Bangalore District Court
D. Mohamed Ameerjan vs The Bangalore Development Authority on 30 August, 2019
1 O.S.No.25235/2015
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL
& SESSIONS JUDGE,MAYOHALL UNIT, BENGALURU
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 30th day of August, 2019.
OS NO. 25235/ 2015
Plaintiff: D. Mohamed Ameerjan,
S/o Sri. Dasthagir Saheb,
Aged about 78 years,
R/at No. Site No.6/C,
Sy. No.174 & 175,
Khata No.793, 5th Main,
Yaseen Nagar,
Kacharakanahalli Village,
Bangalore North Taluk,
Bangalore.
(By Sri.D. Thippeswamy - Adv.)
V/s
Defendant: The Bangalore Development Authority,
Represented by its Commissioner,
T. Choudaiah Road,
Kumara Park West,
Bangalore20.
(By Sri.P.S - Adv.)
2 O.S.No.25235/2015
Date of Institution of the suit 02.03.2015
Nature of the (Suit or pronote, suit for
declaration and possession, suit for INJUNCTION SUIT
injunction, etc.)
Date of the commencement of recording
02.04.2016
of the Evidence.
Date on which the Judgment was
30.08.2019
pronounced.
Year/s Month/s Day/s
Total duration 04 05 28
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
(CCH74), Bengaluru.
JUDGMENT
The plaintiff has filed this suit for injunction restraining the defendant, his henchmen, servants, agents or officials or anybody claiming through them from interfering with a plaintiffs peaceful possession and enjoyment of the suit schedule property. Further restraining the defendant, his henchmen, servants, agents or officials or anybody claiming through them from demolishing the suit schedule property and further restraining them from dispossessing the plaintiff from the suit schedule property and further restraining them from alienating or allotting the suit schedule property to any other third party.
3 O.S.No.25235/2015
2. Brief facts of the case of the plaintiff The case of the plaintiff is that originally suit schedule property was belongs to one Chinnappa and his sons namely C.Ramu and Lingaraju. Said C.Ramu and Lingaraju have executed GPA in favour of one Smt.Jayalakshmi. Under the authority of GPA, Smt.Jayalakshmi has executed registered sale deed dated 13012009, in favour of Mohammad Ashif. Said Mohammad Ashif had executed GPA in favour of Fayaz khan under the authority of GPA, said Fayaz khan has executed sale deed dated 23022011, in favour of Mr.K.A.Abdul Rehman for valuable consideration of Rs.4,97,000/. Said K.A.Abdul Rehman had executed sale deed dated 22112014, in favour of present plaintiff in respect of suit schedule property for valuable consideration of Rs.20,50,000/.
3. Thereafter, revenue records have been changed in the name of plaintiff, the suit property was within the jurisdiction of Gramatana, revenue jurisdiction of CMC Batrayanapura, now within the jurisdiction of BBMP, khatha and other revenue records stands in the name of plaintiff and 4 O.S.No.25235/2015 plaintiff is paying tax to the competent authority in respect of suit schedule property and plaintiff is residing in the suit schedule property with his family since date of purchase.
4. Further plaintiff contended in the plaint that, the recital in the sale deed clearly shows that, the lawful owners C.Ramesh & Lingaraju have executed GPA in favour jayalakshmi and said jayalakshmi had executed sale deed in favour Md Ashif, then to the vendor of the plaintiff, thereafter to the plaintiff under valid transaction. As on the date of purchase, the suit property was free from encumbrance and BBMP had issued khatha certificate in favour of the plaintiff, in respect of suit schedule property, the name of the plaintiff appeared in the assessment registered. So, the defendant has not acquired the suit schedule property, not taken physical possession of the suit property from the plaintiff's vendor's vendor and also original owners.
5. Further contended in the plaint that the corporation has provided installation of cable, water supply, sanitary, BWSSB has given water sanction, letter for connecting the water supply to the suit schedule property and suit schedule 5 O.S.No.25235/2015 property has electricity connection. So, from the date of purchase the plaintiff is in possession and enjoyment of the suit property for more than 40 years with all civic amenities. So, BDA has not acquired the suit schedule property.
6. Such being the facts the defendant authority without having right, title and interest over the suit property, all of sudden, on 26022015, have made an attempt to interference with plaintiff's peaceful possession and enjoyment of the suit property, attempted to demolish suit property gave threat of dispossession. So, the act of defendant's officials made the plaintiff to file this suit, with this plaintiff prayed that, in order to protect the possession of the suit property, suit be decreed.
7. On the other hand, defendant had appeared through his counsel filed written statement contending that suit of the plaintiff is not maintainable and liable to be dismissed as per the provision of section 64 of BDA Act, and there is no cause of action to file this suit. It is contended in the written statement that the land bearing Sy.No.174 measuring 2acres 25 guntas of kacharakanahalli village, Bengaluru, has notified 6 O.S.No.25235/2015 for HBR 1st stage, layout with preliminary notification No BDA/ ALA0/5/11/7979, dated 27061978, under section 17 of BDA Act, with this defendant contended that plaintiff suffered material facts and filed this false suit with this defendant prays for dismissal of the suit.
8. On the pleading of the parties my learned predecessor has framed the following:
ISSUES
1. Whether the Plaintiffs prove that he is in lawful or settled possession and enjoyment of the suit schedule property as on the date of filing this suit?
