Karnataka High Court
Shri B S Nagaraju vs Shri S N Mohan Kumar @ Gnr Mohan on 7 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.6683/2023 (CPC)
BETWEEN:
1. SHRI. B.S. NAGARAJU
SON OF LATE B.V. SAMPATH,
AGED ABOUT 55 YEARS,
RESIDING AT BILEKAHALLI VILLAGE,
BANNERGHATTA ROAD,
BENGALURU - 560076
2. SHRI. B.V. PAPANNA
SON OF LATE VALAPPA,
AGED ABOUT 68 YEARS,
RESIDING AT BILLEKAHALLI VILLAGE,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
... APPELLANTS
(BY SRI DHANANJAY V. JOSHI, SENIOR COUNSEL FOR
SMT. KAVITHA DAMODHARAN, ADVOCATE)
AND:
1. SHRI. S.N.MOHAN KUMAR @ GNR MOHAN
SON OF LATE G. NARAYANASWAMY REDDY,
AGED ABOUT 59 YEARS,
2. SHRI. S.N. SHEKAR
SON OF LATE G NARAYANASWAMY REDDY,
AGED ABOUT 56 YEARS,
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3. SHRI S N BABU @ GNR BABU
SON OF LATE G. NARAYANASWAMY REDDY,
AGED ABOUT 51 YEARS,
ALL ARE RESIDING AT NO.172/5/1,
4TH MAIN ROAD, BTM DOLLARS COLONY,
BILLEKAHALLI, BANNERGHATTA ROAD,
BANGALORE - 560 076
... RESPONDENTS
(BY SRI G.R.GOPALASWAMY, ADVOCATE FOR
SRI G.R.MOHAN, ADVOCATE FOR R1 TO R3)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 27.09.2023 PASSED ON I.A. NO.
III IN O.S.NO.4869/2023 ON THE FILE OF THE VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-15), BENGALURU,
REJECTING I.A. NO.III FILED UNDER ORDER XXXIX RULE 4 OF
CPC AND ETC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed challenging the order dated 27.09.2023 passed on I.A.No.III in O.S.No.4869/2023 by the VIII Additional City Civil and Sessions Judge, Bengaluru.
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2. The factual matrix of the case of the plaintiffs before the Trial Court the they have filed a suit for the relief of permanent injunction and inter alia sought for an order of temporary injunction to restrain the defendants, their family members, their henchmen and their agents from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property. The plaintiffs in the plaint have contended that they are the absolute owners of the suit schedule property and their father had acquired the same under the registered sale deed dated 05.05.1967. The defendants who are stranger to the suit property, came near the suit schedule property on 26.07.2023 and made an attempt to interfere with their peaceful possession and enjoyment of the suit schedule property on the basis of created and concocted documents and also threatened them stating that they will file an atrocity case against the plaintiffs. By that time, the plaintiffs have resisted their illegal act and filed police complaint. On 27.07.2023, once again defendant Nos.1 and 2 came near the suit schedule property with more men and weapon saying that if anybody stops their illegal act, they will finish their life thereby, the defendants have 4 threatened the plaintiffs with dire consequences and told that at any point of time, they will come and dispossess the plaintiffs from the suit schedule property. Hence, without any other alternative, the plaintiffs have filed the suit and also sought for an order of temporary injunction by filing I.A.No.1.
3. The defendants appeared and filed their statement of objections to the said application contending that the suit of the plaintiffs is not maintainable and there is no cause of action to file the suit and the plaintiffs have not approached the Court with clean hands. It is contended that the defendants and their family members are the joint and absolute owners of the land bearing Sy.No.173/2 measuring 1 acre 36 guntas situated at Billekahalli village, Begur hobli, Bengaluru South taluk. The land in Sy.No.173 was originally owned by one Chinnappa and his family members. On 05.12.1990, the said Chinnappa and his family members entered into an agreement of sale for a total sale consideration of Rs.1,90,000/-. Thus, from 05.12.1990, defendant No.2 and B.V.Sampath have been in peaceful possession and enjoyment of the land bearing Sy.No.173 and 5 after the execution of the agreement of sale dated 05.12.1990, they got mutated their names in the revenue records. After the death of B.V.Sampath, his children i.e., defendant No.1 and his brothers succeeded to his estate, accordingly, defendant Nos.1 and 2 are in joint possession and enjoyment of the written statement schedule property and they have been regularly paying the property tax. The written statement schedule property consists of several commercial establishments which have been let out on lease by the defendants and the defendants have also being running their own Gas Agency in the name and style SN HP Gas Enterprises. On 24.07.2023, at around 5.30 a.m., the plaintiffs claiming to be owners of the land in Sy.No.172/2b, have came near the schedule property with their 50 henchmen carrying deadly weapon and threatened the defendants and directed them to vacate the written statement schedule property. The boundaries of the schedule property have been wrongly described in the schedule mentioned in the plaint. However, on perusal of the schedule provides in the sale deed dated 05.05.1967, under which the plaintiffs are asserting their title over the suit schedule property would indicate that the 6 southern portion of the suit schedule property is bounded by Rajakaluve and land in Sy.No.14 and now, the written statement schedule property and accordingly prayed the Court to dismiss the application. The defendants have also filed I.A.No.3 under Order 39 Rule 4 of CPC praying to vacate the exparte order of temporary injunction.
