Bangalore District Court
Sri.Nayemulla Khan vs The Commissioner on 18 January, 2017
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 18th day of January 2017
O.S.No.6814/2011
PLAINTIFFS : 1. Sri.Nayemulla Khan
S/o Late Kareem Khan
Aged about 78 years
At present
R/at No.38, 60 Feet Road
Bhoopasandra, Sanjay Nagar
New Extn.
Bangalore
2. Sri.Habeebulla Khan
S/o Late Kareem Khan
Aged about 72 years
R/a No.2387/A
Sanjeevanagar
Behind Thums Up Factory
Kodigehally Gate
Bangalore-560 024
Rep. by their registered
General Power of Attorney Holder:
Sri.Manoj Kumar
S/o Omprakash
Aged about 60 years
R/at No.D-2
Live & Style 12, Pottery Road
Fraser Town
2 OS No.6814/2011
Bangalore
(By Sri.M.S., Advocate)
V/s.
Defendant/s : The Commissioner
Bangalore Development Authority
T.Chowdaiah Road
Kumara Park West
Bangalore-20
(By Sri.N.S., Advocate)
Date of Institution of the Suit: 17.09.2014
Nature of the suit
(Suit on Pronote, suit for Permanent injunction
declaration & possession, suit
for injunction)
Date of commencement of 06.02.2013
recording of evidence:
Date on which the Judgment 18.01.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
02 04 01
JUDGMENT
The plaintiffs filed this suit for permanent injunction restraining the defendant from interfering with the suit schedule property of him, direct the defendant to construct the compound wall at the cost of the defendant by obtaining a 3 OS No.6814/2011 approved plan by the Expert Architect Engineer, to award costs of the suit and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of the vacant site measuring 2023.5 sq.ft. (out of 9143 sq.ft.) bearing old Site NO.2/1, H.L.No.2, Khatha No.117/B, New Municipal No.2/1, 4th Cross, Forty Feet Road, Bhoopasandra New Extension, Ward No.100 Bangalore bounded as under:
East by : Bangalore Development
Authority Property
West by : Abdul Bari Rafath Site
North by : Property belong to Ashfaq
LAhmed
South by : Private property
3. The plaint averments in brief are as under:
The plaintiffs are the lawful and absolute owners of the suit schedule property who had purchased the 4 OS No.6814/2011 same for a valid sale consideration from their lawful vendor by virtue of registered sale deed dated 12.01.198. The plaintiff is in peaceful possession and enjoyment over the suit schedule property.
The brother of the plaintiffs one Mr.Habeebulla Khan S/o Late Mr.Kareem Khan also purchased landed property adjacent to the property of the plaintiffs bearing Site No.1, House List No.1, Village Panchayath (V.P.), Khatha No.117/B, measuring 5876 sq.ft. by virtue of a registered sale deed dated 12.01.1998. Item No.1 and 2 totally measuring 5876 sq.ft. thus the total land purchased by the plaintiffs and his brother Habeebulla Khan under two sale deeds is 9143 sq.ft.
The brother of the plaintiffs Mr.Habeebulla Khan and the plaintiffs jointly executed a registered General Power of Attorney on 16.8.2003 in favour of one Mr.Manoj Kumar authorizing him to sell and execute the entire extent of 9143 sq.ft. and to do other acts and deeds as stated in the General Power of Attorney. 5 OS No.6814/2011
Since the schedule properties of the brother of the plaintiffs Mr.Habeebulla Khan located adjacent to each other the plaintiffs filed application under Sec. 147(3) rule (2) sub rule 8 & 9 before the BBMP, Sanjaynagar Sub-Division to issue a common BBMP.No.1, Bhoopasandra New Extension, 4th Cross, Sanjeevanagar, BBMP. Ward No.10 to the entire extent of 9143 sq.ft.
The plaintiffs executed a registered sale deed in favour of one Mr.Ashfaq Ahmed S/o M.Basheer Ahmed an extent of 2262 feet out of the total extent of 9143 sq.ft. at the north-east side of the Schedule 9143 sq.ft.
