Bangalore District Court
Harish R vs Jayamma on 21 October, 2024
KABC010116192015
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-36)
DATED ON THIS THE 21st DAY OF OCTOBER 2024
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.4457/2015
Plaintiff : Sri.R.Harish,
S/o.K.Ramu,
Aged about 36 years,
R/at No.11/6, 2nd Main Road,
Vinayaka Circle, Maruthi Extension,
Palace Guttahalli, Malleshwaram,
Bangalore-560 003.
(By Sri/Smt.N.G., Advocate)
-Vs-
Defendants : 1. Smt.Jayamma,
W/o.Late Venkatappa,
Aged about 60 years,
R/at Lakshmipura, Yashwanthpura
Hobli, Bangalore North Taluk.
2. Smt.Savitramma,
D/o.Smt.Jayamma,
Major,
R/at Lakshmipura,
Yashwanthpura Hobli,
Bangalore North Taluk,
2
Bangalore.
(Sri./Smt., advocate for defendant No.1,
Sri./Smt.V.S.L., Advocate for defendant
No.2.
******
Date of institution of the suit : 23-05-2015
Nature of the suit : Injunction
Date of commencement of :
recording of the evidence 23-09-2021
Date on which the judgment : 21-10-2024
was pronounced
Total duration : Years/s Month/s Day/s
09 04 28
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The plaintiff has filed suit for injunction against the defendant restraining hem from interfering in his peaceful possession and enjoyment of vacant site No.21, katha No.13234, assessment No.11, new E-katha No.169/21 situated at Lakshmipura Village, Yashwanthapura Hobli, Bangalore North Taluk measuring East to West 40 feet, North to South 30ft, in all measuring 1200 sq.ft bounded on East : Site No.22, West : Site No.20, North : Property of 3 Gangadhara, South : 20ft Road. This property herein after referred as suit property for brevity.
2. According to the plaintiff, he is the absolute owner and possessor of the suit property and he purchased the suit property by virtue of Sale Deed, dated 1-8-2014. According to the plaintiff, this property originally belongs to the defendant No.1 and her family members, the defendant No.1 and her family members have executed registered General Power of Attorney to Narasaiah on 23- 11-1994. the said Narasaiah has right to sell the suit schedule property has executed sale deed in favour of C.R.Sukumar through registered Sale deed, dated 4-3-1999. This C.R.Sukumar is the vendor of the plaintiff, after sometime, the vendor of the plaintiff executed sale deed in favour of the plaintiff by receiving valuable consideration.
After purchasing the property, the plaintiff was put in possession of the suit property and he is enjoying the suit property as absolute owner and possessor. The defendants along with family members have lost their right over the suit property are trying to illegally interfere in the possession and enjoyment of the plaintiff over the suit property.
4
It is the allegation of the plaintiff that the defendant along with the family members came near the suit property threatened the plaintiff with dire consequences and they removed the name board put in the suit schedule property. Thus, trying to attempt to interfere in the possession and enjoyment of plaintiff over the suit property.
The plaintiff contended that he has filed complaint before the jurisdiction police station, on 19-05-2015 but the police have issued endorsement stating that the complaint is civil in nature. He has also approached the Commissioner of Police by filing the complaint on 20-05-2015 but the police has not taken any action. Therefore, the plaintiff filed suit for permanent injunction against the defendants restraining them from in his peaceful possession and enjoyment of the plaintiff over the suit property, sought to decree the suit.
3. After service of summons, the defendants appeared through their counsels.
4. The defendant No.1 has filed the written statement. She denied the plaint averments in toto. She contended that the defendants are the absolute owners and possessors of Sy.No.11/200 measuring 1 acre situated at Lakshmipura village, Yashwanthpura Hobli, Bengaluru North Taluk. The suit schedule 5 property is part and parcel of Sy.No.11/200. The defendants stated that earlier the suit property belongs to the husband of defendant No.1 Venkatappa. He belongs to schedule caste community. He was cultivating the said land for past several years by unauthorised occupation. He filed application before the concerned authority to grant the above said land in his favour. The Government considered the application filed by the Venkatappa conducted spot inspection granted land Sy.No.11/200 to the extent of 1 acre in favour of the husband of the defendant No.1. Grant certificate was issued, possession was confirmed by the Government and after the death of Venkatappa, the defendants continued to enjoy the property as absolute owners and possessors. Name of the first defendant entered in the RTC and it is continued till the date.