4. The Trial Court after considering the pleadings of the parties, framed the following points:
1. Whether the plaintiffs have made out prima facie case?
2. In whose favour balance of convenience lies?
3. Who will be put to irreparable loss and injury?
4. Whether the order of ex-part temporary injunction granted by this Court is liable to be vacated as prayed for by the defendants?
5. The Trial Court having discussed the material available on record answered point Nos.1 to 3 in favour of the plaintiffs and negatived point No.4 and granted the order of temporary injunction in favour of the plaintiffs and dismissed the application filed by the defendants for vacating the temporary 7 injunction in coming to the conclusion that the relief is sought in respect of the suit schedule property bearing Sy.No.172/2b and the claim of the defendants that they are the absolute owners of the property bearing Sy.No.173 and the material discloses that the plaintiffs are in possession and enjoyment of the suit schedule property and the defendants are interfering with their possession. It is also the claim of the defendants that they got entered their names in the revenue records in respect of Sy.No.173 on the basis of the sale agreement and also let out the said property in favour of third parties. The contention taken up by the defendants itself discloses that the defendants without getting executed the sale deed in their name in accordance with law got entered their names in the revenue records and trying to interfere with the possession of the plaintiffs. The Trial Court also taken note of the fact that the defendant Nos.1 and 2 have suffered decree in O.S.No.4730/2006 and the relief of declaration and injunction was granted against them in respect of the property bearing Sy.No.173. Hence, the Trial Court comes to the conclusion that the plaintiffs have made out a prima case and balance of convenience lies in favour of the 8 plaintiffs and the defendants are interfered with the plaintiffs' possession and enjoyment over the suit schedule property.
6. The learned counsel appearing for the appellants would vehemently contend that the plaintiffs have deliberately set out a false and incorrect description of the suit schedule property. The counsel would vehemently contend that in the schedule of the plaint, the plaintiffs have stated that the southern boundary of the property is a road and land in Sy.No.173 and in the sale deed dated 05.05.1967 produced as document No.1 along with the plaint, the southern boundary of the property is shown as rajakaluve and private property in Sy.No.14 and hence, there is a clear misrepresentation of the property while seeking the relief of temporary injunction. It is also contended that except for bald pleadings, the plaintiffs have not produced any material to show that they are in possession of the suit schedule property and in the plaint itself, the plaintiffs contend that the BDA acquired a portion of land in Sy.No.172/2B and the plaintiffs are in possession of the remaining property and in order to substantiate the same, no material is produced. 9
The counsel also would vehemently contend that, the plaintiffs are lying under oath. The counsel also would vehemently contend that vide memo dated 22.11.2023, the defendants have produced copies of some of the earlier W.P.No.18788/1997 filed by the plaintiffs' father; W.A.No.321/1989, BDA file noting, Award dated 18.08.1990 and order dated 08.06.2021 passed by this Court in W.P.No.744/2021. It is contended that the plaintiffs' father was unsuccessful in challenging the acquisition of their entire 4 acres 33 guntas in Sy.No.172/2b when made a request to the BDA to drop the said land from acquisition, the BDA has categorically stated that the entire land has been acquired and utilized for the formation of layout and the plaintiffs have given up their challenge to the acquisition and have restricted their claim to enhancement of compensation. The counsel also would vehemently contend that the Court Commissioner who has been appointed by this Court has reported that the suit schedule property has been acquired by BDA and the same is in possession of BDA and the defendants are in possession of their completely separate and distinct written statement schedule property.
