Bangalore District Court
Smt. Venkatamma@ Pillamma vs Intelligence Bureau Officer'S on 24 January, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 24th day of January 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.8603 of 1999
C.C.H.8
Plaintiff: Smt. Venkatamma@ Pillamma, major
in age, resident of Dubasipalya
Volager Halli, Kengeri Hobli,
R.V.College post, Mysore road,
Bangalore-560057
Deceased by her L.Rs
1(a). S.Krishnappa, 64 years,
(P.1(a) died on5.3.2013 and P.(b) and
(c) are his L.Rs are already on record)
1(b). Smt. H.Thulasamma, 60 years,
1© Smt. K.Vishalakshamma, 42
years,
All are residing at Dubasipalya
Volager Halli, Kengeri Hobli,
R.V.College post, Mysore road,
Bangalore-560057
(By Sri.H.N.R Advocate)
: Vs :
Defendant/s: 1. Intelligence Bureau Officer's
House Building Co-operative
2 OS.8603/1999
society Ltd.,
(Registered No.JRB;CRD:REGN:
16/4893/82-83, C/O I.B.)
Officer's Residents Welfare
Society , 9th Floor, Cauvery
Bhavan, K.G.Road,
Bangalore560009 by its
Secretary.
2. M.Nagaraj
S/o Late D.P.Muniyappa,
aged about 58 years,
R/at No.505, 6th Main,
9th Cross, BTM MICO-LAYOUT,
Bangalore-560096
(included/impleaded by order
dated 31.5.20900);
3. Commissioner,
Bangalore Development
Authority, K.P.W Extn,
Bangalore -560020
4. K.M.Siddaraju, S/o Mooguraiah,
aged about 40 years, No.351,
Gnanabharathi, III Stage,
(Volagerehalli village),
Bangalore -560059
(D.3 and D.4 are impleaded as per
Court order dated 27.7.2007)
(D.1- S.L
D.2-VBS,
D.3- HAK,
D.4- SL, advocates)
3 OS.8603/1999
Date of the institution of suit: 24.11.1999
Nature of the suit : Permanent injunction
Date of the commencement of 30.5.2003
recording of the evidence :
Date on which the judgment 24.1.2015
was pronounced :
Total duration: Year/s Month/s Day/s
15 02 00
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the deceased plaintiff against the defendants No.1 to 4 seeking the relief of perpetual injunction and also prayed for mandatory injunction directing the defendants or Tahasildar, Bangalore South Taluk, , Bangalore for measurement of the suit land through Taluka Surveyors and for other consequential reliefs.
4 OS.8603/1999The suit schedule property involved in the suit is in respect of land Sy.No.44/8, which is fully described in the schedule annexed to the plaint reads as under:-
SCHEDULE All that piece and parcel of immovable property -Land situated at Volagerehalli, Dubasipalya, Kengeri Hobli, Bangalore South Taluk, R.V.College Post, Mysore Road, Bangalore-560059 bearing Sy.No.44/8, measuring 2A-33G ( Two acres- thirty three Guntas) bounded as under:-
East by: Muneerappa's son M.Krishnappa Property; West by: Land of Hanumappa, North by: Land of D.P.Muniyappa, and South by: Land of Hanumappa Land with House 11 sq.ft -RCC roof Temple in 0.02 guntas , Katha No.74, given by Kengeri Panchayuath, Now New klatha no.105/5, assessment No.10/1,C.S No.24, Encroachment marks shown in sketch at Northern side.
2. During pendency of the suit, the original plaintiff Smt. Venkatamma @ Pillamma died on 25.9.2008 and her L.Rs have been brought on record alleging that deceased original plaintiff Smt. Venkatamma @ Pillamma had left alleged "Will" and also as per Family arrangement deed , the plaintiffs 1(a) to (c), who have come on record as legatees under the alleged "Will" under Family arrangement deed , wherein it is also case 5 OS.8603/1999 made out by the plaintiff that she executed GPA in favour of her son-in-law namely S.Krishnappa /plaintiff No.1(a) who died on 5.3.2013 and counsel for plaintiff has filed memo intimating the death of plaintiff No.1(a) during pendency of the suit and further stated that plaintiff No1.(b) and 1(c) are the legal heirs of deceased plaintiff and also deceased plaintiff No.1(a) and hence, the suit is proceeded with by plaintiff No.1(a) and 1(c) against defendants.
The plaintiffs further alleged that the original plaintiff deceased Smt. Venkatamma @ Pillamma , who was the absolute owner of schedule property bearing land Sy.No.44/8 measuring 2 acres 33 guntas situated at Dupasipalya, Volagerehalli, Kengeri Hobli, Bangalore South Taluk, Bangalore situated at R.V.College post, Mysore Road, Bangalore, wherein this property belongs to ancestors of husband of plaintiff namely Sri. D.P.Narayanappa, and husband of the plaintiff got it by way of family partition deed dated 14.8.1944 and hence, the schedule property is in lawful possession and enjoyment of the deceased plaintiff and husband of plaintiff D.P.Narayanappa died on 13.5.1980, wherein there was partition effected between plaintiff's husband Sri. D.P.Narayanappa and his brothers in respect of the family properties and among the said properties namely Sy.No.s.44/4, 44/11, 41/7 and 45/8 and a house property situated at Dupasipalya are the subject matter of the partition 6 OS.8603/1999 deed dated 14.8.1944. The 1st defendant is the official of Central Government Organization and formed in to Housing Society and 1st defendant canvassed that they had purchased some properties in Volagerehalli, for forming residential sites and to distribute amongst its members. They have put up stone/wall adjacent to the property of the plaintiff as seen from the photographs indicating the name of 1st defendant with Sy.No.44/5A and 45/4A and there are boundaries to the property of the plaintiff and after that boundary of the plaintiff's property, the defendants' Board appears. That the power of attorney dated 26.4.1994 produced along with the sketch indicating the location of the property described in the plaint schedule and encroachments are shown in the sketch and at the northern side encroachment mark is put by letters "EFGH" measuring north-south 175 ft., and east-west 265 ft., That the defendants in order to level the land bulldozed the adjacent land, but when they wanted to level the land belonged to plaintiff and when markings are put in, at that time, plaintiff filed police complaint alleging encroachment at the time of leveling the land and at that time, the defendants have stopped encroaching upon the plaintiff's property. But the defendants though have no right to enter into the land of the plaintiff and canvassed that they have purchased the land from A.Muthu and others. The plaintiff has produced the photographs, tax paid receipts of both house property existed in their land and also landed property, encumbrance 7 OS.8603/1999 certificate, settlement register extract, wherein the property bearing Sy.No.44/8 standing in the name of Venkatappa so also settlement akarbund and complaint given to the police on 1.12.1993. There is also letter issued from Tahasildar for measurement of the land belongs to plaintiff dated 12.8.1995 and 8.11.1999. That the defendants on 11.11.1999, conducted the meeting shown in the copy of the invitation produced along with the plaint, wherein it has been announced that the defendants will perform "Guddali Pooja" for construction of flats formed and formation of layout called "Sunder Enclave"
and thereon started to level the land and thereafter, immediately, complaint has been given to the concerned Police Station , but police informed the plaintiff that they cannot stop encroachment if any made or attempted by the defendants into the land of the plaintiff unless an order of injunction is obtained by the competent Civil Court and produced before them. That the defendants property if any is at different place, but they claim that it is adjacent land of the plaintiff. However recently, in another suit between family members, a Court Commissioner has been appointed, who has visited the suit land and conducted local inspection and measured the property and boundaries are fixed and submitted report and in the commissioner report, it is noticed that in respect of the suit land. Tat after the plaint schedule land belongs to the plaintiff, the defendants land existed and also there is name board put up by the defendants, but there is no power or 8 OS.8603/1999 authority to enter into land of the plaintiff and defendants have no authority to encroach upon the suit land belongs to the plaintiff and on the contrary, the defendants act of encroachment is illegal and to grab the valuable land belongs to the plaintiff. The defendants under the guise of leveling the land and to form layout in the said land are trying to encroach upon the plaintiff's land and as such, plaintiff alleged cause of action dated 11.11.1999 and in order to protect her property and plaintiff also alleged that she is residing in the land by putting up any house existed in Sy.No.44/8 and also there existed a temple in 2 guntas of land in Sy.No.44/8, which measures 2 acres 33 guntas and plaintiff alleged that she is in lawful possession and enjoyment and Sy.No.44/8 measuring
2 acres 33 gunts including house property and 2 guntas of temple premises existed therein and on the contrary, defendant is trying to encroach upon suit property and trying to trespass into the land and hence, plaintiff alleging cause of action has filed this suit for permanent injunction and also for mandatory injunction relief against defendants. Initially the suit is filed only against 1st defendant and thereafter, defendant No.2 is added by the plaintiff by filing I.A.No.6 and thereafter, again plaintiff filed I.A.No.21 and 22 seeking to impelad the proposed defendant No.3 and 4 and after hearing on I.A.No.21 and 22, the said applications were came to be allowed and defendant No.3 and 4 are added as defendant No.3 and 4 in the suit.
