Bangalore District Court
Sri. Jagan Mohan Gogula vs Sri. A. Gopal on 15 February, 2023
1 O.S.3093/2013
KABC010172432013
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - SRI.SREENIVASA, B.A., LL.B.
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 15 th day of February 2023
O.S.No.3093 / 2013
Plaintiff: Sri. Jagan Mohan Gogula,
S/o. Late G. Krishna Reddy,
Aged about 40 years,
No.858, 25th A Main, 11th Cross,
HRS Layout, Sector-I,
Bengaluru-560 102.
(By Sri.M.N.Balakrishna, Adv.)
- VS -
Defendants: 1. Sri. A. Gopal,
S/o. Late Appayanna,
Aged about 77 years.
2. Sri.Sampangirama,
S/o. A. Gopal,
Aged about 42 years.
3. Sri.Lakshmipathy,
S/o. A. Gopal,
Aged about 39 years.
2 O.S.3093/2013
4. Sri. Sathish Kumar,
S/o A. Gopal,
Aged about 37 years.
5. Sri. Kantharaj,
S/o. A. Gopal,
Aged about 35 years.
6. Sri. Shashikumar,
S/o. A. Gopal,
Aged about 31 years.
7. Sri. Sadashiva Kumar,
S/o. A. Gopal,
Aged about 30 years.
8. Sri. Dhanushkumar,
S/o. A. Gopal,
Aged about 29 years.
9. Smt. Nagamma,
D/o. A. Gopal,
Aged about 49 years.
10. Smt. Renukamma,
D/o. A. Gopal,
Aged about 46 years.
11. Smt. Subbamma,
D/o. A. Gopal,
Aged about 41 years.
12. Smt. Munirathna,
D/o. A. Gopal,
Aged about 30 years.
13. Smt. Sridevi,
D/o. A. Gopal,
Aged about 28 years.
3 O.S.3093/2013
All are r/at No.814/464, 5th Main, 4th
Block, 1st Stage, HBR Layout,
Bengaluru-560 043.
(By Sri.M.N.S., Adv.)
***
Date of Institution of the suit 19.04.2013.
Nature of the Suit (suit for
pronote, Suit for declaration & Injunction suit.
possession, Suit for injunction,
etc.):
Date of the commencement of 06.01.2018
recording of the Evidence:
Date on which the Judgment was 15.02.2023
pronounced:
Year/s Month/s Day/s
Total duration:
09 09 26
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff against the defendants for permanent injunction to restrain the defendants, their legal representatives, successor in interest, heirs, workmen, henchmen or any other person claiming or acting under or through them from interfering with the plaintiff's peaceful physical possession and enjoyment of the schedule property.
4 O.S.3093/20132. The brief facts of the plaintiff's case are that:
a) That, the plaintiff is the absolute owner in possession and enjoyment of an immovable property bearing site No.469, situated at Hennur- Bellary Road Layout, 1st Stage, 4th Block, Bengaluru i.e., suit schedule property. The suit schedule property originally belongs to the BDA and in the year 1988 the BDA allotted the suit schedule property in the name and in favour of one Shankar S Shetty S/o. K. Siddaiah Shetty on lease cum sale basis. On 27.07.1988 both the allottee and the BDA have entered into a registered lease-cum-
sale agreement vide document No.5353/88-89 of Book I Volumn 2854 at page 135-140 and on 23.08.1988, the BDA has put the allottee in physical possession by issuing possession certificate and after the expiry of lease period on 03.07.2000, the BDA has executed the registered sale deed in favour of the allottee and subsequent to the allotment and registration of lease cum sale agreement, the katha was entered in the name of the allottee, who paid the tax and continued to pay the same even after the registration of sale deed and he was enjoying the schedule property as the absolute owner.
2b) It is further stated that, the owner Shankar S Shetty having settled in Mumbai and he was in need of funds for his legal and family necessity and also for the benefit of the estate and as such, he decided to sell the suit schedule property and accordingly, he sold the suit schedule property to one Dr.S.F.Ithayaraj S/o. Late P.S.Sunder Murthy, through a registered sale deed dated 15.07.2002 and he put the purchaser 5 O.S.3093/2013 in physical possession of the schedule property and the purchaser got transferred the katha in his name and continued to pay the tax to the authority and he was enjoying the schedule property as the absolute owner. On 20.02.2003, the purchaser Dr.S.H.Ithayaraj obtained sanction plan from the Bhatarayanapura CMC to construct a residential house vide LP No.1409 and he also availed the loan of Rs.4,00,000/- from the LIC Housing Finance Limited, Bengaluru, but owing certain family problem and in order to meet his personal and other legal necessity, he decided to sell the schedule property, 2c) The plaintiff has further submitted that, after the negotiation, the owner S.H.Ithayaraj has sold the schedule property to the plaintiff through the registered sale deed dated 04.07.2003 and subsequent to the sale deed, the katha was transferred in the name of the plaintiff and the plaintiff as the absolute owner continued to pay the tax and the vendor had put the plaintiff in physical possession of the suit schedule property and the plaintiff has planned and decided to put up construction. To purchase the schedule property, the plaintiff availed loan of Rs.8,70,000/- from the HDFC Bank, Kasturba Road Branch, Bengaluru. In order to put up construction in the suit schedule property, the plaintiff has also obtained sanctioned plan and licence from the BBMP dated 06.02.2013. On 20.08.2004, the 1st defendant started interfering with the plaintiff 's possession in the suit schedule property under the guise of an exparte interim injunction order passed in his favour against the BDA in O.S.No.5168/2008 on the file of CCH-9 by suppressing the fact and inspite of suffering an order in O.S.No.7583/1998 and both 6 O.S.3093/2013 the suits were filed for permanent injunction and in O.S.No.7583/1998, the Court has dismissed the suit based on the application filed by the BDA for rejection of plaint for the reason that:
the lands bearing Survey No.55/1 and 55/2 to 55/6 of Hennur Village, wherein the property claimed by the 1 st defendant situated was acquired for the formation of Hennur Bellary Road, 1st Stage vide Preliminary Notification No.BDA/ALAO/S/11/78-79 dated 20.7.1978, the same was published under the Final Notification No.HUD/567/MNX/84, dated 08.01.1945 published in the gazette on 14.03.1985.