2. Whether the Plaintiffs prove that alleged interference by the defendant?
3. Whether the Plaintiffs is entitle to relief's as sought?
4. What order or decree?
9. In order to prove his case, the GPA holder of the plaintiff is examined as PW.1 and got marked Ex.P1 to P42 and PW.2 and PW.3 and closed his side evidence, the defendant authority has examined its Asst. Engineer as DW.1 7 O.S.No.25235/2015 and got marked Ex.D1 to D4, the learned counsel for plaintiff has filed written argument with documents and heard argument of learned counsel for the defendant.
10. My answer to above Issues are as follows:
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : As per the final order, for the following:
REASONS
11. Issue No.1: In order to prove his case, GPA holder of the plaintiff is examined as PW.1 and got marked Ex.P1 to P42, in support of his case, the plaintiff got examined PW.2 and PW.3. It is the case of the plaintiff that he is the bonafide purchaser of the suit property for valuable consideration. It is also case of the plaintiff that, originally the suit property was belongs to C.Ramu and Lingaraju, the said C.Ramu and Lingaraju have executed GPA in favour of one Smt.Jayalakshmi. under the authority of GPA said Smt. Jayalakshmi had executed registered sale deed dated 1301 8 O.S.No.25235/2015 2009, in favour of Mohammad Ashif in respect of suit property. Thereafter, the said Mohammed Ashif has executed GPA in favour of Fayaz Khan, under the authority and power of GPA, the Fayaz khan, has executed registered sale deed, dated 23022011, in favour of K.A Abdul Rahman and the said K.A Abdul Rahman had executed registered sale deed, dated 22112014, in favour plaintiff in respect of suit schedule property, thereafter the name of the plaintiff has entered in the revenue record of the suit property by effecting mutation, khatha. Further plaintiff contended that the entire property comes within jurisdiction of Gramantara and C.M.C Byatarayanapura. Now the suit property is comes within the jurisdiction of the BBMP and plaintiff paying tax to the authority in respect of suit property as such, the plaintiff is in possession and enjoyment of the suit schedule property for several years as absolute owner.
12. In support of his oral evidence the plaintiff had produced as many as 42 documents, Ex.P1 is the GPA, Ex.P2 is the registered sale deed, dated 13012009, executed by Sri.C.Lingaraju and C.Ramu, through their GPA holder 9 O.S.No.25235/2015 Smt.Jayalakshmi, in favour of Mr.MD Ashif, in respect of property site No.6/c, Assessment Nos. 174 & 175, khatha No.793, situated at Kacharakanahalli Village, Kasaba Hobli, north Taluk, Bengaluruu, Now Yasin Nagar, kacharakanahalli Bengaluru, Ward No.3.
13. Ex.P3 is the registered sale deed, dated 23022011, executed by MD Ashif, through his GPA holder fayaz khan in favour of K. A Abdul Rehman, in respect of suit schedule property. Ex.P4 is the registered sale deed, dated 2211 2014, executed by Mr.K.A.Abdul Rahman, in respect of suit property, in favour of plaintiff for valuable consideration. Ex.P5 is the GPA executed by Md Ashif, in favour of mr.Fayaz khan, Ex.P6 is the affidavit executed by Mohammed khan, Ex.P7 is the challan for payment of water bill in respect of suit property, paid by plaintiff. Ex.P8 is the khatha certificate issued by BBMP in respect property No.345/174/175/793, in favour of plaintiff. Ex.P9 is the registration Book of houses and vacant sites for the year 2008 to 2010, issued by BBMP in the name of plaintiff in respect property 345/174/175793. Ex.P10 is the self assessment tax form No.3, in respect of suit 10 O.S.No.25235/2015 schedule property and Ex.P11 is the khatha certificate Ex.P12 is the register for list of houses and vacant site for the year 2014 to 2015 and Ex.P13, 14 and 15 are the certificate issued by the BBMP in respect of suit schedule property and Ex.P16 is the register for entry of houses and vacant sites for the year 201415, Ex.P17 is the EC for the period from 0104 1994 to 31032004 and Ex.P18 to P22 are the EC in respect of suit schedule property, Ex.P23 is the sanction plan issued by the BBMP to the plaintiff for construction of house over the suit schedule property. As per the said sanction the plaintiff has constructed house in the suit schedule property, Ex.P24 self declaration of tax application, Ex.P25 to 38 are the receipts for having paid tax, water bills, gas bills and electrical bills in respect of suit schedule property and Ex.P39 is the application form submitted by the plaintiff for having water supply connection to the house situated in suit schedule property, Ex.P40 is the hand sketch of building of the plaintiff and Ex.P41 is 16 photos of the house of the plaintiff situated at suit schedule property(16 photos marked jointly), Ex.P42 is the CD.
11 O.S.No.25235/2015Plaintiff has got examined PW.2, PW.2 has deposed that he knows the plaintiff for the last 20 years, the plaintiff is the owner in possession and enjoyment of the suit property with all civic amenities, as plaintiff purchased the suit property from his vendor under registered sale deed. PW.3 deposed corroborating with the evidence of PW.2.