The plaintiffs had sold out a portion measuring to an extent of 2262 sq.ft. out of the entire extent of 9143 sq.ft. to one Mr.Sharfuddin Kandevara S/o M.A.Mayyabdi on 24.09.2003 under a registered sale deed No.22153/2003-04.
The plaintiffs also sold out an extent measuring 2595.5 sq.ft. located at the south-west of the entire 6 OS No.6814/2011 extent of 9143 sq.ft. in favour of one Mr.Abdul Bari Rafat S/o Late Abdul Subhan by virtue of a registered sale deed No.36240/2003 dated 18.12.2003. The plaintiffs and his brother totally sold out an extent measuring 7119 sq.ft. and retained for himself an extent measuring 2024 sq.ft. at the south-east side of the entire extent of 9143 sq.ft.
The plaintiffs had submitted sketch being correctly surveyed and demarked, the entire extent of 9143 sq.ft. and the total extent of land measuring 7119 sq.ft. under three registered sale deeds and the extent remain unsold extent of vacant land along with compound wall measuring 2024 and is in peaceful possession of the plaintiffs, which his the suit schedule property.
In the land sold out by the plaintiffs the purchasers of the land obtained residential plan and constructed the residential houses by paying upto date tax to BBMP and in peaceful possession and enjoyment over the respective portion of the land.
7 OS No.6814/2011
The defendant without any prior notice or any intimation without proper identification of the property and on the self imagination stating that the plaintiffs put compound wall including the land belonging to the defendant, which was acquired by the defendant for a public purpose, all of a sudden on 19.06.2011 came to the spot along with demolition squad and demolished the compound wall built up on the suit schedule property and damaged the park by cutting and removing the costly beauty plants planted by the plaintiffs on the suit schedule property.
The plaintiffs along with the support of neighbour resident's and well wishers resisted the defendant from further demolition and obstruction. The defendant went away from the spot stating that they will come again after serving the proper notice and order.
The plaintiffs intimated the jurisdiction police station about the illegal act of the defendant, but the police not at all come to the rescue of the plaintiffs and 8 OS No.6814/2011 stated that it is a civil dispute and get the remedy resolved in a civil court.
The plaintiffs being aggrieved the illegal act of the defendant without any alternate or efficacious remedy approached this court. Hence, prayed to decree the suit.
4. The defendant appeared before the court through his counsel and filed written statement contending that the suit of the plaintiffs is false, frivolous, vexatious, misconceived and the same is not at all maintainable either in law or on facts. The plaintiffs has not issued notice as contemplated under Section 64 of the BDA Act. BDA has acquired several lands in Bhoopasandra for formation of "Further extension of Rajamahal II Stage (Gokul II Stage) Layout" and Preliminary Notification has been issued vide Notification NO.A3 PR(S)3/SLAO/BDA/77-78 and it was published in Karnataka Gazette dated 19.1.1978 and Final Notification has been issued vide No.HUD-310-MNX-82 dated 9 OS No.6814/2011 26.12.1982 and it was published in Karnataka Gazette dated 6.1.1983.
Plaint does not disclose the specific Sy.No. of the Bhoopasandra and does not stated in which part of the Sy.No. these suit schedule property exists.
The said acquisition is neither quashed nor withdrawn. The said acquisition is not challenged by the notified kathedar or any person claiming under him. The plaintiffs are not the kathedar. The plaintiffs do not have proper title.