The defendant No.1 contended that she and her husband belongs to schedule caste. The land was granted with certain conditions, when the matter stood as above. After the death of Venkatappa, the husband of defendant No.1, the defendant No.1 executed General Power of Attorney in favour of Narasaiah S/o.Kondaiah on 21-11-1994 in respect of the suit schedule property. Since the grant of land was given to a person belonging to the schedule caste, there is a prohibition of transfer of certain lands 6 under Karnataka PTCL Act. Accordingly, the defendants have filed petition before Asst. Commissioner, Bengaluru North Taluk, for restoration of land in her favour as the sale transaction is contrary to the Provisions of Karnataka Prohibition of Transfer of Certain Lands Act. The said petition bearing No.KST/ST/6/99-2000. After contesting the matter, the petition filed by the defendants was allowed. Consequently, land was restored in favour of the defendants and they are in possession and enjoyment of the said property.
According to the defendants, the General Power of Attorney executed in favour of Narasaiah itself is void as per the Karnataka PTCL Act and therefore, the subsequent transactions based on General Power of Attorney also void ab initio. Therefore, the defendants sought to dismiss the suit.
5. Based on the pleadings, my Predecessor in office has framed the following:-
1 Whether the plaintiff proves that he is in possession of suit property as on the date of suit?
2. Whether plaintiff proves the alleged interference caused by the defendants? 7
3. Whether the plaintiff is entitled for permanent injunction?
4. What order or decree?
6. The plaintiff himself examined as P.W.1. Exs.P.1 to 18 were marked on behalf of the plaintiff. He closed his side. The defendant No.1 examined as D.W.1. Exs.D.1 to D.17 were marked on behalf of the defendants. They closed their side.
7. Since the both parties did not advance the arguments, the arguments of both parties taken as heard by reserving the liberty to file the written arguments. However, both have not filed any written arguments as on this date.
8. My findings to the above issues are as follows:-
Issue No.1 : In negative
Issue No.2 : In negative
Issue No.3 : In negative
Issue No.4 : As per final order for the following:-
REASONS
9. Issue No.1:- During the cross-examination of D.W.1, there is a categorical admission on the part of the defendant No.1 i.e., 8 D.W.1 that the suit property was previously belonging to Venkatappa, she has executed the registered General Power of Attorney in favour of Narasaiah on 23-11-1994, she has also admitted that she has received the consideration amount from Narasaiah. There is no any dispute regarding the fact that the suit property comes under the land Sy.No.11/200 of Lakshmipura Village, it is also undisputed fact that this land is previously granted to Venkatappa, the husband of the defendant No.1. It is also not disputed by the parties to the suit that Venkatappa, and the defendants are belonging to the schedule caste. According to the case of the defendants, since the grant was made to a person belonging to the schedule caste, the Provisions of the Karnataka Schedule Caste/Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, was applicable.
10. With these background, let me appreciate the lawful possession of the plaintiff over the suit property.
The flow of title in favour of the plaintiff is also not in dispute, the case of the defendants is that since it is belonging to the persons belonging to the schedule caste, any transaction without the previous permission of the Government is null and void. Therefore, 9 the plaintiff or his predecessor in title are not having any right, title or interest over the suit property. Thus, from the cross-examination of P.W.1 and also contents of the written statement, it emerges that the defendants have not specifically disputed the alienation made by Narasappa in favour of C.R.Sukumar and alienation made by C.R.Sukumar in favour of the plaintiff. Only fact is that there is specific bar contained in Karnataka PTCL Act for transfer of the lands belonging to the schedule caste and tibes persons without previous sanction of the Government. It is also not specifically disputed by the plaintiff that Narasaiah or Jayamma i.e., defendant No.1 have obtained permission from the Government to alienate this 1 acre of land wherein, the suit schedule property is situated.