14. DW.1 deposed that defendant had acquired the property Sy.No.174, measuring 2acre 25 gunta, of Kacharakanahalli village, further DW.1 deposed that the lands measuring 2 acres 25 guntas in Sy.No.174 of Kacharakanahalli village, Bengaluru North taluk were notified for formation of H.B.R. 1st stage Layout vide Preliminary Notification No.BDA/ALAO/S/11/7879 dated 27061978 under Section 17 of B.D.A. Act published in the Karnataka Gazette, partIII Sec.3 pages 6787 dated 2707 1978, later acquired the said lands along with other lands vide Declaration No.HUD567MNX84, dated 09011985 published in Karnataka Gazette, Part - III (1) Pages 214 to 233 dated 14031985 under section 19 of the B.D.A. Act, in this regard it was notified that original Kathedar and 12 O.S.No.25235/2015 Anubhavadar by name R.Channappa, S/o Ramaiah and as per R.T.C., and other revenue records. In this regard Land Acquisition case was also held and Award was also passed vide Notification No.BDA/ALAO/A489/8788 and as per the Award the lands vested with BDA free from all encumbrances from the date of taking possession vide LAC No.259/8485. Subsequently Land Acquisition Mahazar was also drawn and to evidence the possession of BDA, a Possession Taken certificate is effected. DW.1 denied that the plaintiff is having no manner of right, title or interest over any portion of the Lands in Sy.No.174 & 175 Kacharakanahalli village i.e., Site NO.6/C, Assessment No.174 & 175 khatha No. 793 situated at 5th Main, Yaseen Nagar, Kacharakanahalli village, Bengaluru North Taluk, measuring 40x30 feet (suit schedule property) has filed the above false and frivolous suit for unlawful gain. The plaintiff has not established a prima facie case and the balance of convenience do not lies in his favour and thus the suit is liable to be dismissed.
15. In support of his oral evidence the defendant had produced documents, Which have been marked at Ex.D1 to 13 O.S.No.25235/2015 D3, Ex.D1 is the preliminary notification, I have perused Ex.D1 preliminary notification, it is seen that BDA had issued notification on 27061978, notifying the lands to be acquired, including Kacharakanahalli, showing the Sy.No. of the lands and extent of land and name of the village
16. Ex.D2 is the final notification dated 09011985 and Ex.D3 is document shown to have taken possession of the suit property including other properties possession by the BDA. Ex.P4 is the copy of the layout plan. I have perused carefully Ex.D1 to 4, on perusal of the same, it is seen that, possession of the lands, acquired were taken from the land owners and handed over to engineering section of defendant. According to plaintiff though suit schedule property being No.6/C, formed in assessment No.174 and 175, khatha No.793 of Kacharakanahalli, shown to have taken possession of Sy.No.174 and 175 and Ex.D2, final notification, reflects that, Sy.No.174 measuring 2acre 25gunta and Sy.No.175 measuring 34 gunta was acquired. But they are symobolic possession not actual physical possession.
18. Ofcourse, Ex.D2 final notification discloses that in 14 O.S.No.25235/2015 Sy.No.174 to the extract of 2 acre 25gunta and in Sy.No.175, land extent of 0034 gunta was acquired. On perusal of the Ex.D3, it is seen that possession of the property Sy.No.174 and 175 were taken over, but plaintiff contended that no actual physical possession was taken. It is the case of defendant that, property comes within Hennur Village, Kacharakanahalli, kadarahyalli and Nagavara village, were notified in the year 1978, as per preliminary notification and final notification, in the year 19011985 and possession was taken in the year 198687 as per Ex.D1 to D3, Ex.D4 is the entire HBR 1st Stage, 3rd Block layout plan.
19. Ex.P7 is the Registered sale deed, dated 1301 2009, executed by its owner, was in possession of suit schedule property, it has been duly registered in subregistrar office, Ex.P3 is also registered sale deed, dated 23022011 executed by its owner showing his possession of suit schedule property, duly registered in the subregistered office, Ex.P4 is also registered sale deed dated 22112014, executed by its owner showing his possession in the suit schedule property, in favour of plaintiffs. So, by virtue of registered sale deed 15 O.S.No.25235/2015 plaintiff is in possession and enjoyment of the suit schedule property. That apart, if really defendant has taken possession of the suit property then what is the evidentiary value of the Ex.P2 to 4 registered sale deeds, The purpose of registration of document with a competent authority is to protect the title and possession of the property in respect of which the document has been executed and registered.
Ex.P7 is the challan for having paid money by the plaintiff to BBMP for having water connection to the suit schedule property, this clearly shows that plaintiff is in possession of the suit property, Ex.P8 is the khatha certificate, dated 22042009, ward No.31/0910, issued by the BBMP to the plaintiff's vendor in respect of property No.345/174/793of Kacharakanahalli village.
Ex.P9 is the register for houses and vacant sites for the year 2008 to 2010, issued by the BBMP to the plaintiff's vendor's vendor in respect of suit property No.345/174/175/793 of K.K.Halli.
Ex.P10 is the self assessment of tax, form No.III, issued 16 O.S.No.25235/2015 by CMC in respect ward No.31, Yashin Nagar, Kacharakanahalli, in respect suit property 345/174/175/6/C, to the plaintiff's vendor on 16012009.
Ex.p11 is the Khatha certificate, in respect of suit property no.345/174/175/793 of kacharakanahalli, ward No.24, HBR to KA Abdul Rehaman, who is plaintiff's vendor, issued by the BBMP on 12092014.
Ex.P12 is the register for houses and vacant sites for the year 201415, issued by BBMP for the suit property to the vendor's of the plaintiff, No.345/174/175/793 of Kacharakanahalli.
Ex.p13 is the certificate, issued by BBMP in respect ward No.24 HBR kacharakanahalli 345/174/175/793 to K.A Abdul Raheman on on 04092014 Ex.P14 is the khatha certificate, issued by BBMP in respect of suit schedule property. I have perused these revenue records and revenue entries, all these entries in public records made by a public servant while discharging of his official duly, are establishes that the plaintiff is in possession of the suit property, the evidentiary value of these 17 O.S.No.25235/2015 revenue entries are recognized under Sec.35 of Indian evidence Act. which reads thus:
35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act.