Sy.No.57 of Bhoopasandra was acquired by Bangalore Development Authority for formation of "Further extension of Rajamahal II Stage (Gokul II Stage) Layout" and Preliminary Notification has been issued vide Notification No.A3 PR(S)3/SLAO/BDA/77-78 and it was published in Karnataka Gazette dated 19.1.1978 and Final Notification has been issued vide No.HUD-310-MNX-82 dated 26.12.1982 was published in Karnataka Gazette dated 6.1.1983. Award has been passed and possession of the land in Sy.No.57 of Bhoopasandra has been taken by Bangalore Development 10 OS No.6814/2011 Authority on 13.10.1986 under Section 16(2) of LA Act. The defendant authority has in possession and enjoyment of the acquired land as an absolute owner including the suit schedule property since from the date of acquisition. The acquired land has been handed over to the Engineering Section of the defendant authority for the formation of layout. Notice Under Section 9,10,11 of LA Act were issued and served. By virtue of the acquisition for public purpose in accordance with law the above said land including the suit schedule property stands vested in the defendant authority free from all encumbrances. Therefore, the plaintiffs were not in possession and enjoyment of the said land as on the date of filing of this suit or prior to it. Plaintiffs have not at all in possession has deliberately suppressed all these facts and they have not approached this court with clean hands. Hence, the plaintiffs are not entitled for any equitable relief of injunction against the defendant, who is the true owner in lawful possession and enjoyment.
11 OS No.6814/2011
The BBMP is not authorized person to issue number to the property since the suit schedule property is already acquired by Bangalore Development Authority. It is Bangalore Development Authority's property. BBMP is not proper authority to collect tax for schedule property. The suit schedule property is vacant land is in peaceful possession and enjoyment of the defendant authority free from all encumbrances since from the date of acquisition plaintiffs does not get any right, title over the suit schedule property, the defendant authority is in possession. Hence, question of interfering with the plaintiffs' possession and the question of demolishing the structures does not arise at all.
The plaintiffs were not in possession muchless in lawful possession of the suit schedule property as on the date of filing of the suit or prior to filing of the suit and it is the defendant, who is in possession and enjoyment of the suit schedule property since from the date of acquisition. The said acquisition is neither quashed nor withdrawn. Therefore, the plaintiffs cannot claim to be in possession of 12 OS No.6814/2011 the suit schedule property. It is the statutory duty on the part of the defendant to faithfully implement the scheme of acquisition of the land and for formation of layout. By suppressing all the above facts the plaintiff has approached this court with ulterior motives and for wrongful gains. Therefore, the plaintiffs are not entitled to an equitable order of any nature against the defendant, who is the true owner in possession and enjoyment of the suit schedule property.
The plaintiffs giving wrong site number and measurement and boundary only to knock off the valuable property of the defendant authority and no such site is available as mentioned in the schedule by the plaintiffs. Hence, prayed to dismiss the suit.
5. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiffs prove that they are in lawful possession of the suit property as on the date of suit? 13 OS No.6814/2011
2) Whether the plaintiffs prove that the defendant authority illegally demolished their compound wall on 19.06.2011?
3) Whether the plaintiffs are entitled for mandatory injunction to direct the defendant to construct the compound wall at its cost?
4) To what decree or order?
6. The plaintiffs in order to prove the case has examined their Power of Attorney holder as PW-1, examined two witnesses as PW2 and PW3 and has got marked twenty eight documents at Ex.P.1 to Ex.P.28. The official of the defendant authority examined himself as DW1 and got marked seven documents at Ex.D.1 to D.7.
7. Heard the arguments and perused the records of the case.
8. My findings to the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the partly affirmative
14 OS No.6814/2011
Issue No.3 : In the negative
Issue No.4 : As per the final order,
for the following;
REASONS
9. ISSUE Nos.1 and 2:- Since these Issues are
interconnected hence they are taken up together for common discussion in order to avoid repetition of facts and evidence.
10. It is the case of the plaintiffs that they are in lawful possession of the suit schedule property as on the date of suit and the defendant authority illegally demolished their compound wall on 19.06.2011.
