agricultural land. The revenue record is standing in the name of respective defendants, in respect of the lands under dispute. The defendant by issuing legal notice dated 03.11.2006 has notified the plaintiff to quit and vacate and hand over the possession of the suit property within 15 days from the date of receipt of legal notice, which has been unauthorizedly occupied. It was served on 07.11.2006. But the plaintiff neither 11 O.S.No.6769/2006 replied to it, nor vacated the suit property by complying the same. The plaintiff was / is not in lawful possession So, the plaintiff is not entitled for the relief as sought for and prayed to dismiss the suit.
4. 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, on 13.01.2010.
I S S U E S (1) Whether the plaintiff proves that the order dated 17.06.2006 passed by the fourth defendant in Raaranasa/05/04-05 is illegal?
(2) Whether the plaintiff is entitled to the declaration sought for?
(3) Whether the plaintiff is entitled to the permanent injunction sought for?
(4) To what decree or order?
5. The plaintiff has adduced his evidence as PW.1 and relied upon the documents at Exs.P.1 to P.16. Whereas, the defendants failed to adduce evidence on their behalf. 12 O.S.No.6769/2006
6. Heard the arguments. Perused the pleadings and evidence on record.
7. 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
8. Issue Nos.1 to 3:- These issues are interlinked with each other as Issue Nos.2 & 3 are relief oriented issue, based on consideration of oral and documentary evidence adduced by the parties to the suit. Hence to avoid repetition of facts and circumstances of the case, they are taken up for common consideration. The plaintiff has challenged the order passed by the 4th defendant / The Commissioner, Rajarajeshwarinagara City Municipal Council, Bangalore, dated 17.06.2006 to be declared as null and void and mandatory injunction directing him for restoration of khatha in respect of suit property in the name of plaintiff and 13 O.S.No.6769/2006 permanent injunction against the defendants No.1 to 3, 5 & 6 and their agents, henchmen or anybody acting on their behalf from demolishing or otherwise dispossessing the plaintiff from the suit schedule property. Thus, the plaintiff is claiming his possessory right over the suit property based on prima-facie title and disputing the order passed by the 4th defendant, which has been denied by the contesting defendants No.1, 5 & 6 stating specifically that possession of plaintiff is unauthorized and illegal.
9. Reiterating the plaint averments, the plaintiff himself deposed as P.W.1 and placed reliance on documents at Exs.P.1 to P.16. Ex.P.1 is the sale deed of plaintiff's vendor dated 14.12.1992; Ex.P.2 is the khatha endorsement for having changed katha in the name of plaintiff's vendor, Surendrakumar; Ex.P.3 is the CMC notice dated 17.05.2006; Ex.P.4 is the tax paid receipt; Ex.P.5 is the endorsement in respect of change of khatha in the name of plaintiff; Ex.P.6 is the possession certificate issued in favour of the vendor of plaintiff; Ex.P.7 is the sale deed executed in favour of plaintiff by his vendor; Exs.P.8 to P.11 are the tax paid receipts; Exs.P.12 & P.13 are 14 O.S.No.6769/2006 the encumbrance certificates; Exs.P.14 to P.16 are the certified copies of the order sheet, decree and compromise petition in O.S.No.5471/2002. These documents are pertaining to the very suit schedule property. The Learned counsel for the plaintiff referring these documents, has stated about the plaintiff's possession over the suit property and it is considered to be the lawful possession as on the date of filing of the suit. From the date of sale deed, it has been continued and he is enjoying it by paying property tax to the 4th defendant and accordingly it was subjected to assessment from time to time and he paid for the year 2006-2007 also. The encumbrance certificate reveals the sale transaction of plaintiff's vendor as per Ex.P.1 and sale of suit property in favour of plaintiff as per sale deed at Ex.P.7.
10. From the contents of the said documents and version of P.W.1 and the manner of cross-examination, which are gone through by this court, it reveals that, the facts undisputed are brought on record by the plaintiff because none of the defendants put forth their defence effectively, since the defendants No.2 to 4 are placed 15 O.S.No.6769/2006 exparte and the defendants No.1, 5 & 6 though submitted their written statement and subjected P.W.1 for cross-examination, they 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. However, if the pleading and evidence on record is considered, there is no serious dispute about the possession of the plaintiff over the suit property as on the date of filing of the suit.
