Karnataka High Court
Smt.O.Leelavathi vs Sri.M.Neelakanta Naidu on 7 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7th DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO. 1613 OF 2014
C/W
R.F.A.Nos. 1614 OF 2014 ,1615 OF 2014 & 1616 OF 2014(RES)
IN R.F.A.No. 1613 OF 2014
BETWEEN:
1. SMT. O. LEELAVATHI
W/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 72 YEARS.
2. SMT. O. KALPANA
W/O V.U. GOPI
D/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 53 YEARS
3. SMT. O. MAHESHWARI
D/O LATE. SRI.D. OMPRAKASH
AGED ABOUT 50 YEARS.
4. SRI. D.O. GANESHKUMAR
S/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 48 YEARS.
5. SRI. D.O. SURESH KUMAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 47 YEARS.
6. SRI. D.O. SHEKAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 45 YEARS.
ALL ARE R/AT NO. 445,
5TH CROSS, 11TH MAIN,
R.M.V. EXTENSION
SADSHIVANAGAR,
BENGALURU - 560 080.
2
REPRESENED BY THEIR GPA HOLDER
SRI. D.O. SURESHKUMAR.
...APPELLANTS
(BY SRI. M.V. VEDACHALA A/W SRI. M. LOHITASWA BANAKAR &
SRI. N. SHIVAKUMAR, ADVOCATES)
AND
1. SRI. M. NEELAKANTA NAIDU
S/O LATE. SRI. GANGAMMA NAIDU
AGED ABOUT 67 YEARS
R/AT NO. 23
I 'R' BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
2. SRI. T.N. VENKATESH
S/O SRI. E. NARASIMHALU
AGED ABOUT 52 YEARS
R/AT NO. 4229, 4TH MAIN
SUBRAMANYANAGAR
BENGALURU - 560 021.
3. SRI. N. SARVANA
S/O SRI. S. NAGARAJI
AGED ABOUT 43 YEARS
R/AT NO. 680
9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
4. SRI. N. SASIKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 36 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
5. SRI. S. SANJAYKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 34 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
3
6. THE BANGALORE DEVELOPMENT AUTHORITY (BDA)
T. CHOWDAIAH, ROAD, KUMARAPARK(W)
BENGALURU - 560 020.
REP BY ITS COMMISSIONER.
7. M/S. RELIANCE INDUSTRIES LIMITED
RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG
BALLARD ESTATE, MUMBAI - 400 038.
ALSO AT:
M/S. RELIANCE ASSET
RECONSTRUCTION COMPANY LIMITED
570, RECTIFITER HOUSE
2ND FLOOR, NEXT TO ROYAL INDL. ESTATE
NAIGAON, CROSS ROAD
WADALA (WEST), MUMBAI - 400 031.
...RESPONDENTS
(BY SRI. B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI. SHANMUKHAPPA, ADVOCATE C/R-3 TO R-5
SRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI. ASHWIN S. HALADY, ADVOCATE FOR R-6
R-7 IS SERVED AND UNREPRESENTED
V/O/DT: 25.09.2021, SERVICE OF NOTICE TO R-1 & R-2 IS H/S)
THIS APPEAL IS FILED UNDER ORDER 41 RULE R/W
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED: 13.08.2014 PASSED IN O.S. 2046/1997 ON THE FILE OF XIX
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR CANCELLATION OF SALE DEED.
IN R.F.A.No.1614 OF 2014
BETWEEN:
1. SMT. O. LEELAVATHI
W/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 72 YEARS.
2. SMT. O. KALPANA
W/O V.U. GOPI
4
D/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 53 YEARS
3. SMT. O. MAHESHWARI
D/O LATE. SRI.D. OMPRAKASH
AGED ABOUT 50 YEARS.
4. SRI. D.O. GANESHKUMAR
S/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 48 YEARS.
5. SRI. D.O. SURESH KUMAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 47 YEARS.
6. SRI. D.O. SHEKAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 45 YEARS.
ALL ARE R/AT NO. 445,
5TH CROSS, 11TH MAIN, R.M.V. EXTENSION
SADSHIVANAGAR
BENGALURU - 560 080.
REPRESENED BY THEIR GPA HOLDER
SRI. D.O. SURESHKUMAR.
...APPELLANTS
(BY SRI. M.V. VEDACHALA A/W SRI. M. LOHITASWA BANAKAR &
SRI. N. SHIVAKUMAR, ADVOCATES)
AND
1. SRI. M. NEELAKANTA NAIDU
S/O LATE. SRI. GANGAMMA NAIDU
AGED ABOUT 67 YEARS
R/AT NO. 23, I 'R' BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
2. SRI. T. KRISHNAMA NAIDU
S/O VENGAMMA NAIDU
AGED ABOUT 74 YEARS
R/AT NO. 40, 80 FEET ROAD
9TH CROSS, ASHOKNAGAR
SBM COLONY, BANASHANKARI I STAGE
BENGALURU - 560 050.
5
3. SRI. N. SARVANA
S/O SRI. S. NAGARAJI
AGED ABOUT 43 YEARS
R/AT NO. 680
9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR,
BENGALURU - 560 086.
4. SRI. N. SASIKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 36 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
5. SRI. S. SANJAYKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 34 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
6. THE BANGALORE DEVELOPMENT AUTHORITY (BDA)
T. CHOWDAIAH, ROAD, KUMARAPARK(W)
BENGALURU - 560 020.
REP BY ITS COMMISSIONER.
7. M/S. RELIANCE INDUSTRIES LIMITED
RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG
BALLARD ESTATE, MUMBAI - 400 038.
ALSO AT:
M/S. RELIANCE ASSET
RECONSTRUCTION COMPANY LIMITED
570, RECTIFITER HOUSE
2ND FLOOR, NEXT TO ROYAL INDL. ESTATE
NAIGAON, CROSS ROAD
WADALA (WEST), MUMBAI - 400 031.
...RESPONDENTS
(BY SRI. B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI. SHANMUKHAPPA, ADVOCATE C/R-3 TO R-5
SRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR
6
SRI. ASHWIN S. HALADY, ADVOCATE FOR R-6
R-7 IS SERVED AND UNREPRESENTED
V/O/DT: 25.09.2021, SERVICE OF NOTICE TO R-1 & R-2 IS H/S)
THIS APPEAL IS FILED UNDER ORDER 41 RULE R/W
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED: 13.08.2014 PASSED IN O.S. 2048/1997 ON THE FILE OF XIV
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR CANCELLATION OF SALE DEED.
IN R.F.A.No.1615 OF 2014
BETWEEN:
1. SMT. O. LEELAVATHI
W/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 72 YEARS.
2. SMT. O. KALPANA
W/O V.U. GOPI
D/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 53 YEARS
3. SMT. O. MAHESHWARI
D/O LATE. SRI.D. OMPRAKASH
AGED ABOUT 50 YEARS.
4. SRI. D.O. GANESHKUMAR
S/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 48 YEARS.
5. SRI. D.O. SURESH KUMAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 47 YEARS.
6. SRI. D.O. SHEKAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 45 YEARS.
ALL ARE R/AT NO. 445,
5TH CROSS, 11TH MAIN, R.M.V. EXTENSION
SADSHIVANAGAR
7
BENGALURU - 560 080.
REPRESENED BY THEIR GPA HOLDER
SRI. D.O. SURESHKUMAR.
...APPELLANTS
(BY SRI. M.V. VEDACHALA A/W SRI. M. LOHITASWA BANAKAR &
SRI. N. SHIVAKUMAR, ADVOCATES)
AND
1. SRI. M. NEELAKANTA NAIDU
S/O LATE. SRI. GANGAMMA NAIDU
AGED ABOUT 67 YEARS
R/AT NO. 23, I 'R' BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
2. SRI. E. GOVINDA NAIDU
S/O SRI. E. NARAYANASWAMY NAIDU
AGED MAJOR
R/AT NO. 1161/G-12
BANASHANKARI STAGE
II BLOCK, BANGALORE - 560 050.
3. SRI. N. SARVANA
S/O SRI. S. NAGARAJI
AGED ABOUT 43 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
4. SRI. N. SASIKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 36 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
5. SRI. S. SANJAYKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 34 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
8
6. THE BANGALORE DEVELOPMENT AUTHORITY (BDA)
T. CHOWDAIAH, ROAD, KUMARAPARK(W)
BENGALURU - 560 020.
REP BY ITS COMMISSIONER.
7. M/S. RELIANCE INDUSTRIES LIMITED
RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG
BALLARD ESTATE, MUMBAI - 400 038.
ALSO AT:
M/S. RELIANCE ASSET
RECONSTRUCTION COMPANY LIMITED
570, RECTIFITER HOUSE
2ND FLOOR, NEXT TO ROYAL INDL. ESTATE
NAIGAON, CROSS ROAD
WADALA (WEST), MUMBAI - 400 031.
...RESPONDENTS
(BY SRI. B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI. SHANMUKHAPPA, ADVOCATE C/R-3 TO R-5
SRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI. ASHWIN S. HALADY, ADVOCATE FOR R-6
R-7 IS SERVED AND UNREPRESENTED
V/O/DT: 25.09.2021, SERVICE OF NOTICE TO R-1 & R-2 IS H/S)
THIS APPEAL IS FILED UNDER ORDER 41 RULE R/W
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED: 13.08.2014 PASSED IN O.S. 2047/1997 ON THE FILE OF XIX
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR CANCELLATION OF SALE DEED.
