Karnataka High Court
Sri R Abbaiah Reddy Since Dead Reptd By ... vs Bangalore Development Authority on 30 July, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
REGULAR FIRST APPEAL NO.1204/2010
Between :
1. Sri R. Abbaiah Reddy
Since dead Rep. by his LR's
a) Smt. Sarojamma
W/o late R Abbaiah Reddy
Aged about 63 years
b) Sri A Jagadeesh
S/o late R Abbaiah Reddy
Aged about 38 years
c) Smt. A. Vimala
D/o late R Abbaiah Reddy
Aged about 42 years
d) Smt. A Jyothi
D/o late R Abbaiah Reddy
Aged about 40 years
2. K.R. Vijaya Raghava Reddy
S/o late M. Ramaiah Reddy
Aged about 63 years
All are r/of Kodihalli Village
HAL Sanitary Board Area
Bangalore, South Taluk
Bangalore-38 ...Appellants
(By Sri Jayakumar S Patil, Sr.Counsel for
Sri Pruthvi Wodeyar, Adv.)
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And :
1. Bangalore Development Authority
Rept. by its Commissioner
B.D.A. Sankey Road
Bangalore-20.
2. The Assistant Executive Engineer
East Range, B.D.A
Indira Nagar
Bangalore
3. Sri C. Muni Reddy
S/o late M. Chinnappa Reddy
4. Sri Narayana Reddy
S/o late M.Chinnappa Reddy
5. Sri Krishna Reddy
S/o late M.Chinnappa Reddy ... Respondents
(By Sri A Manjunath, Adv. for
Sri V.B. Shivakumar, Adv. for R1 & 2)
This appeal is filed under Section 96 r/w O-41 R-1 of
CPC against the judgment and decree dated 02.03.2010
passed in O.S.3601/1989 on the file of the XLIV Addl. City
Civil and Sessions Judge, Bangalore, dismissing the suit for
permanent injunction.
This Appeal coming on for hearing, this day, the Court
delivered the following :
JUDGMENT
The appellants herein are the plaintiffs in O.S.No.3601/1989. The subject suit was filed seeking for the relief of permanent injunction in respect of the suit schedule properties. The Court below after analysing the materials available on record has 3 dismissed the suit by its judgment and decree dated 02.03.2010. The plaintiffs claiming to be aggrieved by the same are before this Court.
2. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3. The brief facts are that the plaintiffs claim to be the owners of the land bearing Sy.No.11/1 measuring 20 guntas situate in Kodihalli village having succeeded to the same from their father late M.Ramaiah Reddy insofar as the plaintiff Nos.1 and 2 are concerned. Plaintiff Nos.3 to 7 have succeeded to the same under Sri M.Chinnappa Reddy. Hence, they claim to be the members of the joint family. The plaintiffs contend that the land surrounding the said area no doubt had been acquired by the Bangalore Development Authority and the layout had been formed. In the said process, for widening of the roads, a portion of the property bearing Sy.No.11/1 which is the subject matter of the suit though had not been acquired as it consists of burial 4 ground etc., was utilised by the BDA for the purpose of widening of the road. After such utilisation of the property by the BDA, the land which got bifurcated into two portions, as described in item Nos.1 and 2 of the schedule remained with the plaintiffs. It is in that context, the plaintiffs contend that the said land belongs to the plaintiffs and despite the defendants having no right over the suit item of the property are interfering with their peaceful possession and enjoyment since the surrounding lands have been acquired and layout is formed. Such act of the defendants would indicate that the plaintiffs are likely to be forcibly dispossessed from the suit land by the defendants who have no manner of right. In that regard, certain correspondences were also referred to and therefore sought for the order of permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the property.
4. The defendants on being served with the suit summons had appeared and filed their written 5 statement. It is the case of the defendants that several other properties in the vicinity including the property bearing Sy.No.11/1 which is the subject matter of the suit had been acquired for the formation of the layout by the defendants. In this regard, the defendants have relied on the acquisition notification dated 22.09.1970. According to the defendants the subsequent proceedings relating to the acquisition had been taken out, the award had been passed and the possession of the properties was also taken by the defendants. It is in that context, the defendants contend that the plaintiffs cannot claim any right in respect of the suit schedule properties and have therefore sought for dismissal of the suit.
5. The Court below on taking note of the rival contentions put forth by the parties has framed as many as 4 issues for its consideration. The issues read as hereunder.
1. Whether plaintiffs prove lawful/juridical possession of the suit property?
2. Whether plaintiffs prove valid issuance of notice U/s.64 of BDA Act?
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3. Whether plaintiff is entitled to permanent injunction sought for?