9 OS.8603/19993. After issuance of suit summons, defendant N.1 had filed written statement in this suit on 4.1.2000 and defendant No1. contended that the power of attorney holder of the plaintiff has no locus-standi to maintain the suit either in law or on facts. Hence, suit filed by the plaintiff through power of attorney is liable to be dismissed in limine. Defendant No.1 denied the title and possession of the plaintiff in respect of land Sy.No.44/8 and original plaintiff has no right, title and interest in the schedule property and plaintiff's power of attorney holder cannot maintain the suit against any person much less against defendant No.1. The Land Acquisition Officer has filed LAC case, since there are more than one claimant and still the petitions are pending disposal on the file of the City Civil Court, Bangalore. Hence, the suit cannot maintained under the katha and house list number, wherein the property has to be identified by survey number and its existing boundaries and defendant No1. contended that Sy.No.44/8 has been acquired by BDA, Bangalore as per final notification issued by the Specifically Land Acquisition Officer and the land in question is not allotted to the defendant No.1 by BDA , wherein the documents executed by Deputy Secretary, BDA, Bangalore evidence this fact and defendant No.1 contended that the Sy.No.44/8 is not situated abutting the property of the 1st defendant allotted by the BDA and there is no question of any encroachment to be made by 1st defendant upon the land belongs to plaintiff and plaintiff has 10 OS.8603/1999 not produced any material evidence to show that which part of the land and to which extent of the land allotted to have been encroached by the 1st defendant's society. Defendant No.1 contended that the BDA has allotted bulk allotments of land to its possession was handed over the said land by the Engineering Department attached to BDA in favour of 1st defendant's society and after conducting the survey and demarcating the area, wherein BDA has allotted the land to 1st defendant's society for the purpose of formation of residential sites and 1st defendant's society has not occupied the land on their own, but the land was allotted after acquisition by BDA and handed over to 1st defendant. Hence, the pleadings made by the plaintiff in her pleadings regarding alleged encroachment is vague and does not support her case to grant any relief of permanent injunction much less the relief of mandatory injunction against 1st defendant's society and defendant No.1 denied rest of the allegations of the plaint, which are not specifically traversed. Hence, defendant No.1 on this defence resisted the suit filed by the plaintiff and pray for dismissal of the suit with costs in the interest of justice and equity.
4. The defendant No.3 filed written statement contending that the suit filed by the plaintiff is not maintainable either in law or on facts and suit is also liable to be dismissed for want of statutory notice required under Sec. 64 of BDA Act 1976 11 OS.8603/1999 and defendant No.3 further contended that suit is not maintainable since the suit schedule property already stood vested with the BDA by virtue of the acquisition proceedings and suit schedule property which forms part of the property bearing Sy.No. 44/8 situated at Dupasipalya, Volagerehalli vilalge, Kengeri Hobli, which was notified for acquisition under the Land Acquisition Act under the preliminary notification bearing No. BDA/ALAO/A3/139/88-89 dated 19.1.1989 and under final negotiation bearing No. UDD/629/MNX/97 dated 6.10.1997 and HUC/483/MNX/91 dated 19.1.1994 for the purpose of formation of Gnanabharathi Layout and pursuant to the above acquisition proceedings, an award was passed on 17.10.1998, which was approved by the Deputy Commissioner (Land Acquisition) BDA on 27.1.1999 and possession of entire extent of 2 acres 33 guntas of Sy.No.44/8 was taken on 24.3.1999 and handed over to Engineer section for formation of sites. Hence, defendant No.3 denied the allegations of plaintiff that she is the absolute owner in enjoyment and possession of the said land measuring 2 acres 33 guntas and defendant No.3 called upon the plaintiff to prove her ownership and possession over Sy.No.44/8 as on the date of suit and as per the records maintained by defendant No.3 wherein the notified kathedars and anubhavdars are in respect of Sy.No.44/8 namely D.P.Muniyappa, M.Nagaraju, Venkatalakshmamma, Venktamma and Aswathnarayanappa and defendant No.3 denied cause of action arose by the 12 OS.8603/1999 plaintiff dated 11.11.1999 to file the suit. The power of attorney holder of plaintiff had earlier filed three suits in O.S. No.4931/2001, 4932/2001 and 4933/2001 against defendant No.3 and the present suit for similar relief against defendant No.3, which is not maintainable and on this score alone, the suit is liable to be dismissed. Hence, defendant No.3 on these defence resisted the suit filed by the plaintiff prays to dismiss the suit with costs and exemplary costs in the interest of justice and equity.
5. Defendant No.4 filed written statement after his impleadment in this suit, wherein defendant No.4 denied the plaint allegations in toto and also denied plaintiff's possession in respect of land Sy.No.44/8 and defendant No.5 contended that in the absence of possession and title over the schedule property, plaintiff cannot maintain the suit for the relief sought for and defendant No.4 contended that BDA Authority has acquired agricultural lands under notification No.HUD, 403 MHX 91 dated 19.1.1994 for the formation of Gnanabharathi Layout, bearing Sy.No.1/5, 1/6, 1/7, 1/8 to 3/3A to 11/1 to 22, 22 to 38/3A, 38/3B to 45/6, 45/7 to 54/6, 57 to 65, 67 to 85, 86 to 109/2, 110 to 124 situated at Kengeri. The survey lands bearing 11/1 to 14, 15 to 26/3, 27/2 to 35/1, 36/1 to 38/5 to 41/7, 44/5 to 45/6, 45/7A to 57, 58/1, 59/18, 62 to 73/4, 73/5 to 82/3A, 182/A2, 90/290/3 to 98/2B, 98/2C,115 situated at Volagerehalli, 13 OS.8603/1999 Kengeri Hobli, Bangalore, totally 409 acres and 15 guntas of land is being acquired at Volagerehalli village, Kengeri Hobli,, Bangalore, wherein defendant No.4 further contended that BDA authority has allotted him a site bearing Sy.No.351, Gnanabharathi Layout, (Volagerehalli) III Phase, Bangalore measuring 30 ft., by 40 feet and Deputy Secretary of BDA had executed sale deed in his favour dated 10.7.2001 and hence, defendant No.4 is in physical possession and enjoyment and occupation of site no.351, measuring 30 X 40 ft., and also handed over possession of schedule of this property by BDA by execution of sale deed and since the date of sale deed, defendant No.4 claims to be in possession and enjoyment of the site and after execution of sale deed, the property has been transferred from Revenue Department to BDA and thereafter to C.M.C, Kengeri for the purpose of collection of property tax and maintenance. The defendant No.4 got registered his property with the C.M.C, Kengeri and now schedule property comes within the limits of BBMP and defendant No.4 has obtained katha in his name and paying tax to the Municipal Authority in respect of site No.351 and defendant No.4 had applied and obtained building sanction plan from the Department of Engineering, CMC , Kengeri and built residential building for self occupation and defendant No.4 also availed housing loan for the purpose of construction of residential building and plaintiff is local resident of Volagerehalli village and plaintiff with the help of local people harassing the 14 OS.8603/1999 allottees and prevents them from constructing the building and plaintiff was constantly harassing the defendant at the time of construction of building, wherein defendant No.4 constrained to approach police complaint and sought the help of police and completed the construction. The plaintiff having failed to prevent the construction undertaken by defendant No.4 through unlawful means, she has filed an impleading application to implead defendant No.4. Hence, defendant No.4 contended that there is no merit in the suit and plaintiff in order to harass him has filed the suit. Hence, defendant No.4 contended that plaintiff seizes to be the owner of land Sy.No.44/8 of Volagerehalli, Kengeri Hobli, Bangalore South Taluk with effect from final notification issued by the Land Acquisition Officer attached to Government of Karnataka . Hence, in view of this, suit is not maintainable and plaintiff by filing this suit abusing process of law and hence, plaintiff is liable for prosecution under perjury under law of the land. The suit filed by the plaintiff against 1st defendant society seeking intervention to prevent them from encroaching upon land Sy.No.44/8 and if plaintiff is aggrieved against the acquisition of her land or entered survey number, wherein she could have challenged the acquisition proceedings initiated by BDA before appropriate court and plaintiff cannot invoke jurisdiction of the lower court in any manner except seeking higher compensation. Hence, defendant No.4 contended that he has been allotted site No.351 of 15 OS.8603/1999 Volagerehalli, Kengeri Hobli,, under Gnanabharathi Layout by BDA and hence, there is no any transaction existed between plaintiff and defendant No.4 and plaintiff is stranger to defendant No.4 and defendant No.4 contended that under what law or provision the plaintiff can maintain the suit against defendant No.4 has to be determined before the proceeding with the evidence. Hence, defendant No.4 on this defence filed written statement on 20.12.2007 and prays to dismiss the suit filed by the plaintiff.