11. So, the facts admitted and not seriously disputed are that the defendants No.1 to 3 were the owners in respect of Sy.No.24/3, measuring 1 acre 35 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 with REMCO (BHEL) House Building Co- operative Society Limited (hereinafter referred as Society) and thereby payment of full consideration was confirmed and the possession of the property was delivered empowering the Society to do the various acts by way of General Power of Attorney dated 16 O.S.No.6769/2006 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 also 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 04.08.1984 and final settlement was entered into on 15.03.1992. Said lands were subjected to land acquisition proceedings by the Special Land Acquisition Officer. Said proceedings was challenged by owners and it went up to Hon'ble Supreme Court and the acquisition proceedings was quashed and directed the re- delivery of possession of property to the land owners, after depositing the compensation amount by the owners.
12. It is specific case of the plaintiff now, is that though there was order of Hon'ble Apex Court, and in view of that order, subsequently there was understanding entered into between the Society and the defendants No.1 to 3 and the transaction between them has been confirmed and sale transaction of the Society in 17 O.S.No.6769/2006 favour of its members are also accepted and confirmed by the owners. Therefore, it is contended by the plaintiff about continuation of possession and after confirmation of title to the suit property and he has lawful possession over the suit property. But the defendant No.4 by issuing notice and passing of an order dated 17.06.2006, has cancelled the khatha standing in the name of plaintiff, referring the order in Writ Petition of the year 1995 passed by the Hon'ble Apex Court in Writ Petition with reference to quashing of acquisition proceedings, which is under dispute stating that, because of its consequence, defendants No.1 to 3, 5 & 6 are disturbing plaintiff's lawful possession over the suit property.
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 khatha and declaration of order of defendant No.4, dated 17.06.2006 in No.Raaranasa/05/04-05 as illegal and passed in excess of the jurisdiction vested and consequently for mandatory injunction 18 O.S.No.6769/2006 directing the restoration of khatha 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. 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, pertaining to change of khatha or to effect mutation and it is within the exclusive jurisdiction of defendant No.4 and the Civil Court has no any jurisdiction to entertain the suit issuing direction pertaining to restoration or change of khatha. But under the Special Act, the plaintiff has to proceed before the competent authority established 19 O.S.No.6769/2006 under KMC Act, to get the khatha changed in his name, with due process of law and in turn the defendant No.4 has to proceed with such applications if submitted by the plaintiff or the plaintiff has to give due explanation about his right in connection with the suit property in order to get his name entered or changed, as the case may be. The relevant provisions are sections 114 & 114(A) of KMC Act i.e., khatha correction.
14. It is evident on record that the defendant No.4 has issued the notice on 17.05.2006 calling upon him to show cause as to why the khatha in respect of the suit property cannot 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, pertaining to quashing of land acquisition proceeding, etc. It is material to note that first of all, plaintiff has not produced the impugned order of defendant No.4, dated 17.06.2006 against which the plaintiff has sought the relief. There is no compliance as required under order 7, Rule 14 of C.P.C. i.e., all materials must be placed at the stage of inception of the suit. It is also on placing judicial notice in connection with the written 20 O.S.No.6769/2006 statement filed by the defendant No.5 in connected matter O.S.No.735/2007, has made it clear that the Hon'ble High Court of Karnataka as per final order, has quashed the final notice dated 17.06.2006 and directed the petitioners and others who claim khatha from 4th defendant, to appear before the Deputy Commissioner, BBMP, Rajarajeshwari Regional Office, and directed Deputy Commissioner, BBMP, to pass the orders strictly in accordance with law. Therefore, the prayer at Sl.No.(a) sought in the plaint, rendered in infructuous and it does not survive for consideration.