4. To what reliefs and order the parties are entitled to?
6. In order to discharge the burden cast on them, the second plaintiff examined himself as PW.1 and relied on the documents at Exhs.P1 to P25. On behalf of the defendants, two witnesses who are the employees of the BDA have been examined as DWs.1 and 2. The documents at Exhs.D1 to D10 were relied on. During the pendency of the suit, the Commissioners were appointed by the Court and they have been examined as CWs.1 and 2 and the documents at Exhs.C1 to C12 have been marked. The Court below after taking note of the evidence available has held the material issues against the plaintiff and has dismissed the suit.
7. Learned counsel for the appellant while assailing the judgment passed by the Court below would contend that the Court below in fact has misdirected itself in arriving at the conclusion that the property in question has been acquired for the benefit of the 7 defendants. It is his contention that even though the property was included in the notification for acquisition, considering the nature of the land, the possession of the same has not been subsequently taken much less any award has been passed in respect of the said property. It is pointed out that the documents relied on by the defendants before the trial Court did not pertain to the property bearing Sy.No.11/1 which is the subject matter of the instant suit. It is his further contention that under the very same notification certain other properties belonging to the plaintiffs' family had been acquired and in respect of the same, no doubt the acquisition has attained finality inasmuch as the award had been passed and the plaintiffs had also claimed for enhanced compensation which has been determined. These aspects of the matter would indicate that the possession of the property in question was never taken though initially it was the subject matter of acquisition. The plaintiffs themselves have left out certain portions for the purpose of widening of the road and the remaining property continued to be in possession of the 8 plaintiffs and therefore in a suit for injunction, when this aspect of the matter has been established, the Court below ought to have decreed the suit in favour of the plaintiffs. Further, learned counsel also makes reference to the report submitted by the Commissioner which in fact has been noticed by the Court below to be correct, but has erroneously not relied on the same as there was a notification for acquisition. It is his case that when the possession of the property has not been taken by the defendants, the plaintiffs were entitled to injunction and the same should have been considered by the Court below.
8. Learned counsel for the defendants however seeks to sustain the judgment passed by the Court below. It is his case that by the document at Ex.D1 viz., the notification for acquisition, the property bearing Sy.No.11/1 has been included. Subsequently in that regard, the award has been passed and the possession has been taken under a mahazar as contemplated under Section 16(1) of the Land Acquisition Act. Referring to the documents which were relied on before 9 the Court below, the learned counsel would contend that the Court below has taken note of the said documents and has thereafter arrived at the conclusion that the property has been acquired for the benefit of the defendants and the possession has also been taken and therefore, the Court below was justified in not relying on the report submitted by the Commissioner. Taking note of the documents relating to the acquisition which are official documents that have been published in the gazette, the trial Court was justified in its conclusion and the judgment does not call for interference.
9. Having noticed the rival contentions, a perusal of the evidence produced before the Court below would indicate that the plaintiff in order to establish the ownership of the property has relied on the documents at Exhs.P1 and P2. In any event, in the instant case, the ownership of the property as belonging to plaintiffs is not seriously in dispute since the defendants themselves contend that it was acquired from the father of the plaintiffs. Therefore, the said aspect need not be 10 gone into in detail. However, the question which arises for consideration at the outset in the instant appeal is as to whether the documents relied on before the Court below by the defendants would establish the fact that the suit schedule property belonging to the plaintiffs has in fact been acquired by the defendants and possession of the same has been taken by them or as to whether the plaintiffs have continued to be in possession of the suit schedule property.