11. The plaintiff has produced Ex.P.1- the sale deed executed by C.R.Sukumar in his favour on 1-8-2014, C.R.Sukumar in his sale deed categorically stated that he is the owner of the suit property by virtue of sale deed executed by Narasaiah, the GPA holder of the defendant No.1 on 4-3-1999. Ex.P.2 is the tax paid receipt, Ex.P.3 is the sale deed executed by Narasaiah in favour of C.R.Sukumar on 4-3-1999. Ex.P.4 is the Demand Register standing in the name of the vendor of the plaintiff for the year 2006-2007. Ex.P.5 is the E- 10 Swathu, standing in the name of the vendor of the plaintiff, Exs.P.6 to P.9 are the tax paid receipts. All these goes to show that the name of vendor of the plaintiff duly mutated in the Panchayath record as owner and possessor of the suit property. Ex.P.10 is the complaint filed by the plaintiff against the defendants. Ex.P.11 is the FIR. Ex.P.12 is tax paid receipt. Ex.P.13 is the E-Swathu standing in the name of the plaintiff. However, by virtue of Section 5 of the Karnataka PTCL Act. The land was resumed on favour of the defendants free from all encumbrances. Ex.P.18 is the appeal filed by the plaintiff and his brother R.Krishna @ Krishnaiah Shetty, challenging the order passed by the Asst. Commissioner under Section 5 of Karnataka PTCL Act. But, the subsequent developments took place in the appeal are not brought to the notice of this Court.
12. During the cross-examination of P.W.1, he stated that he is in possession and enjoyment of the suit property and kathas were effected in his name. The P.W.1 expressed his ignorance about the fact that his brother Krishna Shetty filed O.S.No.4456/2015 in respect of adjacent site to the suit property, it was came to the dismissed. He admitted the fact that the suit schedule property is 11 formed in Sy.No.11 of Lakshmipura Village and expressed his ignorance that this property was granted in favour of husband of defendant No.1.
13. During the cross-examination of P.W.1, he expressed his ignorance about the fact that the defendant No.1 has filed case before the Asst. Commissioner in KSC/ST/6/99-2000 challenging the alienation made by Narasappa. The Asst. Commissioner by virtue of Order dated 7-5-2002, allowed the case of the plaintiff and ordered for the restoration of the land. In the same paragraph i.e., page No.15, para No.4 of the cross-examination of the P.W.1, he admitted the fact that he has filed the appeal in PTCL 50/2021 before the Dy. Commissioner.
14. According to the P.W.1, he is totally unaware about the proceedings taken and all the proceedings taken behind his back. However, it is interesting to note that the vendor of the plaintiff executed sale deed in favour of the plaintiff on 1-8-2014, whereas, as per the order of the Asst. Commissioner, dated 7-5-2002, the land was restored in favour of the defendants. Therefore, the sale deed executed by C.R.Sukumar in favour of R.Harish i.e., the plaintiff of 12 this case is without any authority because by the time C.R.Sukumar has lost his right over the suit property. The entire cross- examination of P.W.1 is centered around the impact of order passed by the Asst. Commissioner, the P.W.1 stated that he came to know about the order passed by the Asst. Commissioner for restoration of land in favour of the defendants about 3 years back. As soon as the written statement filed by the defendants, it is brought to the notice of the plaintiff that there is a clear prohibition of Transfer of land under Karnataka PTCL Act.
15. The P.W.1 categorically stated that he has not consulted his vendor after he came to know about the PTCL Act. He also expressed his ignorance that the defendant No.1 has filed suit for declaration and injunction bearing O.S.No.2630/2013 against the other purchasers by name Nandeesh and Muniyappa in the land Sy.No.11/200 of Lakshmipura Village.
16. From the cross-examination of P.W.1, it emerges that by the time, the plaintiff has purchased the suit property, the land was restored in favour of the defendants, free from all encumbrances, therefore, the vendor of the plaintiff C.R.Sukumar had no any right, 13 title or interest to transfer the same to the plaintiff. There is a absolute bar under Section 3 of the PTCL Act. Ex.D.8 is the order passed by the Asst. Commissioner on 7-5-2002, it disclose that the land Sy.No.11/200 measuring 1 acre was restored in favour of the defendant No.1. The GPA is cancelled and all the encumbrances created on the property is cancelled by the Asst. Commissioner and the land was restored in favour of the defendant No.1 free from all encumbrances. The document filed by the defendants which are marked as Ex.D.1 to D.14 clearly reveals that the name of defendant No.1 is restored as owner and possessor to the land Sy.No.11/200 which is subsequently phodded and granted in favour of defendant No.1.
