Karnataka High Court
D B Gadagkar vs Bangalore Development Authority on 24 September, 2012
Author: N.Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 24th day of September, 2012
BEFORE
THE HON'BLE MR. JUSTICE N KUMAR
REGULAR FIRST APPEAL No. 1411 of 2005
BETWEEN:
Sri D. B Gadagkar
S/o B. R. Gadagkar
Aged about 70 years
R/at No.8/1 (Old No,.171/F)
8th cross, 3rd Block
Thyagarajanagar
Bangalore 0 560 028 ...Appellant
(By Sri S. Gangadhara, Advocate for
Sri D.L. Jagadeesh, Advocate)
AND:
Bangalore Development Authority
Kumara Park West
T Chowdaiah Road
Bangalore - 560 020
Represented by its
Commissioner ...Respondent
(By Sri K. Krishna, Advocate)
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This RFA filed under Section 96 read with Order 41
Rule 1 of CPC against the judgment and decree dated 2-7-2005
passed in OS No. 4596/1990b
This RFA coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This is a plaintiff's appeal preferred against the judgment and decree of the trial Court which has dismissed the suit of the plaintiff filed for declaration that the plaintiff is the absolute owner of the schedule property or in the alternative for declaration that plaintiff has easementary rights with respect to the schedule property and for a decree of permanent injunction or in the alternative, a direction to the defendant to allot marginal land.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is property measuring East to West 30 feet, North to South 30 feet with 3 structures thereon and bounded on the East by property in possession of Smt. Rajamma, West by property in possession of Sri. Gangappa, North by property of the plaintiff bearing No.171/F and South by BDA Road.
4. The case of the plaintiff is that he is the owner of premises bearing No.171/F new No.8/1, 8th cross, III Block, Thaygarajanagar, Bangalore-28. The plaintiff purchased the said property in the year 1979. On the northern side of the property that was purchased by the plaintiff, there was a road. On the southern side that was purchased by the plaintiff, Chennamma Tank was there. As there was a tank on the southern side, the gradient was such that, drainage could have been provided only on the southern side. Thus, the drainage water was released on the southern side. He was not able to make use of the premises bearing No.171/F and the passage existed therein for the reason that there is a well in the passage. Because of the well in the passage, the plaintiff cannot make an entry to the built up portion. In view of that, 4 the plaintiff has kept one more door on the southern side of this property which is in existence from the beginning. Somewhere in 1976 the Chennamma Tank got drained out. The vendor of the plaintiff occupied the said land on the southern side of the property that he had purchased. After the purchase, the plaintiff is in quite and peaceful enjoyment and uninterrupted enjoyment of the said property. The plaintiff has put up constructions in the portion, which originally was part of Chennamma tank. He has been in possession in his own rights continuously without interruption and in hostility to the rights of any other person. Plaintiff is also having a sewerage lines on the southern side of the property and because of the gradient, drainage cannot be provided on the northern side. In the alternative, the plaintiff pleaded that he has perfected his title to the property. In the alternative, again he has pleaded that easementary right both by way of necessity to have sewerage line and by way of prescription.
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5. The defendant has recognised the possession of the plaintiff as early as in the year 1981 itself. Defendant issued notice to the plaintiff. On the plaintiff explaining the circumstances and on claiming his stay in his own rights, the defendant had kept quite. The said notice shows plaintiff's possession over the suit schedule property. Plaintiff requested the defendant to allot the said marginal land which is very much needed for the purpose of plaintiff's peaceful possession and enjoyment of the adjacent land owned by him and without which the plaintiff cannot make use of the adjacent land. In fact, the defendant's officials have come to the conclusion that the land should be allotted in favour of the plaintiff alone. A representation is submitted. Defendant also agreed to allot the land. Therefore the plaintiff is entitled for allotment of the marginal land. In July 1990 there were attempts by the defendant to interfere with the plaintiff's possession over the suit schedule property. They were trying to demolish the existing structure and sewerage line and allot the land in favour of third parties. Therefore the plaintiff filed suit for the 6 aforesaid reliefs. In fact, this plea of plaintiff being entitled to the marginal land was introduced into the plaint by way of amendment.