In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head note B. thus:
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value 18 O.S.No.25235/2015 in law - if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head note B. reads thus:
Evidence Act, (1 of 1872), Ss. 35, 114 revenue records not document of title it merely raises presumption of possession.
The lordship have discussed at Para 12 of the judgment, which reads thus:
A revenue record is not a document of title. It merely raises a presumption in regard to possession.
Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 114 of the the Indian Evidence Act. The Courts below, 19 O.S.No.25235/2015 were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
Ex.P23 is sanction plan issued by the BBMP, in respect suit schedule property, for construction of building over the suit property this sanction plan issued on 26022011, BBMP has issued this plan after spot inspection, under such circumstances, it is seen that defendant had taken symbolic and paper possession not actual physical possession of the suit property. Ex.P41 16 photos. I have perused 16 photos, Ex.42.CD, photos clearly established that plaintiff has constructed the house over the suit property as per sanction plan issued by BBMP, plaintiff is in possession of the suit property. At this stage it is relevant to extract portion of written argument of learned counsel for the plaintiff, which reads thus:
As per Sec.27 of BDA Act, if the scheme is not implemented within 5 years automatically the said scheme lapsed. In support of his argument he relied on the following decisions: The land is not vested either Bengaluru 20 O.S.No.25235/2015 Development Authority or Government as pleaded by the plaintiff in the plaint. Hence the scheme is already lapsed. In view of the law laid down by the Hon'ble High Court in 2013 (3) KCCR 1958.
In view of the law laid down by the Hon'ble High Court Mrs Poornima Girish v/s Revenue Department and others, which is reported in 2011 (2) KLJ 142 held that the Preliminary Notification and Final Notification were held to become stale and inconclusive, as the BDA did not take possession of the lands and has allowed the owners to remain in possession of the lands acquired.
It is no doubt to true in case of Adikeshavulu Naidu and others v/s State of Karnataka and others reported in 2011 (5) KLJ 524, the learned judge quashed the proceedings as the scheme was not implemented within the prescribed period.21 O.S.No.25235/2015
In case of D.Narayanappa v/s State of Karnataka which was reported in ILR 2005, Karnataka 295, it was held that the BDA has no jurisdiction to execute or implement the lapsed and abandon scheme, if the acquire land are not utilized by the authority for several years, it shall be held that the said lands are the required for the purpose of which they are required and the authority cannot exercise its rights over the said lands.
Further learned counsel for the plaintiff relied on the decision reported in LAWS (KAR) 2013 2 195 in WP 2179/10 in case of K.L Rabesh Vs. BDA The lordship have held in the petition thus:
AIRKARR 2013 2 858, ILR (KAR) 2013 0 3539, KANTLJ 2013 5 670, KCCR 2013 3 1958, LAWS (KAR) 2013 2 195, Head note:
civil procedure code, 1908 (CPC) order 6 rule 17, order 41 rule 27 land acquisition act, 1894, section 16(2) - issuance of endorsement for over 22 O.S.No.25235/2015 lapsing of the scheme - petitioner's representation to the BDA to issue an endorsement over lapsing of the scheme, which when not responded to has presented this petition - The delay in the implementation of the Banashankari V stage scheme, brings to fore serious infirmities in the busings of the BDA. It is not the only scheme in which the court has had to make such an observation, since in many a scheme propounded by the BDA has ultimately resulted in De notification, exclusion of lands from acquisition and failure to take possession of large tracks of lands proposed for acquisition - petition allowed.
Further the learned counsel for the plaintiff relied on the decision reported in ILR 2005 KAR 295 in case of D.Narayanappa Vs. State of Karnataka (D) CITY OF BENGALURU IMPROVEMENT ACT, 1945 - SECTION 19 - BENGALURU DEVELOPMENT AUTHORITY ACT, 1976 - SECTION 27
- Position of lands acquired by the 23 O.S.No.25235/2015 erstwhile CITB for the scheme and not utilized for several years despite the scheme is substantially executed in respect of the other lands -
HELD - If the acquired land is not utilized for several years by the acquired body or authority for the purpose for which it was acquired, it has to be held that the acquired body or authority failed to exercise its rights over the land. In such a situation, the right of the land owner revives.