10. Hence, in the present facts, the documents relied on by the defendants need consideration at the outset. The document at Ex.D1 i.e., the notification issued on 22.09.1970 no doubt at serial number 189 would indicate that the property belonging to the family of the plaintiffs has been notified for acquisition and the same relates to the suit schedule property bearing Sy.No.11/1. A perusal of the said notification would indicate that at serial No.280 and 286, two other items of the property belonging to the same family in Sy. No.77 to 79 have also been included. The said properties admittedly according to the plaintiffs have 11 culminated in the subsequent proceedings being concluded and the possession being taken except the property being Sy.No.11/1. Therefore, the only grievance of the plaintiffs in this suit is with regard to Sy.No.11/1. In that context, though Ex.D1 indicates that the Sy.No.11/1 had been included in the final notification, the question is as to whether the award was passed, compensation paid and possession of the property had been taken by the defendants so as to contend that the plaintiffs are not entitled to protect their possession by seeking for an order of injunction from the Court. In that regard, the defendants no doubt have produced and marked the RTC relating to the property bearing Sy.No.11/1 wherein the name of CITB is indicated in column 12(2). But, when the plaintiffs contend that their possession has been continued and the defendants seek to contend that they have taken possession in accordance with law, the fact of taking possession under Section 16(1) of the Land Acquisition Act needs to be established by the defendants. 12
11. In that regard, the defendants have relied on the document at Ex.D5 viz., the award passed in respect of the properties under acquisition. A perusal of the same would indicate that the name of Ramaiah purportedly that of the predecessors in title to that of the plaintiffs has been indicated in respect of Sy.No.9/1. Hence, passing of the award in respect of Sy.No.11/1 is not indicated in the said document which is dated 09.07.1973. Further the document at Ex.D6 is stated to be the mahazar which had been drawn for taking over possession and the same has been relied on by the defendants. A perusal of the said document would also indicate that the possession taken thereunder is in respect of the extent indicated in Sy.No.9/1. Further the acknowledgment of lands for handing over possession to the Engineering Department of CITB is relied on at Ex.D7. A perusal of the said document also would indicate that the same relates to Sy.No.9/1 and not 11/1. Further, defendants have also relied on the documents at Ex.D9 and D10. Ex.D9 relates to the layout plan and D10 indicates that the disputed portion 13 is marked by them. A perusal of the said document itself would indicate that though in respect of the remaining properties which have been acquired, the sites have been formed and site numbers have been given, in respect of the subject property there is no indication and the other portion of the property is shown as burial ground.
12. In that context of the defendants relying on the material documents, the same indicates that the property bearing Sy.No.9/1 is the subject matter of the said documents and if the documents relied on by the plaintiff which is relevant to the said extent is noticed, the plaintiffs themselves have relied on the document at Ex.P23 which relates to the very same acquisition proceedings whereunder an award had been passed in respect of the property bearing Sy.No.77 belonging to the plaintiffs family which had been acquired and to which they had sought for enhancement of compensation. Therefore, as pointed out by the learned counsel for the plaintiffs, a perusal of the evidence of the witness examined on behalf of the defendants as 14 D.W.1 and 2 in their cross-examination would indicate that they have clearly admitted when it was suggested to them that the documents produced presently relate to the property bearing Sy.No.9/1 and they would be in a position to produce the documents relating to Sy.No.11/1. Despite the same, the documents relating to Sy.No.11/1 has not been placed on record and relied as evidence before the trial Court.
13. In the above context, the report submitted by the Commissioner also becomes relevant. In that regard, the fact that the Commissioner has tendered a report to the Court stating that the property in respect of which the report is submitted is Sy.No.11/1 is not in dispute. The Commissioners, who have been examined as CW.1 and CW.2 have also spoken to the fact that the suit schedule property in the possession of plaintiffs lies in Sy.No.11/1 of Kodihalli village. The said reports in my view need not be discussed in detail while disposing of the instant appeal inasmuch as the trial Court itself has taken note of the said reports and has relied on the same to be correct. But the said reports have not been 15 relied on for its decision by the Court below only for the reason that as against the said report, the documents relied on by the defendants were gazette notifications and therefore, the same was to be relied on. In the above discussion, I have indicated that the gazette notification which is validly proved is only in respect of the document Ex.D1 to indicate that the property had been included for acquisition. But, the fact as to whether the further proceedings has been taken out with regard to the passing of the award and taking over possession of the property in Sy.No.11/1 in any event has not been proved. Therefore, in such circumstances, I am of the view that the Commissioner's report would be relevant in the facts and circumstances of the instant case.
14. Having reappreciated the documents available on record and considering the nature of the claim put forth by the plaintiff to contend that they have continued to be in possession of the property and when they have explained the circumstances where the other properties belonging to the plaintiff has been utilised for 16 the purpose of formation of the layout and the remaining property as described in the schedule was in their possession and when the defendants have failed to produce the documents before the trial Court to indicate that in respect of the property in question also it proceeded further pursuant to the notification for acquisition and award had been passed in respect of the same and the compensation has been received by the plaintiffs' family and also to indicate that the possession has been taken in accordance with law, the case of the plaintiff would have to be accepted. In that view, I am of the opinion that the trial Court was not justified in holding issue Nos.1 and 3 against the plaintiff. The same is accordingly reversed.
15. In the result, the judgment and decree dated 02.03.2010 passed in O.S.No.3601/1989 is set aside. The suit is decreed. Consequently, the defendants or any one claiming under them are restrained from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs except with due process known to law.
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The appeal is allowed in the above terms. In the peculiar circumstances of the case, the parties shall bear their own costs.
Sd/-
JUDGE akc/bms