6. The defendant has filed detailed written statement contesting the claim. They contend that Chennamma Tank Bed is Government tank existing in Sy.No.26 of Yediyur- Nagasandra with an extent of 30 acres 9 guntas which was acquired and handed over to the Engineering Section of the BDA on 17.03.1966. The said land was formed into layout and sites were allotted to the respective General Public during 1979-80. The grounds behind the plaintiff's property is normal. Since the layout was formed in the southern side of the plaintiff's property, the question of releasing water to the southern portion does not arise at all. It is true that there is a Well existing in the property of the plaintiff. But the UGD line is running to the northern side of the plaintiff's property. Hence the drainage water can easily be dischargable to that side. The southern portion of the plaintiff's property is part 7 and parcel of the Chennamma Tank Bed Area and the possession of the same area by the plaintiff is illegal. The plaintiff has illegally constructed a AC sheet shed about 9'x9'-3" in the land in question which is purely a BDA property. The property in question measures 37' + 41'/2 towards North to South and 30 ft towards East to West. The suit is not maintainable as plaintiff has not complied with Section 64 of the BDA Act, which is mandatory and is liable to be dismissed on that ground.
7. After the amendment of the plaint, they filed amended written statement. They contended that possession of the plaintiff over the suit schedule is unauthorised and he cannot claim the same as a matter of right. The power of allotment is left to the power of the BDA as per the provisions of the BDA Act. They denied the allegation that officials of the defendant have come to the conclusion that the land should be allotted in favour of the plaintiff alone. Similarly, they denied the allegation that plaintiff is entitled to the allotment of the 8 marginal land and they have submitted a report to consider the request of the plaintiff to allot the land. The plaintiff cannot claim it as a matter of right. Hence, they sought for dismissal of the suit.
8. On the aforesaid pleadings the trial Court framed the following issues:
1. Whether defendant proves that suit is not maintainable for want of notice u/s 64 of BDA Act?
2. Whether the plaintiff proves that the Court fee paid is proper?
3. Whether the plaintiff proves his title to the suit property?
4. Whether the plaintiff proves his lawful possession over suit property as on the date of suit?
5. Whether the plaintiff proves alleged illegal interference by defendant and cause of action for the suit?9
6. Whether the plaintiff has made out a case and is entitled to the reliefs claimed?
7. To what reliefs the parties are entitled?
9. The plaintiff in order to substantiate his claim examined himself as P.W-1 and produced 28 documents, which are marked as Ex.P-1 to P-28. On behalf of the defendants, an official by name Devanand was examined as D.W-1. However, no documents were produced.
10. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that defendant proves that the suit is not maintainable for want of notice under Section 64 of the BDA Act. The plaintiff proves that the Court Fee paid is proper. The plaintiff has failed to prove his title to the suit property. The plaintiff has failed to prove his lawful possession over the suit property as on the date of the suit. Plaintiff has failed to prove the alleged illegal interference by defendant, the plaintiff has not made out a case for grant of 10 injunction and therefore the plaintiff is not entitled to any relief. Therefore the suit came to be dismissed.
11. Aggrieved by the said judgment and decree of the trial Court, the plaintiff has preferred this appeal.
12. The learned Counsel for the plaintiff submitted that even if the finding of the trial Court that plaintiff has failed to prove the issue and service of notice on the defendant in view of proviso to sub-Section (2) of Section 64 of the Act, it is permissible for the plaintiff to file a suit even without issue of notice in case of emergency. Therefore the trial Court was not justified in dismissing the suit as not maintainable. Secondly he contended that defendant admits the permissive possession of the plaintiff over the suit schedule property. Therefore the plaintiff was atleast entitled to a decree of permanent injunction. Thirdly he contended that as the land in question being adjoining to the land which is owned by the plaintiff, he is entitled to allotment of the marginal land. In fact, report is 11 submitted by the officials to enable the authorities to grant the marginal land. As the plaintiff has laid the sewerage pipe in the schedule property without which he cannot enjoy his property, he has perfected his title to the suit property by way of easementary. Even otherwise, he has perfected his title by adverse possession and therefore the trial Court was not justified in dismissing the suit.