15. Now pertaining to Issue No.3, as it is relief oriented issue, is arisen out of plea of plaintiff that he was and is in lawful possession of the suit property as on the date of filing of the suit. The defendant No.1 in the written statement has made it clear that the plaintiff was in possession of suit property as on the date of filing of the suit, which is clear from Para-18 of his written statement that, "this defendant No.1 as per the legal notice dated 03.11.2006, has notified the plaintiff to quit, vacate and hand over the vacant possession of the suit schedule property in his favour within 15 days 21 O.S.No.6769/2006 from the date of receipt of the notice, as he has been unauthorizedly occupied the suit property and that the legal notice was served upon the plaintiff on 07.11.2006, by courier and the plaintiff never replied to the legal notice nor complied with terms made thereunder", and specifically stated that, the plaintiff is not in lawful possession and enjoyment of the suit property and hence the claim of the plaintiff, is not sustainable etc. In this case, the defendants No.5 & 6 have adopted the said written statement and thereby they too have admitted the possession of the plaintiff that was on the date of filing of the suit. Thus from the very admission on the part of these defendants, it is clear that the plaintiff as on the date of filing of the suit, was in possession of the suit property. The other defendants are placed exparte, they have not contested the suit effectively and thereby they have admitted the claim of the plaintiff in this connection. Apart from this, the said documents referred are evidencing the possession of the plaintiff over the suit property. The alleged defence revealed is that, plaintiff's possession was and is unauthorized possession and plaintiff is liable to be evicted. 22 O.S.No.6769/2006
16. Thus, it is also notable point that, the defendant No.1 by filing the written statement and defendants No.5 & 6 adopting the same, have admitted possession of plaintiff. But, they did not venture to step into the witness box to rebut the version of P.W.1 and the contents relevant documents showing the possession of the plaintiff as on the date of filing of the suit, as unauthorized occupants / possessor of the suit property. Even the alleged legal notice dated 03.11.2006, is not forthcoming. Nor it is substantiated that, the said notice was duly served on the plaintiff on 07.11.2006. Therefore, on this count, from the evidence on record it is clear admission on the part of defendants about lawful possession of plaintiff and failure on the part of contesting defendants to substantiate the defence about 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 to face the consequence of cross- examination, so as to substantiate that the plaintiff's possession was / is unauthorized and illegal possession. Apart from this, they have not substantiated that in the normal course, what due procedure had 23 O.S.No.6769/2006 been followed to take the possession of the plaintiff? Therefore, the failure to substantiate the defence, certainly supports the case of the plaintiff's lawful possession over the suit property, apart from the reference made in respect of the documents in proof of the plaintiff's possession as lawful. Thereby it is clear that the plaintiff was and is in lawful possession of the property, which is proved by the documentary evidence i.e., sale deed of the year 1992, of the plaintiff's vendor and of the year 2004 of the plaintiff himself. The khatha certificate, possession certificate revealing that the vendor of the plaintiff, has purchased the suit property from the Society and the khatha has been changed in his name in pursuance of the sale deed. The contents of the sale deed and possession certificate are evidencing the handing over of the possession to the vendor of the plaintiff. Tax paid receipt is showing the possession of the plaintiff, as the suit property has been subjected to assessment and BBMP has received the tax up to 2006-2007, which is revealing the possession of the plaintiff as on the date of filing of the suit. Because the plaintiff's possession is also proved as per Ex.P.7 dated 21.02.2004 and effecting of khatha in his name and tax paid receipt even of the 24 O.S.No.6769/2006 year 2009-2010. It is evidencing that after filing of the suit also, the plaintiff was and is going on paying the tax to the BBMP, which is revealed from Exs.P.9 to P.11. They are proof of recognizing the plaintiff's possession as lawful. Thus, these documents are supporting the case of the plaintiff about his possession over the suit property and that, it has not been handed over it actually to the real owners, after compliance in pursuance of order of the quashing of land acquisition proceedings of the year 1995. But due formalities have been fulfilled by handing over constructive possession to the owners and subsequently owners have confirmed the possession of suit property as lawful possession, under various sale deeds executed in favour of the Society, and compromise decree in a suit filed by the Society i.e., O.S.No.5471/2002.
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, making them defendants in that case. It was filed on 09.08.2002 and also 25 O.S.No.6769/2006 the prayer made thereunder was for declaration and 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 after converting land into non-agricultural land. 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. Thereby, the present defendants No.1 to 3 represented through the power of attorney, have consented for declaratory decree in favour of the Society and also the confirmation 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 its compliance in 1997, as per direction of the Hon'ble Supreme Court. But the 'possession' of Society and its members or the persons claiming through them (defendants No.1 to 3) was protected by the very owners of the properties under acquisition. However, it could be constructive / notional possession handed over, in 26 O.S.No.6769/2006 pursuance of the said order. During this period, the power of attornies executed by the defendants No.1 to 3, were not duly cancelled. So, the acts and functions of the Society in getting land into N.A. use formation of layout and sale of plots to its member allottees have been therefore, confirmed by virtue of this suit and compromise decree passed therein. Hence, it is subsequent event and transaction entered into between the Society and defendants No.1 to 3 the original owners of the properties, which includes the suit property also. Society cannot purchase agricultural land. But, the agreement does not prohibit (as it does not confer any title), the activities of said Society which was undertaken under irrevocable GPA executed by defendants No.1 to 3, for carrying out the work as per terms, under GPA, in connection with conversion of land for N.A. use, laying plots and sale of sites to its members.