IN R.F.A.No. 1616 OF 2014
BETWEEN:
1. SMT. O. LEELAVATHI
W/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 72 YEARS.
9
2. SMT. O. KALPANA
W/O V.U. GOPI
D/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 53 YEARS
3. SMT. O. MAHESHWARI
D/O LATE. SRI.D. OMPRAKASH
AGED ABOUT 50 YEARS.
4. SRI. D.O. GANESHKUMAR
S/O LATE. SRI. D. OMPRAKASH
AGED ABOUT 48 YEARS.
5. SRI. D.O. SURESH KUMAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 47 YEARS.
6. SRI. D.O. SHEKAR
S/O LATE SRI. D. OMPRAKASH
AGED ABOUT 45 YEARS.
ALL ARE R/AT NO. 445,
5TH CROSS, 11TH MAIN, R.M.V. EXTENSION
SADSHIVANAGAR
BENGALURU - 560 080.
REPRESENED BY THEIR GPA HOLDER
SRI. D.O. SURESHKUMAR.
...APPELLANTS
(BY SRI. M.V. VEDACHALA A/W SRI. M. LOHITASWA BANAKAR &
SRI. N. SHIVAKUMAR, ADVOCATES)
AND
1. SRI. M. NEELAKANTA NAIDU
S/O LATE. SRI. GANGAMMA NAIDU
AGED ABOUT 67 YEARS
R/AT NO. 23
I 'R' BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
2. SRI. DORAISWAMY NAIDU
S/O LATE. GANGAMMA NAIDU
AGED ABOUT 76 YEARS
R/AT NO. 105, 9TH CROSS, ASHOKNAGAR
10
BANASHANKARI 1ST STAGE
II BLOCK, BENGALURU - 560 050.
3. SRI. N. SARVANA
S/O SRI. S. NAGARAJI
AGED ABOUT 43 YEARS
R/AT NO. 680
9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
4. SRI. N. SASIKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 36 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
5. SRI. S. SANJAYKUMAR
S/O SRI. S. NAGARAJI
AGED ABOUT 34 YEARS
R/AT NO. 680, 9TH 'A' CROSS, II STAGE
WEST OF CHORD ROAD
RAJAJINAGAR, BENGALURU - 560 086.
6. THE BANGALORE DEVELOPMENT AUTHORITY (BDA)
T. CHOWDAIAH, ROAD, KUMARAPARK(W)
BENGALURU - 560 020.
REP BY ITS COMMISSIONER.
7. M/S. RELIANCE INDUSTRIES LIMITED
RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG
BALLARD ESTATE, MUMBAI - 400 038.
ALSO AT:
M/S. RELIANCE ASSET
RECONSTRUCTION COMPANY LIMITED
570, RECTIFITER HOUSE
2ND FLOOR, NEXT TO ROYAL INDL. ESTATE
NAIGAON, CROSS ROAD
WADALA (WEST), MUMBAI - 400 031.
...RESPONDENTS
(BY SRI. B.K. SAMPATH KUMAR, SENIOR COUNSEL FOR
SRI. SHANMUKHAPPA, ADVOCATE C/R-3 TO R-5
11
SRI. D.N. NANJUNDA REDDY, SENIOR COUNSEL FOR
SRI. ASHWIN S. HALADY, ADVOCATE FOR R-6
R-7 IS SERVED AND UNREPRESENTED
V/O/DT: 25.09.2021, SERVICE OF NOTICE TO R-1 & R-2 IS H/S)
THIS APPEAL IS FILED UNDER ORDER 41 RULE R/W
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED: 13.08.2014 PASSED IN O.S. 2045/1997 ON THE FILE OF XIV
ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE
SUIT FOR CANCELLATION OF SALE DEED.
THESE APPEALS ARE BEING HEARD AND RESERVED ON
15.11.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
All these appeals arise out of four suits in O.S.No.2046/1997, O.S.2048/1997 O.S.No.2047/1997 and O.S.No.2045/1997 respectively on the file of the XIV Addl.City Civil and Sessions Judge, Bangalore.
2. The appellants herein who were the plaintiffs in all the suits are the same, while the respondent No.1 - defendant No.1 and respondents 3 to 6 - defendants 3 to 6 in all the four suits are the same. However, respondent No.2 - defendant No.2 are different i.e., Doreswamy Naidu in 12 O.S.No.2045/1997, T.N.Venkatesh in O.S.No.2046/1997, E.Govinda Naidu in O.S.2047/1997 and T.Krishnam Naidu in O.S.No.2048/1997.
3. The subject matter of all the suits is a land bearing old Sy.No.4, Re-Sy.No.4/2 of Jarakabande kaval, Yelahanka Hobli, Bangalore north taluk, Bangalore, measuring 4 acres 14 guntas and 44 sq.yards corresponding to BDA site Nos.22/1, 22/2, 22/3 and 22/4 described as the plaint 'A' schedule property. A portion of the plaint 'A' schedule property was described as the plaint 'B' schedule property.
4. In the said suits, the appellants - plaintiffs sought for cancellation of the sale deed dated 13.09.1993 executed by the 1st defendant in favour of 2nd defendant and also for cancellation of the sale deed dated 15.09.1994 executed by 2nd defendant in favour of defendants 3 to 5 and for a direction to the defendants 1 to 5 to hand over possession of the 'B' schedule property to the plaintiffs and for mesne profits and other reliefs.
135. The said suits were contested by the defendants and the trial court framed 12 issues including issues 7 to 9, which are as under:-
7. Whether the suit is barred by limitation?
8. Whether the valuation of the 'B' schedule property for the reliefs sought and the court fee paid are not sufficient ?
9. Whether the suit is bad for non-joinder of the parties?
6. The trial court treated the said issues 7 to 9 as preliminary issues and answered issue Nos. 7 and 9 against the appellants - plaintiffs and came to the conclusion that the suit was not maintainable and proceeded to dismiss the suits vide judgment and decree dated 21.03.2001.
7. Aggrieved by the same, the appellants - plaintiffs preferred four appeals in RFA Nos.634-637/2001 before this Court. By final judgment dated 28.08.2006, this Court allowed the appeals and set aside the judgment and decrees of the trial court and remitted the matter back to the trial court to 14 frame issues regarding maintainability of the suits and treat the same as preliminary issues and reconsider the matter afresh and decide whether the suits were maintainable or not after providing opportunity to all parties.
8. The said judgment and decree passed by this Court in the aforesaid RFA Nos. 634-637/2007 was challenged by the defendants in SLP (civil) No.6109/2007 which came to be dismissed by the Apex Court vide order dated 04.09.2009.
9. A perusal of the aforesaid judgment dated 28.08.2006 passed by this Court will indicate that the facts and issues obtaining in the instant cases have been succinctly captured by this Court by holding as under:-
" These four appeals are arising out of a common orders passed on issue Nos.7 to 9 and on maintainability of the suit. The appellants in these appeals were plaintiff in O.S Nos. 2045/97. Since the averments in the plaints in the four suits and the contentions in the written statements are similar, these appeals are heard together by consent of the learned counsel appearing for both the parties.
2. Four suits were filed by the plaintiffs against different defendants and out of them 15 defendant Nos. 1, 3, 4 and 5 re common in all suits and only the defendant No. 2 in the sits are different. They are, Doraiswamy Naidu in O.S. No. 2045/97, T.N. Venkatesh in O.S. No. 2047/97 and T. Krishnam Naidu in 2048/97.
3. Four suits were filed by the plaintiff for the following reliefs:
To cancel the sale deed dt. 13.9.1993 executed by the 1st defendant in favour of the 2nd defendant in all the suits and to cancel the sale deed dated 15.9.1994 executed by the 2nd defendant in favour of defendants-3 to 5 and to direct the defendants-1 to 5 to vacate and put the plaintiffs in possession of plaint schedule B property and to award future mesne profits at the rate of Rs. 50,000/- per month from the date of suit till the date of realisation.
4. The subject matter of the suits is in regard to old Sy. No. 4 Resurvey No. 4/2 of Jaraabande Kaval, Yelahanka Hobli, Bangalore North Taluk, measuring 4 acres 14 guntas and 44 Sq. yards corresponding to present B.D.A site Nos. 22/1, 22/2, 22/3 and 22/4.
5. The defendants contested the suit. In the written statement it was contended that the suits filed by the plaintiffs were not maintainable as the 16 same are bad for mis-joinder and non-joinder of necessary parties and that the suits filed by the plaintiffs is barred by limitation, since the suits are filed by the plaintiffs beyond the period of years from the date of transactions and the Court fee paid by the plaintiffs is insufficient and that the sits filed by the plaintiffs are not maintainable as the plaintiffs have to right title or interest over the property. In addition to the above four grounds, they also raised several grounds in their written statement.
6. To dispose of these appeals, this Court is of the opinion that there is no necessity to refer the entire plaint averments and the averments made in the written statements, as these appeals can be disposed of on a simple question.