11. The learned Advocate appearing for the plaintiffs argued that though the defendant taken contention that the suit schedule property is the portion of Sy.No.57 of Bhoopsandra Village, which was said to be acquired but the copy of the award is not produced in order to show that the owners received the compensation amount. When the 15 OS No.6814/2011 boundaries of the sale deed of the plaintiffs' tallies with the sale deeds of their vendors, then the suit schedule property can be identified. He further argued that the defendant is the Commissioner, BDA and the written statement is filed by one G.K.Vishwanath, who is the Assistant Executive Engineer, but no authority is produced by him to file the written statement and one Renukappa, who is the Sheristedar of BDA filed his affidavit evidence, but he has not obtained any authority from the defendant to depose before this court.
12. The learned Advocate appearing for the defendant argued that the suit schedule property is the portion of Sy.No.57 of Bhoopsandra Village, which is acquired for the formation of further extension of Rajmahal 2nd Stage (Gokul 2nd stage layout) under the preliminary notification dated 19.01.1978 and the final notification dated 26.12.1982. The plaint does not disclose the specific Sy.No. where the suit schedule property exists. After acquisition the acquired lands were handed over to the Engineering Section of the defendant 16 OS No.6814/2011 and the award was passed and the compensation was paid to the owners of the landed properties.
13. Firstly I would like to consider whether the defendant, who is the Commissioner, BDA is properly represented in this suit. On perusal of the vakalath filed on behalf of the defendant do not disclose that the defendant has given the vakalath to the counsel, but it is given by one S.Basappa AC4 BDA, Bangalore and his designation is as Deputy Secretary, BDA, Bangalore. So, from this it is very clear that the defendant, who is Commissioner, BDA has not given his vakalath to the counsel to appear in this case and also no document is produced authorizing the said S.Basappa to represent the defendant in this suit. So also on perusal of the written statement, it is clear that it is filed by the Assistant Executive Engineer No.3, North Sub-Division, BDA, Bangalore. Here also no document is produced authorizing the said Assistant Executive Engineer to file the written statement in this suit. So also on perusal of the records of 17 OS No.6814/2011 the case it is clear that one Renukappa, who is the Sheristedar in Land Acquisition Section filed his affidavit evidence in lieu of examination-in-chief of DW1 and through him got marked Ex.D.1 to D.7. Here also the said Renukappa has not produced any authority letter to depose before this court on behalf of the defendant. So, all these shows that the defendant has not properly represented in this suit and it is as good as no defence on behalf of the defendant. Hence, the written statement and the affidavit evidence of DW1 and Ex.D.1 to D.7 cannot be taken into consideration.
14. The General Power of Attorney holder of plaintiffs No.1 and 2 filed his affidavit in lieu of examination-in-chief of PW1, wherein he has stated that the plaintiff No.1 purchased the site property under the Ex.P.1 and the plaintiff No.2 purchased the site property under the Ex.P.2 and thereafter the plaintiffs No.1 and 2 executed power of attorney as per Ex.P.3 in favour of him authorizing to sell the same and thereafter the plaintiffs No.1 and 2 filed the application to 18 OS No.6814/2011 BBMP to issue common BBMP number to both the properties as they are adjoining to each other and both are taken together it has become 9143 sq.ft. and thereafter the plaintiffs have sold 2262 sq.ft., 2262 sq.ft. and 2595.5 sq.ft. under the Ex.P.4 and P.5 and thereafter the plaintiffs retained 20235.5 sq.ft., which is the suit schedule property and they are in peaceful possession of the same by paying taxes to the BBMP and the defendant without any notice came to the suit schedule property on 19.06.2011 along with demolition squad and demolished the compound wall built to the suit schedule property and also damaged the park by cutting and removing costly beauty plants and then they have resisted with the support of neighbourers and then the defendant went away stating that they will come again. In support of their case the plaintiff produced Ex.P.1 to Ex.P.28. Ex.P.1 c/c of registered sale deed dated 12.01.1998, Ex.P.2 c/c of the sale deed dated 12.01.1998, Ex.P.3 c/c of the GPA dated 16.03.2003, Ex.P.4 c/c of sale deed dated 09.09.2003, Ex.P.5 c/c of sale deed dated 24.09.2003, Ex.P.6, P.8 to 10 katha certificates, Ex.P.7 19 OS No.6814/2011 katha extract, Ex.P.11 to P.19, Ex.P.23 to 26 are the tax paid receipts, Ex.P.20 to P.22 khatha certificates, Ex.P.27 Bhoopasandra Village map and Ex.P.28 is layout plan. Even during the course of the cross-examination of the PW1, nothing was elicited to discredit the testimony of him.