18. At this juncture, it is relevant to refer the contents of Ex.P.14, the certified copy of the order sheet in O.S.No.5471/2002, dated 02.03.2004, how the compromise took place before the court is disclosed. No material on record that, the very compromise and 27 O.S.No.6769/2006 compromise decree are challenged and got it set aside. So, at this stage, it holds good in all respects to rely on it as genuine document, regarding possession. Even after coming to know about it till today, it has not been challenged and got it declared as void. Such right is also now, by the reason of limitation of 3 years period, is extinguished if it is not challenged duty, under law. 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.
28 O.S.No.6769/2006
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.
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."
It reveals the signature of plaintiff, P.A.Holder of defendants, and their respective Advocates on the said order sheet on 02.03.2009 and compromise decree was drawn.
19. So also it is necessary and relevant to refer the contents of the compromise petition, which is subjected to, for the compromise decree and that was prevailing and binding upon the parties to it and claimers thereunder i.e., plaintiff and defendants No.1 to 3, 5 & 6. Till now no materials are forthcoming that said compromise decree was duly challenged and got it set aside. So, it holds its binding nature, pertaining to possessory right. The petition 29 O.S.No.6769/2006 under the head as joint memo under Order 23, Rule 3 of C.P.C., 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.
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, 30 O.S.No.6769/2006 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."
20. It is also important to consider the order passed in W.P.No.21920/2010 (LB-BMP) c/w W.P.Nos.14665-675/2012 & 20631-796/2012, dated 13.02.2013, which has binding force on the parties to this suit; Apart from this in the said order, the decision of the Hon'ble Apex Court dated 21.02.1995, rendered in Writ appeal Petition, has been referred. It is referred by the learned counsel for the plaintiff, which is relevant to be considered as the order has been passed by the Hon'ble High Court of Karnataka in the said Writ Petitions and the relevant portions and observation made thereunder are much relevant for consideration in connection with the plaintiff's case specifically which refers to the protection of possession of the suit property. It supports the plaintiff's case that he was in possession of suit property as on the date of filing of the suit. It has 31 O.S.No.6769/2006 been considered the events and legal aspects, therein pertaining to the purchase of property by the Society, for the purpose of formation of layout and allotment of the same to its members having aims and objections thereunder. The owners of the property have entered into an agreement with the said Society and execution of their irrevocable GPA in favour of Society. Based on such agreements and by issuing notification, the Government had acquired the lands by initiating land acquisition proceedings under Land Acquisition Act. But said acquisition was challenged in various Writ Petitions and the Hon'ble High Court of Karnataka, holding the acquisition made was not in accordance with law and it was set aside. It was taken up before the Hon'ble Apex Court challenging the said orders and ultimately Hon'ble Supreme Court upholding the said order has passed the order on 21.02.1995, which has reached its finality in respect of acquisition proceeding, is concerned. By this order, it is directed to revert back the lands to the owners subject to deposit of amount by the owners which were received by them, as compensation.
21. On going through the entire order passed in the said Writ Petitions (W.P.No.21920/2010 with other clubbed petitions), by 32 O.S.No.6769/2006 the Hon'ble High Court of Karnataka and also the documents on record, it is considered as the prevailing factors 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. What is revealed from the said order it is hereinafter duly considered with due respect about the decision 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 of the amount received as compensation and further action to be taken with due process of law. Accordingly the process of calling upon the erstwhile land owners to deposit the amount in compliance with the order, had been 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 which is not in furtherance of acquisition of the property. The formation of layout and allotment of sites was in pursuance to such agreements and the irrevocable power of attorney executed by the land owners. Some of the allottee members of the Society have put up constructions by getting 33 O.S.No.6769/2006 approved plans and are in possession and enjoyment of the said property.