6. Based upon these pleadings of the parties, the following issues are framed :-
1. Whether the plaintiff proves that she is in lawful possession and enjoyment of the schedule property as on the date of the suit?
2. Whether the plaintiff proves that the defendants are trying to encroach upon the schedule property and causing illegal obstruction of her peaceful possession and enjoyment of schedule property?
3. Whether the defendant No.3 proves that the suit is bad for want of statutory notice U/S 64 of the DDA Act 1976 against it?
4. Whether the defendant No.1 proves that the suit is not maintainable against him as alleged?16 OS.8603/1999
5. Whether the plaintiff is entitled for the relief of permanent injunction and mandatory injunction?
6. What order or decree?
7. In order to prove their respective cases, the parties to the suit have adduced their respective oral and documentary evidence, wherein the plaintiff's GPA holder and also son-in-
law of the deceased plaintiff namely S.Krishnappa is examined as PW.1 and in his evidence, documents Ex.p.1 to P.20 are came to be marked and P.W.1 also filed affidavit evidence as examination-in-chief in view of amendments made during pendency of the suit impleading defendant No.3 and 4 by order dated 27.7.2008 and this additional affidavit is filed through P.W.1 and P.W.1 further examined on 21.6.2008 and hence, on behalf of the original plaintiff, her son-in-law namely A.Krishnappa is examined as P.W.1 and through P.W.1 Ex.P.1 to P.20 are marked and with this evidence, plaintiff side evidence is closed. Thereafter, defendant No.4 is examined as D.W.1 and defendant No.4 filed his affidavit evidence in lieu of examination-in-chief and also D.W.1 further examined on 4.10.2010 and got marked documents Ex.D.1 to D.6 and thereafter, on behalf of defendant No.3, D.W.2 namely R.Jayanthi was examined by filing her affidavit evidence in lieu of examination-in-chief and also D.W.2 further examined on18.11.2011 and got marked Ex.d.1 to D.10, but subsequently the counsel appearing for defendant No.3 filed 17 OS.8603/1999 memo to discard the evidence of D.W.2 and accordingly, as per memo filed by defendant No3., the evidence of D.W.2 has been discarded and thereafter, defendant No.3 is examined the Tahasildar, Grade-II, who is working as Additional Land Acquisition Officer in BDA namely Basavaraja.N, as D.W.3 and D.W.3 further examined on 31.1.2014 and got marked Ex.D.11 the authorization issued in his name to depose in this case and also Ex.D.7 to D.10 are again got marked through this witness in view of discarding the oral evidence of D.W.2 in this suit and hence, through D.W.3, Ex.D.7 to D.10 are came to be marked. Hence, with this evidence, the evidence of defendants is taken as closed. Thereafter, the suit is posted for arguments.
8. Heard the arguments for counsel appearing for defendant No.1 and 4 and defendant No.3,wherein defendant No.2 though appeared in this suit, but defendant No.2 has not filed any written statement and as such, defendant No.2 has not led any evidence and as such, there is no arguments addressed on behalf of defendant No.2 and side arguments taken as heard in this suit and thereafter, the suit is posted for judgment.
9. On appreciation of the pleadings, oral evidence placed on record by the plaintiff that of P.W.1 and Ex.P.1 to P.20 and rebuttal evidence placed by the defendant No.3 and 4 of D.W.1 18 OS.8603/1999 and 3 and considering the documents Ex. D.1 to D.10, and considering the arguments and after perusal of the citations furnished by counsel for defendant No.1 and 4 and counsel for defendant No.3 and after appreciation of oral and documentary evidence, I answer the above issues are as follows:-
Issue No.1 and 2: In Negative
Issue No.3: In the affirmative;
Issue No.4: In affirmative;
Issue No.5: In negative
Issue No.6: The suit filed by the plaintiffs
deserves to be dismissed
without any order as to costs
for the following reasons:-
REASONS
10. Issue No.1, 2 and 4: Originally this suit was filed by Smt. Venkatamma @ Pillamma through her GPA holder against defendant No1. i.e., Intelligence Bureau Officer's House Building Co-operative Society Ltd., represented by its Secretary in respect of suit schedule property as described in the plaint schedule in respect of land Sy.No.44/8 situated at Dupasipalya, Volagerehalli, Kengeri Hobli, Bangalore South Taluk measuring 2 acres 33 guntas and also the suit schedule property as alleged by the plaintiff in her plaint bearing katha No.74, given by Kengeri Panchayath, new 19 OS.8603/1999 Katha No.105/5, assessment No.10/1 in respect of the house property existed in Sy.No.44/8 measuring 11 squares RCC roof to house and also temple existed in 2 guntas of land and original plaintiff Smt. Venkatamma @ Pillamma filed this suit against defendant No.1 for the relief of permanent injunction filed through GPA holder and son-in-law namely S.Krishnappa, who is plaintiff No.1(a) and during pendency of the suit Smt. Venkatamma @ Pillamma died on 25.9.2008 leaving behind plaintiffs as her L.Rs and plaintiff No.1(a) died on 5.3.2013 and plaintiff No.1(b) and (c) are L.Rs of deceased defendant No.1(a). It is the specific case of the plaintiff that s5 measuring 2 acres 33 guntas belongs to her husband D.P.Narayanappa in a family partition held on 14.8.1944 and as such, the original plaintiff after demise of her husband D.P.Narayanappa , who died on 13.5.1990 and there was partition amongst D.P.Narayanappa and his brothers in respect of family lands, wherein the suit schedule land bearing Sy.No. 44/8 measuring 2 acres 33 guntas was allotted to the share of husband of Smt. Venkatamma @ Pillamma in the said partition and as such, the deceased plaintiff alleged that during life time of her husband, he which are sin lawful possession of the suit land bearing Sy.No.44/8 and after his demise, plaintiff succeeded to the said land and she which are sin lawful possession and enjoyment of the same and hence, the original plaintiff Smt. Venkatamma @ Pillamma being the owner of plaint schedule land executed GPA in 20 OS.8603/1999 favour of her son-in-law namely S. Krishnappa dated 26.4.1994 and there was encroachment by 1st defendant in the property of the plaintiff in Sy.No.44/8 as per the encroachment demarcated in the sketch marked by letters EPGH measuring north-south 174 ft., and east-west 265 ft., and hence, plaintiff alleging cause of action arose to file the suit on 11.11.1999 on 12.9.1999 and when defendant No1 attempted to level the land and also defendant No.1 trying to encroach upon plaintiff's land. Hence, plaintiff filed the suit for the relief of permanent injunction and also sought for mandatory injunction relief. Defendant No.1 appeared through their counsel and filed written statement denied the plaint allegations in toto and also denied the alleged encroachment as alleged by the plaintiff in Sy.No.44/8 and on the contrary, defendant