The Land Acquisition Officer has passed the award notifying the names of khathedars and interest persons on 14.07.1986 and the same is approved by the Collector on 04.12.1986. The Mahazar was drawn on 18.12.1986 to show that, the possession of the land was taken. The required notices under Section 9, 10, 11 and 14 of the Land Acquisition Act, were issued and the same was received by the Kathedars and on 18.12.1986, the possession of the land handed over to the Engineering Section. On the date of notification, there were no structures in the land On 30.11.1987 the notification under Section 16(2) of the Land Acquisition Act, was published and the plaintiff (the 1st defendant in the above suit) has no right, title or interest and possession over the suit schedule property.
2d) Based on the above objection by relying various decisions of the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India and by holding that, the acquisition proceedings became final, conclusive and binding and the possession of the plaintiff (1st defendant in the above suit) 7 O.S.3093/2013 becomes illegal and the structures if any also unauthorized and the suit for bare injunction not maintainable and that apart, the kathedars have participated in the award proceedings and the plaintiff (1st defendant in the above suit) has not challenged the acquisition proceeding before the Constitutional Courts and it became final and accordingly, the suit came to be dismissed on merit. By suppressing the above judgment passed in O.S.No.7583/1998, the defendants who are the father and children have filed the suit in O.S.No.5168/2004 against the BDA for bare permanent injunction and have obtained an exparte ad interim temporary injunction order against the BDA and by virtue of the said order, they started interfering with the possession of the plaintiff in the suit schedule property. After the knowledge, the plaintiff got impleaded as one of the defendants in O.S.No.5168/2004 and he filed his objection by way of written statement and also an application for rejection of the plaint. The Court has also framed the issues and the issue with regard to the maintainability has been heard as preliminary issue and after hearing all the parties concerned by holding that, the suit is not maintainable and has dismissed the suit with cost. Prior to dismissal of O.S.No.5168/2004, the plaintiff has filed a suit against the defendants in O.S.No.16497/2004. Aggrieved by the judgment and decree passed in O.S.No.5168/2004, the defendants herein have preferred RFA No.1014/2012 and by noticing the observation made during the course of arguments for admission the defendants have withdrew the said RFA, which came to be dismissed as withdrawn.
8 O.S.3093/20132e) It is further submitted that, it is pertinent to mention that, during the pendency of O.S.No.5168/2004, the 1st defendant filed a writ petition before the Hon'ble High Court of Karnataka against the BDA in W.P.No.31746/2011. In the said writ petition, the 1st defendant has claimed and sought the relief for declaration to declare the entire proceeding initiated by the BDA as null and void in respect of the land bearing Sy.No.55/6 of Hennur Village, measuring 120 feet x 480 feet and sought the direction to the BDA to consider his case for denotification of the land, the Hon'ble High Court of Karnataka has held that the approach of the 1st defendant after about more than 23 years from the date of notification and as the possession said to have been taken, there cannot be any specific order relating to the denotification and further held that, if the possession of the acquired land is taken, there is no question of denotifying the same. In the writ petition, the 1st defendant claimed an existence of a temple and the Hon'ble High Court of Karnataka has observed that, the same is pure question of fact, which should be looked into by the respondents and further observed that, if the Muneshwara Swamy Temple exists in the land and with regard to saving of the temple to be considered by the BDA and the prayer in respect of the denotification of Sy.No.55/6 cannot be accepted in as much as the scheme is substantially implemented and possession of the land is taken and the petitioner cannot pray for unsettling the settled matter and accordingly dismissed the writ petition with a direction to consider the prayer to save only the Munishwara Swamy Temple, if it situated in Sy.No.55/6 as per law.
9 O.S.3093/20132f) It is further submitted that, aggrieved by the said order passed in W.P.No.31746/2011, the 1st defendant filed Writ Appeal No.2913/2012 before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka while dispossessing off the appeal has observed that, the appellant shall made a representation to the BDA within 15 days, and if so made the BDA shall consider the representation in accordance with law, by observing that the proceeding in writ appeal pertain to an acquisition under Sec.17 and 19 took place on 27.06.1978 and 08.01.1985 respectively. After the order passed in the writ appeal, the BDA passed a resolution in subject No.31/13, dated 18.01.2013 by resolving that, the site bearing No.465 and 476 in which Sri Munishwara Swamy Temple constructed has been leased for 30 years and further resolved to demolish the structures in site No.463, 464, 477 and 478 situated in Sy.No.55/6, HBR 1st Stage, 4th Block, and to take over the possession of the sites by BDA. The above referred judgments and orders have became final and after the finality of the proceeding, the plaintiff along with other site owners gave a representation to the Range Forest Officer, for cutting of trees in Site No.468, 469, 470, 471, 472, 474, 481 and 482 and finally the BBMP vide permission letter dated 18.02.2013 and 07.03.2013 has accorded the permission to cut the trees since the plaintiff along with the other site owners, who involved in the above referred proceedings and having fought the litigation for more than 9 years have decided to construct the building. On 06.04.2013, the owner of site No.471 by name Shamsheerulla Khan has proceeded to cut the trees and to clean the site as per the permission given by the authority and during that time, the 10 O.S.3093/2013 defendants Nos.3, 5, 6 and 8 along with their elements came to the site prevented the cleaning of the sites by abusing in a vulgar language and also threatening for assault and they have also assaulted the said owner and immediately said Shamsheerulla Khan filed a complaint to the Kadugondanahalli Police, who registered the complaint vide FIR No.0187 dated 06.04.2013 and at that time, the plaintiff and other site owners were also present and they had also planned to clean their respective sites and since the defendants have prevented the owner of the site No.471 by claiming the title to the sites with them and as such the jurisdictional police have advised all the site owners including the plaintiff herein, to approach this Court and get / obtain necessary order to proceed with the cleaning of the sites and construction of the buildings and hence, the suit for permanent injunction.