20. I have perused the Ex.P2 to 4, Ex.P7 to 40 revenue records and Ex.P41 and 42 photo and CD it is clearly shows that, BDA, though, acquired suit property asper Ex.D1 and D2, but failed to prove the fact of taking over the actual physical possession of the acquired land. Further BDA failed to take possession. On material placed before the court it is clear that BDA did not taken actual physical possession of the acquired land. On careful perusal of the Ex.D1 preliminary notification and Ex.D2 final notification, in the year 198687, 24 O.S.No.25235/2015 since than BDA has not taken actual physical possession of the acquired land if the BDA really taken taken physical possession of the acquired land then the structure upon the acquired land would not comeup
21. Further defendant has not produced any document to show that BDA is in actual physical possession of the acquired land except Ex.D3. Ex.D3 is the typed list of lands acquired by the BDA, ofcourse, there is no hard and fast rules as to what would be sufficient to consideration taking possession of the acquired lands but it is depends upon the facts and circumstances of the each case, the Hon'ble apex court in the decision reported in 2011(5) SCC 386 in case of Prahlad Singh Vs. Union of India, hold that fact of taking possession must be notified by the deputy commissioner in the official Gazette and such notification shall be evidence of such fact,
22. So, on perusal of the oral and documentary evidence it is clearly shows that though BDA has shown to have acquired the lands shown Ex.D1 to D4, But did not take possession of the acquired lands and allowed the owners to 25 O.S.No.25235/2015 continue in possession of the lands acquired so they have sold the lands and many persons were purchased, constructed houses and residing their with family. The learned counsel for plaintiff relied on the decision reported in LAWS (KAR) 2004 11 11 in case of D.Nrayanappa Vs. State of Karnataka the lordship have held thus:
Land Acquisition Act, 1894 - Sections 9, 10, 11A, 16(2), 30, 31(2) -
Constitution of India, 1950 - Articles 226, 227 - Possession of the acquired property - It is well settled law in this Country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property - When law protects the petitioner, in utter violation of the law laid down in the above case the officers of the BDA forcibly dispossessed the petitioner from the land in question and consequently sold the sites formed upon them in favour of purchaser respondents, quite naturally the 26 O.S.No.25235/2015 petitioner will be an "aggrieved person" Actual possession of the land must be taken and mere taking symbolic or paper possession is not sufficient to prove the fact of taking possession of the acquired land - Exhibiting the style of functioning of officers of Bengaluru Development Authority in a dictatorial manner either without understanding the statutory provisions, law laid down in a catena of decisions, violating rule of law or in utter ignorance of law. They have exercised powers illegally, arbitrarily and discriminately giving a gobye to all norms, guidelines and principles required to be scrupulously followed for taking possession of the acquired property, formation of layout and dispose of the sites either by way of allotment or sale of the same in accordance with the rules framed by the State Government in exercise of its statutory power under Section 38 of the BDA Act of 1976.27 O.S.No.25235/2015
Further he relied on AIR 1972 Supreme Court 2299 in the case of M.Kallappa SettyAppellant v/s M.V.Lakshminarayana RaoRespondent. The lordships held thus;
Specific Relief Act (47 of 1963), S.37 - Plaintiff in possession of suit property
- He can, on strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession.
5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important 28 O.S.No.25235/2015 circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore in our opinion, the High Court was nor right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No.2.
Further he relied on AIR 1980 Kerala 224 in the case of Karthiyayani Amma Appellants v/s Govindan Respondent. The lordships held thus;
29 O.S.No.25235/2015(A) Specific Relief Act (47 of 1963), S.38 - Injunction - Person in possession without title, if can maintain a suit for injunction against true owner, restraining him from disturbing his possession A person in possession of immovable property can sustain a suit for injunction against the rightful owner preventing him from disturbing his possession.
A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by every one including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray the equitable relief of injunction to protect his possession. 1964 Ker LT 468; S.A. No.721 of 1978B (ker); AIR 1966 Ker 179; AIR 1966 Ker 286 and AIR 1968 SC 1165, Rel. on. (Para 7) 30 O.S.No.25235/2015
7. The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes.
In this case, plaintiff is found to be in possession. On the finding, he should granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful he can approach courts of law and pray for the equitable relief of injunction to protect his possession.
Further he relied on ILR 1999 KAR 1451 in case of Sathyam @ Ramaiah & others v/s Karnataka Milk Federation Co operative Ltd. The lordships held thus;
CIVIL PROCEDURE CODE 1908 (Central Act No.5 of 1908) ORDER 31 O.S.No.25235/2015 XXXIX Rules 1 & 2. Whether a Trespasser or a person who has no legal title but is in possession of the land is entitled to get Temporary Injunction? HELD - Relying on PURAN SINGH & OTHERS vs STATE OF PUNJAB AIR 1975 SUPREME COURT 1974 the High Court held that where a Trespasser is in Settled Possession of the Land, is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him.
The test that has been considered in Puran Singh's case - (AIR 1975 SC 1674) was to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop and if any such crop had been grown by the trespasser then, even the true onwer has no right to destroy the crops grown by the trespasser and to take forcible possession illegally, either it may be for a longer period or for some 32 O.S.No.25235/2015 period. In the cases on hand, it is seen that some of the purchasers have already constructed houses and they are residing there. When that being the position, it cannot be said that they are not in settled possession at this juncture, whether they may be in settled possession, or whether they have claimed possession, on the basis of the alleged sale deeds in their favour from the vendor, which defendant alleges to be illegal and even if so, they cannot be thrown away or ousted from possession of suit properties by the true owner, except in accordance with the procedure established by law. I do not express any opinion, nor I should be taken to by expressing any opinion on the question of validity or legality of sale sale deeds of sale transaction, nor on any question in issue between the parties for trial or decision in the suit. If, that is so, even observations are or have been made are tentative and permitted extent and are of only for 33 O.S.No.25235/2015 the purpose of dealing with the matter of temporary injunction and appeal arising from that interlocutory matter. The observations made herein during the course of this order should not come in the way of the trial Court while it is trying or deciding the cases and issues arising in the suit on its own merits. The finding of the Court below that the plaintiffsappellants have purchased the suit properties, they are in actual possession and they have invested lakhs of rupees for putting up structures after the purchases made by them and they have also formed roads and obtained electricity connections and other amenities from various Corporations etc., clearly means that the act of possession was not in concealment.