13. The learned Counsel for the BDA supported the impugned judgment.
14. In the light of what is stated above and the rival contentions, the points that arise for consideration in this appeal as under:
(1) Whether the suit is not maintainable as it is hit by Section 64 of the BDA Act, 1976, as held by the trial Court?12
(2) Whether the plaintiff is entitled to a decree directing the defendant to allot the marginal land?
(3) When admittedly the plaintiff is in possession of the property, was the trial Court justified in declining to grant a decree of permanent injunction?
(4) Whether the plaintiff has perfected his title by adverse possession or is he entitled to easementary right as claimed in the plaint?
15. Section 64 of the BDA Act, reads as under:-
"64. Notice of suit against the Authority.-
[(1)] No suit or other proceedings shall be commenced against the authority or any member or any Officer or servant of the authority or against any person acting under the direction of the authority, the member or Officer of the authority for anything done, or purporting to have been done, in pursuance of the Act or a rule, regulation or by-law 13 made thereunder without giving to the authority one month's previous notice in writing of the intended suit or other proceedings, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceedings nor after tender of sufficient amends.
[(2) A suit to obtain an urgent or is immediate relief against the authority or any member or any Officer or servant of the authority in respect of any act done or purporting to be done by such Officer or servant in his official capacity may be instituted with the leave of the Court, without serving any notice as required by sub-section (1) but the Court shall not grant relief in the suit whether inter alia or otherwise except after giving to the authority, Officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of relief prayed for in the suit.
Provided that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with requirements of sub-section (1).]"14
It is the specific case of the plaintiff that as per Ex.P-19, a notice was issued under Section 64(1) of the Act. The said notice has been duly served. Therefore the suit is maintainable. Ex.P-19 on which reliance is placed is a letter addressed by the plaintiff to the BDA. A perusal of the aforesaid notice or letter shows that the plaintiff was claiming title by way of adverse possession and again by way of prescription. Then there was a demand for allotment of land in his possession where he has put up construction. Then it was made clear that he issued notice as required under Section 64 of the BDA Act. If within the statutory period the defendant refuses to confirm that they would not interfere with his possession, he has threatened that he will institute appropriate proceedings in appropriate forums for relief of declaration or declaration of easementary rights with consequential rights of injunction or for injunction alone or for such other incidental reliefs as may become necessary. If we read the averments in 15 this appeal and the averments in the plaint, in paragraph 7, this what has been said:
" Things standing thus, in the first week of July 1990 there were attempts by the defendant's officials to interfere with the possession of the plaintiff and to demolish the existing structures and sewerage line, the plaintiff protested and issued a notice. A copy of the notice issued to the defendant is produced herewith."
16. Therefore the interference is in the first week of July 1990. The suit is filed on 05.09.1990. Ex.P-19 on which reliance is placed is dated 02.05.1990. Therefore the notice referred to in the plaint cannot be the notice at Ex.P-19, as it was written two months before the so called interference. The said notice Ex.P-19 is not duly served. There is nothing to indicate that notice was sent by post to the defendant. It is nobody's case that the said notice was served on the BDA personally. However, in the evidence, the plaintiff has stated that Ex.P-11 is the office copy of his letter to the Chairman and 16 Ex.P-12 is the acknowledgment. That relates to his request for allotment of marginal land. Subsequently, he has issued seven reminders to the BDA requesting for allotment of the suit schedule marginal land. They are at Ex.P-12 and Ex.P-19. Ex.P-20 and Ex.P-28 are the acknowledgment for having received this reminders. This is what he has stated in the examination-in-chief. There is no reference to the notice under Section 64 of the Act. The only notice which is issued under Section 64 of the Act is Ex.P-19. Ex.P-20 is the acknowledgment dated 19.03.1980 issued by the BDA for having received the letter from the plaintiff. Ex.P-21 is dated 23.02.1981 again an acknowledgment by the BDA for having received the letter. Ex.P-22 is also dated 27.06.1981 yet another acknowledgment. Ex.P-23 is dated 13.07.198, the acknowledgment issued to the President of Jayanagar 3rd Block, Residents' Welfare Association, Bangalore -28. Ex.P-24 is the cover addressed to Dr.H.G.V. Reddy, Chairman, Bangalore Development Authority. Ex.P-25 is dated 02.11.2000. Ex.P-26 is dated 02.11.2000, Ex.P-27 is also 17 dated 02.11.2000. Ex.P-28 is also dated 02.11.2000. They are not acknowledgments issued by the BDA. On careful scrutiny of these documents the trial Court rightly held that the plaintiff has not complied with the mandatory requirement of Section 64 of the Act, as prescribed. Therefore it rightly held that suit is not maintainable.
17. In so far as application of sub-section (2) of Section 64 is concerned, it applies to a case where the party wants to approach the Court for injunctive relief and the issue of notice would take time, he should file an application to the Court requesting the Court to permit him to file a suit without complying the mandatory requirement of Section 64(1) of the Act. No such application is filed. On the contrary, the case is that they have issued notice. Therefore it is too late in the day for the plaintiff to fall back upon Section 64(2) of the Act. Therefore the finding recorded by the trial Court is proper, based on legal evidence and in accordance with law and do not call for interference.
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18. From the pleadings and evidence on record it is clear that plaintiff is not the owner of the suit schedule property. The suit schedule land adjoins the property owned by him. The said property admittedly belongs to BDA. He has entered upon the property illegally and has put up construction and he has also laid sewerage pipes. It is the case that he is in permissive possession. No such permission is produced. In another breath he says that he has perfected his title by adverse possession. Such a plea presupposes that he has entered upon the property illegally without any right and absolute title to the said property. Therefore the plaintiff is not in lawful possession of the said property or in permissive possession of the said property. Therefore the trial Court rightly held that the plaintiff has failed to prove the lawful possession over the schedule property.
19. The plaintiff has made representation to the BDA for allotment of the said site, which the plaintiff calls it as 19 marginal land. The allotment of the marginal land is also governed by the Rules. Admittedly, the BDA has not allotted the said marginal land. The plaintiff till today has not taken any steps seeking allotment of the marginal land. Unless the marginal land is allotted to the plaintiff in a manner known to law, the plaintiff cannot claim any title to the said marginal land. Therefore the plaintiff even to this date has no title to the property.
20. In so far as claim of easementary right by way of prescription is concerned, the plaintiff has constructed a house. He is residing there. In every site which is in a layout, the owner has to make provision for drainage facility. If he has not chosen to make provision for drainage facility in his own site and has made use of the adjoining land over which he has no right, it cannot be said that he has perfected his title by way of prescription and such a right is to be up held by the Court of law. The plaintiff neither has any right over the said land nor perfected his title by adverse possession nor acquired 20 right by way of prescription. Therefore the trial Court on proper appreciation of the entire oral and documentary evidence on record, on the basis of the admission of the plaintiff itself, rightly declined to grant any relief to the plaintiff. The said finding recorded by the trial Court is based on legal evidence and therefore the judgment and decree passed by the trial Court is not erroneous and do not call for interference.
For the aforesaid reasons, the appeal is devoid of merits. It is accordingly dismissed. Parties to bear their own costs.
Sd/-
JUDGE ksp/-