15. PW2 Sirajuddin and P.W.3 Tausiff Ali Khan deposed in their evidence that the plaintiffs are lawful and absolute owners of the suit schedule property and residing in the residential house built in the suit schedule property from the last 8-10 years and on 19.06.2011 the defendant came and started to demolish the compound wall and damaged the beauty plants. The PW2 and PW3 in their examination-in- chief itself deposed that the plaintiffs are residing in the suit schedule property by constructing the residential house, but the schedule shows that it is a vacant site. So, except this nothing was elicited to discredit the testimony of the PW2 and PW3.
20 OS No.6814/2011
16. So as I came to the conclusion that as good as there is no defence on behalf of the defendant and from the oral evidence of PW1 to PW3 and Ex.P.1 to P.28 it is clear that the plaintiffs purchased two sites and later on common BBMP number was taken and out of that retaining the suit schedule property remaining property was sold and accordingly katha was entered in the name of the plaintiffs and they are paying taxes to the BBMP and they are in possession of the suit schedule property as on the date of suit. With regard to the demolition of the compound wall is concerned the plaintiffs have not produced any documents to show that they have put the compound wall to the suit schedule property. Hence, it cannot be said that the plaintiffs constructed compound wall to the suit schedule property and it can be said that the defendant and his officials interfered in the possession of the suit schedule property by the plaintiffs. Hence, the Issue Nos.1 is answered in the affirmative and Issue No.2 is answered partly in the affirmative.
21 OS No.6814/2011
17. ISSUE NO.3:- In view of my findings on Issue No.2 as the plaintiffs failed to prove the construction of compound wall to the suit schedule property and hence he is not entitle for mandatory injunction to direct the defendant to construct the compound wall. Hence, Issue No.3 is answered in the negative.
18. ISSUE NO.4: In view of my findings on Issue No.1 in the affirmative, Issue No.2 in the partly affirmative and Issue No.3 in the negative, the suit of the plaintiffs has to be partly decreed without costs. Hence, I proceed to pass the following:
ORDER The suit of the plaintiffs is partly decreed. The defendant and their demolition squad or anybody authorized by him are permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. 22 OS No.6814/2011
The suit of the plaintiffs for mandatory injunction to direct the defendant to construct the compound wall at the cost of the defendant is dismissed.
In the facts and circumstances of the case, no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 18th day of January 2017).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Manoj Kumar
P.W.2 Mr.Sirajuddin
P.W.3 Tausiff Ali Khan
23 OS No.6814/2011
b) Defendant's side:
D.W.1 Renukappa
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 & 2 C/c of sale deeds dated 12.1.1988 Ex.P.3 C/c of General Power of Attorney dated 16.8.2003 Ex.P.4 C/c of General Power of Attorney dated 9.9.2003 Ex.P.5 C/c of sale deed dated 24.09.2003 Ex.P.6 to 10 BBMP Khatha certificates Ex.P.11 to 19 Tax paid receipts Ex.P.20 to 22 Khatha Certificates Ex.P.23 Tax paid receipt Ex.P.24 Acknowledgment Ex.P.25 Property tax paid receipt Ex.P.26 Acknowledgment Ex.P.27 Bhoopasandra Village Map Ex.P.28 Layout plan 24 OS No.6814/2011
b) defendants side :
Ex.D.1 Authorization letter
Ex.D.2 & 3 Notifications
Ex.D.4 Award Order dated 09.12.1986
Ex.D.5 Mahazar
Ex.D.6 Document regarding acquisition by
the engineer
Ex.D.7 Notification u/S 16(2) of Land
Acquisition Act
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
25 OS No.6814/2011