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7. The counsel also would vehemently contend that by an order dated 05.10.2023, this Court appointed an advocate as Court Commissioner and also directed to take assistance of the ADLR to identify the plaint suit schedule property and the written statement schedule property and to also ascertain possession and interference if any. The Court Commissioner has reported that the defendants and their tenants are in possession of their written statement schedule property. The ADLR has drawn up a survey sketch clearly showing that the plaint suit schedule property is separate and distinct from the written statement schedule property and that the plaint suit schedule property has been acquired by BDA and the same is in possession of the BDA and the written statement schedule property is in the possession of the defendants and their tenants and the plaintiffs have not filed any objections to the ADLR's survey sketch. The counsel also would vehemently contend that the Trial Court has committed an error in grating the temporary injunction, hence, the approach of the Trial Court that the plaintiffs have produced the material to show that BBMP/BDA authorities have acquired portion of the property in Sy.No.172/2b leaving 1 acre 10 guntas 11 which is mentioned in a sketch map prepared by BDA/BBMP authorities. The counsel would vehemently contend that no such records are available with BDA and such document is a created one in order to obtain the temporary injunction. The finding of the Trial Court is factually incorrect as there is no such material available on record in the proceedings before the Trial Court. The counsel also would vehemently contend that the Court has to take note of the conduct of the plaintiffs since the Court Commissioner's report and other materials lack to the contentions of the plaintiffs hence, the very order passed by the Trial Court requires interference.
8. The counsel in support of his arguments relied upon the documents namely, copy of the plaint; written statement; copy of the sale deed dated 05.05.1967; copy of M.R.No.4/1969- 70 and other documents which have been produced before the Trial Court and also the photographs. The counsel also relied upon the Commissioner's report; photographs which have been prepared by the Commissioner. The counsel also relied upon the copy of the writ petition; copy of the order passed in the writ 12 petition and the copy of the writ appeal and the copy of the order passed in the writ appeal; award passed under Section 11 of the Land Acquisition Act dated 11.06.1990 and award notice dated 22.10.1990; copy of the BDA note; copy of the letter requesting release of lands from acquisition to BDA dated 14.11.1992; copy of the letter rejecting the requisition for de- notification dated 19.11.1992; copy of the petition filed before Special Land Acquisition Officer, BDA and copy of the letter dated 08.06.2021 passed in W.P.No.7488/2021.
9. On the other hand, the counsel for the respondents filed the statement of objections contending that the Court Commissioner has visited the disputed spot on 21.10.2023 and thereafter, the Commissioner has collected the documents from both the parties and at last, filed the present report. The report further reveals that the respondents' property bearing Sy.No.173/2 consisting of commercial establishments which have been let out by the respondents. The document No.2 is an electricity bill furnished by the respondents which does not disclose either the name or the place of the property. Document 13 No.3 is a Tax paid receipt for the year 2022-23 in the name of B.V.Sampath in respect of property No.173/2 and the said receipt does not disclose either the nature of the business or extent of the construction made. Document No.4 is also the electricity bill dated 08.04.2021 which disclose neither name nor particulars of the property. Document No.6 is a copy of the ledger account as on 01.04.2011 to 31.03.2012 pertaining to property No.50, R.V.Raod, Basavanaguri, Bengaluru. Contrary to the address furnished in the document, the description says that the said document pertaining to rent of Bannerghatta godown, therefore, the particular document is totally irrelevant. The report reveals that the Granites Store owned and operated by M/s. Shri Chamundeshwari Granites and as such the Commissioner came to conclusion that it belonged to respondents. Obviously, the document Nos.10 and 11 have not supported the report of the Commissioner. Document No.10 is dated 31.08.2006 and the nature of business is consultant brokerage in Sy.No.173/2. Document No.11 is a rental agreement between B.S.Ravi and Mr.Ravi Dikshit and defined the nature of business as C2C used cars showroom Bilekahalli. 14 The said document is dated 03.11.2005. It is pertinent to mention that the property where the C2C used cars showroom business is said to be situated and the property where the Shri Chamundeshwari Granites is running were acquired by the competent authority and the possession was also handed over by the respondents. The respondents have received the compensation in terms of crores for that particular property. The rest of the documents, that is electricity bills from document Nos.12 to 15, are nowhere support the opinion of the Commissioner. The counsel for the respondents would vehemently contend that statement of objections filed disputing the commissioner's report.