The Court below also found that there is and has been laxity on the part of the officials. So, in my view, this is not a case in which it could be said that no temporary injunction can be granted as appellants are 'trespassers'. 34 O.S.No.25235/2015 Further he relied on (1989) 4 Supreme Court Cases 131 in the case of Krishna Ram Mahale (Dead), by his Lrs Appellant v/s Mrs.Shobha Venkat Rao Respondent. The lordships held thus;
Specific Relief Act, 1963 - Section 6 - Occupant in possession cannot be dispossessed without recourse to law -
Trial court and High Court
concurrently finding that landlord
(appellant) unlawfully obtained
possession of the premises and the business conducted therein by surreptitiously dispossessing the licensee (respondent) behind her back Landlord made every effort, right and wrong, to retain the possession so obtained by filing bogus suit, leading false evidence and making reckless statements before courts with a view to avoid compliance with the decree passed against him and to delay the matters Having regard to conduct of the landlord, held, special leave appeal under Article 136 cannot be entertained and no interference of Supreme Court called for -
35 O.S.No.25235/2015Constitution of India - Article 136 -
Transfer of Property Act, 1882, Sections 108, 111, 114A and 116.
Constitution of India - Article 136 - Conduct of petitioner relevant in granting SLP - Equity.
Held:
Where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.
Further he relied on AIR 1975 Supreme Court 1674 in the case of Puran Singh and others Appellants v/s The State of Punjab Respondent. The lordships held thus:
(A) Penal Code (45 of 1860), S.97 -
Right of private defence of person and propertyTrespasser in possession Nature of possession required for exercising right against other including true ownerExpression' settled possession' used in AIR 1968 SC 702 = 1968 Cri LJ 806, Explained.
36 O.S.No.25235/2015The nature of possession which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i) the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and
(iv) one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespassers, after having taken 37 O.S.No.25235/2015 possession, had grown any crop. If the crop had been grown by the trespassers, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. (Para 11) The expression 'settled possession' has been used in AIR 1968 SC 702 = 1968 Cri LJ 806 to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. (Para 11).
Where the accused persons after having forcibly taken possession of the disputed land a month before the occurrence had grown wheat crop on it and the complainant party tried to reenter the land and destroy the crops grown by the accused.
Held that the finding of the High Court that the accused were not in settled 38 O.S.No.25235/2015 possession of the land in order to give them a right of private defence was erroneous in law.
Further he relied on AIR 1963 BOMBAY 100 in the case of Jaiprakash Mangilal Agarwal Plaintiff, Appellants v/s Smt.Lilabai W/oVrijpalji Bhate and another Defendants Respondents. The lordships held thus;
(B) Evidence Act (1 of 1872), S.35 -
Entries in record of rights -
Evidentiary value u/S.80(3), C.P. Land Revenue Act - Entries can be presumed to be correct until the contrary is shown.
(C) Evidence Act (1 of 1872), S.114 Iulls.(d) - A state of affairs which is shown to exist at one time in the past is presumed to continue as it was.
7. In Shankarrao Daggdujirao v/s Shambhu Nathu, 43 Bom LR 1 : (AIR 1940 PC 192), it has been held that an entry in the record of rights shall be presumed to be true by virtue of S. 135J of the Bombay Land Revenue Code and proper effect must be given to the statutory presumption. It is pointed out that such presumption 39 O.S.No.25235/2015 shall be available even in a second appeal. In view of this position in law and in view of the fact that no evidence has been adduced to rebut the statutory presumption, it must be held as proved that the lands in suit belonged to Sitaram Ramaratan. This was the only question raised by defendant No.1 in her written statement, and it was not necessary for the plaintiff to adduce evidence to prove as to what transpired between 191011 upto 1938 when the partition took place or upto 194041 for which the extract has been produced on behalf of defendant No.1 to which reference will be made later.
Further he relied on decision reported in ILR 2000 KAR 4134 in the case of John B.James & others v/s Bengaluru Development Authority & another.
Further he relied on ILR 2011 KAR 574 in the case of Mrs.Poornima Girish v/s Revenue Department, Government of Karnataka and others. The lordships held thus; 40 O.S.No.25235/2015
BENGALURU DEVELOPMENT AUTHORITY ACT 1976 - SECTIONS 17 AND 19 - Acquisition - Challenge to -
Petitioner has continued to remain in possession and occupation of the building constructed on the acquired land - HELD, The acquisition proceedings in so far as the petitioner is concerned has become stale and inconclusive, not having taken possession of the subject property, though notified for acquisition under the provisions of the Bengaluru Development Authority Act, 1976.
Automatically, the Notifications issued for the purpose of acquiring the lands will not ensure to the benefit of the Authority insofar as this particular parcel of land is concerned as it is now conceded that the authority has not taken possession but has allowed the petitioner to remain in possession so far. FURTHER HELD, What is happening in the name of development is nothing short of destruction and haphazard manner of 41 O.S.No.25235/2015 functioning to the detriment of persons/citizens like the petitioner. Impugned preliminary and final Notifications are liable to be quashed only to the extent of Petitioner's interest in the lands covered by the Notifications. Writ Petition is Allowed with Exemplary costs on the Respondent.
4. If such is the factual position, the acquisition proceedings insofar as the petitioner is concerned has become stale and inconclusive, not having taken possession of the subject property, though Notified for acquisition under the provisions of the Bengaluru Development Authority Act, 1976 (for short 'the Act').
Automatically, the notifications issued for the purpose of acquiring the lands will not ensure to the benefit of the Authority insofar as this particular parcel of land is concerned as it is now conceded that the Authority has not taken possession but has allowed the petitioner to remain in possession 42 O.S.No.25235/2015 so far.