No1. contended that BDA has acquired the land by issuing of final notification and allotted lands for the purpose of formation of layout of Gnanabharathi and land was given by BDA authority after acquisition of the lands and handed over the possession to the 1st defendant society by Engineering Department of BDA and after conducting survey and demarcation of area, specific extent of land was allotted to 1st defendant society and hence, defendant No.1 denied the alleged encroachment made in Sy.No.44/8 of Volagerehalli, Kengeri Hobli, Bangalore South Taluk. Defendant No.2 is impleaded as per Order on I.A.No.6 filed by the plaintiff, but defendant No.2 not filed any written statement. Defendant No.3 and 4 are 21 OS.8603/1999 impleaded as per application filed for impleadment by plaintiff in I.A.No.21 and 22, wherein defendant No.3 i.e., BDA authority appeared and filed written statement contending that Sy.No.44/8 measuring 2 acres 33 guntas belongs to owners namely D.P.Muniyappa, M.Nagaraju, Venkatalakshmamma, Venktamma and Aswathnarayanappa have been acquired under the provision of Land Acquisition Act by issuing of preliminary notification dated 19.1.1989 and final notification dated 6.10.1997 and 19.1.1994 for the purpose of formation of Gnanabharathi Layout and pursuant to the land acquisition proceedings, an award has been passed by the Land Acquisition Officer on 17.10.1998, which has been approved by the Deputy Commissioner( Land Acquisition), BDA on 27.1.1999 and possession of entire extent of 2 acres 38 guntas was taken on24.3.1999 and handed over to Engineering Section for formation of sites. Hence, defendant No.3 further contended that power of attorney of plaintiff has earlier filed three suits against defendant No.3 in O.S. No.4931/2001, 4932/2001 and 4933/2001 against BDA and this suit for same relief is not maintainable and defendant No.3 contended that Sy.No.44/8 was acquired by following procedure under Land Acquisition Act and hence, suit was for bare injunction is not maintainable. Defendant No.4 filed written statement and he claims to be the purchaser of site No.351 from BDA, which is formed the residential sites and defendant No.4 claims to be the purchaser of site No.351 22 OS.8603/1999 measuring 30 X 40 ft., from BDA under sale deed and hence, defendant No.4 denied the case of the plaintiff and also denied alleged interference. Hence, the plaintiff's GPA holder has filed affidavit evidence under Order 18 Rule 4 of CPC when suit was filed against only 1st defendant and thereafter, P.W.1 again filed further examination-in-chief under Order 18 Rule 4 of CPC after impleading other defendant No.2 to 4 and after filing of written statement by defendant No.3 and 4, wherein P.W.1, who is son-in-law of Smt. Venkatamma @ Pillamma and GPA holder of plaintiff has given evidence through affidavit evidence filed under Order 18 Rule 4 of CPC and on perusal of the evidence of P.W.1, wherein he deposed to the fact that plaintiff's husband D.P.Narayanappa, who was the owner of Sy.No.44/8 measuring 2 acres 33 guntas and succeeded to Sy.No.44/8 in a partition held by D.P.Narayanappa and his brothers under partition dated 14.8.1944 and P.W.1 also stated that in O.S. No.4261/1992, the Court Commissioner was appointed, wherein the Deputy Director of Land Records, who was Court Commissioner was appointed in O.S. No.4261/1992, who has visited the Sy.No.44/8 and other surrounding lands and he has measured the property and prepared sketch and also filed commission report and hence, P.W.1 stated that the plaintiff is in lawful possession and enjoyment of land measuring 2 acres 33 guntas and on the contrary, P.W.1 stated that defendant No.1 Housing society trying to encroach upon the land Sy.No.44/8 and P.W.1 also 23 OS.8603/1999 deposed that defendant No.3 and 4 have no right, title and interest in respect of suit schedule property and defendant No.1 has no right to interfere in the possession of plaintiff and hence, P.W.1 deposed that there is obstruction and interference by the defendants in the possession of the plaintiff over the schedule property and P.W.1 deposed in para No.7 of his affidavit regarding cause of action arisen on 11.11.1994 and 12.11.1999 and defendants illegally attempted to grab the land measuring north-south 175 ft., and east-west 265 ft., and defendants land is adjacent to the suit schedule property at the northern side and hence, P.W.1 deposed through his affidavit evidence filed in this suit on 30.5.2003 and also P.W.1 examined on 20.9.2004 and got marked Ex.P.1 to P.10 and again P.W.1 deposed through his affidavit evidence filed on 20.6.2008 and P.W.1 got marked documents Ex.P.11 to P.20 on 19.12.2009. Hence, P.W.1 relying upon his oral evidence and additional chief examination filed in this suit and relying upon documents Ex.P.1 to P.20. P.W.1 prays to decree the suit filed for injunction relief and P.W.1 relied upon the following documents in this suit:-
Ex.P.1 is the deposition of Court Commissioner i.e., DDLR, Bangalore recorded in O.S. No.4261/1992 dated 17.7.2002, Ex.P.2 is the answers given by Court Commissioner to memo of Instructions filed by plaintiff dated 23.10.1999, Ex.P.3 is the answers given by Court 24 OS.8603/1999 Commissioner to memo of instructions given by defendants, Ex.P.4 is the tabulation sharing the situation of lands Sy.No. 41/7,44/4A.4B.4C.5A.5B.8 to 11, 45/A, 4B, 5B, 8A, 8B dated 23.10.1999 subjected buy Court Commissioner in O.S. No. 4261/1992, Ex.P.5 is the answers given by Court Commissioner to memo of instructions of plaintiffs in O.S. No.4261/1992 regarding holding of lands of different katha holders dated 23/10.1999, Ex.P.6 is the answers of Court Commissioner filed for para No.4 of Memo of instructions in O.S. No.4261/1992 filed by defendants dated 23.10.1999, Ex.P.7 is the sketch map prepared by Court Commissioner in respect of land Sy.No. 41/7 dated 23.10.1999, Ex.P.8 is the sketch map prepared by Court Commissioner in respect of land Sy.No. 45/A and other lands dated 23.10.1999, Ex.P.9 is the statement given by parties to O.S. No.4261/1992 before Court Commissioner on 14.7.1999 Court Commissioner defined commission work on that day to 7.8.1999, Ex.P.10 is the RTC extract of Sy.No.44/8 for the year 2000-2001-Plaintiff Smt. Venkatamma @ Pillamma 1.38 guntas katha No.74.23, Ex.P.11 is the tax paid receipt issued by C.M.C,Kengeri for 1996-2004, katha No.105/5 C-524, Ex.P.12 is the tax paid receipt dated 2.6.2005, Ex.P.13 is the tax paid receipt dated 6.2.1990, Ex.P.14 is the tax paid receipt dated 6.1.1990, Ex.P.15 is the tax paid receipt dated 6.10.1991, Ex.P.16 is the tax paid receipt dated 1.2.1996, Ex.P.17 is the tax paid receipt dated 14.1.1991, Ex.P.18 is the tax paid receipt dated 25 OS.8603/1999 8.3.1995, Ex.P.19 is the office copy of legal notice issued to Commissioner of BDA dated 30.1.2006 and Ex.P.20 is the acknowledgment given by BDA dated 30.1.2006.