2g) It is further submitted that, the defendants inspite of suffering an order in various proceedings and inspite of confirmation of the acquisition proceeding by the superior Courts have bent upon to grab the sites illegally without any right and the defendants have no right, title or interest in the schedule property, which is allotted by the BDA to the plaintiff after acquiring the land from the respective land owners and the Hon'ble High Court of Karnataka has declined to interfere with the acquisition proceedings and has directed the BDA to consider the representation in respect of only Sri Muneshwara Swamy Temple and the BDA by giving the site Nos.465 and 476 to the temple authority for 30 years and lease has to take possession of other sites bearing No.463, 464, 477 and 478 by 11 O.S.3093/2013 demolishing the buildings and as such, the conduct of the defendants in interfering with the peaceful possession and enjoyment of the plaintiff in the suit schedule property is not only illegal but also an abusive of process of law and as such, the defendants have to be restrained from interfering with the possession of the plaintiff in the suit schedule property through the permanent injunction. The plaintiff has got prima facie case, balance of convenience stands in his favour, a greater injury and injustice will be caused in the event if the defendants are not restrain from interfering with the plaintiff's physical possession and enjoyment in the schedule property. On the other hand, the defendants have no prima facie case, the balance of convenience does not lie in their favour and no injury whatsoever will be caused if they are restrained through permanent injunction. On the above grounds, the plaintiff has filed this suit.
3. a) After receipt of the suit summons, the defendants have appeared through their counsel and filed written statement. In the written statement, the defendants have contended that, there is no cause of action to file this suit. The alleged one is false, frivolous, cooked up for the purpose of the suit, hence, the suit of the plaintiff is liable to be rejected for want of proper cause of action and the same is to be nipped at the bud. The suit of the plaintiff is also barred by law of res-judicata, which is self-explanatory in view of the averments made in the plaint, prior to the above suit, the plaintiff filed a suit for declaration and permanent injunction and the said suit was dismissed on 19.12.2008. Hence, the suit of the plaintiff is not maintainable in law. Further, the suit brought by the plaintiff is 12 O.S.3093/2013 also hit by the principles of sub judice. Hence, the same is unsustainable in law. The suit of the plaintiff is bad for non- joinder of necessary parties. It is contended that, the defendants have inherited lands totally measuring to an extent of 2 acres 18 guntas in Sy.No.55/6, 3 acres in Sy.No.47/2 and 24 guntas in Sy.No.50/9 situate at Hennur Village. Out of the said lands, a portion of the land in Sy.No.55/6 measuring east to west 120 feet and north to south 480 feet consists of Munishwaraswamy Temple, Kalyanamantapa, Ananthashrama and residential buildings belonging to these defendants, which are more fully described in the schedule hereunder. The defendants being the absolute owners of the aforesaid lands are in peaceful possession and enjoyment without disturbance from anybody for more than 4 decades continuously, openly and uninterruptedly till date and they also put up some permanent structures. The aforesaid lands held by the defendants had been duly converted residential purpose by the competent authorities and copy of the sale deed standing in the name of predecessor/s of these defendants is produced. The various records reflecting the ownership of these defendants in respect of the said land is produced herewith.
3b) It is further contended that, the defendants with an object of improving the land held by them and also for development of the temple by name Sri.Munieshwaraswamy Temple, which had been existing in the aforesaid property for several decades, the defendants constituted Shree Muneshwaraswamy Seva Samithi Trust and got registered before the Office of the District Registrar, Bengaluru Urban 13 O.S.3093/2013 District, Bengaluru. It is also relevant to state that, the entire ancestral property of the defendants in Sy.No.55/6, 47/2 and 50/9 of Hennur Village, Kasaba Hobli, Bengaluru, were acquired by the BDA vide preliminary notification No,.BDA/ALAO/S/11/78- 79 dated 27.06.1978 for formation of Hennur-Bellary Road Layout, which came to be published in Karnataka Gazette Part III-3, dated 20.07.1978 and on 08.01.1985 a final notification No.HUD/567MNX84 came to be published in the Karnataka Gazette Part III (1) dated 14.02.1985. However, it is relevant to state that, the physical possession of the aforesaid lands continued with the defendants and till date, these defendants are in possession and enjoyment of the said lands inspite of issuing of preliminary and final notification by the BDA. When the things stood thus, the trustees of Sri Muneshwara Temple Trust, the Karnataka Dalit Action Committee Chairman, gave a representation on 05.02.2005 to the Hon'ble Chief Minister requesting him to denotify the acquisition proceedings in respect of 120 feet by 480 feet in Sy.No.55/6 of Hennur Village, near HBR Layout. Thus, based on representation given by the Karnataka Dalit Action Committee, the BDA passed a resolution on 26.04.1997 to release / denotify the aforesaid lands from the acquisition proceedings in respect of the portion of land in Sy.No.55/6 of Hennur Village.
3c) It is further contended that, the preliminary notification dated 27.06.1978 issued under Sec.17 of the BDA Act pertaining to the land in Sy.No.55/6 of Hennur Village, Kasaba Hobli, Bengaluru North Taluk, it is reflected that, the name of Muniswamappa is shown as Kathedar of the said land, 14 O.S.3093/2013 which he is not the Khathedar of the land and the said mistake is also crept in the final notification issued by the BDA. Hence, the defendants submit that, the entire proceedings regarding acquisition of the lands in respect of the said survey number is without jurisdiction, unsustainable in law and void, for the reason that the land in Sy.No.55/6 was held and stood in the name of the 1st defendant's father namely Appayanna. Later, on the death of Appayanna, the estate of said Appayanna had been devolved upon his legal heirs namely 1 st defendant and others. The defendants being the legal heirs of Late Appayanna, are not in physical possession and enjoyment of the aforesaid lands till date without any disturbance from anybody much less from the plaintiffs and it is false to contend that, the land held by them has been formed into a residential layout and various sites formed therein had been allotted in favour of the prospective allottees / purchases. In the mean time, the 1 st defendant had questioned the legality and correctness of the preliminary and final notification issued by the BDA with regard to acquisition of the said lands. In view of the lapse of the scheme by operation of Section 27 of BDA Act, 1976, hence, these defendants approached the Hon'ble High Court of Karnataka by filing W.P.No.31476/2011 and by its order dated 12.04.2012 the said Writ Petition dismissed on the ground of delay and the defendants being aggrieved by the said order preferred W.A.No.2913/2012 before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka disposed the above writ appeal by directing the 1st defendant to file a fresh representation to BDA and to consider the representation in accordance with law. Under these circumstances, the RFA No.1014/2012 filed by 15 O.S.3093/2013 these defendants arising out of O.S.No.5168/2004 had been withdrawn on the submission made by the BDA stating that, the same would be considered if the defendants withdraw all the cases against it, hence, the RFA filed by these defendants had been withdrawn.