5. It is the duty of this Court to protect interest of the citizens from being subjected to harassment by the arbitrary and whimsical exercise of power by public authorities. It was definitely open to the Authority to have saved the situation even in terms of the order that had come to be passed by this Court earlier in writ petition No.16133 of 2004 and connected matters disposed of on 6.6.2006 by offering the petitioner any alternative solution, but the authority having kept quiet and nonresponsive to this writ petition as well as travails of the petitioner and even having disregarded the orders/observations/directions contained in the order of this Court dated 6.6.2006 passed in writ petition No.16133 of 2004 and connected matters, it only betrays not only gross irresponsibility on the part of the respondent - Authority, but also a discriminatory manner of functioning 43 O.S.No.25235/2015 as it is obvious that some other persons like the petitioner have been provided relief by the authority itself whereas many others including the present petitioner are driven to approach Courts for relief, which again only demonstrates the erratic manner of functioning of this authority, purporting to be created under the statute for the development of Bengaluru city and surrounding areas!
6. What is happening in the name of development is nothing short of destruction and haphazard manner of functioning to the detriment of persons/citizens like the petitioner. Further he relied on decision reported in (2008) 4 Supreme Court Cases 594 in the case of Anathula Sudhakar v/s P.Buchi Reddy (Dead) by LRs, and others.
23. Now it is relevant to appreciate, the cross of DW.1, DW.1 who is Asst.engineer in defendant authority has deposed in the cross examination and admitted thus: 44 O.S.No.25235/2015
It is true that, in Ex.D3, it is not mentioned about handing over of possession of Sy.No.175. It is true that, as per Ex.D3, possession was not taken by the BDA as per handing over possession. It is true that, we have not produced possession mahazar in respect of Sy.No.174 and 175.
I have carefully scrutinized cross of DW.1 it is clear that issuance of sanction plan and execution of registered sale deeds and change of khatha, construction of building over the suit property, water connection and electrical connection to the suit schedule property, with all the knowledge of defendant. Sanction plan issued by the BBMP for construction of residential house over the suit property is also within the knowledge of defendant as admitted in the cross examination. Having knowledge about the said fact the defendant did not raised any objection till filing of the suit. So, it is clear that the defendant have not taken possession of the suit property after acquisition.
Further defendant admitted in the cross examination that the land belongs to Channappa was not acquired, the said Channappa is the Vendor's vendor of plaintiff.45 O.S.No.25235/2015
So, on admitted fact of possession by DW.1, learned counsel for plaintiff relied decision reported in AIR 1984 Patna 191 in the case of Janki Rai and another Appellants v/s Amir Chand Ram and other - Respondents. The lordships held thus;
(B) Evidence Act (1 of 1872), S.17, S.18, S.21 - Admission made by party in course of proceedings - Admission made in course of proceedings under Section 145, Cr.P.C. Admission used against the party only as a piece of evidence in partition suit and a finding arrived at -
Held, finding was not vitiated due to fact that admission was used in evidence against party.
15. Then remains the second submissions of the learned counsel for the appellants to be considered that is, whether the statements made by the plaintiff Janki in a duly sworn affidavit filed in a proceeding under S.145 of the Criminal P.C. in the year 1963 could be used as a piece of evidence against the plaintiffs in the instant suit. It is well settled that an admission on a question of fact made by 46 O.S.No.25235/2015 a party in course of a proceeding can be regarded as a good piece of evidence relied upon, which the contesting party may contend that the claim made in the subsequent proceeding was unjustified. The court is entitled to consider the admission solemnly made by a party concerning the subject matter in dispute (words have been underlined by me for emphasis) in course of a proceeding in adjudicating upon the truth or otherwise of a claim made by the parties in a subsequent proceeding concerning the subject matter in dispute. The admission made by a party may be used as evidence against him in the other suit if it concerns the subject matter in dispute. However, such an admission cannot be regarded as conclusive and the party can show that it was not (true). Reference be made to the case of Basant Singhh v.
Janki Singh (AIR 1967 SC 341).
24. On perusal of the material placed before the court, I hold that the plaintiff is in possession and enjoyment of the suit property by virtue registered sale deed, not only 47 O.S.No.25235/2015 plaintiff, his vendor's vendor and plaintiff's vendor and plaintiff in continuous peaceful possession of the suit property, but no obstruction from anybody till cause of action of this suit, neither defendant authority nor any their party had obstructed the possession of the plaintiff's vendor's vendor or plaintiff's vendor's or the plaintiff.
25. It is the case of defendant that defendant had acquired land shown in Ex.D1 to D4, possession was taken in the year 198687. if defendant in really is possession of the suit property then what prevent the defendant to stop or obstruct the construction work of plaintiff's vendor's vendor or plaintiff's vendor's construction or what prevent the defendant to stop the construction work of plaintiff's house, at the time of construction, instead the BBMP had issued sanction plan to the plaintiff permitting him to construct residential house, as per sanction plan, the plaintiff has constructed house in the suit schedule property.
26. On appreciate of oral and documentary evidence of both the parties, it is clear that defendant had not taken actual physical possession of the suit property it is only 48 O.S.No.25235/2015 symbolic and paper possession, further it is clear that land owners are in continued possession of these properties and they transferred some of the property, constructed over the property with reasons and relying on the law laid down in the decision referred above I hold that the plaintiff has proved his possession of the suit property, with cogent evidence, at the time of the filing of the suit, hence, I answer this issue in the Affirmative.