22. It is also referred the proceedings that certain members of the Society initiated W.P.No.13169/2006 challenging the cancellation of Khatha which was standing in their names. As the action for "cancellation of khatha notice" was by way of paper publication in the newspaper; the Hon'ble High Court in the said Writ Petition on 20.03.2007, has viewed that notice issued by said process was not sufficient, so reasonable opportunity to be extended to the petitioners and remanded the matter to pass the order in accordance with Law. Accordingly, proceedings have been held and certain site owners' khatha was retained intact and four owners khatha was set aside. Again Society assailed before the Hon'ble High Court in W.P.No.2045/2007, which was disposed of on 26.02.2007 in connection with taking of separate proceedings for change of khatha, made 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. Thereafter, again the 34 O.S.No.6769/2006 parties were before the Hon'ble High Court of Karnataka in W.P.No.7364/2007 and it 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. Thereafter, on re- considering the matter as per direction, the order was passed on 05.04.2012, by the competent authority. The orders passed on 19.04.2010 and 05.04.2012 were challenged in these Writ Petition No.21920/2010 and other clubbed petitions, pertaining to change of khatha.
23. In the said order of W.P.No.21920/2010, it is also taken into account and made the observation about the decision of the Hon'ble Apex Court of the year 1995, that -
"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 ratification deed. In that regard, the contentions as noticed would indicate that the petitioner-society initially after entering into agreements with the land owners 35 O.S.No.6769/2006 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."
24. It is also pertinent to note that in the said order passed in the said Writ Petitions (W.P.No.21920/2010), it has further considered in detail about the relevant facts and circumstances of the case and upholding of possession of the Society and its members and claimers under them on account of confirmation of title and possession, 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. 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 36 O.S.No.6769/2006 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 and its allottee members, and also did not give importance to the dispute raised on stamp duty and registration of ratification deed. In this suit for injunction, the registration and stamp duty need not be an issue, as the parties, specifically defendants No.1 to 3, 5 & 6 have not contested this suit effectively. Nor they have put forth that such due efforts made by these defendants to avail the remedy in the appropriate constituted suit, well within time, about the alleged dispute of registration and stamp duty, as one of the ground for defeating the claim of plaintiff's ownership and possession.
25. In the said decision (W.P.No.21920/2010), it is specifically observed that -
"In such factual situation, when the Civil Court in the said suit in O.S.No.15571/2004 has accepted the said document when all facts were brought before it and had decreed the suit in favour of the society, it cannot be said that the said judgment and decree is without any force though it could be assailed in appropriate proceedings. Further, neither the right or possession is being claimed based only on the ratification deed but the same is relied upon in furtherance of an earlier transaction and in that context, the right under Section 53-A of T.P. Act should also be another aspect to be considered which in fact has been observed in the latter of the above judgments referred. In that circumstance, merely because the sale deeds executed by the society to the 37 O.S.No.6769/2006 members refers to the acquisition proceedings, the title would not be defective. Even the non-mentioning of the ratification deed in the sale deeds executed subsequent to the date of ratification, cannot lead to the assumption that it was not in existence, but would have to be established in accordance with law and they are all matters of evidence".
Thus, it has further made it clear the significance of declaration- cum-ratification, not being the main document to claim title and possession of the Society and its members, but it was in furtherance of an earlier transaction and non-mentioning of ratification deed in subsequent sale deeds cannot defeat its existence. So, at this injuncture, the defendants, without placing any materials and recourse to law, have not availed it, as they have failed to contest this suit effectively.
26. It is also important to reproduce the observation made and matter in dispute touching to the very transactions and confirmation of title-cum-possession in favour of Society and its members, and referring the decision rendered by Hon'ble Apex Court of the year 1995 and also consideration of contempt that was alleged to be committed, as decision was not complied with, etc., and it is in the said order dated 13.02.2013 that -
38 O.S.No.6769/2006
"It is another matter as to whether the said judgment and decree at this stage can be discarded as having been obtained by fraud in view of the contention put forth by the respondent's counsel. Insofar as that aspect of the matter, the same would have to be considered keeping in view the judgments which have been cited and the fact situation in the instant case. However, before adverting to the same, one other aspect which also requires to be noticed is that some of the land owners had at an earlier point filed Contempt Petitions in Nos.224-26/2005 before the Hon'ble Supreme Court complaining that its decision had not been implemented and as such contempt was committed in the said proceedings, a counter affidavit had been filed on behalf of the society which was a respondent in the said contempt petition. A copy of the affidavit and the order passed by the Hon'ble Supreme Court has been produced by the petitioners along with their rejoinder statement as Annexures-R to S respectively. A perusal of the affidavit filed in the said contempt proceedings would indicate that as of August 2006 itself, in the said proceedings, the society had contended with regard to the subsequent understanding which had been entered into with the land owners after initially complying with the order of the Hon'ble Supreme Court".