7. The Trial Court considering the pleadings of the parties framed the following issues in all the suits:
1. Whether late D Omprakash (the father of plaintiffs to 2 to 6 and husband of 1st plaintiff) was the owner of the entire 'A' schedule property?
2. Whether the plaintiffs prove that the General power of Attorney executed by them in favour of 1st defendant was not a legally valid document?17
3. Whether they had the right to revoke/cancel the General Power of Attorney?
4. Whether the G.P.A had been duly cancelled even prior to the execution of sale deed by 1st defendant in favour of 2nd defendant?
5. Whether the plaintiffs prove that they are not bound by the sale by 1st defendant in favour of the 2nd defendant and the sale by the 2nd defendant in favour of defendants 3 to 5 in respect of ''B'' schedule property?
6. Whether defendants 3 to 5 prove to be the bonafide purchasers of B schedule property from the 2nd defendant for valuable consideration and have further perfected their title by virtue of the sale deed executed by the B.D.A ?
7. Whether the suit is barred by limitation?
8. Whether the valuation of the ''B'' schedule property for the reliefs sought and the Court fee paid are not sufficient?
9. Whether the suit is bad for non-joinder of necessary parties?
10. Whether the sale deed dated 13.9.93 by 1st defendant in favour of 2nd defendant and 18 dated 15.9.94 by the 2nd defendant in favour of defendants 3-5 are null and void?
11. Are the plaintiffs entitled to possession of ''B'' schedule property and mesne profits as sought?
12. What decree/order?8. The Trial Court treated issue Nos. 7 to 9
as preliminary issues. The Trial Court heard the learned counsel appearing for both the parties on issue Nos. 7, 8 and 9 and thereafter an order has been passed by way of common order on issue Nos. 7 to 9 and also in regard to the maintainability of the suits.
9. After hearing the learned counsel for the parties on issues Nos. 7 to 9, the Trial court held that the suits are not maintainable and that the suits are barred by limitation and that the suits are bad for non-joinder of necessary party, namely, B.D.A. In regard to issue No. 8, the Trial Court held that the said issue has to be considered after recording the evidence and ultimately the suits were dismissed by the Trial Court on 21st March 2001.
10. Being aggrieved by the dismissal or the suits, the plaintiffs have filed these appeals.
1911. I have heard Sri. Vijayashankar, learned Senior, Counsel for the appellant and Sri. Shantharaju, learned Senior Counsel appearing for the respondents-3 to 5.
12. According to the learned Senior Counsel appearing for the appellants, the Trial Court has committed a serious error in dismissing the suit as not maintainable without framing an issue and giving an opportunity for the plaintiffs to address their arguments in regard to the maintainability of the suit. He further contends that the findings on the question or limitation is also bad in law. According to him, whether the suit is barred by limitation or not is a mixed question of facts and law and without recording the evidence, the Trial Court should not have dismissed the suits as barred by limitation. He lastly contends that even if the Trial Court was of the opinion that the B.D.A was a necessary and proper party to adjudicate the matter in controversy, in view of order 1 Rule 10(2) Civil Procedure Code, the Trial Court should not have dismissed the suit and should have given an opportunity for the plaintiffs to implead the B.D.A as a party. Therefore, he requests this Court to set aside the order passed in al the four suits by the Trial Court.
13. Per contra, the learned Senior Counsel Sri. Shantharaju, contends that though an issue has 20 not been framed by the Trial Court in regard to the maintainability of the suits, the Trial court based on the pleadings of the parties has properly held that the suites filed by the plaintiffs were not maintainable. According to him, the property in question was acquired by the then City Improvement Trust Board, either the plaintiffs the predecessors-in-title had no right over the suit lands due to the acquisition of the property and therefore the plaintiffs could not have filed the suit for the reliefs sought by them without impleading the B.D.A as a party. According to him, the suit was also barred by limitation taking into consideration the date of registration of the sale deeds executed by the 1st defendant in favour of the defendant No. 2 in all the suits. Relying upon Article 59 of the Limitation Act 1963 he contends that the time has to be reckoned from the date of registration of the sale deeds and therefore the Trial Court is justified in dismissing the suits and that there was no necessity for the Trial Court to record the evidence in order to give its findings on the issue of limitation. Therefore, he requests this Court to dismiss these appeals.
14. Having heard the counsel for the parties, the following points would emerge for consideration of this Court in these appeals are:
211. Whether the Trial Court was justified in dismissing the suits as not maintainable without framing any issue?
2. Whether the evidence was required to be recorded in order to give its finding on the question of limitation?
3. Whether the Trial Court was justified in dismissing the suits having come to the conclusion that the B.D.A was a necessary party, without giving an opportunity for the plaintiffs to try B.D.A as an additional defendant?
15. The learned counsel appearing for both the parties fairly submit that the defendants in their written statement had raised the question of maintainability of the suits and they further admit that the Trial Court had not framed an issue in regard to the maintainability of the suits.
16. When an issue has not been framed by the Court based on the pleadings of the parties, this court is of the opinion that the Trial Court has committed a serious error in giving its finding on the question of maintainability without framing any issue and giving an opportunity for both the parties to address their arguments on the question of 22 maintainability. Therefore, the first point has to be held in favour of the appellants.
17. According to Sri. Shantharaju, in view of Article 59 of Limitation Act, 1963, the suits filed by the plaintiffs was beyond the period of three years and therefore it was barred by limitation and that there was no necessity for the Trial Court to record the evidence in order to give its finding on this issue. Article 59 reads as hereunder:
---------------------------------------------------------------------
Description of Suit Period of Time from which
Limitation period begins to run
-----------------------------------------------------------------------------
''59. To cancel or Three When the facts
set aside an years entitling the plaintiff
instrument or to have the instrument
decree or for or decree cancelled or
the rescission of set aside or the contract
a contract. rescinded first become
known to him.
--------------------------------------------------------------------------
From the reading of Article 59, the limitation starts from the date of knowledge to the plaintiffs and it does not run from the date of execution of the instrument.
18. According to the plaintiffs, the plaintiffs were not aware of the execution of the sale deed by the 1st defendant in favour of the 2nd defendant. But 23 they came to know of the same, only when the defendant filed their written statement in O.S. No. 7284/94 and in O.S. No. 6538/94. Until the written statement was filed in those suits, the plaintiffs were not aware of the execution of the sale deeds by the 1st defendant in favour of the other defendants. It is no doubt true that if a document is registered before the Sub-Registrar, such document has to be treated as a public document. According to Mr. Shantharaju, the moment the sale deed is registered, it ha to be presumed that registration of such document I known to the general public and that the limitation to file a suit would commences from the date of registration and the limitation has to be reckoned from the date of registration of the document. But the contention of the learned counsel for the respondents cannot be appreciated by this court, because if any document I registered behind the back of the true owner in a clandestine manner, owner of a property is not expected to go before the Sub-Register's Office and verify whether any third party has executed a document in respect of his property to a third party. In other words, owner of the property cannot keep a watch or stand before the Sub-Register like a Watch-dog to verify whether any person has executed any document conveying his property to a third party. From reading of Article 59, the Court has to hold that the limitation run from 24 the date of the knowledge. Therefore, in order to find out the actual date of knowledge, the evidence to required to be recorded by the Trial Court as it is a mixed question of fact and law. The date of knowledge is a question of fact and without there being an evidence, the Trial Court was not justified in dismissing the suit as barred by limitation. Accordingly, the said point is also held against the respondents.
19. The last point to be considered by this Court in regard to the dismissal of the suits due to non-joinder of B.D.A. The Trial Court while dismissing the suit as not maintainable has mainly considered that the B.D.A was necessary party. If the Trial Court was of the opinion that B.D.A was a necessary party, at any point of time under Order 1 Rule 10(2) of Civil Procedure Code can direct the party to add or strike a party from the suit. Therefore, the Trial Court should have given an opportunity for the plaintiffs-appellants to implead the B.D.A. if it is of the opinion that the B.D.A is a necessary party. According to Mr. Vijayashankar, the B.D.A is not a necessary party considering the nature of prayer in the suits.
20. Whether B.D.A is a necessary party or not, at this stage this Court need not express its view, since the matter has to be remitted back to the 25 Trial Court and the matter has to be re-heard by the Trial Court since the Trial Court has not framed an issue in regard to the maintainability of the suit.
21. In the result, these appeals are allowe4d. The Judgment and decree passed in O.S. Nos. 045/97 to 2048/97 are hereby set aside and the suits are remitted back to the Trial Court directing the Trial Court to frame an issue in regard to the maintainability of the suits and treat the same as a preliminary issue and after giving opportunity for both the parties, the Trial Court is directed to hear the preliminary issue in regard to the maintainability of the suit and if the Court is of the opinion that the suits filed by the plaintiffs-appellants are maintainable, then the question of limitation can be considered along with other issues as the same requires the recording of evidence. The parties are directed to bear their costs."
10. As can be seen from the aforesaid judgment, this Court reserved liberty in favour of the appellants - plaintiffs to implead the Bangalore Development Authority (BDA) as an additional defendant to the suits. Accordingly, after remand to the trial court, the appellants - plaintiffs impleaded the BDA as additional defendant No.6 to the suit. In this context, it is 26 relevant to state that the 6th defendant - BDA filed its written statement not only disputing and denying the contentions and claim of the plaintiffs but also contended that the BDA which had acquired the schedule properties had executed a registered sale deed dated 04.10.1996 in favour of defendants 3 to 5, pursuant to which, the khata was registered in their names, taxes had been paid and they had become the absolute owners in lawful and peaceful possession and enjoyment of the suit schedule properties.
11. A perusal of the judgment passed by this Court in RFA Nos.634-637/2001 will indicate that this Court issued the following directions to the trial court:-
(a) To frame an issue regarding maintainability of the suits;
(b) To treat the said issue as a preliminary issue;
(c) Hear both sides on the said preliminary issue regarding maintainability;
(d) In the event, the trial court came to the conclusion that the suits were maintainable, then the trial court 27 was to decide the question of limitation along with other issues by recording evidence;
(e) Appellants - plaintiffs to be provided an opportunity to implead the BDA as an additional defendant;
12. As stated supra, after remand, the appellants -
plaintiffs impleaded the BDA as additional defendant No.6. So also, as directed by this Court, the trial court framed the following additional issues regarding maintainability of the suits as under:-
(i) Whether the plaintiffs prove whether the suits of the plaintiffs are maintainable?
(ii) Whether the plaintiffs proves that the suits of the plaintiffs are maintainable in spite of they have not challenged the revocation order cancelling the allotment in respect of the suits property by the BDA in the year 1978?
13. A perusal of the aforesaid judgment passed by this Court in RFA Nos.634-637/2001 and the two issues regarding maintainability framed by the trial court will indicate that the 28 said issues are traceable to the provisions contained in Order 14 Rule 2 CPC, which reads as under:-
ORDER XIV RULE 2 SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON;
1. XXXX
2. Court to pronounce judgment on all issues.-
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2) pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same sit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for
the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may 29 deal with the suit in accordance with the decision on that issue".
14. It is therefore clear that the aforesaid two preliminary issues framed by the trial court as directed by this Court related to jurisdiction of the trial court and the bar of the civil court to adjudicate upon the suits, which were accordingly taken up for consideration by the trial court.
15. The trial court proceeded to hear the parties and answered both the preliminary issues regarding maintainability in the 'negative' against the plaintiffs and proceeded to pass the impugned order holding that the suits were not maintainable and consequently, passed the impugned judgment and decree dismissing the suits, aggrieved by which, the appellants - plaintiffs are before this Court by way of the present appeals.
16. Before adverting to the rival contentions, it would be profitable to extract the findings recorded by the trial court, which are as under:-
30" 9. My answer to the above issues are as under:
Addl. Issues No.1 & 2: In the negative
10. Admittedly, the plaintiffs have filed the instant suit for the relief of declaration, possession & mesne profits. In the instant suit the plaintiffs have challenged the sale deed dated: 13.09.1993 executed by the 1st defendant in favour of defendant No.2 and sale deed dated: 15.09.1994 executed by 2nd defendant in favour of defendants 3 to 5.
Admittedly, the alleged sale deeds executed in the year 1993 & 1994 and the suits have been filed in the year 1997. On the contrary the defendants 3 to 5 have contended that they purchased B schedule property from 2nd defendant for valuable sale consideration and have further perfected their title by virtue of sale deed executed by the BDA.
11. It is undisputed fact that D. Omprakash acquired the aforesaid lands in the year 1962 i.e., on 20.06.1962 and 11.07.196 and later the land in Sy No. 4 was notified buy the then CITB for acquisition vide its gazette notification 30.04.1964. Subsequently CITB passed an order to reconvey the land in Sy. No. 4 in favour of D. Omprakash. As Sri. Omprakash failed to remit the required charges to the CITB; the CITB later executed the sale deed in favour of the defendants.
31These aspects have not been disputed by both the parties. According to the plaintiffs the defendants have played fraud on the plaintiffs in collusion with the authorities of the then CITB and now BDA.
12. Under such circumstances, the only point for consideration in these suits that whether the civil Court has jurisdiction to entertain a suit when these schedule lands were acquired under the land acquisition proceedings.
13. It is seen from the plaint averments that the defendants purchased the suit schedules lands under the registered sale deed dated:
04.10.1996 in respect of A Schedule property from the BDA for valuable consideration of Rs.
18,59,693/- is not disputed by the plaintiffs. Pursuant to the sale, the defendants 3 to 5 have paid the property tax and katha has been transferred in their name. Therefore, evidently these defendants have acquired title to A schedule property by virtue of the registered sale deed executed by BDA. Admittedly, A schedule property stood vested with the BDA (then CITB) consequently upon acquisition way back in the year 1964-65. The acquisition admittedly, has not been challenged so far. Therefore, the BDA had title to A schedule property which was duly conveyed in favour of defendants 3 to 5 under the registered sale 32 deed dated: 04.10.1996 for valuable sale consideration.
14. It is well settled law that the suit in respect of the properties acquired under the Land Acquisition Act cannot maintain before Civil Courts. There is implied bar under Section 9 of CPC to question the acquisition proceedings in civil courts. Admittedly, the acquisition of plaint A schedule property was completed several decades ago and the same stands unchallenged. In case of Commissioner BDA & another V/s. Brijesh Reddy and another reported in (2013) 3 SCC 66, the Hon'ble Apex Court has clearly held that by necessary implication power of civil court to take cognizance under section 9 of CPC stands excluded and civil court has no jurisdiction to go into question of validity or legality of notification under section 4. Further civil court is devoid of jurisdiction to give declaration. The only right available to aggrieved person is to approach the High Court under Articles 226 and Supreme Court under Article 136 of Constitution of India.
15. n view of the facts and circumstances and the decision cited supra it is clear that the scheme of the BDA Act is complete in itself and thereby the jurisdiction of civil court to take cognizance of the cases arising out of the Act by 33 necessary implication stood barred. It is also clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of civil court to take cognizance of the case under Section 9 of CPC stands excluded and this court has no jurisdiction to go into the validity or legality of the notification under section 4.
16. Having regard to the fact that the acquisition proceedings had been completed way back in 1978, the defendants who purchased the suit schedule property in 1995, thus, the plaintiffs cannot have any right to maintain the suit of this nature, particularly against defendants 3 to 5 and the BDA. Thus, I answer Issues No. 1 & in the negative. Accordingly, I hold that the suit of the plaintiffs is not maintainable. Thus, I proceed to pass the following:
ORDER In the result additional issues No. 1 & 2 are answered in the negative and consequently the suit filed by the plaintiffs is not maintainable and accordingly the suit filed by the plaintiffs is dismissed.34
17. As can be seen from the impugned order, the trial court has come to the conclusion that in the plaint itself, the plaintiffs have admitted that the schedule properties had been acquired and the instant suits in relation to the schedule properties which were undisputedly the subject matter of acquisition proceedings were beyond the scope and jurisdiction of the civil court (trial court) under Section 9 CPC as held by the Apex Court in the case of Commissioner, BDA & Another vs. Brijesh Reddy & Another - (2013) 3 SCC 66.
The trial court came to the conclusion that the jurisdiction of the civil court to adjudicate upon the schedule properties which were subject matter of acquisition proceedings stood impliedly ousted and barred and the civil court did not have jurisdiction or authority of law to examine the questions relating to legality, validity or correctness of acquisition proceedings or notifications there under and the only remedy available to the plaintiffs was to approach this Court under Article 226 of the Constitution of India or the Apex Court under Article 136 of the Constitution of India.
3518. While arriving at the aforesaid conclusion, the trial court took into account the material on record produced by both sides to come to the conclusion that the schedule properties had been acquired by the BDA (erstwhile CITB) in the year 1964-65 itself and that despite the BDA calling upon late D.Omprakash, father of the plaintiffs to pay re-
conveyance charges and giving him several opportunity to do so, the said Omprakash did not pay / remit the re-conveyance charges, as a result of which, the offer for re-conveyance by the BDA in favour of the said Omprakash stood cancelled in 1978 itself and consequently, the said Omprakash ceased to have any right over the suit schedule properties.
19. Under these circumstances, the trial court came to the conclusion that pursuant to the acquisition proceedings having been completed by the BDA and in the absence of any re-conveyance by the BDA in favour of the appellant's father D.Omprakash and the offer by the BDA to Omprakash having stood cancelled in the year 1978 itself, the present suits filed in the year 1997 in relation to the completed acquisition 36 proceedings were clearly not maintainable and were liable to be dismissed.
20. Heard Sri.M.V.Vedachala, learned counsel for the appellants, Sri.B.K.Sampath Kumar, learned Senior counsel for the respondents 3 to 5 and Sri.D.N.Nanjunda Reddy, learned Senior counsel for the 6th respondent - BDA and perused the material on record.
21. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the appellants submits that the impugned judgments and orders passed by the trial court are illegal and contrary to the material on record and the same deserves to be set aside. It was contended that the defendants 1 to 5 have colluded with the 6th defendant - BDA and have obtained the impugned sale deeds dated 13.09.1993 in favour of defendant No.2 and 15.09.1994 in favour of defendants 3 to 5, which are the outcome of fraud and collusion and the same deserves to be cancelled. It was further contended that the trial court committed an error in failing to appreciate that the appellants -
37plaintiffs were entitled to an opportunity to prove their claim by adducing oral and documentary evidence and the questions involved in the suits required a full fledged trial and as such, it could not be said that the trial court did not have jurisdiction to adjudicate upon the suits. It was therefore submitted that the impugned judgments and orders passed by the trial court deserve to be set aside.