27. Issue No.2: It is the case of the plaintiff that he is the bonafide purchaser of the suit schedule property from his vendor, who had title and possession of the suit property at the time of purchasing the suit property and after purchase the plaintiff is in possession and enjoyment of the suit property and constructed residential house as per sanction plan issued by the BBMP, such being the fact the defendant suddenly on 26022015, had attempted to interfere with plaintiff's possession of the suit property contending that the suit property had acquired in the year 1978 and possession was taken in the year 198687 and defendant gave threat to dispossess the plaintiff by force due to repeated threat of 49 O.S.No.25235/2015 defendant, officials the plaintiff had approached this court with relief the sought in the plaint.
28. The defence of the defendant in the written statement that they have acquired the suit property. But however denied interference in the possession of the suit property. Only case of the defendant is that defendant had acquired suit property taken possession, hence, plaintiff shall dispossess from the suit property.
29. Further PW.2 has deposed before the court that the plaintiff is in possession, enjoyment of the suit property, on 26022015, the defendant's official came to the suit property and attempted to interfere with plaintiffs possession and enjoyment of the suit property. In the cross of PW.2 the nothing is elicited, to damage the case of the plaintiff, PW.2 has deposed that the official of the defendant had come to the suit property to demolish house situated over the suit schedule property.
30. Further PW.3 also deposed that defendant's officials had come to the suit property and attempted to interfere with plaintiff's possession and enjoyment of the suit property, on 50 O.S.No.25235/2015 appreciation of the evidence of PW.2 and PW3 and the material placed before the court, I am of the opinion that the defendant had interfered with plaintiffs possession and enjoyment of the suit property, hence, I answer this issue in the in the Affirmative.
31. Issue No.3: it is the case of the plaintiff that he had purchased the suit property from his vendor through registered sale deed and by virtue of sale deed, the plaintiff is in possession and enjoyment of the suit property, the plaintiff has produced mother deeds of suit property and produced Ex.P7 to 42 to show that he is in possession of the suit schedule property. Further DW.1 has categorically admitted in the cross examination that defendant had not taken possession of the suit property as per Ex.D3 and admits the possession of the plaintiff. So, under such circumstances, when plaintiff proved his lawful possession of the suit property then the plaintiff is entitle to protect his possession of the suit property, with these reasons. I answer this issue in the Affirmative.
51 O.S.No.25235/2015
32. Issue No.4 : Inview of the discussion made on Issue Nos.1 to 3, I proceed to pass the following:
ORDER The Suit of the plaintiff is hereby decreed in following terms.
The defendant, his henchmen, servants, agents or its officials, are hereby restrained by order of injunction from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property without due process of law.
Further defendant, its officials, agents or anybody claiming through the defendant are hereby restrained by order of injunction from demolishing the building situated on the suit schedule property without due process of law.
Further defendant, its officials, 52 O.S.No.25235/2015 agents or anybody claiming through the defendant are hereby restrained by order of injunction from dispossessing the plaintiff from the suit schedule property without due process of law.
Further defendant, its officials, agents or anybody claiming through the defendant are hereby restrained by order of injunction from alienating the suit schedule property without due process of law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 30th day of August, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All that piece and parcel of RCC roofed house property bearing Site No.6/C, frmed in Assessment 53 O.S.No.25235/2015 No.174 & 175, Khata No.793, New No.345/173/175/193, situated at 5th main, Yaseen Nagar, Kacharakanahalli Village, Bangalore North Taluk, Bangalore presently comes falls under BBMP jurisdiction of ward No.24, HRB Layout, Bangalore measuring 40 X 30 and the same being: East by: Road, West by: Private Property New No.808, North by: Private Property New No.794, South by: Road.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) ANNEXURE List of witnesses examined for the plaintiff's side:
PW1: Mohammed Iqbal PW2: M.C Jayaram PW3: Jayaram List of documents exhibited for the plaintiff's side:
Ex.P.1: Special Power of Attorney. Ex.P.2: Absolute Sale deed. Ex.P.3: Absolute Sale deed. Ex.P.4: Absolute Sale deed. Ex.P.5: GPA.54 O.S.No.25235/2015
Ex.P.6: Affidavit.
Ex.P.7: Challan.
Ex.P.8: Certificates.
Ex.P.9: BBMP houses & Vacant plots extract. Ex.P.10: Property tax.
Ex.P.11: Certificate.
Ex.P.12: House and Vacant plots extract. Ex.P.13: Suvarna Khata.
Ex.P.14: Certificate.
Ex.P.15: Uthara Pathra.
Ex.P.16: House and Vacant plots extract. Ex.P.17 to 22: Encumbrance certificates. Ex.P.23: Plan.
Ex.P.24: Property tax for years 200708. Ex.P.25: Receipt.
Ex.P.26 & 27: Acknowledgment for receipt of cheque. Ex.P.28: property tax receipt. Ex.P.29: Acknowledgment for receipt of cheque. Ex.P.30 to 35: Property tax receipts. Ex.P.36: Receipts dtd.18.01.2009. Ex.P.37: Receipt.
Ex.P.38: Water Bill No.AA 34795 Ex.P.39: Application form for water and sanitary connection. Ex.P.40: Plan.
Ex.P.41: 16 Photographs.
Ex.P.42: CD.55 O.S.No.25235/2015
List of witness examined for the defendant side :
DW.1: Shankar Murthy M.S List of documents exhibited for the defendant side: Ex.D1 : C/c of preliminary notification dtd.27.06.1978. Ex.D2 : C/c of final notification dtd.09.01.1985.
Ex.D3 : C/c of land acquired and handed over to the engineering section.
Ex.D4 : Copy of layout plant.
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru.(CCH74)