3d) It is further contended that, in view of the aforesaid facts, the defendants gave a representation to the BDA and till date he BDA has not taken any action and the same is pending for consideration. These defendants in order to protect their right, title, interest, claim, possession and enjoyment had filed a suit against the BDA in O.S.No.1365/2013 on the file of the City Civil Court, Bengaluru seeking permanent injunction along with necessary application for restraining the BDA from demolishing the various structures situate in the property described herein below. On hearing, the matter was pleased to grant exparte ad interim order of temporary injunction against the BDA and the matter is pending for consideration on merits. Further, it is also relevant to state that, the very same plaintiff had also filed a suit for declaration and permanent injunction as prayed therein prior to filing of the instant suit in O.S.No.16497/2004 on the file of this Court, Bengaluru against these defendants. The said suit filed by the plaintiff herein against these defendants came to be dismissed on 19.12.2008 on the ground that, the plaintiff failed to prove his physical possession over the said property and the copy of the order passed in the said suit is herewith produced.
3e) It is further submitted that, the plaintiff for the best reasons known to him has suppressed the fact of filing of the 16 O.S.3093/2013 aforesaid suit against the very same defendants and the outcome of the said suit. The very conduct of the plaintiff in suppressing the said facts manifestly makes it clear that, they are not in possession and enjoyment of the suit property as claimed by them. Hence, the plaintiff is not entitled for any reliefs at the hands of this Court as he has not approached this Court with clean hands. Though the plaintiff contends that, the suit schedule property had been purchased by them in the auction proceedings conducted by the BDA and the BDA having confirmed the alleged auction in their favour, the plaintiff are not at all in physical possession of the suit schedule property except the alleged sale deed alleged to have executed in his favour by the BDA and the alleged various documents that are alleged to be standing in his name issued by the various statutory authorities, hence merely on the basis of the documents that are standing in the name of the plaintiff, the same shall not enure to his benefit, in view of the aforesaid fact that these defendants continue to be in physical possession of the lands inherited by them from decades to till date. It is submitted that, the very averments made by the plaintiffs is crystal clear that, though there is alleged sale of the site / suit schedule property in favour of the plaintiff, till date there is no demarcation of various sites as alleged in the said para and even there is no marking of the sites, roads or any infrastructure. Hence, the very existence of the suit schedule property as alleged by the plaintiff is false and as such as the entire extent land is in physical possession of these defendants, till date there is no improvement of the land by the BDA as contended by the plaintiffs and other alleged owners of the sites in question. It is submitted that, it is in the very same 17 O.S.3093/2013 writ proceedings of the defendants, the Hon'ble High Court directed these defendants to make representation to the BDA and they have made representation to the BDA and the same is pending for consideration. On these grounds, the defendants pray to dismiss the suit.
4. Based on the pleadings, my learned predecessor-in- office framed the following issues are as under :-
ISSUES
1. Whether the plaintiff proves that he is in possession and enjoyment of the suit property ?
2. Whether the plaintiff further proves the alleged interference by the defendants ?
3. Whether the plaintiff is entitled to the relief sought for ?
4. What order or decree ?
5. In order to prove the case, the plaintiff examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.52. On the other hand, the 3rd defendant by name Lakshmipathy examined himself as DW.1 and got marked the documents at Ex.D.1 the Ex.D.28.
6. Heard the arguments from both the sides. Perused the entire materials on record along with citations.
7. My findings on the above issues are as under :-
Issue No.1 to 3 :- In the affirmative, Issue No.4 :- As per final order;
for the following :-18 O.S.3093/2013
REASONS
8. ISSUE Nos.1 to 3: All these issues are interconnected with each other, hence they are taken together for discussion in order to avoid repetition of facts.
9. To prove the facts in question, the plaintiff examined as PW.1 and he has reiterated the plaint averments in his evidence. In his evidence, he has stated that, he is the absolute owner in physical possession and enjoyment of an immovable property bearing site No.469 situated at Hennur - Bellary Road 1st Stage, 4th Block, Bengaluru i.e., the suit schedule property.
The suit schedule property originally belongs to the BDA and in the year 1988 the BDA allotted the suit schedule property in the name and in favour of one Shankar S Shetty S/o. K. Siddaiah Shetty on lease cum sale basis. On 27.07.1988 both the allottee and the BDA have entered into a registered lease-cum-sale agreement vide document No.5353/88-89 of Book I Volumn 2854 at page 135-140 and on 23.08.1988, the BDA has put the allottee in physical possession by issuing possession certificate and after the expiry of lease period on 03.07.2000, the BDA has executed the registered sale deed in favour of the allottee and subsequent to the allotment and registration of lease cum sale agreement, the katha was entered in the name of the allottee, who paid the tax and continued to pay the same even after the registration of sale deed and he was enjoying the schedule property as the absolute owner. The owner Shankar S Shetty having settled in Mumbai and he was in need of funds for his legal and family necessity and also for the benefit of the estate 19 O.S.3093/2013 and as such, he decided to sell the suit schedule property and accordingly, he sold the suit schedule property to one Dr.S.F.Ithayaraj S/o. Late P.S.Sunder Murthy, through a registered sale deed dated 15.07.2002 and he put the purchaser in physical possession of the schedule property and the purchaser got transferred the katha in his name and continued to pay the tax to the authority and he was enjoying the schedule property as the absolute owner. On 20.02.2003, the purchaser Dr.S.H.Ithayaraj obtained sanction plan from the Bhatarayanapura CMC to construct a residential house vide LP No.1409 and he also availed the loan of Rs.4,00,000/- from the LIC Housing Finance Limited, Bengaluru, but owing certain family problem and in order to meet his personal and other legal necessity, he decided to sell the schedule property, After the negotiation, the owner S.H.Ithayaraj has sold the schedule property to him through the registered sale deed dated 04.07.2003 and subsequent to the sale deed, the katha was transferred in his name and he continued to pay the tax and the vendor had put him in physical possession of the suit schedule property and to purchase the schedule property, he availed loan of Rs.8,70,000/- from the HDFC Bank, Kasturba Road Branch, Bengaluru. In order to put up construction in the suit schedule property, he has also obtained sanctioned plan and licence from the BBMP dated 06.02.2013. The defendants inspite of suffering an order in various proceedings and inspite of confirmation of the acquisition proceedings by the superior Courts have bent upon to grab the sites illegally without any right and the defendants have no right, title, interest in the schedule property, which is allotted by the BDA to the plaintiff after acquiring the land from 20 O.S.3093/2013 the respective land owners and the Hon'ble High Court has declined to interfere with the acquisition proceedings and has directed the BDA to consider the representation in respect of Muneshwara Temple and the BDA reserved the site Nos.465 and 476 to the temple authority for 30 years on lease and lesee has to take possession of other sites bearing Nos.463, 464, 477, 478 by demolishing the building and as such, the conduct of the defendants in interfering to the possession of the plaintiff is illegal and also an abusive of process of law and it is necessary to restrain them from interfering with their possession.
10. The defendant has disputed the possession of the plaintiff and taken the contention that, the entire property bearing No.55/6, 47/2 and 50/9 of Hennur Village, Kasaba Hobli, Bengaluru, were the ancestral properties of the defendants. They were acquired by the BDA vide preliminary notification No.BDA/ALAO/S/11/78-79 dated 27.06.1978 for formation of Hennur-Bellary Road, Layout and final notification was also published in the Karnataka Gazette Part III (1) dated 14.02.1985, but the possession of the said lands was continued with the defendants and the defendants are in possession of the said land.
11. In view of the specific contention raised by the defendants in the written statement, the initial burden is on the plaintiff to prove that, the plaintiff is in possession of the suit property. On the other hand, the next burden shifts on the defendants to prove that, the defendants are in possession of the suit property inspite of the land acquired by the BDA under the final notification.
21 O.S.3093/201312. To prove the facts in question, PW.1 in addition to his oral evidence has produced the documents at Ex.P.1 to Ex.P.52. Ex.P.1 is the possession certificate dated 22.08.1988. Ex.P.2 is the absolute sale deed dated 03.07.2000 executed by the BDA in favour of Shankar S. Shetty. Ex.P.3 is the absolute sale deed dated 15.07.2002 executed by Shankar S Shetty in favour of Dr.S.F.Ithayaraj in respect of the suit schedule property. Ex.P.4 is the absolute sale deed dated 04.07.2003 executed by Dr.S.F.Ithayaraj in favour of the plaintiff.EX.P.2 to 4 it discloses that the suit schedule property originally belongs to the BDA and in the year 1988 the BDA allotted the suit schedule property in favour of one Shankar S Shetty S/o. K. Siddaiah Shetty on lease cum sale basis. On 27.07.1988 both the allottee and the BDA have entered into a registered lease-cum-sale agreement vide document No.5353/88-89 of Book I Volumn 2854 at page 135- 140 and on 23.08.1988, the BDA has put the allottee in physical possession by issuing possession certificate and after the expiry of lease period on 03.07.2000, the BDA has executed the registered sale deed in favour of the allottee and subsequent to the allotment and registration of lease cum sale agreement, the katha was entered in the name of the allottee,
13. Further documents discloses that, the owner Shankar S Shetty sold the suit schedule property to one Dr.S.F.Ithayaraj S/o. Late P.S.Sunder Murthy, through a registered sale deed dated 15.07.2002 and he put the purchaser in physical possession of the schedule property and the purchaser got transferred the katha in his name, after that, after 22 O.S.3093/2013 the negotiation, the owner S.H.Ithayaraj has sold the schedule property to the plaintiff through the registered sale deed dated 04.07.2003 and subsequent to the sale deed, the katha was transferred in the name of the plaintiff and the plaintiff as the absolute owner continued to pay the tax and the vendor had put the plaintiff in physical possession of the suit schedule property .. Ex.P.5 and Ex.P.6 are the encumbrance certificates in respect of the suit schedule site No.469. Ex.P.7 to 10 are the assessment register extracts. Ex.P.11 is the katha certificate dated 22.02.1991 in respect of site No.469 issued by BDA in the name of Shankar S. Shetty. Ex.P.12 is the Uttara Pathra dated 14.07.2011 issued by the BBMP. Ex.P.13 is the is the katha certificate dated 19.01.2013 issued by BBMP. Ex.P.14 is the challan / receipt dated 01.04.2000. Ex.P.15 is the tax paid receipt dated 27.01.2003. Ex.P.16 is the challan / receipt dated 18.06.2003 for having paid the self assessment tax. Ex.P.17 is the another challan dated 09.09.2004 for having paid self assessment tax. Ex.P.18 is the another challan dated 27.02.2006 for having paid self-assessment tax. Ex.P.19 is the self-assessment tax dated 09.09.2004. Ex.P.20 is the another challon dated 13.08.2007 for having paid self assessment tax. Ex.P.21 is the another challan dated 13.08.2007 for having paid self-assessment tax. Ex.P.22 to Ex.P.26 are the five tax paid receipts. Ex.P.27 is the licence dated 20.02.2003. Ex.P.28 is the approved plan. Ex.P.29 is the another approved plan.
14. Ex.P.30 is the certified copy of the order sheet in O.S.No.7583/98. Ex.P.31 is the certified copy of the plaint in O.S.No.7583/1998 filed by A. Gopal against the BDA. Ex.P.32 is 23 O.S.3093/2013 the written statement in O.S.No.7583/98. Ex.P.33 is the certified copy of the judgment in O.S.No.7583/1998 dated 07.09.2001, wherein, it discloses that, the said suit filed by A.Gopal against the BDA was dismissed. Ex.P.34 is the order on I.A.No.6 in O.S.No.5168/2004, which was filed by A.Gopal and others against the BDA. Ex.P.35 is the certified copy of the orders on additional issue No.1 dated 22.05.2012 in O.S.No.5168/2004. Ex.P.36 is the endorsement dated 28.02.2013 issued by the Police Inspector to the plaintiff informing him to approach the Civil court. Ex.P.37 is the permission letter dated 18.02.2013 issued by the Tree Officer, Assistant Conservator of Forests, Sub-Division-I, BBMP giving permission to cut the trees in Site No.471. Ex.P.38 is the endorsement given by the BDA dated 13.02.2013 with resolution. Ex.P.39 is the certified copy of the memo for withdrawal in RFA No.1014/2012. Ex.P.40 is the certified copy of the judgment passed by the Hon'ble High Court of Karnataka in RFA No.1014/2012 dated 15.11.2012, wherein, the appeal was dismissed as withdrawn. Ex.P.41 is the certified copy of the order of the Hon'ble High Court of Karnataka passed in W.P.No.31746/2011, which was preferred by the defendant A.Gopal against the BDA and another, wherein, it is held that, the petition stands dismissed with a direction to the respondents to consider the prayer of the petitioner to save the Muneshwaraswamy Temple, if the same situated in Sy.No.55/6 of Hennur Village, Kasaba Hobli, Bengaluru as per law. Ex.P.42 is the certified copy of the order passed by the Hon'ble High Court of Karnataka in W.A.No.2913/2012 (BDA) which was preferred by defendant A.Gopal against the BDA, wherein it is held that, if the representation made to the BDA by the 24 O.S.3093/2013 appellants, the BDA shall consider the representation in accordance with law and disposed the appeal. Ex.P.43 is the certified copy of the order sheet in O.S.No.1365/2013 filed by defendant A Gopal against the BDA. Ex.P.44 is the certified copy of the issues framed in O.S.No.1365/2013.
15. Ex.P.45 is the certified copy of the plaint in O.S.No.1365/2013. In para-5 of the plaint, defendant Gopal has stated that, the BDA in all has formed 24 sites in land bearing Sy.No.55/6 i.e., paper Site Nos.459 of 482. After forming sites in the land, the BDA has allotted certain sites, the details of allotment made by it in Sy.No.55/6 of Hennur Village are as hereunder:
1. Sy.No.461 was allotted in favour of Ravindra
2. Site No.468 was alloted in favour of A.Krishna
3. Site No.469 was allotted in favour of Shankar Shetty.
4. Site No.470 wasallotted in favour of Gangadharaiah and N.Vijayalakshmi
5. Site No.471 was allotted in favour of Smasheerulla Khan
6. Site 472 was allotted in favour of K.S.Ramachandra
7. Site 474 was allotted in favour of S.M.Rakha.
As per this document, the site allotted in favour of the vendor of the plaintiff bearing site No.469 is admitted
16. Ex.P.46 is the certified copy of the written statement in O.S.No.1365/2013. Ex.P.47 is the certified copy of the FIR in Crime No.187/2013. Ex.P.48 is the charge sheet in crime 25 O.S.3093/2013 No.187/2013. Ex.P.49 is the order sheet in CC No.54680/2014 (Crime No.187/2013). Ex.P.50 is the FIR in Crime No.176/2013. Ex.P.51 is the charge sheet in Crime No.176/2013. Ex.P.52 is the certified copy of the order sheet in CC No.54035/2014 (crime No.176/2013). These documents discloses that, the defendants quarreled with the plaintiff and other site owners, in that regard, the case was initiated. This shows that, the defendants are interfering with the plaintiff's possession.
17. To prove the case of the defendants, the 3rd defendant examined himself as DW.1 and in his evidence, he has reiterated the same facts which are stated in the written statement. Further, he has admitted regarding the land acquired by the BDA and taken contention that, the BDA has not taken any possession. To establish his case, he has produced documents at Ex.D.1 to Ex.D.28. Ex.D.1 and Ex.D.2 are the certified copy of the judgment and decree in O.S.No.16497/2004 passed by the XXVIII Addl. City Civil Judge, Mayohall Unit, Bengaluru, wherein, it discloses that, the present plaintiff had filed this suit against defendant A. Gopal and others for declaration to declare the order passed in O.S.No.5168/2004 as not binding on the plaintiff and for consequential relief of permanent injunction restraining the defendants and their legal representatives from interfering in any manner with the plaintiff's possession and enjoyment of the schedule property. From the records, it shows that, in O.S.No.5168/2004 defendant A.Gopal and others had filed the suit against the BDA and others for permanent injunction. In that suit, the Court had framed the issues and casted the burden on 26 O.S.3093/2013 the plaintiffs to prove that, the plaintiff is in possession of the suit property by virtue of the sale deed executed by the BDA and also casted the burden on the defendants to prove that, the BDA has not taken possession of Sy.No.55/6 of Hennur Village and the Court given finding that, the plaintiff in that suit i.e., present plaintiff successfully proved that, he is in possession of the suit property by virtue of the registered sale deed executed by the BDA and also given finding that, the defendant failed to prove that, the BDA has not taken the possession from the defendants in respect of Sy.No.55/6. Further, the Court has held that, the suit of the plaintiff is suffering from non-joinder of necessary parties and the suit filed by the plaintiff for declaration to declare that the interim order granted in O.S.No.5168/2004 is not maintainable, on this ground, the suit filed by the plaintiffs was dismissed. But in that suit, the plaintiff has not sought for declaration of title. Under the changed circumstances and on the basis of the subsequent interference and changed circumstances , the person who is in lawful possession is entitled to file suit for permanent injunction against the obstructer.
18. The learned advocate for the defendant has argued that, the suit in O.S.No.5168/2004 filed by the plaintiff was dismissed, and the present suit filed by the plaintiff is barred under Section 11 of C.P.C. To substantiate his argument, he has relied upon the following rulings:
1) (1974) 2 Supreme Court cases page 151 Ifthikar Ahmed & others Vs Syed Meharban Ali & others.
2) (1971) 1 Supreme Court Cases page 387 - Ram Gobinda Dawan & Others Vs Sunil Kumar Roy and another.27 O.S.3093/2013
I have gone through the rulings. With due respect, the said rulings are not helpful to the case of the defendants since as stated above, no finding was given on title, on the other, the previous Court has held that, the plaintiff is in lawful possession.
19. The learned advocate for the plaintiff has argued that, the suit in O.S No.16497/2004 was not filed for declaration of title and the previous Court has held that, the plaintiff is in possession and only on technical grounds, it was dismissed and subsequent suit for permanent injunction filed by the plaintiff is not barred under Section 11 of C.P.C. To substantiate his argument, he has relied upon the following rulings:
1. Sajjadhanasin Syed Vs Musa Dadabhai Ummar & others - Supreme court of India, Appeal (Civil) No.5390/1985.
2. Anathulla Sudhakar Vs P.Buchireddy (dead) By Lrs & others - Supreme court of India Appeal (Civil) No. 6191/2001.
3. State of A.P. & others Vs M/s.Star Bone Mill & Fertilizer Co. Supreme Court of India - Civil Appeal No.6690/2004.
I have gone through the above said rulings. The said rulings are applicable to the case in hand since as rightly argued by the learned advocate for the plaintiff, the subsequent suit for permanent injunction filed by the plaintiff is not barred under Section 11 of CPC since as discussed above, the matter in respect of title has not been decided between the parties to the suit. Hence, the suit for permanent injunction filed by the plaintiff based on subsequent cause of action is not barred under Section 11 of CPC.
28 O.S.3093/201320. So, this judgment in O.S.No.16497/2004 passed by the 28th Addl City Civil & Sessions Judge is noway helpful to the case of the defendants to establish that, the plaintiff is not in possession of the suit property. On the other hand, the judgment in O.S.No.16497/2004 passed by the 28th Addl City Civil & Sessions Judge is very much helpful to the case of the plaintiff to establish the possession of the present plaintiff. Since in that judgment, the Court held that, the plaintiff is in possession of the suit property by virtue of the sale deed executed by BDA.
21. Ex.D.3 is the certified copy of the sale deed for the year 1949 executed by Bhojappa in favour of Byrappa @ Appayya. Ex.D.4 to Ex.D.6 are the RTCs in respect of Sy.No.55/6 accepted in the name of Appayyanna and also mentioned as Muneshwara Temple. Ex.D.7 is the certified copy of the application seeking information under 6(1) and 7(1) of the RTI Act to the BDA. Ex.D.8 is the RTC.
22. Ex.D.9 is the BDA proceedings. It discloses that, the BDA passed the resolution as per the order of the Hon'ble High Court of Karnataka and reserved the site Nos.465 and 476 to the Muneshwara Temple. The BDA passed the resolution and ordered to demolish the structures in the site Nos.463, 464, 477, 478 and to allot the site Nos.465 and 476 to Muneshwara Temple on lease period of 30 years.
23. Ex.D.10 and Ex.D.11 are the BSNL receipts for payment of bills. Ex.D.12 and Ex.D.13 are the BWSSB bills. Ex.D.14 to Ex.D.25 are the electricity bills. Ex.D.26 and Ex.D.27 29 O.S.3093/2013 are the gas bills. Ex.P.28 is the certified copy of the judgment passed by the 11th ACMM, Mayohal, Bengaluru in CC No.54035/2014.
24. From the documents produced at Ex.D.1 to Ex.D.28, it shows that, the BDA passed the resolution and reserved the site Nos.465 and 476 as per the resolution passed by the BDA to reserve the land to the Muneshwara Temple in site Nos.465 and 476 on the ground that, the temple exists.
25. Ex.D.28 is the certified copy of the judgment passed in C.C.No.54065/2014 by the 11th ACMM. Mayohal, Bengaluru on 20.06.2020. The concerned Police registered the case against Kantharaju and others i.e., defendants on ground that, they assaulted one Firoz. Further, the documents produced by the defendants disclose that, the plaintiff is in possession of the site No.469 and as per the resolution passed by the BDA and as admitted in O.S.No.1365/2013, it discloses that, Muneshwara Temple exists in Site Nos.465 and 476. So, the defendants failed to prove that, the temple situated in the suit schedule property. Further, in the instant case, the defendants have not challenged the sale deed and katha accepted in the name of the present plaintiff. Till it is cancelled by the concerned authority, it is having presumptive value. Further, the oral and documentary evidence discloses that, the plaintiff is in possession of the suit property. Even for the sake of argument, if the Court feels that, the defendants are the owners of the suit schedule property, then also, the defendants have no right to take the possession without due process of law, as held by Hon'ble Supreme Court in 30 O.S.3093/2013 the case of Rame Gowda and others V. M. Varadappa Naidu AIR 2004 SC 4609. In that case, it was held that a person in settled possession is entitled for permanent injunction restraining even the true owner from disturbing his possession without due process of law. It was observed that:
"If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
Till the plaintiff is evicted from the suit schedule property under due process of law, the plaintiff is entitled to protect their possession. Further, in 1999(1) KLJ page 536 (Vijaya Bank Gulbarga Vs Revanasiddappa), the Hon'ble High Court of Karnataka have held that: Mere threat is sufficient to grant injunction. Real threat is not necessary . As observed in the said ruling, mere threat in the mind of the Court is sufficient to grant injunction. Further, in the instant case, the defendants have filed the written statement and disputed the possession of the plaintiff. The filing of the suit and denial of the possession is one type of interference.31 O.S.3093/2013
26. In view of the above discussions, I am of the opinion that, the plaintiff has proved his possession over the suit schedule property and interference by the defendants. Accordingly, I answer issue Nos.1 to 3 are in the affirmative.
27. ISSUE NO.4: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby decreed .
Permanent injunction is granted.
The defendants, their legal representatives, successor in interest, heirs, workmen, henchmen or any other person claiming or acting under or through them are hereby restrained from interfering with the plaintiff's peaceful physical possession and enjoyment of the suit schedule property.
Draw the decree accordingly.
(Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open court on this the 15 th day of February 2023.) (SREENIVASA) I Addl. City Civil & Sessions Judge, Bengaluru.32 O.S.3093/2013
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Sri.Jagan Mohan Gogula.
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Possession certificate dated 22.08.1988.
Ex.P.2 : Absolute sale deed dated 03.07.2000
executed by the BDA in favour of Shankar S.
Shetty.
Ex.P.3 : Absolute sale deed dated 15.07.2002
executed by Shankar S Shetty in favour of
Dr.S.F.Ithayaraj in respect of the suit
schedule property.
Ex.P.4 : Absolute sale deed dated 04.07.2003
executed by Dr.S.F.Ithayaraj in favour of the plaintiff.
Ex.P.5 & 6 : Encumbrance certificates. Ex.P.7 to 10 : Assessment register extracts. Ex.P.11 : Katha certificate dated 22.02.1991 in respect of site No.469 issued by BDA in the name of Shankar S. Shetty.
Ex.P.12 : Uttara Pathra dated 14.07.2011 issued by the BBMP.
Ex.P.13 : Katha certificate dated 19.01.2013 issued by BBMP.
Ex.P.14 : Challan / receipt dated 01.04.2000. Ex.P.15 : Tax paid receipt dated 27.01.2003. Ex.P.16 : Challan / receipt dated 18.06.2003 for having paid the self assessment tax.
Ex.P.17 : Another challan dated 09.09.2004 for having paid self assessment tax.
Ex.P.18 : Another challan dated 27.02.2006 for having paid self-assessment tax.33 O.S.3093/2013
Ex.P.19 : Self-assessment tax dated 09.09.2004. Ex.P.20 : Another challon dated 13.08.2007 for having paid self assessment tax.
Ex.P.21 : Another challan dated 13.08.2007 for having paid self-assessment tax.
Ex.P.22 to : Five tax paid receipts.
26
Ex.P.27 : Licence dated 20.02.2003.
Ex.P.28 : Approved plan.
Ex.P.29 : Another approved plan.
Ex.P.30 : Certified copy of the order sheet in
O.S.No.7583/98.
Ex.P.31 : Certified copy of the plaint in
O.S.No.7583/1998 filed by A. Gopal against the BDA.
Ex.P.32 : Written statement in O.S.No.7583/98.
Ex.P.33 : Certified copy of the judgment in
O.S.No.7583/1998 dated 07.09.2001
Ex.P.34 : Certified copy of the order on I.A.No.6 in
O.S.No.5168/2004.
Ex.P.35 : Certified copy of the orders on additional
issue No.1 dated 22.05.2012 in
O.S.No.5168/2004.
Ex.P.36 : Endorsement dated 28.02.2013 issued by the
Police Inspector to the plaintiff informing him to approach the Civil court.
Ex.P.37 : Permission letter dated 18.02.2013 issued by the Tree Officer, Assistant Conservator of Forests, Sub-Division-I, BBMP Ex.P.38 : Endorsement given by the BDA dated 13.02.2013 with resolution.
Ex.P.39 : Certified copy of the memo for withdrawal in RFA No.1014/2012.
Ex.P.40 : Certified copy of the judgment passed by the
Hon'ble High Court of Karnataka in RFA
No.1014/2012 dated 15.11.2012
34 O.S.3093/2013
Ex.P.41 : Certified copy of the order of the Hon'ble High
Court of Karnataka passed in
W.P.No.31746/2011
Ex.P.42 : Certified copy of the order passed by the
Hon'ble High Court of Karnataka in
W.A.No.2913/2012 (BDA)
Ex.P.43 : Certified copy of the order sheet in
O.S.No.1365/2013 filed by defendant A Gopal against the BDA.
Ex.P.44 : Certified copy of the issues framed in O.S.No.1365/2013.
Ex.P.45 : Certified copy of the plaint in
O.S.No.1365/2013.
Ex.P.46 : Certified copy of the written statement in
O.S.No.1365/2013.
Ex.P.47 : Certified copy of the FIR in Crime
No.187/2013.
Ex.P.48 : Charge sheet in crime No.187/2013.
Ex.P.49 : Order sheet in CC No.54680/2014 (Crime
No.187/2013).
Ex.P.50 : FIR in Crime No.176/2013.
Ex.P.51 : Charge sheet in Crime No.176/2013.
Ex.P.52 : Certified copy of the order sheet in CC
No.54035/2014 (crime No.176/2013).
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Sri.Lakshmipathy.
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 & 2 : Certified copy of the judgment and decree in
O.S.No.16497/2004 passed by the XXVIII
Addl. City Civil Judge, Mayohall Unit,
Bengaluru.
35 O.S.3093/2013
Ex.D.3 : Certified copy of the sale deed for the year
1949 executed by Bhojappa in favour of
Byrappa @ Appayya.
Ex.D.4 to 6 : RTCs in respect of Sy.No.55/6.
Ex.D.7 : Certified copy of the application seeking
information under 6(1) and 7(1) of the RTI Act to the BDA.
Ex.D.8 : RTC.
Ex.D.9 : BDA proceedings.
Ex.D.10 & : BSNL receipts for payment of bills.
11
Ex.D.12 & : BWSSB Bills.
13
Ex.D.14 to : Electricity bills.
25
Ex.D.26 & : Gas bills.
27
Ex.D.28 : Certified copy of the judgment passed by the
11th ACMM, Mayohal, Bengaluru in CC
No.54035/2014.
(SREENIVASA)
I Addl. City Civil & Sessions Judge,
Bengaluru.