27. So, this court while considering this suit for injunction, at this stage, holds against the defendants No.1 to 3, 5 & 6 that, directly and impliedly they have suffered the said decision in-rem and the decision in contempt petitions, in connection with the disobedience and non-compliance of the said decision about quashing of acquisition proceedings and committing of fraud in obtaining the judgment and decree in O.S.No.15571/2004 filed by the Society and its members and shall referred. In the said decision, it is considered one of the judgment and decree placed in W.P.No.21920/2010, it has further pressed upon that, there was no suppression made in those such suits of the Society and its 39 O.S.No.6769/2006 members (which includes by implication the judgment and decree passed in O.S.No.5471/2002 also, since the property of defendants No.1 to 3 are also subject-matter of the ultimate decision rendered by Hon'ble Supreme Court, dated 21.02.1995), and legal consequence and the significance about the alleged contempt petition filed by some of land owners in petition No.224-26/2005 before the Hon'ble Supreme Court, which stands the decision therein passed finally. Thereby in this W.P.No.21920/2010, made the observation and also held that the very facts and events those were taken place subsequent to the order of the year 1995, specifically the subsequent understanding, ratification deed only after, initially complying with the said decision of Hon'ble Apex court. (Since those materials are not before this court, hence the decision rendered by Hon'ble High Court of Karnataka in W.P.No.21920/2010, is referred with due respect. So this copy of decision of this Writ Petition is relevant, as the matter in dispute is the same therein, to be duly considered in this case). Further the acceptance of Hon'ble Supreme Court about the ratification and settlement being subsequent to the setting aside the acquisition and 40 O.S.No.6769/2006 ratification of earlier transaction and dismissal of said contempt petition holding that, for the said reason it was not amounting to contempt and to the extent of nullifying the acquisition was accepted by the parties and further ratified the earlier transaction. Thereby it has considered as not illegal transaction. So, by virtue of these significant, decisions of Hon'ble Apex Court and Hon'ble High Court of Karnataka, the possession on account of confirmation of title of Society and its members, under declaration-cum-ratification deed, and the final settlement dated 15.03.1992, being confirmed as lawful; So, the possession of plaintiff is therefore is not unauthorized or illegal possession.
28. It is also important fact, which binds the owners, by their own conduct in accepting further amount from the Society and obtaining of sites by certain land owners which prevail about ratification and confirmation of title and possession and same has not been ignored in the said W.P.No.29120/2010, thereby it has pressed upon the possession continued with Society and its members and claimers under members of the Society and their 41 O.S.No.6769/2006 construction upon their respective sites. So, it is still better to reproduce the portion of said decision at Para-19, it reads thus:
"Therefore, in such circumstance, when the land owners have received further amounts from the society and also certain of the land owners have obtained sites from the society, the said aspect of the matter cannot be ignored in a writ proceedings while considering limited right for khatha entries unless certain other evidences are brought on record in a properly constituted suit. When several site purchasers, who are in possession have put up construction, if the land owners still had grievance that the order of the Hon'ble Supreme Court had not been complied and further action was required, in that case, other course was open and mere change of khatha in the manner it is being attempted would not serve any purpose. Hence, the contention of the respondent that ratification deed is without sanction of law or not sustainable in law cannot be accepted in a writ proceedings when it was relied upon even before the Hon'ble Supreme Court and in the civil suit."
Thus, it has made it clear that if the owners still have grievance, other course was open. But in this suit the defendants have failed to put forth evidence in proof of their defence. The Learned counsel for the plaintiff has relied upon the decision reported in 2003 AIR Kar. HCR 257 (SC), which was also relied upon in the said Writ Petition, with reference to the significance of Doctrine of estoppel. The owners defendants No.1 to 3 have not rebutted the plaintiff's case about, execution of said ratification and settlement deeds confirming transactions of Society and its members, receipt of furthermore money and certain sites by certain owners, etc., by 42 O.S.No.6769/2006 their conduct in not contesting the suit, is clear admission, now they are estopped from denying the possession taken under transactions.