11. The counsel appearing for defendant No.1 and 4 cross examined P.W.1, wherein P.W.1 admits that he has not filed any other suit except this suit and P.W.1 denied that prior to filing of the suit, the 1st defendant's society has formed layout in the land and P.W.1 admits that suit land Sy.No.44/8 and also deposed regarding boundaries of this suit lands and P.W.1 denied his knowledge regarding the land belongs to 1st defendant and its boundaries and P.W.1 denied that the status-quo order obtained against 1st defendant was vacated in the year 2002 and thereafter, 1st defendant's society has formed layout by forming 86 sites and allotted to its members and P.W.1 denied that the members of 1st defendant's society have constructed houses in the alleged sites and P.W.1 further denied the acquisition of the land by BDA through notification and P.W.1 stated that 1st defendant has formed a layout in land Sy.No.44/8 and P.W.1 clearly admits that 1st defendant's society has not encroached upon any of the portion of the suit land and P.W.1 stated that defendant No.4 tried to commit trespass in Sy.No.44/8. Hence, defendant No.4 is added in this suit and P.W.1 stated that abutting the schedule property, there are no other houses existed in land and P.W.1 denied that defendant No.4 has constructed residential house and he 26 OS.8603/1999 denied that in the vicinity of the building of defendant No.4, other 12 houses are in existence and P.W.1 denied that the land has been acquired by BDA for formation of Gnanabharathi layout and the said land has been converted into sites and allotted to beneficiaries and P.W.1 denied that defendant No.4 obtained site from BDA and after obtaining bank loan has constructed the house and P.W.1 denied that defendant No.4 has not encroached upon any land in Sy.No.44/8 and constructed any house and P.W.1 denied that BDA has acquired the property and he is not in possession of the suit land. P.W.1 admits that he has not issued any prior notice to BDA authority prior to filing of the suit and he also admits that he has filed some other cases against BDA in respect of Sy.No.44/8 and P.W.1 denied that Sy.No.44/8 is in possession of BDA authority.
12. Defendant No.1, 4 has given rebuttal evidence by filing affidavit evidence filed in lieu of examination-in-chief and it reveals from the evidence of D.W.1, wherein he has deposed that he has purchased site No.351 measuring 30 X 40 ft., allotted to him by BDA authority situated at Gnanabharathi layout, Kengeri Hobli,, Bangalore South Taluk and Deputy Secretary of BDA had executed sale deed and put him in possession of site No.351 by issuance of possession certificate and D.W.1 stated that site No.351 is formed in the land comprising of several survey numbers situated at 27 OS.8603/1999 Volagerehalli village and D.W.1 denied the alleged encroachment as stated by the plaintiff in Sy.No.44/8 and D.W.1 denied the evidence of the P.W.1 and on the contrary, D.W.1 stated that BDA authority acquired the land Sy.No.44/8 by the Special Tahasildar/Land Acquisition Officer attached to BDA by following the provision of Land Acquisition Act and hence, D.W.1 stated that he has constructed residential premises in site No.351 allotted by BDA and in support of this evidence, D.W.1 got marked documents Ex.d.1 to D.6 consisting of following documents namely sale deed dated 10.7.2001, and tax paid receipts and loan taken by defendant No.4 for construction of house from Canara Bank, Majestic Branch, Bangalore and also sanctioned plan and notification dated 19.1.1994. Hence, D.W.1 relying upon his oral evidence coupled with Ex.D.1 to D.6, they are as follows:-
Ex.D.1 is the certified copy of sale deed dated 10.7.2001 in respect of site No.351 executed by Deputy Secretary of BDA in favour of defendant No.4, Ex.D.2 is tax paid receipt dated 14.3.2009, Ex.D.3 is certificate issued by Assistant Revenue Officer, Kengeri division, BBMP dated 15.2.2000 in favour of defendant No.4, Ex.D.4 is the site plan of defendant No.4 approved by C.M.C, Kengeri dated 5.12.2005, Ex.d.5 is the extract of Housing Loan availed by defendant No.4 from Canara Bank, Majestic Branch, Bangalore 1.4.2008 to 31.3.2009, 28 OS.8603/1999 Ex.d.6 is the Gazette notification in No.HUD 683, 91 dated 19.1.2014 and prays to dismiss the suit filed by the plaintiff.
13. The counsel for plaintiff cross examined D.W.1, wherein D.W.1 denied his knowledge about the total extent of land acquired by BDA for formation of Gnanabharathi layout and he denied the suggestion that Sy.No.44/8 was allotted to the share of Narayanappa in the partition of the year 1944 and D.W.1 denied that BDA authority has not acquired Sy.No.44/8 and D.W.1 denied that inspite of court order, he has encroached upon the land of the plaintiff and D.W.1 denied that his house constructed will not come in Sy.No.44/8.
Hence, considering the cross-examination of D.W.1, wherein plaintiff counsel not elicited any worth admissions in order to discard the evidence of D.W.1.
14. Defendant No.3 has examined witness D.W.2 namely R.Jayanthi D/O Late B.Ramappa, who was working as Sheristedar in BDA in this suit and D.W.2 filed her affidavit evidence and also got marked Ex.D.7 to D.10 documents, but D.W.2 not appeared subsequently in this suit and her evidence is discarded in view of the memo filed by defendant No.3's counsel and again defendant No.3 is examined its official working as Tahasildar, Grade-II as D.W.3 , who has filed his affidavit evidence filed in lieu of examination-in-chief under Order 18 Rule 4 of CPC and D.W.3 in his affidavit evidence 29 OS.8603/1999 deposed that Sy.No.44/8 of Volagerehalli village, Kengeri Hobli,, Bangalore South Taluk was acquired by BDA authority under preliminary notification bearing No. BDA/ALAO/A3/139/88-89 dated 19.1.1989 and final notification bearing No. HUD/483/MNX/91 dated 19.01.1994 for the purpose of formation of layout at Gnanabharathi layout and pursuant to the land acquisition proceedings, award was passed on 17.10.1998, which was approved by the Deputy Commissioner, Land Acquisition Bangalore attached to BDA on 27.1.1999 and possession of entire extent of 2 acres 33 guntas of land was taken on 24.3.1999 and handed over to Engineering Section for formation of sites and hence, D.W.3 stated that defendant No.3 is in possession of the entire land Sy.No.44/8 and D.W.3 also stated that after taking over possession by BDA, the gazette notification was published as required under Sec. 16(2) of Land Acquisition Act under notification No.ALAO/A-7/T-58/2000-2001 dated 5.8.2000 for public information. Hence, D.W.3 denied the right, title and interest of plaintiff over the land Sy.No.44/8 and D.W.3 relied upon Ex.D.11, the authorization letter given to depose in this case and also D.W.3 identified Ex.D.7 to D.10, which are marked already through D.W.2 , again Ex.D.7 to D.10 in the evidence of D.W.3 and documents Ex.D.7 to D.11 are as under:-
Ex.D.7 is the copy of final notification dated 19.1.1994 gazetted dated 3.3.194 at Sl.No.277 of Sy.No.44/8 dry land 2.33, 30 OS.8603/1999 Ex.D.8 is the award under Sec. 11 of Land Acquisition Act of Additional. LAO, BDA, Bangalore dated 17.10.1998 in LAC Case No. 277/1993-1994 in respect of Sy.No.44/8, 2.33 -03-2.30 dated 27.1.1999 and award cost paid by Deputy Commissioner, LAC, BDA, Ex.D.9 is the Mahazar of Sy.No.44/8 (LA) dated 24.3.1999 under Sec. 16 of Land Acquisition Act and Ex.D.10 is the Karnataka Gazette copy dated 8.2.2001 issued under Sec. 16(2) of Land Acquisition Act in respect of Sy.No.44/8 of Volagerehalli in LAC No.277/93-94.
Hence, D.W.3 by his oral evidence and documents Ex.D.7 to D.10, wherein D.W.3 prays to dismiss the suit.
15. The learned counsel for the plaintiff cross examined D.W.3, wherein D.W.3 stated that he is working a Tahasildar, Grade-II in BDA since 1.1.2014 and he deposed in this suit on the basis of records available in BDA and D.W.3 stated that preliminary notification was notified on 19.1.1999 and thereafter, final notification was notified on 19.1.1994 and preliminary notification and final notification are pertaining the land Sy.No.44/8 of Volagerehalli village and he admits that Smt. Venkatamma @ Pillamma is the kathedar of Sy.No.44/8 and D.W.3 denied that BDA has not taken possession of the land belongs to plaintiff and he denied that plaintiffs are residing in the schedule property by constructing house and D.W.3 admits that plaintiff is not signatory to Ex.D.9 mahazar and D.W.3 denied that defendant No.3 BDA has not obtained possession of Sy.No.44/8 from plaintiff by following prescribed 31 OS.8603/1999 procedure contemplated under Land Acquisition Act and on the contrary, D.W.3 stated that defendant No.3 acquired Sy.No.44/8 and handed over possession to Engineering section and D.W.3 denied that Ex.D.7 to D.14 are created documents for the purpose of this suit and he is deposing falsely in respect of acquisition proceedings of suit land. Hence, on considering the evidence of D.W.3, wherein plaintiffs have not elicited any admissions through D.W.3, on the contrary, D.W.3, who is a Government Official working in defendant No.3 office deposed on the strength of documents available and he relied upon Ex.D.7 to D.10.
16. On appreciation of oral evidence and documentary evidence placed by the parties in this suit, wherein the plaintiffs have relied upon documents Ex.P.1 to P.9 consisting of deposition of Court Commissioner, answer of Court Commissioner to memo of instructions report, answers given by the Court Commissioner for the memo of instructions filed by the plaintiff and defendant in O.S. No.4262/1992 and also sketch map prepared by the Court Commissioner, wherein one E.Prakash, Deputy Director of Land Records, Court Commissioner examined as C.W.1 in O.S. No. 4262/1992, wherein that suit was filed by one Sreenivasa Murthy and others against the present plaintiff Smt. Venkatamma @ Pillamma and others and on perusal of these Ex.P.1 to P.8, wherein these documents will not comes to the aid of plaintiff and P.W.1 also relied upon Ex.P.10 RTC extract for the year 2000-2001 , wherein 32 OS.8603/1999 Col.No.12 of RTC Ex.P.10 shows the bank and in Col.No.9, the name of deceased plaintiff Smt. Venkatamma @ Pillamma shows to the extent of 1 acre 33 guntas under katha No.74.23 and Ex.P.11 to P.20 are issued by C.M.C Kengeri in the name of plaintiff No.1(a) showing that there is constructed house in Sy.No.44/8, but the extent of house is not disclosed by plaintiff No.1(a) in the self declaration form submitted by him to C.M.C, Kengeri, Ex.P.12 to P.18 and P.20 are the tax paid receipts and Ex.P.19 is the notice issued to the Commissioner of BDA dated 30.1.2006. On the contrary, defendant No.4 has relied upon Ex. D.1 to D.6, wherein these documents shows that defendant No.4 has purchased site No.351 from BDA under sale deed dated 10.7.2001 and he has constructed residential building as per the sanctioned plan Ex.D.4 and he is paying taxes to the property and as per Ex.D.6 final notification issued on 19.1.1994, wherein Sy.No.44/8 has been acquired by BDA and considering the evidence of D.W.3, wherein he relied upon Ex.D.7 is the final notification issued in HUD/483/MNX/91 dated 19.1.1994 and Ex.D.8 is the award passed in land acquisition case No.277/1993-1994 dated 17.10.1998 and award is approve by Deputy Commissioner, Land Acquisition BDA, Bangalore dated 27.1.1999 and Ex.D.9 is the notification issued under Sec. 16(2) of Land Acquisition Act regarding taking over of possession on 24.3.1999 by BDA authority and Ex.D.10 is the Gazette notification dated 8.2.2001 of Karnataka Gazette regarding publication of 33 OS.8603/1999 passing of award in LAC No.279/1993-1994 dated 24.3.1999. Hence, from perusal of the documents produced on record, wherein P.W.1 admits in his cross-examination that 1st defendant has not encroached any portion of land in Sy.No.44/8. Hence, in view of this admission, the case made out by the plaintiff has to be rejected regarding alleged encroachment and on the contrary, as per Ex.D.7 to D.10, BDA has acquired Sy.No.44/8 entire extent measuring 2 acres 33 guntas by following procedure under Land Acquisition Act and defendant No.4 has purchased site bearing site No.351 formed by BDA authority and purchased said site under sale deed Ex.D.1. Ex.D.7 is in respect of final notification in No HUD 483/MNX/91 dated 19.1.1994 , wherein Sy.No.44/8 at Sl.No.277 of this Gazette notification, wherein entire extent of 2 acres 33 guntas and part of katha of 3 guntas has been acquired under this final notification issued under the Land Acquisition Act and as per Ex.D.8 the Additional Land Acquisition Officer attached to BDA had passed award in respect of Sy.No.44/8, which is dry land in L.A.C No.277/1993-94 under Sec. 11 of Land Acquisition Act on 17.10.1998, wherein the BDA, who is acquiring authority of Sy.No.44/8 of Volagerehalli has issued publication of preliminary notification under Sec. 17(5) of BDA Act 1976 and notices were served on kathdar and anubhavdar of Sy.No.44/8 on 16.3.1989 and 20.3.1989 and also issued paper publication of preliminary notification in Kannada Prabha on 1.4.1989 and 34 OS.8603/1999 in Deccan Herald dated 1.4.1989 to treat this public notices as notice under Sec. 17(5) of BDA Act and Land Acquisition Officer attached to BDA has passed general award in respect of Sy.No.44/8 vide award dated 17.10.1998 and also in Ex.D.8, the spot inspection was conducted by the Land Acquisition Officer and valued the structures existed in the land on the date of inspection and drawn mahazar and also noted the existence of standing trees in Sy.No.44/8 and passed award, which was confirmed by Deputy Commissioner, Land Acquisition, BDA, Bangalore order dated 27.1.1999 passed in proceedings No. BDA /Deputy Commissioner(1A) /Award/183/98-99 and defendant No.3 had also issued separate notification in respect of taking over possession of Sy.No.44/8 under Sec. 16(2) f Land Acquisition Act as per Ex.D.9 and also passing award has been notified and duly published in Karnataka State Gazetee dated 8.2.2011 as per Ex.D.10. The plaintiff, who has filed this suit seeking the relief of permanent injunction and filed the suit on 23.11.1999 by that time, the Sy.No.44/8 was already acquired by the BDA Authority by following due procedure as contemplated under the provision of Land Acquisition Act, wherein the preliminary notification and final notifications were issued as provided under Land Acquisition Act and final notification was issued on 19.1.1994 and thereafter, award has been passed in LAC No.277/1993-1994 dated 17.10.1998, which was confirmed by Deputy Commissioner, Land Acquisition Officer, BDA, 35 OS.8603/1999 Bangalore on 27.1.1999 and possession was taken on 24.3.1999 and this suit was filed on 23/24.3.1999 itself, wherein as on the date of presentation of the plaint by the plaintiff, Sy.No.44/8 was already vested in the acquiring body i.e., in favour of Government and plaintiff has suppressed the fact of acquisition proceedings initiated in respect of suit land Sy.No.44/8 of Volagerehalli village and plaintiff has also suppressed the passing of award and taking over Sy.No.44/8 by LAO attached to BDA and hence, the deceased plaintiff in her pleadings has suppressed the material facts regarding acquisition of land.
17. The counsel appearing for defendant No.1 and 4 has relied upon the following 3 decisions in support of his arguments:-
1) AIR 2008 Karnataka page 117 ( Commissioner B.D.A Vs. M/S Additional. Housing Industries Ltd., and others) "Specific Relief Act (47 of 1963), S. 34-Suit for declaration as absolute owners and consequential injunctions-plaintiffs whether in settled possession of schedule lands-proof schedule lands are divested from owner under acquisition proceedings and vested with acquiring authority (BDA)-Registered sale deeds in favour of plaintiff are subsequent to vesting of schedule lands in favour of acquiring authority (BDA) -Plaintiff has not derived any title and interest in schedule lands-possession of plaintiff by virtue of said 36 OS.8603/1999 alleged sale deeds is not lawful-Suit liable to be dismissed.
2. AIR 2007 Karnataka 40 (Smt. Nirmala Vs. Naveen Chhaggar and another);
" Specific Relief Act (47 of 1963).S.38- Suit for declaration of possession and injunction- plaintiff subsequently giving up relief of declaration and confining suit to mere injunction-pleadings and evidence showed that plaintiff which are snot in possession of suit property on date of institution of suit -
Rather documents showed that defendant was in possession -Suit for bare injunction, not maintainable-Dismissal of suit, however, does not amount to a positive decree in favour of defendant which defendant execute, but is only for retaining existing state of affairs."
3) AIR 2008 Supreme Court 1275 ( Sri. Thimmaiah Vs. Shabira and others);
" Specific Relief Act (47 of 1963).S.38- Permanent injunction -Suit by plaintiff to restrain defendants from interfering with peaceful possession and enjoyment of the property- Finding by Trial court that plaintiffs failed to prove their possession - Grant of relief of plaintiff by High Court without considering effect of these findings and without recording any finding regarding possession-illegal."37 OS.8603/1999
And counsel appearing for 3rd defendant has relied upon following decision reported in ILR 2007 Karnataka page 5121 ( M.B.Bettaswamy Vs. The Commissioner , BDA and another) "Code of Civil Procedure, 1908, Section.96 read with Order 41 Rule 1 -Regular First Appeal -Suit for possession and injunction-
Challenge to dismissal of suit-plaintiffs assertion that he is in settled position of the suit schedule property- Threat of dispossession by the respondent BDA-Suit land was the subject matter of acquisition-
Formation of layout-HELD, when the land is acquired and the possession of taken, the land vests in the State. Even if the plaintiff puts up unauthorized construction, he does not have any legal right to remain in possession based on the illegal structure and it cannot be termed as a settled possession -A person, who is unauthorized squatting on the public property has no right to remain in possession. However, the Trial court extending the sympathy, directed the BDA to issue notice and evict the plaintiff in accordance with law. Such Sympathy will harm the public interest, as there are several persons legally waiting for lawful allotment- FURTHER HELD. Admittedly the plaintiff has not proved his title nor proved his right to remain in possession -Dismissal of suit is justified."
And counsel for defendant No.3 relying upon this decision in the case of M.B.Bettaswamy Vs. The Commissioner , BDA and another reported in the above decision contended that 38 OS.8603/1999 defendant No.3 has acquired Sy.No.44/8 by following procedure as contemplated under Land Acquisition Act 1894 and taken possession of entire land measuring 2 acres 33 guntas by issuing preliminary notification and final notification and also passed award and notified the same in official gazette and as such, the suit for bare injunction is not tenable, wherein already possession is vested with Government i.e., in the acquiring body BDA, Bangalore and Sy.No.44/8 and other lands of Volagerehalli village have been acquired for the purpose of formation of Gnanabharathi layout and hence, suit is barred under Sec. 9 of CPC and also as per Sec.54 of Land Acquisition Act. After considering the citations referred by counsel for defendant No.1 and 4 and counsel for defendant No.3, wherein the suit land Sy.No.44/8 of Volagerehalli village has been acquired by Additional LAO attached to BDA, Bangalore as per documents Ex.D.7 to D.10 and plaintiffs have suppressed the acquisition of Sy.No.44/8 and also suppressed the material fact of LAC No.277/93-94 and passing of award and plaintiffs suit filed for bare injunction relief is not maintainable and this suit is barred by under Sec. 9 of CPC and also once the land is vested in Government, civil court seizes its jurisdiction to entertain the suit to grant any relief as prayed by the plaintiff and as such, in my opinion, in view of Ex.D.7 to D.10, Sy.No.44/8 is acquired by BDA for formation of Gnanabharathi layout and already possession has been taken over by the Government 39 OS.8603/1999 and as such, I hold that the plaintiffs are not in possession of the suit land as on the date of presentation of plaint in this suit and as such, the suit itself is not maintainable filed for bare injunction relief and whereas defendant No.4 had purchased the site No.351 from BDA and has constructed house and plaintiffs have not produced any documents to show that they have lodged police complaint alleging interference and encroachment by the defendant No.1 to 4 dated 11.11.1999 and 12.11.1999 and on the contrary, P.W.1 himself admits that defendant No.4 has not encroached any portion of land and plaintiff initially filed suit against defendant No.1 i.e., Intelligence Bureau Officer's House Building Co-operative Society Ltd., and thereafter impleading defendant No.2 to 4 and there is no material pleadings appearing against defendant No.3 and 4 regarding obstruction and interference and plaintiff has relied upon Ex.P.1 to P.8, wherein Ex.P.1 to P.8 are not acceptable documents, wherein the suit land Sy.No.44/8 was already acquired as per the provision of Land Acquisition Act and possession is vested with Government and it was also notified as required under Sec. 16(2) of Land Acquisition Act. On perusal of the interim order passed by this court, wherein I.A.No.1 filed by the plaintiff under Order 39 Rules 1 and 2, wherein this court granted status-quo order, which was extended from time to time in favour of plaintiff in respect of suit schedule property and interim application filed under Order 39 Rules 1 and 2 came to be dismissed on 40 OS.8603/1999 19.1.2002 and status-quo order granted in this suit stands vacated and interim application filed under Order 39 Rule 4 of CPC filed by the defendant to vacate the status-quo order has been allowed on19.1.2002 and it appears that plaintiffs have filed RFA before the Hon'ble High Court against order dated 19.1.02 before Hon'ble High Court, wherein MFA.NO.1001/02 came to be rejected and there is status-quo order, which has been passed in MFA No.1001/2002. However, Hon'ble High Court has observed in MFA order that the trial court shall not influence on the order passed in MFA while disposing of the suit on merits and this court again passed interim order on 11.11.2002 relying upon the RTC extract produced by the plaintiff for the year 2001, wherein the name of deceased plaintiff as per this RTC extract shows that the deceased plaintiff Smt. Venkatamma @ Pillamma was in possession of 1 acre 38 guntas and since the defendants have not contested the matter and interim application filed under Order 39 Rules 1 and 2 was again filed by the plaintiff on 6.8.2002 and this court passed status-quo order to limited extent relying upon the MFA order passed in MFA No.1001/2002 dated 1.7.2002 and directed both the parties to maintain status-quo. But entries in RTC of the year 2001-2002 though having presumptive value regarding possession under Sec. 133 of Land Reforms Act 1974, but the said presumption is rebuttal presumption and now on merits, the defendants have proved that entire Sy.No.44/8 has been acquired by 41 OS.8603/1999 BDA authority for the purpose of formation of Gnanabharathi Layout and Land acquisition proceedings were concluded and possession of the said land is already taken over on 24.3.1999 and on that day itself, the suit has been filed, wherein plaintiff ought to have filed writ petition challenging the acquisition proceedings before the Hon'ble High Court under writ jurisdiction under Article.226 of the constitution, but plaintiffs have filed this bare injunction suit and as such, Civil Court seized its jurisdiction to entertain the suit filed for bare injunction relief and hence plaintiffs have utterly failed to prove their lawful possession in respect of Sy.No.44/8 and also failed to prove encroachment made by defendant No.1 and 2 and defendant No.4 and also plaintiffs failed to prove the alleged obstruction in respect of Sy.No.44/8. Hence, once the suit is held to be not maintainable filed for bare injunction relief and as such, I hold that plaintiffs have failed to prove Issue No.1 and 2 as against defendant No.1 to 4. Defendant No.1 to 4 have proved that suit is not maintainable in view of acquisition f Sy.No.44/8 by defendant No.3. Accordingly, Issue No.1 and 2 are answered in negative against plaintiff and Issue No.4 is answered in affirmative in favour of defendant No.1 and 4.