22. Per contra, learned Senior counsel for the 6th respondent - BDA and learned Senior counsel for respondents 3 to 5 would support the impugned judgments and orders passed by the trial court and submit that there is no merit in the appeals and the same are liable to be dismissed.
23. From the above pleadings of the parties, the following points arise for consideration in the present appeals are as under:-
(i) Whether the trial court was justified in coming to the conclusion that the jurisdiction of the civil court was excluded / 38 ousted in relation to the suit schedule properties which were the subject matter of land acquisition proceedings?
(ii) Whether the trial court was justified in coming to the conclusion that the suits of the plaintiffs were not maintainable and thereby dismissing the suits?
Re-Point Nos. 1 and 2:
24. Since both the points are inter-linked, they are taken up for consideration together.
24.1 The question / issue with regard to jurisdiction of a civil court to entertain a suit when the schedule properties had been acquired under land acquisition proceedings is no longer res integra in the light of several judgments of the Apex Court and this Court in this regard. In the contest of acquisition by the BDA, under identical circumstances, in Brijesh Reddy's case supra, the Apex Court held as under:-
Leave granted.
This appeal is directed against the judgment and final order dated 27-7-2005 passed by the High Court of Karnataka at Bangalore in Brijesh Reddy v. Bangalore 39 Development Authority [RFA No. 947 of 2003, decided on 27-7-2005 (KAR)] whereby the High Court allowed the first appeal filed by the respondents herein and remitted the matter to the trial court for fresh disposal. Brief facts
2. On 28-9-1965 a Notification was issued by the State Government proposing to acquire several lands including the suit land being Survey No. 23/10 of Ejipura measuring 22 guntas for formation of Koramangala Layout. The original khatedars who were notified were one Papaiah, Thimaiah, Patel Narayan Reddy, Smt Rathnamma, Smt Perumakka (Defendant 3 in the suit), Munivenkatappa and Chikkaabbaiah, the husband of the 3rd defendant. After holding an enquiry, the Land Acquisition Officer passed the award on 7-9-1969.
Thereafter, 10 guntas of land held by Smt Rathnamma was taken into possession on 28-11-1969 and the remaining 12 guntas held by Defendant 3 was taken into possession on 22-7-1978 and then the LAO handed over the entire land to the Engineering Section. The layout was formed, sites were allotted to the intending purchasers.
3. According to the respondents herein, they purchased 12 guntas of land under a registered sale deed dated 15-11-1995 from Perumakka, the 3rd defendant in the suit. Originally the said land belonged to Chikkaabbaiah, husband of the 3rd defendant. Chikkaabbaiah mortgaged the said property to Patel 40 Narayan Reddy on 26-2-1985. Thereafter, the said property was reconveyed in favour of Chikkaabbaiah. After the death of Chikkaabbiah, his wife Perumakka (the 3rd defendant in the suit) was the absolute owner and in possession of the property.
4. When the Bangalore Development Authority (in short "BDA") tried to interfere with the possession of the suit property, the 3rd defendant in the suit filed OS No. 10445 of 1985 for injunction and obtained an order of temporary injunction on 15-6-1985 which was in force till 22-5-1994. Ultimately the said suit was dismissed on the ground that before filing of the suit, statutory notice had not been given to BDA. Thereafter, another suit being OS No. 2069 of 1994 was filed by the third defendant on the file of the Civil Judge, Bangalore and the same was dismissed as withdrawn on 14-6-1995 with liberty to file a fresh suit.
5. In the meantime, the respondents herein purchased the suit land from the third defendant under a registered sale deed on 15-11-1995. After the purchase of the land, the respondents were put in possession. When BDA tried to interfere with the possession of the respondents herein, they filed a petition being WP No. 41497 of 1995 before the High Court, ultimately the said petition was dismissed as withdrawn by the respondents herein with a liberty to file a fresh suit. Thereafter, the respondents herein filed a suit being OS No. 4267 of 1996 on the file of the Court of the XVIth Additional City 41 Civil and Sessions Judge at Bangalore for permanent injunction. By order dated 18-6-2003, the trial court dismissed the said suit as not maintainable.
6. Challenging the said order, the respondents herein filed first appeal being RFA No. 947 of 2003 before the High Court. By the impugned order dated 27- 7-2005 [RFA No. 947 of 2003, decided on 27-7-2005 (KAR)] , the High Court allowed the appeal and remitted the matter to the trial court with a direction to dispose of the same after permitting the plaintiffs to adduce evidence on merits. Aggrieved by the said order, the appellants have preferred this appeal by way of special leave.
7. Heard Mr Altaf Ahmed, learned Senior Counsel for the appellants and Mr G.V. Chandrashekar, learned counsel for the respondents.
Discussion
8. The only point for consideration in this appeal is: whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial court without examining the question with regard to the maintainability of the suit?
9. It is seen from the plaint averments in OS No. 4267 of 1996 that the plaintiffs purchased the suit schedule property from the third defendant under a 42 registered sale deed dated 15-11-1995 and since then they are in exclusive possession and enjoyment of the same. Since other details are not necessary for our purpose, there is no need to traverse the entire plaint allegations.
10. The third defendant, who filed a separate written statement supporting the case of the plaintiffs, had asserted that she did had the right, interest and title in the schedule property and she possessed every right to transfer and alienate it in favour of the plaintiffs.
11. On the other hand, BDA and its officers/Defendants 1 and 2, in their written statements, specifically denied all the allegations made by the plaintiff. According to BDA, the suit schedule property which forms part and parcel of Survey No. 23 of 2010 of Ejipura, totally measuring 22 guntas was notified for acquisition for the formation of Koramangala Layout. In their statements, they specifically pleaded that the Notification came to be issued on 28-9-1965. The original khatedars who were notified were one Papaiah, Thimaiah, Patel Narayan Reddy, Smt Rathnamma, Smt Perumakka (D-3), Muni Venkatappa and Chickaabbaiah, the husband of D-3. The Land Acquisition Officer, after complying with the provisions of the Land Acquisition Act and after holding enquiry passed an award. It is further stated that 10 guntas of land held by Smt Rathnamma was taken into possession on 28-11-1969, remaining 12 guntas held by Defendant 3 was taken into possession 43 on 22-7-1978 and thereafter, the LAO handed over the entire land to the Engineering Section. It is also stated that as a follow-up action, the layout was formed, sites were allotted to the intending purchasers.
12. According to Defendants 1 and 2, the entire land vested with them and the so-called purchase now alleged by the plaintiff from Defendant 3 on 15-11-1995 is bad and in any event, not binding on the defendants. It is also stated that the persons who purchased the sites were issued possession certificates, khata was changed, khata certificates were issued, building licences were issued and there were constructions in the said site. Pursuant to the same, they had paid tax to the authority concerned. Accordingly, it is asserted that the plaintiff was not in possession on the date of filing of the suit.
13. Before the trial court, in order to substantiate the defence, Defendants 1 and 2 have produced copies of the gazette notification with respect to the acquisition of the said land. The award passed by the Land Acquisition Officer has also been produced and taken on record. The perusal of the discussion by the trial court shows that the plaintiffs have not disputed the contents of those documents, even otherwise it cannot be disputed.
14. Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under:
44"9.Courts to try all civil suits unless barred.--The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
From the above provision, it is clear that courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of civil court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away. An objection as to the exclusion of civil court's jurisdiction for availability of alternative forum should be taken before the trial court and at the earliest failing which the higher court may refuse to entertain the plea in the absence of proof of prejudice.
15. In State of Bihar v. Dhirendra Kumar [(1995) 4 SCC 229] the core question was whether a civil suit is maintainable and ad interim injunction could be issued where proceedings under the Land Acquisition Act, 1894 was taken pursuant to the notice issued under Section 9 of the Act and possession delivered to the beneficiary. On going through the entire proceedings initiated under the Land Acquisition Act, this Court held as under: (SCC p. 230, para 3) 45 "3. ... We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable."
After holding so, this Court set aside the finding of the trial court that there is a prima facie triable issue. It also held that the order of injunction was without jurisdiction.
16. In Laxmi Chand v. Gram Panchayat, Kararia [(1996) 7 SCC 218] while considering Section 9 of the Civil Procedure Code, 1908 vis-à-vis the Land Acquisition Act, 1894, this Court held as under: (SCC p. 220, paras 2-3) "2. ... It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 46 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.
3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts viz. the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court."