29. Apart from this, it is also considered the placing of reliance upon the said documents in the civil proceedings and dismissal of injunction suit of certain site owners, who have filed RFA No.770/2010, it is pending and the relevant portion at Para-20 reads thus:
"Further, the said document has been accepted in a civil proceedings and a decree has been granted in favour of certain site owners and the society who were before the Court below in the civil suit. At the same time, the respondents have also relied upon the judgment passed in civil suit where the trial Court is said to have dismissed the suit filed by the site owners who had sought injunction against interference. In the said suit also, the ratification deed relied upon was the subject matter for consideration and the civil court in the said suit had not accepted the same. However, so far as the said judgments which have been passed in favour of the land owners and against the site holders, the site holders have filed Regular First Appeal in RFA No.770/2010 before this Court and the same is said to be pending and an order of status quo has been granted. Therefore, insofar as the validity of the said documents having been accepted in one set of civil proceedings and not being accepted in another set of civil proceedings, it would in any event be considered in appropriate proceedings which are still pending before this court and in such circumstance, it was not open for the Statutory Authority to decide upon the right of the parties by commenting upon the document by observing that it is an attempt to cover up the earlier mistake".
Thus, it has stated that the question of validation of the documents, their acceptance in one suit and non-acceptance in another civil proceedings, etc., would be considered in the appropriate 43 O.S.No.6769/2006 proceedings. It has considered the pendency of RFA No.770/2010 and prevailing interim order to maintain status quo. Thus possession is protected.
30. It is specifically considered about the allegation of fraud in obtaining judgment and decree by filing compromise petition and also made reference of O.S.No.5471/2002 and contention taken against the Society that it was fraudulent decree. So, it is thus relevant to reproduce the portion of decision at Para-22, which reads that -
".....though the land owners contend so, there is nothing brought on record or contended to the effect that the irrevocable Power of Attorneys which have been executed earlier in favour of the office bearers of the society had been revoked by the land owners. Hence, the reference to the Contract Act to say that the agency did not subsist etc., is without assailing it in an appropriate proceedings. Hence when, the power of attorney was available, the holder of the same has acted pursuant to it. But, if there was any other fraudulent act by the POA holder, it was required to be pleaded and proved in appropriate proceeding".
The defendants being contested, have failed to adduce evidence, by placing materials that they have duly pleaded and proved in appropriate proceedings. In this case also no materials are forthcoming. It is also considered the decision referred by the Learned counsel for the plaintiff, reported in 2010 AIR SCW 2851 and further made it clear that -
44 O.S.No.6769/2006
".......even in a situation where heirs of the plaintiff sought recall on the ground of fraud and coercion, when POA holder had entered into compromise, it was held that facts are necessary to be pleaded and proved as the registered POA has sanctity. When that is the position, in a collateral proceedings, it cannot be accepted merely because it is contended so and that too in a situation when the proceedings itself is being held by the Statutory Authority being guided by external source and Government order though it was a quasi judicial proceeding".
........the private respondents contend that in view of setting aside of the acquisition, all actions prior to are also deemed to have been set aside and wiped out. In my view, the said contention cannot be accepted in the instant writ proceedings unless the same is decided in a properly constituted suit. That is so for the reason that when the Hon'ble Supreme Court had set aside the acquisition, liberty had also been granted to negotiate with the land owners in that regard for private transactions. Such transactions are claimed to have been entered. If they are by valid documents, it will certainly bind the landowners. .......In fact in the subsequent judgment of the Hon'ble Supreme Court cited by the learned senior counsel for respondents, in the case of Bangalore City Co- operative Housing Society Ltd., -vs- State of Karnataka & Ors (C.A.No.7425-26/2002 DD.02.02.2012), the Hon'ble Supreme Court has in the said case also allowed the society to enter into negotiations with the land owners notwithstanding the acquisition being set aside. That was to protect the interest of the site purchasers though the ultimate direction was to handover vacant land. In the instant case, as noticed, there was implementation of the order of the Hon'ble Supreme Court and thereafter the understanding is claimed to have been reached with the land owners and presently all the petitioners who are seeking for retention of the Khatha are the site purchasers."
31. It is further observed that -
".......the additional payments were made after the year 1995 i.e., subsequent to setting aside the acquisition proceedings which only indicates that the landowners had negotiated further. In such circumstance, if the said land owners have executed the ratification deed on receiving the amount, certainly it would not be open for them to contend in a proceedings relating to khatha that the earlier documents have not been acted upon. Therefore, in such circumstance, when the power of attorney had not been specifically revoked, keeping in view the agreement and the earlier documents which had been executed, in furtherance of earlier transaction, when they have received additional amounts and acted upon the earlier documents, the mere contention in a writ proceedings that the said decrees have been obtained by fraud cannot be accepted. If at all there are deeper questions of title to be decided based on 45 O.S.No.6769/2006 the validity or otherwise of the existing documents or the non-existence of earlier documents as claimed, the same can only be agitated before a Civil court. In fact, any proceedings for revocation of khatha can arise only after the rival claims relating to ownership of the property is adjudicated in the proper forum".