18.Issue No.3: Defendant No.3 in its written statement contended that the suit is not maintainable for want of statutory notice under Sec. 64 of BDA Act 1976. Admittedly, plaintiffs have not issued any legal notice prior to filing of the 42 OS.8603/1999 suit against statutory body i.e., BDA, wherein suit was filed only against 1st defendant and thereafter, defendant No.3 and 4 are added as per application filed in I.A.No.21 and 22, wherein the plaintiffs have filed I.A.No.21 and 22 seeking to implead Commissioner, BDA, Bangalore as party/defendant No.3 and defendant No.4 Sri. K.M.Siddaraju son of Mooguraiah, and I.A.No.22 was filed under Sec. 94(c) and (e) read with Sec.151 of CPC restraining the impleading defendants from alteration by digging foundation by putting up any construction and to maintain status-quo order as per order dated 11.11.2002 in the suit schedule property. But plaintiffs have not filed any application along with I.A.No.21 and 22 under Sec. 64 of BDA Act claiming exemption of statutory notice defendant No.3 and hence, as per Sec.64 of BDA Act in order to institute the suit against BDA, the notice is mandatory as per BDA Act 1976 and though plaintiffs have relied upon the notice, which is marked as per Ex.P.2, wherein this notice was issued as per Ex.P.19 dated 30.3.2006 and Ex.P.19 is issued to the Commissioner, during pendency of the suit on 30.1.2006 , but plaintiffs have not filed any impleading application at the inception of the suit seeking for dispensation of issuing of mandatory notice under Sec. 64 of BDA Act and this notice Ex.P.19 is issued after lapse of 7 years from the date of filing the suit and at least the plaintiffs ought to have filed interim application seeking for dispensation of statutory notice when they have filed impleading application in 43 OS.8603/1999 I.A.No.21. Hence, the contention of defendant No.3 has taken in the written statement that the suit filed by the plaintiffs without issuing of mandatory notice under Sec. 64 of BDA Act, which is also not maintainable for want of issuance of statutory notice and on this count also plaintiffs suit is not maintainable. The plaintiffs are well aware of the acquisition of land Sy.No.44/8 of Volagerehalli village, Kengeri Hobli,, Bangalore South Taluk, when notifications were issued by issuance of preliminary notification much prior to institution of the suit, but plaintiffs have not issued statutory notice when suit was filed on 24.3.1999 and hence, the defendant No.3 has proved that the present suit filed by the plaintiff is also not maintainable for want of statutory notice issued by the plaintiff. Hence, Issue No.3 is answered in affirmative.
19. Issue No.5: This issue is framed in respect of relief prayed by the plaintiff, wherein plaintiffs have sought for the relief of permanent injunction and the relief of mandatory injunction against defendants, but after appreciation of the oral and documentary evidence placed on record by the parties in this suit, wherein it is proved fact by documentary evidence as well as oral evidence, wherein the BDA has acquired Sy.No.44/8 of Volagerehalli village, Kengeri Hobli,, Bangalore South Taluk in duly instituted land acquisition proceedings and Sy.No.44/8 entire extent measuring 2 acres 33 guntas has been acquired in response to Land Acquisition 44 OS.8603/1999 Act 1894 and defendant No.3 had followed the procedure for acquisition of land existing structures in the said land and as such, plaintiffs have utterly failed to prove their possession as on the date of suit in respect of Sy.No.44/8. On the contrary, as on the date of presentation of plaint, the suit land vested in possession of Government as it is acquired land in view of Land Acquisition Act and hence, plaintiffs have utterly failed to prove the alleged obstruction and interference by the defendant and also alleged encroachment by defendant No.1 and 4 in Sy.No.44/8. Hence, the suit filed by the plaintiff held to be not maintainable filed for bare injunction relief and as such, plaintiffs are not entitled for any relief of permanent injunction or the relief of mandatory injunction sought for. The plaintiffs have to seek their remedy to obtain compensation amount for the acquisition of land by approaching the reference quoted as per Sec. 18 of Land Acquisition Act and also plaintiff seek enhanced compensation amount by filing necessary proceedings against the acquiring body and with these observations, the suit filed by the plaintiffs for injunction relief is not maintainable and accordingly, Issue No.5 is answered in negative.
20. Issue No.6: In view of my findings on Issue No.1 to 5 and for the reasons and discussions made on Issue No.1 to 5, wherein the suit filed by the plaintiff deserves to be dismissed 45 OS.8603/1999 and in the facts and circumstances, there is no order as to costs. Hence, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is dismissed without any order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 21st day of January , 2015.} (S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. S.Krishnappa List of documents exhibited for plaintiff:-
Ex.P.1 Deposition of Court Commissioner i.e., DDLR, Bangalore recorded in O.S. No.4261/1992 dated 17.7.2002 46 OS.8603/1999 Ex.P.2 Certified copy of answers given by Court Commissioner to memo of Instructions filed by plaintiff dated 23.10.1999, Ex.P.3 Certified copy of answers given by Court Commissioner to memo of instructions given by defendants, Ex.P.4 Certified copy of the tabulation sharing the situation of lands Sy.No. 41/7,44/4A.4B.4C.5A.5B.8 to 11, 45/A, 4B, 5B, 8A, 8B dated 23.10.1999 subjected by Court Commissioner in O.S. No. 4261/1992, Ex.P.5 Certified copy of the answers given by Court Commissioner to memo of instructions of plaintiffs in O.S. No.4261/1992 regarding holding of lands of different katha holders dated 23/10.1999, Ex.P.6 Certified copy of answers of Court Commissioner filed for para No.4 of Memo of instructions in O.S. No.4261/1992 filed by defendants dated 23.10.1999, Ex.P.7 Certified copy of sketch map prepared by Court Commissioner in respect of land Sy.No. 41/7 dated 23.10.1999, Ex.P.8 Certified copy of sketch map prepared by Court Commissioner in respect of land Sy.No. 45/A and other lands dated 23.10.1999, 47 OS.8603/1999 Ex.P.9 Certified copy of statement given by parties to O.S. No.4261/1992 before Court Commissioner on 14.7.1999 Court Commissioner defined commission work on that day to 7.8.1999, Ex.P.10 RTC extract of Sy.No.44/8 for the year 2000-2001-Plaintiff Smt. Venkatamma @ Pillamma 1.38 guntas katha No.74.23 Ex.P.11 Tax paid receipt issued by C.M.C,Kengeri for 1996-2004, katha No.105/5 C-524 Ex.P.12 to P.18 Receipts for having paid tax dated 2.6.2005, 6.2.1990, 6.1.1990,
6.10.1992, 1.2.1996, 14.1.1991 and 8.3.1995.
Ex.P.19 Office copy of legal notice issued to
Commissioner of BDA dated
30.1.2006
Ex.P.20 Acknowledgment given by BDA dated
30.1.2006
List of witnesses examined for defendant:
D.W.1 Sri.Siddaramu
D.W.2 R.Jayanthi
D.W.3 Sri.Basavaraja.N
48 OS.8603/1999
List of documents exhibited for defendants :-
Ex.D.1 Certified copy of sale deed dated
10.7.2001 in respect of site No.351
executed by Deputy Secretary of BDA
in favour of defendant No.4,
Ex.D.2 Tax paid receipt dated 14.7.2009
Ex.D.3 Certificate issued by Asst Revenue
Officer, BBMP, Knegeri sub division,
Bangalore in favour of K.M.Siddaraju,
defendant No.4
Ex.D.4 Site plan of defendant No.4 approved
by C.M.C, Kengeri dated 5.12.2005
Ex.D.5 Extract of Housing Loan availed by
defendant No.4 from Canara Bank,
Majestic Branch, Bangalore 1.4.2008
to 31.3.2009
Ex.D.6 Gazette notification in No.HUD 683,
91 dated 19.1.2014
Ex.D.7 Copy of final notification dated
19.1.1994 gazetted dated 3.3.194 at
Sl.No.277 of Sy.No.44/8 dry land 2.33
Ex.D.8 The award under Sec. 11 of Land
Acquisition Act of Additional. LAO,
BDA, Bangalore dated 17.10.1998 in
LAC Case No. 277/1993-1994 in
respect of Sy.No.44/8, 2.33 -03-2.30
dated 27.1.1999 and award cost paid
by Deputy Commissioner, LAC, BDA,
49 OS.8603/1999
Ex.D.9 Mahazar of Sy.No.44/8 (LA) dated
24.3.1999 under Sec. 16 of Land
Acquisition Act
Ex.D.10 Karnataka Gazette copy dated
8.2.2001 issued under Sec. 16(2) of
Land Acquisition Act in respect of
Sy.No.44/8 of Volagerehalli in LAC
No.277/93-94.
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
50 OS.8603/1999
51 OS.8603/1999