10. The counsel also would vehemently contend that the Court Commissioner has no locus to go beyond the direction of this Court without the assistance of survey report. Only on the basis of the statement of the parties, arrived to the conclusion that the particular parties are in possession is unsustainable on the other hand amounts to biased to him. The Court Commissioner's report does not contain the report of ADLR and 15 the Court Commissioner cannot decide the survey number and other particulars of the property only on the basis of document which have been placed by the parties. The counsel also would vehemently contend that admittedly the respondents contending in their written statement that they have nothing to do with the suit schedule property. Admittedly the suit is filed in respect of Sy.No.172/2b and claim of the defendants is land bearing Sy.No.173/2 hence, both the properties are distinct properties. It is contended that 1 acre 36 guntas of the land as per the claim of the appellants, 8 guntas is karab land, apart from that 0.13 guntas were sold by B.V.Sampath and B.V.Papanna To M/s.Puravankara Projects. In this regard appellants have executed a document dated 24.01.2001 in favour of Puravankara Projects Limited, 12 guntas of land was acquired by BBMP as per the notification published in Vijaya Karnataka daily newspaper dated 21.02.2019, 12.5 guntas of land in possession and enjoyment of original grantees as per the judgment and decree passed in O.S.No.4730/2006 dated 17.04.2023 on the file of the City Civil Court, Bengaluru. In fact, the appellants are claiming the property of the respondents by affixing boards and 16 nameplate in the overnight after the order of temporary injunction granted by the Trial Court. So far as claimed by the respondents in respect of C2C Car showroom and Shri Chamundeshwari Granites. It is pertinent to mention that KIADB has notified the said land for industrial purpose and taken possession as per the Gazette notification.
11. The counsel would vehemently contend that B.V.Sampath has received an amount of Rs.1,77,35,443/- on 08.12.2018 and Rs.36,25,912/- on 11.10.2019 from KIADB and the rest of the land 8 guntas is rajakaluve. Another 22 and odd guntas are already occupied and hold by Brand Factory. Thus, the respondents have not been in possession of the land more particularly in Sy.No.172/2b of Belekahalli. It is admitted fact that the appellants have claiming the property on the basis of the agreement of sale executed by the original grantee. It is the settled principle that mere agreement to sell is not a conveyance under Transfer of Property Act. The appellants have lost their entire property and now, claiming the respondents property hence, prayed the Court to dismiss the appeal.
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12. The counsel in support of the statement of objections also produced the documents to show the acquisition of some of the portion of the property of the respondents. The counsel also produced the document dated 08.12.2018 of BMRCL; document dated 22.07.2017 of BMRCL; the sketch and agreement of sale dated 24.01.2001 and having received an amount by way of Cheque. The counsel also relies upon the document that is extract of survey sketch pertained to BTM 2nd stage layout and also village map. The counsel also produced a copy of the written statement and brought to notice of this Court that to paragraph 5 of the written statement wherein the defendants categorically stated that they have nothing to do with the suit schedule property and they have not interfering with the plaintiffs possession and enjoyment of the suit schedule property in any manner whatsoever. When such averment is made in respect of suit schedule property, the Trial Court rightly granted the relief of temporary injunction in favour of the respondents herein. The counsel also relies upon the copy of the RTC pertaining to Sy.No.173/1 and 173/2 and copy of the registered 18 exchange deed in respect of old Sy.No.173. The counsel also filed additional documents that is the copy of the acknowledgment issued by BDA on 11.01.2024 regarding the layout plan in Sy.No.172/2b of Belikahalli village wherein it is stated that layout has been formed only to the extent of 3 acres 19 guntas and in remaining 1 acre 10 guntas of land, the layout has not been formed, in which, the respondents are in possession and also they have also submitted an application before BDA on 04.11.1992 and also details of filing of writ petition and the Court has directed to consider the NOC for the said land.
13. In the additional statement of objections it is contended that the plaintiffs are the successors of late G Narayanaswamy Reddy who demised on 04.05.1989. Though, BDA has acquired the said land, but the possession was taken only in respect of 3 acres 19 guntas as the same was sufficient for completion of the project. The remaining 1 acre 10 guntas of land with specific boundaries commencing from Bannerghatta main road bounded on east by the portion of the property of 19 Sy.No.172/2b which is already developed, west by Banneghatta main road, north by road and south by road and Sy.No.173. Earlier, it was within the limit of Bommanahalli City Municipal Council and at present, subjected to the administration of BBMP. It has lost the agricultural character and on the other hand, it become fully commercialized. However, the defendants/appellants attempted to interfere with the possession of the property to the extent of 1 acre 10 guntas. It is also specifically contended in the written statement that they have nothing to do with the property bearing Sy.No.172/2b. The counsel also would vehemently contend that the claim of the respondents is only in respect of Sy.No.172/2b. It is contended that BDA has approved the development scheme for formation of 4th stage BTM layout and has notified the scheme and acquired the lands situated at Bilekahalli village and other villages through preliminary notification dated 06.08.1998. In the preliminary notification, the land which is claimed by the defendants/appellants measuring 1 acre 36 gutnas in Sy.No.173 of Bilekahalli village was notified for formation of BTM 4th stage layout. The copy of the preliminary notification dated 20 06.08.1998 and also the final notification dated 03.11.1990 produced as Annexure R3 and R4. Subsequently, BDA has passed the award on 22.03.1994 and possession was taken on 21.03.1994. The award notice was also served on the respective parties and the same are produced as Annexure-R5 to R12. The possession was also taken, mahazar was drawn and Annexure- R13 and R14 are produced before the Court in this regard.
14. It is also contended that the appellants have challenged the acquisition proceedings before this Court in W.P.No.8451/1994 and the same came to be dismissed. Inspite of that the defendants have conveniently suppressed the fact before the Trial Court as well as this Court and a copy of the writ petition and order passed by the Court are also produced at Annexure-R15 and R16. It is crystal clear that the defendant's entire land has been taken over the BDA despite which appellants/defendants attempting to squat on the property of the plaintiffs. In fact, the Commissioner of BDA by its letter dated 03.08.1995 addressed to the Principal Secretary, Housing and Urban Development Department has communicated that 21 Sy.No.173 measuring 1 acre 36 guntas of land has been acquired for the purpose of formation of 4th stage of BTM layout and the possession of the land was handed over to the engineering department on 21.03.1994 and copy of the same is produced at Anneuxre-R17. In W.P.No.8451/1994, the petitioners represented by B.V.Sampath has categorically contended that they are the owner of the land bearing Sy.No.173/2 and the same has been acquired by the BDA by final notification dated 03.11.1990. Therefore, it is very evident that the claim of the appellants/defendants is only to the extent of 25 guntas in Sy.No.173 in respect of total land acquired 1 acre 36 guntas. Now, the defendants have come up with a new plea that they are the owner of 1 acre 36 guntas and on the other hand, the plaintiffs contended that they are the owners of 1 acre 11 guntas. Hence, it is clear that the defendants have included the plaintiffs' property to their 25 guntas and claiming in all total 1 acre 36 guntas.
15. The counsel also would vehemently contend that the respondents have challenged the acquisition notification dated 22 19.09.1977 and 07.02.1978 in W.P.No.7446/2021 on the ground that the notifications are deemed to have been lapsed. In the said writ petition, this Court has passed an order directing BDA to consider the representation of the plaintiffs dated 19.03.2021 submitted seeking deletion of their property in Sy.No.172/2b. The defendants also in the other W.P.No.12646/2010 questioning the validity and correctness of the acquisition of their land and maintainability of the same. The main contention that they have been in possession of the land by virtue of agreement of sale dated 05.05.1985, 04.02.1986 and 07.03.1986 together with GAP said to have been executed by land owners. The schedule mentioned in the writ petition is measuring 1 acre 36 guntas, whereas in the written statement claiming their written statement schedule property, thus, both the properties are different and defendants have suppressed all these facts before the Court and now, they cannot seek for the relief of vacating the interim order. It is also contended that surveyor of BDA has conducted the survey in respect of property bearing Sy.No.172 and given a complete topography of the land. The land in respect of the sites are formed and the land which is 23 vacant. The respondents have obtained the same from BDA under Right to Information Act, 2005. The copy of the same is produced at Annexure-R20. Annexure-R20 is clear with regard to the vacant land is concerned. Hence, the question of interference does not arise.
16. Having heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents, the point that would arise for the consideration of this Court is:
Whether the Trial Court has committed an error in granting the relief of temporary injunction and whether it requires interference?
17. Having perused the plaint, it discloses that the relief is sought for permanent injunction in respect of Sy.No.172/2b and the claim of the defendants is in respect of Sy.No.173/2 hence, both the properties are distinct properties. It is the contention of the plaintiffs/respondents before the Trial Court that the appellants herein have made an attempt to dispossess 24 the plaintiffs. It is their claim that the suit schedule property originally belongs to one Narayanaswamy Reddy and they claims their title though their father. It is also the case of the plaintiffs that the defendants, without any semblance of right, interfering with their possession. It is not in dispute that in the written statement, the defendants contended that they are not claiming any right in respect of the suit schedule property i.e., Sy.No.172/2b and also they have not tried to interfere with the possession of Sy.No.172/2b. It is important to note that the very contention of the appellants in the written statement particularly in paragraph 5 that they have nothing to do with the suit schedule property and they have not interfered with the plaintiffs possession over the suit schedule property in any manner whatsoever.
18. It is the contention of the appellants that the plaintiffs who have tried to illegally trespass on to the defendants' property, have threatened to dispossess the defendants from their written statement schedule property. It is also the contention of the appellants before this Court that the 25 entire property of 4 acres 29 guntas was acquired and there is no remaining property as claimed by the plaintiffs/respondents. It is also important to note that the defendants are not disputing the property of the plaintiffs. On the other hand, it is the contention of the appellants that they are the owners of the property to the extent of 1 acre 36 guntas and the same was originally owned by one Chinnappa and his family members. They have executed an agreement of sale for total sale consideration of Rs.1,90,000/- and put them into possession and revenue records also changed into their names. It is also contended that the written statement schedule property consists of several commercial establishments which have been let out on lease by the defendants. It is also their specific case that when the entire property of the plaintiffs was acquired by BDA, the question of retaining the property by the plaintiffs does not arise. Though the plaintiffs have relied upon the document of sketch issued by BDA with regard to remaining extent of 1 acre 10 guntas, the same is also disputed by the appellants. The appellants have produced a memo along with an endorsement issued by BDA dated 09.02.2024 wherein it is stated that 4 acres 26 29 guntas was acquired and also produced the Map wherein it discloses that nothing is retained by the plaintiffs.
19. On the other hand, it is the contention of the plaintiffs that only 3 acres 19 guntas was utilized by BDA and remaining property that is 1 acre 10 guntas is with the plaintiffs and in support of their contention, they relied upon the document at Annexure-R20 which discloses that same is issued by BDA. It also important to note that the appellants have also relied upon number of documents and also mainly relied upon the Commissioner's report. On perusal of the report of the Commissioner which was filed before this Court as appointed by this Court, it discloses that in respect of Sy.No.173/2, property consists commercial existing establishments which have been let out on the lease by the defendants/appellants and also existence of some of the buildings are also mentioned and says that tenants have provided some documents when they visited the spot. The document of Sy.No.172/2b in column No.11 shows that the land measuring 4 acre 33 guntas has been acquired by BDA that is document No.19 and also produced the sketch as 27 document No.34 and survey sketch dated 09.09.2009 produced by the appellants counsel in respect of Sy.No.172/2b that shows that 3 acres 20 guntas of land has developed area and remaining land is measuring 1 acre 10 guntas and same is also taken note of at document No.35. The Court Commissioner also taken note of the Assistant Director of Land Records survey report which discloses that in respect of Sy.No.172/2a, 172/2b and Sy.No.173/2, boundaries are measuring 4 acres 33 guntas and out of which, 4 guntas of karab and remaining land is 4 acres 29 guntas. The Commissioner report also includes Sy.No.173/2. The report states that in respect of Sy.No.173/2, total land measuring is 1 acre 37 gungas out of which 9 guntas is karab and remaining land is 1 acre 28 guntas, the RTC shows that B.V.Sampath and B.V.Papanna are in joint possession of the land in Sy.No.173/2. The Commissioner only relied upon the documents which have been produced by the parties.
20. On the other hand, the respondents also relied upon the additional statement of objections producing some of the documents with regard to acquisition of property to the extent of 28 1 acre 36 guntas. Apart from the statement of objections filed earlier, having perused the additional statement of objections which discloses that the other property i.e., Sy.No.173/2 also acquired and Commissioner's report is only based on the document which have been supplied by the parties. It is also not in dispute that when the properties were acquired by BDA and the same was challenged by the appellants as well as the respondents and all of them are unsuccessful in getting an order. The records also discloses that when the same was questioned by the plaintiffs, the plaintiffs was given liberty to approach BDA with regard to their claim that they are in possession.
21. It is the case of the plaintiffs that the defendants are interfering with the possession of the plaintiffs in respect of Sy.No.172/2b. On the other hand, it is the contention of the defendants that the plaintiffs are interfering with their possession in respect of Sy.No.173/2 and both the properties are distinct properties. The plaintiffs have also relied upon the document of preliminary notification and final notification in respect of Sy.No.173/2 and copy of the approval letter dated 29 22.07.2017 and survey sketch showing the land acquired by BMRCL/KIADB for the year 2016 for Sy.No.173/2, copy of the agreement dated 24.01.2001 and exchange registered deed dated 18.08.1995. On perusal of the documents produced by the respective parties it discloses that both the properties have been acquired and the same is not in dispute. The plaintiffs claim is in respect of Sy.No.172/2b and defendants claim is in respect of Sy.No.173/2. It is the specific admission on the part of the defendants that they have nothing to do with the suit schedule property and they have not interfered with the plaintiffs peaceful possession and enjoyment over the suit schedule property in any manner whatsoever. But it is contended that the plaintiffs are trying to illegally trespass into the written statement schedule property but the defendants have not filed any application restraining the plaintiffs from their possession in respect of Sy.No.173/2.
22. The Trial Court granted the temporary injunction in respect of 172/2b and not in respect of Sy.No.173/2. In the writ petition which was filed by the respective parties also the 30 identity of the property is in dispute. The Trial Court also taken note of the claim made by the parties comes to the conclusion that the defendants claim the possession only based on the sale agreement and got it transferred the property and got it phoded the property and the claim of the plaintiffs is with regard to 1 acre 10 guntas of land along with the structures surrounded by compound and it is the claim of the defendants that they are the owners to the extent of 1 acre 37 guntas in Sy.No.173 with commercial establishments. The Trial Court also taken note of the fact that the defendants are not claiming any relief against the plaintiffs by way of counter claim except filing the written statement describing their property and the Trial Court taken note of the photographs produced by the plaintiffs in respect of the suit schedule property wherein it discloses that the suit schedule property is covered with zinc sheet and it was partial demolition.
23. It is also important to note that earlier suit was also filed in O.S.No.4730/2006 and defendant Nos.1 and 2 have suffered decree in the said suit and the relief of declaration and 31 injunction was granted against them in respect of property bearing Sy.No.173 and the said fact also taken note of by the Trial Court. When the claim is in respect of distinct property of the plaintiffs as well as the defendants, defendants are not claiming any right in respect of Sy.No.172/2b, their claim is only in respect of 173/2. No doubt, certain photographs are also produced before this Court by the appellants. When both of them are claiming very same property, the property is distinct and very identification of the property is in dispute. Though the Commissioner filed the report and the same is only based on the documents which have been given by the parties at the spot and no survey sketch is placed on record. The documents which have been produced and issued by BDA are contrary to each other with regard to very extent of the property in Sy.No.173/2b as well as 173/2. Though document No.36 is produced before the Court by the Commissioner with the assistance of ADLR in Sy.No.173/2b totally mentioned 4 acres 33 guntas based on the RTC and the claim of the plaintiffs is that entire property is not taken into possession and they are in possession of the remaining property. In order to substantiate the said contention 32 also, the plaintiffs have not produced any documents. When such being the case, it is appropriate to modify the order of the Trial Court. When there is a dispute with regard to the identity of the properties, since the plaintiffs claim their property as Sy.No.172/2b and the defendants claim their property as Sy.No.173/2 and also when the acquisition proceedings are there in respect of both the properties, what is the remaining property has to be decided only after the trial. At this stage, the same cannot be decided. Hence, it is appropriate to direct the parties to maintain status quo and though it is distinct property of Sy.No.172/2b and 173/2 but both are claiming the very same property and inspite of causing nuisance at the spot, the matter requires full-fledged trial with regard to the identification of the property is concerned. The suit is also for the limited purpose of permanent injunction and inter alia sought for the relief of temporary injunction.
24. In view of the discussions made above, I pass the following:
ORDER 33 The appeal is allowed in part.
Both the parties are directed to maintain status quo till the disposal of the suit since there is dispute with regard to identification of the property.
In view of dismissal of the main appeal, I.As. if any, do not survive for consideration and the same stand disposed of.
Sd/-
JUDGE SN