(emphasis in original)
17. In Bangalore Development Authority v. K.S. Narayan [(2006) 8 SCC 336] , which arose under the Bangalore Development Authority Act, 1976 and which was similar to the case on hand, this Court held that a civil suit is not maintainable to challenge the acquisition proceedings. In that case one "K.S. Narayan filed Original Suit No. 5371 of 1989 in the Court of the City Civil Judge, Bangalore, praying that a decree for permanent injunction be passed against the defendant Bangalore Development Authority, their agents and servants restraining them from interfering with the plaintiff's possession and enjoyment of the plaint scheduled property and from demolishing any structure 47 situate thereon. The case of the plaintiff was that the plaintiff purchased the property in dispute bearing No. 46, situated in Banasawadi Village, K.R. Pura Hobli, Bangalore, South Taluk from S. Narayana Gowda by means of a registered sale deed dated 17-6-1985. The erstwhile owners of the property had obtained conversion certificate from the Tahsildar and the property is situated in a layout which is properly approved by obtaining conversion for non-agricultural use from the competent authority. The plaintiff applied for mutation entries and the same was granted in his favour. The property in dispute was not covered by any acquisition proceedings as neither notice of acquisition had been received nor any award regarding the said property had been passed. The defendant had no right, title or interest over the property but it was trying to dispossess the plaintiff from the same on the ground of alleged acquisition. The plaintiff issued a notice to the defendant on 11-7-1989 calling upon it not to interfere with his possession and enjoyment of the property in dispute....
3. The suit was contested by the defendant Bangalore Development Authority on the ground inter alia that the plaintiff was not the owner of the property in dispute. S. Narayana Gowda, who is alleged to have executed the sale deed in favour of the plaintiff on 17-6-1985, had no right, title or interest over the property in dispute and he could not have conveyed any title to the plaintiff. It was further pleaded that the disputed land had been acquired by the Bangalore Development Authority after issuing preliminary and final notifications in accordance with the Bangalore Development Authority Act and the possession had also been taken over and thereafter it was handed over to the engineering section on 22-6-1988 after completion of all formalities. The award for the land acquired had already been made and the compensation amount had been deposited in the civil court under Sections 30 and 31(2) of the Land Acquisition Act. It was specifically pleaded that it was the defendant Bangalore Development Authority which was in possession of the plaint scheduled property on the date of filing of the suit 48 and, therefore, the suit for injunction filed by the plaintiff was not maintainable and was liable to be dismissed." (SCC pp. 337-38, paras 2-3) It is relevant to note that in the above decision in K.S. Narayan case [(2006) 8 SCC 336] , the acquisition proceedings in question had been taken under the Bangalore Development Authority Act, 1976 and the provisions of Sections 17 and 19 are somewhat similar to the provisions of Sections 4 and 6 of the Land Acquisition Act, 1894. After noting out all the details, this Court allowed the appeals and set aside the decision rendered by the High Court.
18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under 49 Article 136 with self-imposed restrictions on their exercise of extraordinary power.
19. No doubt, in the case on hand, the plaintiffs approached the civil court with a prayer only for permanent injunction restraining Defendants 1 and 2 i.e. BDA, their agents, servants and anyone claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action, etc. the said suit is not maintainable. This was rightly concluded by the trial court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial court and ultimately it rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 CPC committed an error in remanding the matter to the trial court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the 50 defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial court for fresh disposal.
20. Having regard to the fact that the acquisition proceedings had been completed way back in 1960-1970, the plaintiffs who purchased the suit land in 1995 cannot have any right to maintain the suit of this nature particularly, against Defendants 1 and 2, namely, BDA. The High Court clearly erred in remanding the matter when the suit was not maintainable on the face of it. The High Court failed to take note of the fact that even in the plaint itself, the plaintiff-respondents herein have stated that the suit land was acquired and yet they purchased the suit land in 1995 and undoubtedly have to face the consequence. The possession vests with BDA way back in 1969 and 1978 and all the details have been asserted in the written statements, hence the remittal order cannot be sustained.
21. In the light of the above discussion, the impugned judgment dated 27-7-2005 passed by the High Court in Brijesh Reddy v. Bangalore Development Authority [RFA No. 947 of 2003, decided on 27-7-2005 (KAR)] remitting the matter to the trial court is set aside and the judgment dated 18-6-2003 of the trial court in OS 51 No. 4267 of 1996 is restored. The appeal is allowed with no order as to costs.
24.2 So also, in the case of H.N. Jagannath & Others vs. State of Karnataka and Others (2018) 11 SCC 104, it was held as under:-
Leave granted. The judgment dated 19-4- 2011 passed by the High Court of Karnataka at Bangalore in Anatha Shishu Sevashrama v. State of Karnataka [Anatha Shishu Sevashrama v. State of Karnataka, 2011 SCC OnLine Kar 4418] is called into question in this appeal. By the impugned judgment, the Division Bench though did not interfere with the judgment passed by the learned Single Judge in Anatha Shishu Sevashrama v. State of Karnataka [Anatha Shishu Sevashrama v. State of Karnataka, 2007 SCC OnLine Kar 115 : (2008) 1 Kant LJ 551] , disposed of the writ appeal observing that Respondent 4 herein (appellant before the Division Bench) should work out its remedy in the suit in accordance with law and if a suit is filed, the said suit shall be considered without being influenced by the observations made in the course of the judgment passed by the learned Single Judge. Thus, the Division 52 Bench virtually relegated the parties to the civil court once again by granting permission to Respondent 4 to approach the civil court.
2. This matter is a classic example as to how a litigant before the court takes disadvantage of the process of law and the court by repeatedly tapping the doors of the courts for almost the same relief, after losing legal battles on a number of occasions.
3. Records reveal that the Bangalore Development Authority (hereinafter "BDA") Respondent 12 herein, issued Notification dated 16-11-1977 under Section 17(1) of the BDA Act [almost similar to Section 4(1) of the Land Acquisition Act, 1894] proposing to acquire a vast extent of land in two villages, namely, Leggere and Jaraka Bande Kaval. The purpose of acquisition was to form a residential layout called "Extension of Mahalakshmi Layout" (also called Nandini Layout). An extent of 393 acres
25 guntas in Survey No. 1 of Jaraka Bande Kaval Village out of the total extent of 519 acres 37 guntas was also notified. The preliminary notification included the land belonging to Respondent 4 located in Survey No. 1 of Jaraka Bande Kaval Village measuring 25 acres 20 53 guntas. The preliminary notification was published in the Official Gazette on 22-12-1977. The final declaration dated 30-8-1979 (gazetted on 20-9-1979) was issued under Section 19(1) of the BDA Act [almost similar to Section 6(1) of the Land Acquisition Act]. On 4-6-1985, the Additional Land Acquisition Officer passed an award in respect of the land measuring 127 acres 21 guntas in Survey No. 1 of Jaraka Bande Kaval Village including the land in dispute (the land belonging to Respondent 4) measuring 25 acres 20 guntas. It was noted by the Additional Land Acquisition Officer that Respondent 4 had filed a petition before him in response to the notice issued under Sections 9, 10 and 11 of the Land Acquisition Act. The award dated 4-6-1985 mentioned supra passed by the Additional Land Officer was approved by the Government of Karnataka on 19-9-1986 and consequently the award amount was deposited by BDA in the Court.
4. Respondent 4 herein had filed a suit for injunction in respect of the disputed property (which was also acquired as mentioned supra), before the 10th Additional City Civil Judge, Bangalore in OS No. 10488 of 1985 against BDA on 28-6-1985. The trial court passed an ex parte 54 order of injunction in favour of Respondent 4 on 20-6-1985. After passing the award, the possession of the land in question was taken on 23-9-1986; a panchnama was drawn evidencing taking of possession. Subsequently the trial court by its order dated 1-10-1986 modified its earlier ex parte interim order of injunction and permitted BDA to form a road. On 31-10-1986, BDA handed over possession to its engineering section for the formation of the road. A Notification under Section 16(2) of the Land Acquisition Act was issued on 20-11-1987 disclosing the factum of taking of possession of the land including the land in question. Respondent 4 chose to withdraw the suit in OS No. 10488 of 1985 on 30-1-1989 without seeking any liberty to file a suit afresh. The trial court's order reads thus:
"Memo filed not pressing the suit.
Suit dismissed. No costs."
5. However, Respondent 4 filed another suit for permanent injunction against BDA for protecting its alleged possession, before 13th Additional City Civil Court, Bangalore in OS No. 3551 of 1989. In the said suit also, the order of temporary injunction was granted on 10-7-1989 55 in favour of Respondent 4 herein. However, the trial court by its order dated 8-3-1990 modified the order of temporary injunction earlier granted, on an application filed by BDA and confined the order of injunction only to existing structures. The civil court while modifying the order of temporary injunction as mentioned above has noted in para 6 of its order that BDA has acquired the property and has taken the possession of the property. It is also observed that the title vests with BDA.
6. When the facts stood thus, Respondent 4 filed Writ Petition No. 17040 of 1991 (after a delay of 10 years from the date of the final declaration) challenging the preliminary and final acquisition notifications. The learned Single Judge by his order dated 28-8-1991 dismissed the said writ petition on the ground of delay and laches. Against such dismissal, Respondent 4 filed Writ Appeal No. 2798 of 1991 before the Division Bench of the High Court, which also came to be dismissed on 25-11-1991.
7. Respondent 4 did not stop at that stage. It approached the High Court once again by filing Writ Petition No. 31007 of 1992 praying for a direction to the State Government to 56 consider its representation for denotification and for reconveyance of the land. The High Court by its order dated 9-12-1992 [Anatha Shishu Sevashrama v. State, WP No. 31007 of 1992, order dated 9-12-1992 (KAR)] disposed of the writ petition with the observation that the Government will hear and dispose of the representation of Respondent 4 herein in accordance with law. The State Government by its Order dated 15-2-1993 rejected the representation of Respondent 4. Challenging such order of dismissal by the State Government, Respondent 4 filed Writ Petition No. 33996 of 1993 which also came to be dismissed on 9-2-1996. Respondent 4 in the meanwhile had approached the High Court of Karnataka by filing Writ Petition No. 25719 of 1994 praying for a direction against BDA not to form the road in the land in dispute. The said writ petition came to be dismissed as withdrawn on 2-7-1996 [Anatha Shishu Sevashram v. State, WP No. 25719 of 1994, order dated 2-7-1996 (KAR)] .
8. In the meanwhile, the State Government by its Order dated 17-11-1994 had permitted Respondent 4 to run a school situated on the land in question. However, the 57 Government by its Order dated 29-4-1997 modified its earlier Order dated 17-11-1994. Thereafter Respondent 4 filed yet another writ petition (5th writ petition before the High Court) being Writ Petition No. 1071 of 1998 to implement the Government Order dated 17-11- 1994. On being objected to by BDA, the petition came to be dismissed on 5-10-1999 [Anatha Shishu Sevashrama v. State of Karnataka, 1999 SCC OnLine Kar 706] .
9. Respondent 4 filed yet another suit for injunction i.e. OS No. 16147 of 1999 (3rd suit). The said suit came to be dismissed for default.
Thereafter, Respondent 4 once again approached the High Court of Karnataka by filing Writ Petition No. 49357 of 2004 (6th writ petition) for the following reliefs:
(a) The scheme formed by BDA for residential layout lapsed under Section 27 of the BDA Act.
(b) Layout plan is illegal.
(c) There was no vesting of land in BDA.
(d) Allotment of sites to various allottees including the appellants herein/petitioners was illegal.
10. The learned Single Judge of the High Court dismissed the writ petition on 15-3-2007 58 [Anatha Shishu Sevashrama v. State of Karnataka, 2007 SCC OnLine Kar 115 : (2008) 1 Kant LJ 551] by specifically noting that the possession was taken by BDA, layout was formed, and sites are carved out and distributed to the allottees who were put in possession of the sites. The appellants herein are all allottees of the sites (who are 43 in number). The learned Single Judge also noticed that the allottees have put up constructions and are residing in their respective houses constructed on the sites allotted. The learned Single Judge further noticed that the contentions taken and reliefs prayed for by Respondent 4 though they were available for Respondent 4 to be urged earlier, were not urged by it and therefore, the said prayers are barred by Order 2 Rule 2 CPC.
11. Respondent 4 filed Writ Appeal No. 1575 of 2007 before the Division Bench questioning the judgment of dismissal by the learned Single Judge in Writ Petition No. 49357 of 2004. The Division Bench by its impugned judgment [Anatha Shishu Sevashrama v. State of Karnataka, 2011 SCC OnLine Kar 4418] as mentioned supra, though did not interfere in the order passed by the learned Single Judge, proceeded to grant the liberty to Respondent 4 to 59 work out its remedy in civil court once again. The Division Bench has strangely observed that in case the suit is filed, the same is to be considered without being influenced by the observations made by the learned Single Judge. Thus, the Division Bench though did not interfere in the order passed by the learned Single Judge, has virtually ignored all the aforementioned facts, including successive judgments made by the civil court as well as the High Court of Karnataka in six writ petitions including the one in Writ Petition No. 49357 of 2004, and has virtually kept open all the questions including the question of title and possession, which means that the civil court is directed to go into the validity of the acquisition notification, award proceedings and the factum of taking of possession by BDA pursuant to acquisition proceedings.
12. The learned counsel Shri S.N. Bhat appearing on behalf of the appellants/allottees of sites contends that the Division Bench has erred in giving liberty to Respondent 4 to file a civil suit which would throw open a fresh round of litigation in respect of the acquisition made as far back as 1977-1979; the appellants and other similar allottees have constructed houses on the plots and have been residing therein for 60 decades; the matter of acquisition has attained finality and has come to a definite rest; the Division Bench is not justified in reviving the dispute which had long been given a legal quietus after a series of litigations. Lastly, he submits that it was not open for the Division Bench to unsettle the settled state of affairs involving thousands of persons who are purchasers of the plots.
13. The learned counsel for Respondent 4, per contra, contended that the Division Bench is justified in granting liberty to it to approach the civil court afresh inasmuch as the possession of the property still remains with Respondent 4; Respondent 4 is running an orphanage and a school for poor children; since the possession of the property is not taken by BDA, the disputed property is entitled to be held by Respondent 4 as the owner thereof. In other words, the argument in favour of Respondent 4 is that the disputed property in question needs to be denotified in favour of Respondent 4 and possession should continue in its favour and hence the Division Bench is justified in granting permission to Respondent 4 to file a civil suit afresh by raising all the contentions as are available in law.
6114. It is not in dispute that the property in question along with other properties was acquired by the BDA in accordance with law by issuing notifications under Sections 17(1) and 19(1) of the BDA Act as far back as in the year 1977 and in the year 1979. BDA has formed and allotted the sites. Most of the allottees have constructed houses and are residing peacefully. However, Respondent 4 still contends that possession has remained with it and therefore the acquisition needs to be set aside and that the land should be denotified. As detailed supra, Respondent 4 has already approached the civil court thrice and High Court on six occasions. Whenever the suits are withdrawn, Respondent 4 has not sought any liberty to approach the civil court once again. Thus, it was not open for Respondent 4 to approach the civil court repeatedly for the very same reliefs.
Consistently, the civil court on three occasions has negatived the contention of the appellant.
15. Even when Respondent 4 approached the High Court of Karnataka by filing the writ petitions and writ appeals, it has failed. Futile attempts have been made by Respondent 4 only to see that the allottees are harassed and to keep the litigation pending. After the final 62 notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the panchnama prepared as far back as on 23-9- 1986. The notification under Section 16(2) of the Land Acquisition Act was issued on 20-1-1987 disclosing the factum of taking possession of the land in question. Attempt made by Respondent 4 for getting the disputed land denotified has also failed as far back as on 15-1-1993, when the State Government had rejected the representation of Respondent 4 seeking denotification. The writ petition filed by Respondent 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, Respondent 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the court.
16. We do not find any reason to interfere in the finding of fact rendered by the learned Single Judge that possession was taken by BDA on 23-9-1986. There is nothing to be adjudicated further in respect of the title or possession of the property. The title as well as the possession of the property has vested with BDA for about more than 30 years prior to this day and sites were 63 formed and allotted to various persons including the appellant herein. In the light of such voluminous records and having regard to the fact that Respondent 4 has been repeatedly making futile attempts by approaching the courts of law by raising frivolous contentions, the Division Bench ought not to have granted liberty to Respondent 4 to approach the civil court once again for the very same relief, for which it has failed earlier. In view of this, the learned counsel for the appellant is justified in contending that the Division Bench has completely erred in reviving the dispute which had long been given a legal quietus after a series of litigations. The judgment of the Division Bench, if allowed to stand, will unsettle the settled state of affairs involving hundreds of allottees of sites who have constructed the houses and are residing therein. The impugned judgment of the Division Bench virtually sets at naught a number of judgments rendered by the civil court as well as the High Court in the very matter (and was given without any reason much less a valid reason).
17. The Division Bench has erroneously conferred jurisdiction upon the civil court to decide the validity of the acquisition. This Court has repeatedly held in a number of judgments 64 that, by implication, the power of a civil court to take cognizance of such cases under Section 9 CPC stands excluded and the civil court has no jurisdiction to go into the question of validity under Section 4 and declaration under Section 6 of the Land Acquisition Act. It is only the High Court which will consider such matter under Article 226 of the Constitution. So, the civil suit, per se is not maintainable for adjudicating the validity or otherwise of the acquisition notifications and proceedings arising therefrom. This Court in BDA v. Brijesh Reddy [BDA v. Brijesh Reddy, (2013) 3 SCC 66 : (2013) 2 SCC (Civ) 15] while considering the acquisition notifications issued under the BDA Act observed thus : (SCC pp. 71-72, para 18) "18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court 65 under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power."
18. A similar view is taken by this Court in other cases. The judgments of this Court in Laxmi Chand v. Gram Panchayat, Kararia [Laxmi Chand v. Gram Panchayat, Kararia, (1996) 7 SCC 218] , Girish Vyas v. State of Maharashtra [Girish Vyas v. State of Maharashtra, Civil Appeals Nos. 198-99 of 2000 sub nom Manohar Joshi v. State of Maharashtra, (2012) 3 SCC 619] , State of Bihar v. Dhirendra Kumar [State of Bihar v. Dhirendra Kumar, (1995) 4 SCC 229] , BDA v. K.S. Narayan [BDA v. K.S. Narayan, (2006) 8 SCC 336] and Mutha Associates v. State of Maharashtra [Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304 : (2014) 2 SCC (Civ) 641] considered the acquisition proceedings relating to the lands which were acquired either under the provisions of the BDA Act or under the Land Acquisition Act. In all these judgments, similar question arose i.e. as to whether the civil court had jurisdiction to decide the validity of the acquisition notifications or not.
19. Having regard to the discussion made supra, in our considered opinion, it is a clear case of contempt committed by Respondent 4 by 66 repeatedly approaching the courts of law for almost the same relief which was negatived by the courts for three decades. However, we decline to initiate contempt proceedings and to impose heavy costs, under the peculiar facts and circumstance of this case.
20. It is to be noted that the Division Bench has given liberty to Respondent 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the civil court and the High Court of Karnataka in a number of matters (mentioned supra). In our opinion the Division Bench of the High Court of Karnataka has in a casual manner relegated the parties to the civil court to work out their remedies in the suit which is to be instituted afresh by Respondent 4. Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law. Accordingly, the judgment and order dated 19-4-2011 passed by the Division Bench of the High Court of Karnataka at Bangalore in Anatha Shishu Sevashrama v. State of Karnataka [Anatha Shishu Sevashrama v. State of Karnataka, 2011 SCC OnLine Kar 4418] , and consequently the order dated 15-7-2011 (wherein certain 67 corrections are made subsequently) of the Division Bench in Anatha Shishu Sevashrama v. State of Karnataka [Anatha Shishu Sevashrama v. State of Karnataka, 2011 SCC OnLine Kar 4417] are set aside. The judgment of the learned Single Judge in Writ Petition No. 49357 of 2004 stands restored. Appeal is allowed.
24.3 As is clear from the law laid down supra, the jurisdiction of the civil court to take cognizance and adjudicate upon the suits relating to acquisition proceedings and in relation to acquired lands is excluded and ousted under Section 9 CPC and the civil court does not have jurisdiction to entertain or adjudicate suits including suits for declaration, injunction etc., in respect of acquired lands. In this context, it is relevant to state that the power of the trial court to decide the issue of jurisdiction and maintainability of the suits under Order 14 Rule 2 CPC is not circumscribed by the limitations / restrictions as under Order 7 Rule 11 CPC pertaining to rejection of plaints, which permit the courts only to examine the plaint averments and documents produced by the plaintiffs and not the defence of the defendants. In other words, in order 68 to ascertain and adjudicate upon any institutional defect or maintainability of the suit on the ground of jurisdiction as contemplated under Order 14 Rule 2 CPC, the power of the court is wider and broader than Order 7 Rule 11 CPC and it is permissible and open to the courts to look into and examine the material produced by both sides.
24.4 In the instant cases, a perusal of the plaint averments themselves indicate that the plaintiffs have unequivocally, unambiguously and clearly admitted that the schedule properties had been acquired by the CITB (BDA).
The paragraphs 4 and 5 of the plaint, reads as under:-
"4. The 4 Acre 14 Guntas and 44 square yards of landing Survey No. 4 (Re-Survey No. 4/2) of Jarakabande Kaval Village of Yelahanka Hobli, Bangalore North Taluk totally measuring which is more fully described in the SCHEDULE 'A' hereunder and hereinafter referred to as the SCHEDULE 'A' PROPERTY originally belonged to the husband of 1st Plaintiff and father of Plaintiffs 2 to 6. Out of SCHEDULE 'A' PROPERTY, 3 acres of land being originally purchased by the husband of the 1st Plaintiff and father of Plaintiffs to 6 late Sri D. Omprakash under two registered Sale Deeds dated 20.06.1962 69 and 11.07.1962. Subsequently the said lands along with other certain adjustments and adjoining lands were sought to be acquired by the then City Improvement Trust Board, Bangalore (CITB), (now the Bangalore Development Authority- BDA) for the formation of an industrial layout. The land which was sought to be acquired was not utilised for the said purpose. Hence, on the basis of the representation made by said late Sri Omprakash, the then City Improvement Trust Board, Bangalore (CITB) (BDA) resolved and decided to reconvey the SCHEDULE 'A' Property measuring 4 Acres and 14 Guntas 14 Square yards to said late Sri D. Omprakash comprising the original extent of 3 Acres and an additional extent of 1 Acre 14 Guntas 44 Square yards which formed on conttigeous piece of land which is SCHEDULE 'A' PROPERTY. This re- conveyance was on a condition that late Sri. D. Omprakash paid a sum of Rs. 1,07,003/- (Rupees One Lakh Seven Thousand Three only) to the City Improvement Trust Board and on other conditions.
5. On reconveyance of the entire extent of land viz., SCHEDULE 'A' PROPERTY in favour of late Sri. D Omprakash he was in possession and enjoyment of the entire extent of SCHEDULE 'A' PROPERTY. In fact he was never divested possession of the land by the Acquisition Authority 70 even during the acquisition proceedings. Sri D. Omprakash on being reconveyed the SCHEDULE 'A' PROPERTY and being in possession and enjoyment of the same established a 'FOUNDRY' in the said land under the name and style M/s. MAHESWARA INDUSTRIES'. as its Sole Proprietor, with a factory building, compound wall, fencing, electrical connection in his name etc., late Sri d. Omprakash died interstate on 14.02.1984 leaving behind Plaintiffs 1 to 6 as his only legal heirs. A true copy of the Death Certificate of late Sri D. Omprakash is produced herewith''.
24.5 It is also significant to note that though the plaintiffs specifically contend that the BDA had re-conveyed the schedule property back to their father Omprakash upon payment of a sum of Rs.1,07,003/-, the plaintiffs did not produce any material to substantiate the said contention.
Apart from the fact that the plaintiffs suppressed that the offer of re-conveyance made by the BDA to Omprakash had not been complied by him by paying the said amount, the material on record, in particular, the original records which were placed before this Court by the BDA at the time of hearing the 71 appeals, also clearly established that the schedule properties had been acquired and since OmPrakash did not pay the re-
conveyance charges to the BDA, the offer of re-conveyance made to him by the BDA stood cancelled and revoked.
24.6 The material on record obtaining in the instant cases also establish that in addition to the fact that the schedule properties had been acquired and stood vested with the BDA, the alleged right of Omprakash to obtain a re-
conveyance had also stood extinguished in 1978 itself and consequently, Omprakash did not retain any right over the schedule properties so as to enable the appellants - plaintiffs to maintain the suits in the year 1997. In other words, the schedule properties having been undisputedly acquired by the BDA and the same having attained the finality, the cumulative effect of the facts and circumstances of the instant cases would clearly indicate that Omprakash and the plaintiffs herein did not have any manner of right, title, interest or possession over the schedule properties, thereby leading to the inescapable conclusion that the civil court did not have 72 jurisdiction or authority of law to entertain or adjudicate upon the suits which were rightly dismissed as not maintainable by the trial court.
24.7 As stated supra, before this Court passed the aforesaid judgment in RFA Nos.634-637/2001 and remitted the matters back to the trial court, the BDA was not a party to the suits. It was only after remand, that the BDA was impleaded as defendant No.6 and all the defendants specifically contended that in the light of the registered sale deed dated 15.10.1996 executed by the BDA in favour of defendants 3 to 5, the present suits filed in the year 1997 without challenging the said sale deed were not maintainable.
In this regard, in the light of the undisputed fact that the sale deed executed by the BDA dated 15.10.1996 prior to the suits being instituted in 1997, having not been assailed or challenged even till today by the plaintiffs, I am of the considered opinion that the present suits in relation to acquisition proceedings and without challenging the sale deed by the BDA in favour of defendants 3 to 5, was not 73 maintainable and on this ground also, the suits were liable to be dismissed.
24.8 The material on record also discloses the following undisputed facts and circumstances:-
(i) The schedule properties were acquired by the erstwhile CITB (BDA) as long back as in 1964 - 65 and the properties stood vested absolutely in the CITB (BDA);
(ii) Though Omprakash, father of the appellants requested the BDA to re-convey the schedule properties to him, the BDA made an offer of re-conveyance, subject to the condition that the said Omprakash had to pay Rs.1,07,003/- to the BDA which was never paid by him;
(iii) Despite the BDA extending time for payment of re-
conveyance charges, Omprakash never made payment and consequently, the offer of re-conveyance stood revoked and cancelled and the alleged rights of Omprakash over the schedule properties stood extinguished in 1978 itself and he ceased to have any right over the schedule properties from 1978 onwards;
74(iv) The acquisition proceedings having been completed and the rights of Omprakash as well as the appellants -
plaintiffs having stood extinguished, the present suits filed in 1997 by the plaintiffs, who claimed under Omprakash, who did not have any manner of any right, title, interest or possession over the suit schedule properties were clearly not maintainable and liable to be dismissed.
Point Nos. 1 and 2 are answered accordingly.
25. As rightly contended by the learned Senior counsel for the respondents, though an attempt was made by the learned counsel for the appellants that if an opportunity was granted to them, they would establish the fraud and collusion between the defendants, in the facts and circumstances of the instant cases, which clearly established that the plaintiffs do not have any right over the schedule properties and the civil court does not have jurisdiction to entertain or adjudicate upon the suits, setting aside of the impugned judgment and order and remitting the matters back to the trial court for reconsideration by providing an opportunity to the plaintiffs 75 would clearly be an exercise in futility in the facts and circumstances of the case and as such, the said contention of the appellants cannot be accepted.
26. Upon reconsideration and re-evaluation of the entire material on record, I am of the considered opinion that the impugned judgment and order passed by the trial court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeals.
27. Accordingly, I do not find any merit in the appeals and the same are hereby dismissed.
Sd/-
JUDGE Srl.