Thus, it has made it clear that if land owners aggrieved, they can agitate before the Civil Court. It is also made it clear about the decision of Hon'ble Apex court of the year 1995, that -
".......the very fact that the State was made a party and a direction was sought, the relief claimed was based for implementation of the Hon'ble Supreme Court order. Therefore, the genesis for the relief sought in those petitions and the subject matter herein are all by relying on the order setting aside the acquisition. Hence, I am of the opinion that even to seek reversal of khatha entries, the landowners would have to get their right decided in a civil suit in view of several subsequent developments leading to several complicated questions having arisen and thereafter approach the revenue authorities and not based only on the order of the Hon'ble Supreme Court as the position has stood altered after complying with that order and this had also been brought to the notice of the Hon'ble Supreme Court in contempt proceedings".
32. It is also considered already about the locus standi of the Society to purchase an agricultural land and baring provision section 79-B of Karnataka Land Reforms Act. The relevant portion reads thus:
".....Though it is contended that the society could not have purchased agricultural land in view of the bar contained in Section 79-B of the Karnataka land Reforms Act and as such the contract is void under Section 23 of the Contract Act; further, compromise can only be of lawful agreements as provided in Order 23 Rule 3 of CPC, the same would not apply herein. The bar will apply only to the completed transactions by execution of sale deed to the society in respect of agricultural land. In the instant case, it is the members who have ultimately purchased the lands after formation of layout and there is no material on record to show that there is any sale deed in favour of the society."......46 O.S.No.6769/2006
From this observation 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 thereunder, 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 petitions, allowing the same, as order dated 09.04.2010 and 05.04.2012, have been quashed and 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, it is felt it necessary, in the interest of justice, to reproduce the observation and decided matter thereunder, and it reads thus:
"....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 47 O.S.No.6769/2006 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 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 48 O.S.No.6769/2006 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....."
Thus the W.Ps. 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 right of possession, because neither the plaintiff has not claimed so, nor the defendants 1 to 3, 5 and 6 claimed any relief of declaration as considered in the above discussed decisions passed in W.P. and W.Appl making it clear that such aggrieved applicable to the defendants also, to have 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 his 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 49 O.S.No.6769/2006 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 his lawful possession over the suit property, since he has claimed the title through his vendor, who had purchased the suit property from the Society, as allottee members. 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.
34. Under such circumstances, in view of the above discussion, the plaintiff has proved his lawful possession over the suit 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 his 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. So, the possessory right of the plaintiff has to be protected. Otherwise the very denial and conduct 50 O.S.No.6769/2006 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.
35. Thus, the plaintiff has proved the interference as claimed for. 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. However, the plaintiff is not entitled for any relief against the defendant No.4, as BBMP being Statutory Body 51 O.S.No.6769/2006 / 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 his 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 Society being rectified and thereby the plaintiff's title claimed under sale deed (of members of 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 their (defendants No.1 to 4, 5 & 6) legal claim over the suit property, as they failed to contest this suit and avail the 52 O.S.No.6769/2006 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., they being material records, have not been produced by these defendants. Because by filing the suit, the plaintiffs have made open claim of their lawful possession based on title, in the year 2006, itself and plaintiffs asserted their 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). 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 53 O.S.No.6769/2006 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 answered in the 'Negative' and Issue No.3 is answered 'Partly in the Affirmative'.
54 O.S.No.6769/2006
36. 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 (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.
55 O.S.No.6769/2006Draw 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 B.S. Kosthi
List of the documents marked for the plaintiff:
Ex.P.1 Sale deed dated 04.12.1992.
Ex.P.2 Khatha endorsement.
Ex.P.3 CMC notice.
Ex.P.4 Tax receipt.
Ex.P.5 Endorsement in respect of right transfer.
Ex.P.6 Possession Certificate.
Ex.P.7 Sale Deed dated 21.02.2004
Ex.P.8to11 Property tax receipts.
Ex.P.12&13 Encumbrance certificates.
Ex.P.14 Certified copy of the order in O.S.No.5471/2002.
Ex.P.15 Certified copy of decree in O.S.No.5471/2002.
Ex.P.16 Certified copy of joint memo in O.S.No.5471/2002.
56 O.S.No.6769/2006
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.57 O.S.No.6769/2006
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.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.58 O.S.No.6769/2006 59 O.S.No.6769/2006 60 O.S.No.6769/2006