17. Ex.D.15 is the certified copy of Judgment passed in O.S.No.4456/2015 passed by 20th Addl.City Civil & Sessions Judge, CCH-32, Bengaluru City. It shows that the brother of plaintiff R.Krishna @ Krishna Shetty filed suit against the defendant Nos.1 and 2 for injunction. It was came to be dismissed. The facts involved in this case and in that case are almost identical because both the sides are adjacent to each other.
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18. P.W.1 in his cross-examination admitted the fact that R.Krishna Shetty is his brother. Ex.D.17 is the certified copy of the Judgment passed in O.S.2613/2011 by 12th Addl.City Civil & Sessions Judge, Bengaluru. It is filed by the defendant No.1 against Nandeesh and Muniyappa for declaration and injunction in respect of 1 acre of land in Sy.No.11/200. It was decreed and the plaintiff is declared as absolute owner of the suit property i.e., 1 acre of land.
19. The D.W.1 in her cross-examination though admitted the fact that she has executed GPA in favour of Narasaiah, received the consideration amount and admitted her signature on Ex.P.19. But in view of the specific and clear bar contained under PTCL Act, it is a absolute bar. The Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Amended Act, 2023 was also passed by Government of Karnataka, it is published in Gazette, dated 27-07-2023, wherein, Section 5 of the Act was amended, clause (c) & clause (d) were inserted. Prior to amendment, it was the view of Hon'ble Supreme Court in Nekkanti Ramalakshmi Vs. State of Karnataka reported in 2018 (5) KCCR 494 that the alienations made by the persons belonging to the schedule caste/schedule Tribes are to be challenged within the reasonable 15 period. Hon'ble Supreme Court ruled that a 25 year delay in seeking the restoration was unreasonable setting a precedent that long delays without sufficient justification would be deemed arbitrary, potentially prejudicing the third party rights. Again the same view was reflected in K.T.Huchegowda Vs. Commissioner, wherein, Hon'ble Supreme Court noted that in cases where transfer of granted land was in contravention of the Provisions of PTCL Act, the transferee acquires only a voidable title but with long and continuous enjoyment thereof, the said title can be perfected and the Provisions of PTCL Act, shall not apply. Again in Seetha Saho Vs.State of Jharkand and Collector Vs. D.Narasinga Rao, the Hon'ble Courts emphasised that indefinite challenges to the land transactions would create uncertainty and undermine the principal of finality in the legal matters. These Judgments underscored the need for a balanced approach where the rights of the original grantees are protected without infringing upon the legitimate expectation of third party transferees.
20. Hon'ble High Court of Karnataka in Devamma Vs. Commissioner applied the doctrine of reasonable period as elicited in Nekkanti Ramalakshmi case noted that if the application is moved 16 beyond a reasonable period it would not only cut off the grantees right under the PTCL Act for resumption of the lands would also vests the possessor with title. Hon'ble Court went on to balance the interest of both parties and further held that the doctrines not to punish the grantee who has neglected to assert his right but he is propagated to protect the those transferees who have maintained the possession under the registered document for valuable consideration.
21. After all these decisions, the Government of Karnataka enacted amendment to the schedule, amendment to the PTCL Act, in the year 2023, by inserting clause (c) & clause (d) in Section 5 Sub Section (1). Clause (c) says that notwithstanding anything contained in any law, there shall be no limitation of time to invoke the Provisions of this Act. Clause (d), the Provisions of clause (c) shall apply to all cases pending before all the competent authorities and all Courts of law adjudicating the case under this Section. These amendments to the PTCL Act has nullifying effort of the Judgments of Hon'ble Supreme Court and High Court referred above. The amendment to PTCL Act embodied a well intentioned effort to rectify the historical wrongs faced by SC/ST Comminutes in Karnataka. 17 However, its broad and retrospective application rises concern about the legislative over reach and the potential infringement of the rights of the third party transferees who have acquired such land in good faith and for valuable consideration. While the amendment seeks to promote substantive equality for SC/STs ensuring that the rights of all stakeholders are protected required enhanced approach that respects both the historical injustices faced by SC/STs and legitimate expectations of those who have acquired land under previous legal frame work. Achieving social justice is the complex process that requires a delicate balance between the rectifying past wrongs and upholding the rule of law.
22. However, in this case, as on the date of resumption of land in favour of the defendant No.1, the vendor of the plaintiff has lost his right and therefore, he cannot transfer valid title or possession in favour of the plaintiff in respect of the suit property. Whatever the possession held by the vendor of the plaintiff nullified by the order passed by the Asst. Commissioner as per Ex.D.8. The land is restored in favour of the defendant No.1 free from all encumbrances. Now in view of the amendment to Section 5 of the PTCL Act, in the year 2023, the amendment by way of insertions of 18 Clause (c) & Clause (d) to Section 5 Sub Section (1) of PTCL Act, applicable to all pending cases. Therefore, the plaintiff cannot contend that he is in possession and enjoyment of the suit property by virtue of the sale deed executed by C.R.Sukumar. Under these circumstances, I answer issue No.1 in negative.
23. Issue No.2:- As per Ex.D.8, the land Sy.No.11/200 measuring 1 acre restored in favour of defendant No.1, suit property is part and parcel of the said 1 acre of land, therefore the interference as stated by the plaintiff does not arise because the defendants become lawful owners and possessors of 1 acre of land which includes the suit property. The complaint filed by the plaintiff against the defendant No.1 and 2 is also admitted by D.W.1 but by the time the complaint is filed, the ownership and possession over the suit property was lost by the plaintiff by virtue of Ex.D.8. Therefore, the plaintiff cannot contend that the defendants are interfered in his possession and enjoyment of the plaintiff. Hence, I answer issue No.2 in negative.
24. Issue No.3:- The plaintiff fails to prove that he is in lawful possession of the suit property on the date of filing of the suit and 19 there is a interference by the defendants in his possession. Therefore, the plaintiff is not entitled for injunction. On the other hand, he could have filed a comprehensive suit for declaration as stated by Hon'ble Supreme Court in Anathulla Sudhakar Vs.P.Boochireddy case. Hence, I answer issue No.3 in negative.
25. Issue No.4:- In view of my findings on the above issues, I pass the following:-
ORDER Suit of the plaintiff is dismissed with costs.
Draw Decree accordingly. (Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 21 st day of October 2024) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1: Sri.R.Harish 20 Witnesses examined on behalf of the defendants.
D.W.1: Smt.Jayamma Documents marked on behalf of the plaintiff.
Ex.P.1 : Original Sale Deed,
dated 1-8-2014
Ex.P.2 : Zilla Panchayath receipt
Ex.P.3 : Sale Deed, dated: 4-3-1999
Ex.P.4 : Demand Register Extract
Ex.P.5 : E-Khatha
Exs.P.6 : Tax paid receipts
to P.9
Ex.P.10 : Copy of police complaint
Ex.P.11 : Copy of FIR
Ex.P.12 : Zilla Panchayath receipt
Ex.P.13 : E-Khata
Exs.P.14 : Photographs(3)
to P.16
Ex.P.17 : C.D
Ex.P.18 : Order sheet in PTCL 50/2021 filed
before D.C., Bengaluru.
Ex.P.19 : Copy of GPA
21
Documents marked on behalf of the defendants.
Ex.D.1 : RTC extract
Ex.D.2 : Certified copy of 'G' Tree
Ex.D.3 : Certified copy of Grant Certificate
dated 18-12-1978
Ex.D.4 : Certified copy of official memorandum
Ex.D.5 : Certified copy of Phodi sketch
Ex.D.6 : Certified copy of I.L.R
Ex.D.7 : Certified copy of Record of Rights
Ex.D.8 : Certified copy of order of
Asst. Commissioner
Ex.D.9 : Certified copy of Notice issued by BDA
Exs.D.10 : Copies of RTCs
& D.11
Exs.D.12 : RTCs
& D.13
Ex.D.14 : Certified copy of tax paid receipt
Exs.D.15 : Certified copy of judgment and decree
& D.16 in O.S.No.4456/2015
Ex.D.17 : Certified copy of Judgment in
O.S.No.2613/2011
Digitally signed by
JEEVAN JEEVAN KULKARNI
KULKARNI Date: 2024.10.30
16:52:45 +0530
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru