Bangalore District Court
Nti Housing Co-Operative vs Rajendra on 14 February, 2022
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 14th day of February, 2022.
O.S.No.26501/2014
Plaintiff:- NTI Housing Co-operative
Society Ltd.,
(National Technological Institutions
Housing C-operative Society Ltd.,)
No.G-5, Palace Orchards Apartments,
6th Cross, 9th Main, RMV Extension,
Bangalore- 560 080,
Presently at:
No.527, 5th Cross,
Opp. HMT Layout Playground,
R. T Nagar, Bangalore-560 032.
By its In-charge Secretary,
Pratapachand Rathod,
S/o Late Peerappa,
Aged about 46 years,
Resident of Bangalore.
[By Sri. R. V Jayaprakash - Adv]
2 OS No.26501/2014
V/s
Defendant:- Rajendra,
S/o Armugam,
Aged about 59 years
R/at No.1, Kodigehalli,
Post: Sahakaranagar,
Yelahanka Hobli,
Bangalore North Taluk,
Bangalore-560092.
[By Sri. G. S Srinivas -Adv]
Date of Institution of the suit 31.10.2014
Nature of the (Suit or pro-note,
suit for declaration and Mandatory Injunction and
possession, suit for injunction, Possession
etc.)
Date of the commencement of
01.12.2018
recording of the Evidence.
Date on which the Judgment was
14.02.2022
pronounced.
Year/s Month/s Day/s
Total duration 07 03 14
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.26501/2014
JUDGMENT
This suit is filed by the Plaintiff against the Defendant for the relief of Mandatory Injunction and and for Possession.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, it is Co- operative Society registered under the Provisions of the Karnataka Co-operative Societies Act, 1959. It is actively engaged in providing house sites to its members. It has not received any grant or any form of monetary aid or contribution from the Government or any of its authorities. It is functioning in accordance with the provisions of Karnataka Co- operative Societies Act, the Rules and bye laws framed their under, in the best interest of its members.
In response to its representation, the Government of Karnataka approved the scheme submitted by it, for acquisitions of lands, in Kodigehalli, Kothihosahalli, Byatarayanapura Villages, Yelahanka Hobli, Bengaluru North Taluk, Bengaluru, under the provisions of the Land Acquisition Act, 1984, enabling it to form a layout of 4 OS No.26501/2014 sites and to distribute the said sites, amongst its members. In this regard a Preliminary Notification bearing No.LAQ (1)686-83 was issued U/Sec.4(1) of LA Act, on 03.01.1985, which was published in the Karnataka Official Gazette on 04.01.1985. Land bearing Sy No. 61 of Kodigehalli, was amongst the lands, which were the subject matter of the said notification. Sy No. 61, measures 01 Acres - 36 Guntas. On holding enquiry U/Sec 5-A of the LA Act, Declaratory Notification U/Sec. 6(1) of the LA Act, was issued on 22.09.1986, inrespect of 210 Acres - 37 Guntas- the total extent of the lands, which was published in the Karnataka Official Gazette dtd.25.09.1986. Pursuant to the Declaratory Notification, the compensation was determined inrespect of the acquired lands, which was approved by the Government on 31.01.1989. Land Acquisition Officer took possession of the lands, including Sy No. 61 of Kodigehalli from its owners on 27.03.1991. A Consent Award was passed inrespect of the said land, which was notified U/Sec.16(2) of LA Act, by virtue of Notification dtd.12/15.04.1991, which was published in the Official Gazette on 18.04.1991.
Thereafter the Special Land Acquisition officer 5 OS No.26501/2014 handed over possession of the said land alongwith all other acquired lands to it (Plaintiff's Society) on 05.11.1992, under the Official Memorandum dtd.05.11.1992. Further contends that, once the possession of the acquired lands is taken by the Government from the owners, the acquired lands absolutely vest with the Government, free from all encumbrances, as provided U/Sec.16(1) of the LA Act and the owners of the said land loose their right, title and interest over the said acquired lands. Thus the owners of the acquired lands, including the land bearing Sy No.61 of Kodigehalli, lost their right, title and interest over the said lands, when the lands were acquired by the Government. So it (Plaintiff Society) became the Absolute owner of the acquired lands, including the land bearing Sy No.61 of Kodigehalli Village.
The Plaintiff Society has submitted a comprehensive layout plan to the BDA for its approval in the year 1992, and the BDA has granted approval for formation of the private layout, subject to certain terms and conditions. The BDA in the meeting held on 19.10.1992, has resolved to approve the private layout in the lands belonging to the 6 OS No.26501/2014 Society. The Society has undertaken the layout work, as per the approved layout plan, under the supervision of the BDA and during 1994, the Civil portion of the layout work was completed and about 2500 sites of various dimensions were formed, as per the said layout plan. Many of the sites were allotted to the eligible members and many Sale Deeds were also registered infavour of the members of the Society. Khata of the said sites were also transferred in the names of Member-Purchasers of the Society. The Society has issued possession certificates inrespect of the sites sold, as per the approved bye-laws of the Society, infavour of the purchasers.
Further the Society was asked to submit a modified plan by the BDA for Rajiv Gandhi Nagar Layout and accordingly the Plaintiff Society has submitted modified plan inrespect of an area measuring 173 Acres- 29 Guntas of the acquired land, including the Suit Schedule Property on 17.02.1993, which is placed before the Board of BDA. The same was approved in the meeting held on 18.07.1995, as per the Resolution No.83/1995.
7 OS No.26501/2014Further contends that, Defendant claims to have purchased a property bearing No.10 having Khata No.61, measuring East to West: 30 feet and North to South: 40 feet, situated at Kodigehalli Village, Yelahanka Hobli, Bengaluru North Taluk, presently coming within the limits of BBMP, allegedly, from P. Ashwathnarayana and Harish, under a Registered Sale Deed dtd.13.01.2005. In the said Sale Deed the description of the property is wrongly shown as Panchayat Khata No.61, though no such Khata was in existence. Even if such Khata was in existence, that is not a valid one and it is fabricated at the instance of the vendor of the Defendant, incollusion with the Officials of the Panchayat, therefore it has no sanctity in the eye of law. The Site which the Defendant claims to have purchased under the Sale Deed dtd.13.01.2005, is situated within the boundaries of Original Sy No. 61 of Kodigehalli.
Since there were disputes inbetween some of the owners of the lands; and the Society, inrespect of the portions of the lands, which were acquired, the BDA has asked the Society to furnish modified plan. Again modified plan was submitted inrespect of an 8 OS No.26501/2014 area measuring 173 Acres - 29 Guntas on 08.09.2004 to the BDA for its approval. And the BDA has approved the said modified plan, as per its Resolution No.357/2004 dtd.04.11.2004.
On approval of the said modified plan, the Society has executed Relinquishment Deed, relinquishing its interest infavour of the BDA, inrespect of the parks, C. A Sites and roads, under the Registered Relinquishment Deed dtd.04.06.2008.
Further contends that, the Plaintiff Society had filed a Writ Petition before the Hon'ble High Court of Karnataka at WP No.10054/2008, seeking certain directions to BDA. The said Writ petition was allowed by the Hon'ble High Court of Karnataka by its order dtd.24.07.2008, wherein a direction was issued to the BDA to issue the work order and sanction plan and release 60% of the sites within 15 days from the date of receipt of the order. The said order was challenged by various persons, including the BDA, before the Division Bench of the Hon'ble High Court of Karnataka, in WA No. No.1332/2008 (BDA), c/w WA No.1435/2008 (BDA), WA No.1485/2008 (BDA), WA No.1812/2008 (BDA), WA Nos.2349 to 2471/2009 (BDA). The same were 9 OS No.26501/2014 disposed-off on 22.09.2009, with certain modifications and further directed BDA to comply with the directions passed in WP No.10054/2008, expect one condition withregard to the period, which was expunged and in its place a direction was issued that, such orders is to be implemented within a period of one month from the date, when the Society executes the Rectification Deeds to rectify the earlier Relinquishment Deed, inrespect of the parks and Civic Amenity Area, as per the undertaking given by it. Pursuant to the said order, the Society has executed Rectification Deed dtd.18.12.2009, rectifying the Relinquishment Deed dtd.04.06.2008, inrespect of the lands shown as park, CA Sites and Roads. On the basis of the same, modified plan was approved and work order was issued by the BDA on 04.03.2010. The lands bearing Sy No.61, is found in the said Work Order issued to the Society. The Society has till date remitted a sum of Rs.5,71,00,000/- to the BDA from time to time including the recent demand of Rs.3,13,62,056/-, as per the Letter dtd.07.05.2008.
Thus, the Plaintiff Society has been put into actual possession of the lands, including Sy No.61 of 10 OS No.26501/2014 Kodigehalli. Necessary mutation entries were made and the name of the Society appeared in the Revenue records of the said lands.
Further contends that, a Complaint was filed by the Rajiv Gandhi Nagar Site Allottees Welfare Association before the Karnataka Lokayuktha, U/Sec.12(1) of the Karnataka Lokayuktha Act, alleging that, the local Panchayat, City Municipal Council and the officials of the Sub-Registrar have colluded with the erstwhile owners of the lands and illegal purchasers, in preparing and issuing false Khata Certificates with imaginary House List and CMC Khata Numbers, facilitating to sell the acquired lands and get the Sale Deeds registered. The Lokayuktha after summoning the local authority has condemned the illegal acts of the Panchayat and CMC Byatarayanapura, as well as BBMP and directed them, to cancel and revoke the illegal fraudulent Khatas, affected by them, inrespect of the acquired lands, inorder to restore the lands to the Society and from preventing trespassers and illegal occupants from using the concocted and got -up documents, before the Court, as genuine documents.
11 OS No.26501/2014Thus the Defendant has no right, title or interest over the Suit Schedule Property belonging to the Society. The construction, if any alleged to have been made by the Defendant over the land belonging to the Plaintiff Society, is illegal and unauthorized; and the Defendant is liable to remove the same at her costs and expenses. Hence prayed to decree the suit.
3. Suit Summons was issued to the Defendant. The Defendant has appeared through his Counsel and has filed his Written Statement on 17.07.2015.
4. The Defendant in his Written Statement has denied all the allegations made by the Plaintiff Society in the Suit Plaint and has specifically contended that, he has purchased the Suit Schedule Property from P. Ashwathnarayana, as per the Registered Sale Deed dtd.13.01.2005, for the valuable consideration. His name was mutated in the records of the said property, on the basis of the said Sale Deed. Since from the day of purchase, he is in physical possession and enjoyment of the said property, believing that, his vendor was the absolute 12 OS No.26501/2014 owner in possession, in the said property, prior to its purchase. His vendor has already made constructions in the Suit Schedule Property, wayback in the year 2004. Prior to her purchase, her vendor was continuously and uninterruptedly, without any interference from any one muchtheless the Society, or the Government were in possession of the Suit Schedule Property. There is no question of Society claiming right of possession over the Suit Schedule Property. Further contends that, Plaintiff cannot maintain the above suit for the relief of possession, after lapse of 12 years and the said suit is barred by law of limitation.
Further contends that, the Plaintiff has not challenged the Sale Deed executed infavour of vendor of the Defendant within 3 years from such execution, and now the Plaintiff Society is trying to challenge the Sale Deed executed on 13.01.2005, infavour of the Defendant. Thus, the suit of the Plaintiff is barred by limitation.
Further contends that, at no point of time, the Plaintiff Society is in possession of the Suit Schedule Property, nor the Land Acquisition Officer has issued any notice under the Land Acquisition Act, to the 13 OS No.26501/2014 Defendant or to his vendor, who is the rightful owner of the Suit Schedule Property and therefore at this length of time the Plaintiff cannot maintain the suit inrespect of the property purchased by her. Issuance of Preliminary Notification, Final Notification, passing of the Consent Award and General Award, notifying of the Award U/Sec.16(2) of the LA Act, taking over possession of the lands by the Land Acquisition Officer and handing over the possession of the said lands to the Plaintiff Society, are not within his knowledge. It is false to contend that, on collusion with the officials of the Panchayat, Khata of the Suit Schedule Property is created. It is false to contend that, he is the trespasser of the Suit Schedule Property. It is false to suggest that, the Society has allotted sites formed in the said lands and has issued possession certificate by delivering possession to the allottees. Submission of the plan and modified plans for approval; and approval of the plans and modified plans by the BDA, is not within his knowledge. Execution of Relinquishment Deed on 04.06.2008 and Rectification Deed dtd.18.12.2009 are not within his knowledge.
14 OS No.26501/2014Remittance of a sum of Rs.5,71,00,000/- to the BDA by the Plaintiff Society on different occasions is also not within his knowledge. It is false to contend that, the name of the Plaintiff Society appears in RTC extract of the said lands. Filing of the Complaint with the Lokayuktha and issuance of the directions by the Lokayuktha is not within his knowledge.
It is specifically contended that, he is having a valid right, title and interest over the Suit Schedule Property. He is in possession of the said property right from the day of its purchase. Earlier to his purchase, his vendor was in possession of the said property. House is constructed way back in year 2004. She is not in illegal and unauthorized occupation of the said property. So the Plaintiff cannot maintain the suit for Mandatory Injunction or for possession, as the same is barred by limitation. Hence prayed to dismiss the suit.
5. On the basis of the above said pleadings, my learned predecessor -in-office, has framed the following Issues on 17.02.2018, as under:
15 OS No.26501/2014ISSUES
1. Whether the Plaintiff Society proves that, the Society is the absolute owner of the Suit Schedule Property and the Defendant has put up illegal structure in the Suit Schedule Property, as alleged in the plaint?
2. Whether the Plaintiff Society proves that, it is entitled for a Mandatory Injunction against the Defendant to remove the structure standing in the Suit Schedule Property, as prayed for?
3. Whether the Plaintiff Society proves that, it is entitled for seeking the relief of Mandatory Injunction against the Defendant to deliver the vacant possession of the Suit Schedule Property to the Plaintiff?
4. What order or decree?
6. The Plaintiff inorder to prove its case has got examined its Secretary as PW1 and has got marked 14-documents as Ex.P.1 to Ex.P12, Ex.P14 & Ex.P15. PW.1 was cross examined on behalf of the Defendant on 16.11.2019 and 31.07.2021 . Plaintiff Society got examined a witness by name G. Siddabasava, as PW.2 and got marked one 16 OS No.26501/2014 document, as ExP13. PW.2 was cross examined on behalf of the Defendant on 28.01.2021.
Percontra, the Defendant inorder to prove his case got examined himself as DW.1 and got marked 33 documents as Ex.D1 to Ex.D33. DW.1 was cross examined on behalf of the Plaintiff on 13.08.2021.
7. Initially this suit was allotted to CCCH-21. Thereafter this suit came to be transferred to this Court on 30.10.2018, as per the Notification No.ADM- 1(A) 413.2018 dtd.31.07.2018.
8. Heard the Arguments of the Learned Counsels for the Plaintiff Society and the Defendant.
Learned Counsel for the Plaintiff Society has filed gist of Arguments and has placed his reliance on five decisions viz., a) (1998) 1 SCC 614; b) (2207) 14 SCC 308; c) ILR 2014 Kar 4726; d) (2014) 16 SCC 731; and e) (2008) 4 SCC 594.
Percontra, the Learned Counsel for the Defendant has filed his Written Arguments and Additional Written Arguments; and has placed his reliance on two decisions viz., a) of the Hon'ble Apex Court, in the case of Khatri Hotels Pvt. Ltd., and Anr., 17 OS No.26501/2014 V/s Union of India and Anr, in Civil Appeal No.7773/2011; b) ILR 1991 AIR 1600; and c)AIR 1999 SC 1549.
9. My findings on the above said Issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Negative;
Issue No.3: Partly in the Affirmative; Issue No.4: As per final order for the following;
:R E A S O N S:
10. ISSUE NO.1:-
The Plaintiff Society contends that, it had sent a proposal for acquisition of land, to the Government of Karnataka, the same was approved by the Revenue Department. Preliminary Notification bearing No.LAQ(1) 686-83 was issued on 03.01.1985, U/Sec.4(1) of the Land Acquisition Act (herein after referred to as LA Act, for brevity), which was published in the Karnataka Gazette on 04.01.1985, withrespect to the acquisitions of lands, situated at Kodigehalli, Kothihosanahalli, Byatarayanapura Villages, in Yelhanka Hobli, Bengaluru North Taluk, Bengaluru, including the land bearing Sy No. 61 of 18 OS No.26501/2014 Kodigehalli. After holding an enquiry U/Sec.5-A of LA Act, a Declaration Notification was issued U/Sec.6(1) of LA Act on 22.09.1986, which was published in the Official Gazette on 25.09.1986, inrespect of an area measuring 210 Acres - 37 Guntas. Acquisition was approved by the Government on 31.01.1989. Land Acquisition Officer took possession of the lands, including the land bearing Sy No. 61 of Kodigehalli, from the erstwhile owners on 27.03.1991, by passing Consent Award, U/Sec.16(2) of LA Act, which was notified on 12/15.04.1991 and published in the Official Gazette on 18.04.1991; and on passing General Award, U/Sec.16(2) of LA Act, from its erstwhile owners on 03.11.1992, and which was notified on 04/05.11.1992, which was published in the Official Gazette on 17.12.1992. Thereafter the Special Land Acquisition Officer has handed over the possession of the lands, including land bearing Sy No. 61 of Kodigehalli, to it, as per the Official Memorandum dtd.05.11.1992.19 OS No.26501/2014
11. The Learned Counsel for the Plaintiff Society would contend that, when the lands, including the land, in which the Suit Schedule Property is located, has been acquired by the Government of Karnataka, under the provisions of LA Act; and on completing the entire formalities have taken possession of the said lands and delivered the said possession to the Plaintiff Society on 05.11.1992. Thus, the Plaintiff Society has become the owner in possession of the Suit Schedule Property, as the said property is located in Sy No. 61 of Kodigehalli.
12. Percontra, the Learned Counsel for the Defendant would contend that, the Defendant has purchased the Suit Schedule Property from his erstwhile owners P. Ashwathnarayana and Harish, as per the Registered Sale Deed dtd.13.01.2005. Further contends that, the Defendant has purchased a constructed house, situated in the Suit Schedule Property. Since from the day of purchase, the Defendant is in possession of the said property and earlier to his, his erstwhile owners were in possession and enjoyment of the said property.
20 OS No.26501/2014Neither the Government of Karnataka, nor the Plaintiff Society have taken possession of the Suit Schedule Property at any point of time, muchtheless under the proceedings taken up under the provisions of LA Act.
13. The Plaintiff Society has produced
a) the Preliminary Notification issued U/Sec.4(1) of the LA Act, dtd.03.01.1985, at Ex.P1. As per this document, it is seen that, the lands, situate at Kodigehalli, Byatarayanapura, Kothihosahalli Villages, specified in the schedule of Notification, are likely to be needed for the public purpose, to wit for the M/s NTI Employees Housing Co-operative Society Ltd., Bengaluru- Plaintiff. In the said Notification, the land bearing Sy No. 61, measuring 1 Acres - 36 Guntas, is shown at Sl. No.49, the name of the Khatedhar is shown as Munishami and Junjappa, the names of the Anubhavadars is shown as Papanna, Narayanappa and Ramaiah.
Thus, the lands bearing Sy No. 61 has been notified U/Sec.4(1) of LA Act, on 03.01.1985.
21 OS No.26501/2014b) the Final Notification issued U/Sec.6(1) of the LA Act, dtd.22.09.1986, at Ex.P2. As per this document, it is seen that, the lands, situate at Kadigehalli, Byatarayanapura, Kothihosahalli Villages, specified in the schedule of Notification, are acquired for the public purpose to wit for the M/s NTI Employees Housing Co-operative Society Ltd., Bengaluru- Plaintiff. In the said Notification, the land bearing Sy No. 61, measuring 1 Acres - 36 Guntas, is shown at Sl. No.52, the name of the Khatedhar is shown as Munishami and Junjappa, the names of the Anubhavadars is shown as Papanna, Narayanappa and Ramaiah.
Thus, the lands bearing Sy No.61 has been notified U/Sec.6(1) of LA Act, on 22.09.1986.
c) Certified copy of the Consent and General Awards passed inrespect of the lands, situate at Kodigehalli, Bytarayanapura, Kothihosahalli at Ex.P3. As per this document, it is seen that, the lands bearing Sy No. 61, measuring 1 Acres 36 Guntas is shown at Sl No.30 and the Award is passed inrespect of the said land in LAC No.52/86- 22 OS No.26501/2014 87, totally an amount of Rs.3,24,891/- is Awarded inrespect of the said land.
Thus, as per this document, it can be said that, Award is passed inrespect of the said lands and the same is approved by the Government on 31.01.1989.
d) Notification issued U/Sec.16(2) of LA Act, withregard to passing of Consent Award at Ex.P4. As per this document, it is seen that, Award is passed inrespect of the lands bearing Sy No. 61, measuring 1 Acres 36 Guntas, is now shown in the said Notification.
e) Notification issued U/Sec.16(2) of LA Act, withregard to passing of General Award at Ex.P5. As per this document, it is seen that, Award is passed inrespect of Sy No. 61, which is shown at Sl No.17.
Thus, as per this document, it can be said that, General Award inrespect of the aforesaid land is Notified U/Sec.16(2) of LA Act, on 04/05.11.1992.
f) Certified copy of the Official Memorandum issued by the Special Land Acquisition Officer, dtd.05.11.1992 at Ex.P6. As per this document, it is 23 OS No.26501/2014 seen that, the possession of the lands bearing Sy Nos.61 of Kodigehalli, shown at Sl No.76, is handed over to the NTI Housing Co-operative Society Ltd., Bengaluru- Plaintiff.
Thus, as per this document, the possession of the lands bearing Sy No. 61, is handed over by the Special Land Acquisition Officer to the Plaintiff Society on 05.11.1992.
g) Certified copy of the Worker Order issued by the Bengaluru Development Authority, on 04.03.2010 at Ex.P7. As per this document, it is seen that, the BDA has issued work order inrespect of the land bearing Sy No. 61 alongwith other lands on 04.03.2010.
h) Certified copy of the Registered Sale Deed dtd.13.01.2005 at Ex.P8. As per this document, it is seen that, Sri. P Ashwathnaraya and Harish have sold property bearing Site No.11, Byatanarayanpura; CMC Khata No.61, situate at Kodigehalli, measuring East to West: 30 feet and North to South: 40 feet, within the boundaries to the East: Property No.10; to the West: 20 feet width Road; to the North: 20 feet 24 OS No.26501/2014 width Road; and to the South: Property No.12, to Rajendra for the valuable consideration of Rs.1,98,000/-. This document indicate that, the purchaser has been put in to possession of the purchased property on the day of its purchase.
The Defendant has also produced the Original Sale Deed dtd.13.01.2005 at Ex.D1. So Ex.P8 , is the certified copy of Ex.D1.
i) Layout of plots sketch at Ex.P11. As per this document, it is seen that, Sy No. 61 is coming in the encroached area of 2 Acres 05 Guntas, show in the blue ink.
14. The Defendant has produced the documents
a) Original Registered Sale Deed dtd.13.01.2005 at Ex.D1. The certified copy of the said document is also produced by the Plaintiff Society at Ex.P8.
b) Encumbrance Certificate at Ex.D2. This document indicates about the transaction of Sale taken place inbetween P. Ashwatnarayana and 25 OS No.26501/2014 Harish, on one hand; and Sri. Rajendra -the Defendant, on the other hand on 13.01.2005, which is registered at Document No.YAN-1-20572-2004-05, with the office of the Senior Sub-Registrar, Bytanarayanapura.
c) Tax paid receipts, challans and Acknowledgments for the years 2002-03, 2004-05, 2003-04, 2004-05, 2005-06, 2015-16, 2013-14, 2017-18, 2010-11, 2011-12, 2012-13, 2012-13, 2008-09, 2014-15 at Ex.D6 to Ex.D27. As per these documents, it is seen that, the name of the Defendant is shown to be the owner of the property shown as Property No.11 of Kodigehalli Village, Balaji Layout, corresponding PID No.61/11.
d) Extract from the Assessment list in Form-B at Ex.D27. As per this document, the name of the Defendant is shown as the owner and occupier of the Property bearing No.61/11 and in the remarks column there is mention about the Resolution for entering the name of the Defendant alongwith the mention of the Sale Deed.
e) Electricity bill requisition and receipt at Ex.D28 to Ex.D31.
26 OS No.26501/2014f) Certified copy of the Judgment and Decree passed in OS No.27241/2012, dtd.07.01.2019, at Ex.D32 and Ex.D33. As per these documents, it is seen that, the suit of the Plaintiff/ present Defendant filed for the relief of Permanent Injunction is decreed, restraining the Defendant/ present Plaintiff from forcibly dispossessing the Plaintiff without adopting due process of law.
15. Coming to the ocular evidence, on the point of location of the Suit Schedule Property, in Sy No. 61 of Kodigehalli Village, more specifically,
a) cross examination of DW.1, at Page No.6, Para No.1, which reads as under-
"At the time of purchase of the site, I have not verified as to in which Survey Number, the said site comes. I have verified the Mother Deed at the time of purchase of the said site. I have got read the Sale Deed of my vendor, which is in Kannada Script."
As per this evidence Defendant /DW.1 contends that, he has not verified the Survey number in which the Site purchased by him is located, the he has verified the Mother Deed, at the time of purchase of the said Site.
27 OS No.26501/2014b) cross examination of DW.1, at Page No.6, Para Nos.4 & 5, which reads as under-
"It is false to suggest that, Site wherein I have constructed the house is formed in Sy No. 61 of Kodigehalli Village.
It is false to suggest that, I am deposing falsely that, the Site purchased by him is not falling within Sy No. 61 of Kodigehalli Villlage."
As per this evidence Defendant /DW.1 denies the suggestion made to him on behalf of the Plaintiff that, Site purchased by him, is formed in Sy No. 61 of Kodigehalli Village.
15.01. The Plaintiff Society has produced private survey sketch at Ex.P13; and have adduce the evidence of the Surveyor, as PW.2.
15.01.01. On perusal of the Ex.P13, it is seen that, survey of the lands have been conducted by the Surveyor at the instance of the Plaintiff Society, without issuing any notice to the concerned parties, more specifically, the Defendant herein.
15.01.02. Coming to the ocular evidence, on this point, more specifically, cross examination of PW.2, at Page No.4, Para Nos. 1 and 2, which reads as under-
28 OS No.26501/2014"As per the oral request of the N.T.I. Housing Co-Operative Society - the Plaintiff, I have conducted the survey. AS per the information furnished by the Plaintiff Society, I have stated in my report that Defendant has encroached the property belonging to the Plaintiff.
The lands which I had conducted survey is with regard to Sy.No. 61, 62/2B and 63/1. Land bearing Sy.No. No.61 totally measures 1 Acre 36 Guntas. Land bearing Sy.No. No.62/2B approximately measures 1 Acre, and Land bearing Sy.No. No.63/1 measures nearing about 1 Acre. I have produced the documents in this case for having conducted the survey in the above lands."
As per this evidence PW2 - Surveyor contends that, he has conducted the survey as per the oral request of the NTI Co-operative Society- the Plaintiff and as per the information furnished by the Plaintiff Society. Further contends that, he has reported the encroachment done by Defendant, over the property belonging to the Plaintiff Society. Further contends that, he has conducted survey, inrespect of the Sy Nos. 61, 62/2B and 63/1, but he has not produced any documents in this case for having conducted the survey of the said lands.
29 OS No.26501/201415.01.03. Looking to the survey sketch- Ex.P13 and the evidence of the said Surveyor referred to supra, it can be said that, the said survey is conducted without any notice to the Defendant; at the instance of the Plaintiff Society; at the information supplied by the Plaintiff Society. Conducting of survey is not in accordance with principles of Natural Justice. So the same has not inspired the confidence of this Court.
16. On the basis of the contentions of the Plaintiff Society and the Defendant, the question before this Court would be, whether the Defendant could apportion the property acquired to wit for the Plaintiff Society by issuing a Preliminary Notification, as per Ex.P1 and Declaration Notification, as per Ex.P2.
16.01. As per the decision of the Hon'ble Apex Court, in the case of U P Jal Nigam, Lucknow, through its Chariman and Anr, V.s Karala Properties Pvt. Ltd., Lucknow and Ors., reported in (1996) 3 SCC 124, wherein it held that, 30 OS No.26501/2014 "It is settled law that, after the Notification U/Sec.4(1) is published in the Gazette, any encumbrance created by the owner does not bind the Government; and the purchaser does not acquire any title to the property."
16.02. The question which has arisen now before this Court, the very question had arosed before the Hon'ble High Court of Karnataka, in the case of Chikkamuniyappa Reddy Memorial Trust V/s State of Karnataka, reported in ILR 1997 Kar 2460, wherein it is observed and held in Para Nos.6 and 7, as under:-
"6. Now let me notice the facts in the present case. The petitioner-Trust was formed on 7-3-1984 and after its registration, it is questioning the legality or otherwise of the notification issued by BDA in acquiring the lands of Doddamuniyappareddy in Sy. No. 4/3 situated in Kacharakanahalli Village, Bangalore North Taluk. The preliminary notification under sub-sections (1) and (3) of Section 16 of the Bangalore Development Authority Act, 1976 (for short 'BDA Act') was published in the Karnataka Gazette dated 21- 3-1977 and the final notification under Section 19(1) of the BDA Act was published in the Karnataka Gazette on 14-5-1980. The award has been made in this case on 13-1- 1983 and the possession of the property was taken over by the BDA on 19-2-1983. After such taking over possession of the property, the BDA has allotted sites in favour of the 31 OS No.26501/2014 allottees sometime in the month of March, 1985 and December, 1985. As I have already noticed, the Trust was formed only on 24-2- 1984 and registered on 7-3-1984, the question would be whether the owner Sri Doddamuniyappa could apportion the property acquired by the BDA by issuing a preliminary notification and declaration under Section 19(1) of the BDA Act. In my view, the issue is no more res Integra in view of the observations made by the Supreme Court in the case of U.P. Jal Nigam, Lucknow, through its Chairman and Another v M/s. Kalra Properties (Private) Limited, Lucknow and Others . In the said case, the Supreme Court has observed as under:
"It is settled law that after the notification under Section 4(1) published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4(1) was published on 24-3-1973, possession of the land admittedly was taken, on 5-7-1973, and pumping station house was constructed. No doubt, declaration under Section 6 was published later on 8-7-1973. Admittedly, power under Section 17(4) was exercised dispensing with the enquiry under Section 5-A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in 32 OS No.26501/2014 the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11-A as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the'possession is surrendered pursuant thereto. That apart, since M/s. Kalra properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published".
7. Keeping in view the law laid down by the Supreme Court, let me now look to the facts in the present case once over again. As I have already indicated that Sri Doddainuniyappa was the owner of the land bearing Sy. No. 4/3 measuring 3 acres 4 guntas situated at Kacharakanahalli Village, Bangalore North Taluk. These lands had been notified by the BDA under the provisions of Improvement Act, 1945 by issuing a notification under Section 16(1) of the Act. This provision is identical with the provision of Section 4(1) of the Land Acquisition Act. Similarly, a declaration has been made by the BDA exercising its powers under sub-section 33 OS No.26501/2014 (1) of Section 19 of the Act. This provision is in pari materia with Section 6 of the Land Acquisition Act. The preliminary notification, final notification, award and the possession of the property has been taken over by the BDA much earlier to formation and the registration of the petitioner-Trust since the same was formed and registered some time in the month of March, 1984. On the date when the Trust was formed, Doddamuniyappa had no right, title or interest in the property to apportion the same in favour of the Trust. The Supreme Court in the aforesaid decision has categorically observed that the person who had either purchased the property or has taken over the possession of the property after preliminary notification under Section 4(1) of the Land Acquisition Act has no right whatsoever to challenge an acquisition proceeding under Land Acquisition Act. In my view, the same position applies even to the present case also, since the lands are already vested in the BDA. In my view, the petitioner-Trust cannot challenge the validity or legality of the notification issued by the Bangalore Development Authority exercising its powers under the City Improvement Trust Boards Act, 1945, since the lands had been notified for acquisition much earlier to the formation and registration of the Trust."
16.03. As well as, as per the decision of the Hon'ble High Court of Karnataka, in the case of Poornaparjna House Building Co-operative 34 OS No.26501/2014 Society V/s Bailamma @ Dodda Bailamma and Ors., reported in ILR 1998 Kar 1411, wherein it is observed and held in Para No.28, as under:-
"28. Writ Appeal Nos. 2090 to 2094 of 1993 arising out of Writ Petition Nos. 480 to 484 of 1993 have been filed by the purchasers of the lands after the issuance of notification under Section 4(1} of the Act. Now it is a well-settled proposition of law that a person who purchases the land subsequent to the issuance of the notification under Section 4(1) of the Act, cannot be said to be the owner. Such a purchaser has no right to challenge the acquisition itself, although he is entitled to claim compensation by virtue of sale made in his favour i.e., of right, title and interest of his predecessor. Reference may be made to the judgment of the Supreme Court in Union of India v Shivkumar Bhargava and Others, It was held that:
"The policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench judgment of the 35 OS No.26501/2014 Delhi High Court. Under these circumstances, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The writ petition stands dismissed. No costs".
16.04. Thus, it is well settled preposition of law that, after publication of Notification U/Sec.4(1) of LA Act, in the Gazette, any encumbrance created by the owner of the land acquired, does not bind the Government; and the purchaser does not acquired any title to the property.
16.05. Applying the said preposition of the law to the instant case at hand, in this case Notification U/Sec.4(1) was published on 04.01.1985; Declaration Notification was published on 25.09.1986; Award was approved by the Government on 31.01.1989, as per Ex.P3; Consent Award Notification U/Sec.16(2) was issued on 12/15.04.1991, as per Ex.P4; General Award Notification U/Sec.16(2) was issued on 04/05.11.1992, as per Ex.P5; possession was delivered to the Plaintiff Society as per Official 36 OS No.26501/2014 Memorandum on 05.11.1992, as per Ex.P6; Work Order was issued by the BDA on 04.03.2010, as per Ex.P7; and the purchase of the Suit Schedule Property is done by the Defendant on 13.01.2005, as per Ex.P8 = Ex.D1, so when the possession of the land was taken by the Government through Special Land Acquisition from the owners of the acquired lands on 12/15.04.1991 and 04/05.11.1992; the said possession of the acquired lands including the lands in question were given to the Plaintiff Society on 05.11.1992; and the Defendant is said to have purchased the Suit Schedule Property on 13.01.2005, i.e., after publishing the Notification in the Gazette, as per Sec.4(1) of LA Act, so sale taken place under Sale Deed dtd.13.01.2005, is void against the State and the purchaser/ the Defendant acquires no right, title or interest in the land said to have been purchased under the Sale Deed.
16.06. Consequently, it is a settled law that, the Defendant cannot challenge the validity of the Notification or the regularity in taking possession of the land before publication of Declaration Notification U/Sec.6, was published.
37 OS No.26501/201416.07. So also, this Court being a Civil Court gets no jurisdiction to give declaration inrespect of certification of Notifications; and withregard to the regularity of the procedure contemplated under the LA Act. I find force to my above view, as per the decision of the Hon'ble Apex Court, in the case of Commissioner, Bengaluru Development Authority and Anr., V/s Brijesh Reddy and Anr., reported in (2013) 3 SCC 66, wherein it is in Para No.18, as under:
"18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare Injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power."38 OS No.26501/2014
17. Thus, looking the matter from every angle, as per the documents produced by the Plaintiff, more specifically, at Ex.P1 to Ex.P7; and the ocular evidence referred to supra, it can be concluded that,
a) the Plaintiff Society is the absolute owner of the land bearing Sy No.61, measuring 1 Acres 36 Guntas, situate at Kodegihalli; and
b) the Suit Schedule Property locates in Sy No. 61 of Kodigehalli Village;
Though the Plaintiff Society has not shown the specific location of the Suit Schedule Property, but has shown that, Suit Schedule Property is located in Sy No. 61 of Kodigehalli. So the Plaintiff Society is the absolute owner of the land, in which the Suit Schedule Property is located.
18. Further the Defendant in Para No.2 of her Written Statement contends that, the house is constructed in the Suit Schedule Property, in the year 2004.
As observed supra, that Preliminary Notification is issued inrespect of Sy No.61 of Kodigehalli alongwith other lands on 04.01.1985, as per Ex.P1;
39 OS No.26501/2014and this Court has already held that, the Defendant does not acquired any title to the property after issuance of the said notification, so the construction of the house done by the Defendant in the year 2004, is without any right over the property. So such construction made by the Defendant is, an illegal construction.
19. Thus, the Plaintiff Society has proved that, it is the absolute owner of the land, in which the Suit Schedule Property is located; and the Defendant has put up illegal structure in the form of a house, in the Suit Schedule Property.
Hence, I am constrained to ISSUE NO.1 IN THE AFFIRMATIVE.
20. ISSUE NO.2:-
The Plaintiff Society contends that, initially the BDA has approved formation of private layout in the year 1992, wherein 2500 sites were formed. Due to litigation inbetween the owners of the lands and the Plaintiff Society on one hand; and the litigation withregard to encroachment of the acquired lands, on the other hand, the Plaintiff Society was asked to 40 OS No.26501/2014 submit the modified plan, consisting of 173 Acres 29 Guntas, the same was submitted on 17.02.1992 to the BDA by the Plaintiff Society. And the BDA has approved the said modified plan on 18.07.1995. Inview of the same, the Plaintiff Society has relinquished its interest, inrespect of the areas ear marked for parks; as CA sites; and as Roads, infavour of the BDA, under the Relinquishment Deed dtd.04.06.2008. Further there was an encroachment over the acquired land and due to the said encroachment, again the Plaintiff Society was asked to submit a second modified plan inrespect of 161 Acres - 08 Guntas, which was submitted to the BDA on 01.07.2008. And the said second modified plan was approved on 04.03.2010.
Further the Learned Counsel for the Plaintiff Society would contend that, as per the said modified plan, the structure in the form of house constructed by the Defendant, is an illegal construction that is required to be removed, by issuing an order of Mandatory Injunction. Further he would contend that, the Plaintiff Society is entitle for the relief of Mandatory Injunction, inrespect of removal of structure available in the Suit Schedule Property.41 OS No.26501/2014
21. Percontra, the Learned Counsel for the Defendant would contend that,
a) Plaintiff Society has failed to prove the identity, measurements and specification of the structure, available in the Suit Schedule Property, in the form of house;
b) as per the decision of the Hon'ble High Court of Karnataka in WP No.10054/2008 (BDA) dtd.24.07.2008, it is the BDA, who has get removed the encroachments.
c) the Plaintiff Society is not prompt in action, delay is to be considered. And if delay is considered, Mandatory Injunction, as claimed by the Plaintiff Society against the Defendant inrespect of the house cannot be granted. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Golden Valley Educational Trust Oorgam, Kolar District V/s The Vokkaligara Sangha, Bengaluru reported in ILR 2016, Kar 2899, wherein it is observed in Para No. 34 and held in Para No. 43, as under:-
"34. In this context it is necessary to notice the law on the point.
JOHN GEORGE WOODROFFE, in his TAGORE LAW LECTURES on the Law relating 42 OS No.26501/2014 to Injunctions, 6th Edn., speaking about the issue of mandatory Injunctions, adds:
".... It seems, however, in this country (India) that, subject to the provisions of S.57 of the Specific Relief Act, the principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort.
In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Where there is one definite thing to be done about which there can be no doubt the Court will grant a mandatory Injunction. There is no real distinction as to the conditions under which mandatory and other Injunctions are granted. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. (Ulagappan Ambalam v. Chidambaram Chetty, 29 Mad. 497 (1906); Ravuru Punnamma v. Lakkaraju Venkatasubba Rao, AIR 1953 Mad. 456). The Court will seldom interfere to pull down a building which has been erected without complaint, Benode Coomaree Dosee v. Soudaminey Dossee, 16 Cal. 252) and unless very serious damage would otherwise result will not order a building already finished to be pulled down.
But in a more recent Madras case it was held that a landlord should not have a 43 OS No.26501/2014 mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it. (29 Mad. 497)..."
43. From the aforesaid decisions, the law in respect of mandatory Injunction could be summarized as under:-
The grant of a mandatory Injunction is, of course, entirely discretionary and unlike a negative Injunction can never be 'as of course'. A mandatory Injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. The principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an 44 OS No.26501/2014 Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. The Court will seldom interfere to pull down a building which has been erected without complaint. A landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has also taken legal steps to prevent it. But where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. Firstly, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity. The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and Injunction should be granted or refused. A mandatory Injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or 45 OS No.26501/2014 abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. One of the tests to determine whether a mandatory Injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case Injunction would normally be issued, whereas if the constructions had been allowed to be completed, an Injunction would normally be refused, as the basis for refusing Injunction would be that by their conduct in not objecting at the earliest stage, the joint co- owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort. Before the plaintiff could claim such mandatory Injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for Injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory Injunction but only for damages."46 OS No.26501/2014
22. Coming to the ocular evidence, on this point, more specifically,
a) cross examination PW.1, at Page No.19, Para No.5, which reads as under:-
"I am aware that, on the basis of the registered Sale Deed , the Defendant has constructed a residential house, he has obtained electricity connection from the become BESCom authority, he is paying assessment tax to the BBMP authorities, the BBMP authorities have allotted permanent identity number (PID) to the property of the Defendant and the Defendant is in possession of the property purchased by him."
As per this evidence, PW1 contends that, he is aware that, on the basis of the Registered Sale Deed, the Defendant has constructed a residential house; he has obtained electricity connection from BESCOM authorities, he is paying assessment tax to the BBMP authorities; BBMP authorities have allotted Permanent Identity Number (PID) to the property of the Defendant; and the Defendant is in possession of the property purchased by him.
47 OS No.26501/2014b) cross examination PW.1, at Page No.12, Para No.2, which reads as under:-
"I do not know from whom the Defendant has purchased the suit site. The Defendant has purchased the site in Sy.No.61 and 62/3A and 62/3B of Kodigehalli Village. In the suit schedule, we have mentioned the site numbers towards the boundaries of the suit schedule property. Witness further volunteers that we have shown the suit schedule property as per the Sale Deeds. I have seen the suit schedule property. It is true to suggest that the suit schedule property is having facility of road maintained by the BBMP authorities, electricity connection given by the BESCom authority and drainage facility provided by the BWSSB authorities. Witness further volunteers that the said facilities are illegal facilities. I am terming those facilities as illegal as the suit schedule property belongs to the society acquired by it under acquisition proceedings, notified by the Government and possession of the suit schedule property and other surrounding property is given to the society on 05.11.1992. Lands bearing Sy.Nos. 61 to Sy.No. 70/8 of Kodigehalli Village, totally measuring 37 Acres 29 Guntas have been acquired by the Plaintiff society under acquisition proceedings. It is false to suggest that suit schedule property is not acquired through the said acquisition proceedings. It is true to suggest that neither we have pleaded in the suit plaint nor have deposed in the examination in chief affidavit as to the extent of structure over the suit schedule property, by the Defendant."48 OS No.26501/2014
As per this evidence, PW.1 contends that, the Defendant has purchase the suit Site in Sy No. 61 of Kodigehalli Village. He contends that, he has seen the Suit Schedule Property and admits that, the said property is having facility of road maintained by the BBMP authorities, electricity connection supplied by the BESCOM authority and drainage provided bythe BWSSB authority. But contends that, the said facilities are illegal facilities, as the property belongs to the Society acquired by its under Acquisition proceedings, notified by the Government; and possession delivered to the Plaintiff Society on 05.11.1992.
c) cross examination PW.1, at Page No.20, Para No.2, which reads as under:-
"I do not know as to when the Defendant has constructed a residential building in the Suit Schedule Property."
As per this evidence, PW.1 pleads his ignorance as to when the Defendant has constructed a residential building in the Suit Schedule Property.
49 OS No.26501/2014d) cross examination PW.2, at Page No.5, Para No.2, which reads as under:-
"I have personally visited the spot and prepared the sketch as per Ex.P13. It is true to suggest that during my visit, the Defendant was residing in a constructed house over the Suit Schedule Property.
As per this evidence, PW.2 admits that, on his personal visit to the spot, for preparing a sketch as per Ex.P13, the Defendant was residing in a constructed house over the Suit Schedule Property.
e) cross examination DW.1, at Page No.7, Para No.1, which reads as under:-
"I have constructed a house measuring 10 Squares, in the Site purchased by me."
As per this evidence, Defendant/DW.1 contends that, he has constructed the house measuring 10 Squares, in the Site purchased by him.
22.01. On the basis of the above ocular evidence, it can be sumed-up that, the house structure is constructed in the Suit Schedule Property by the Defendant, not in the year 1998, but in the 50 OS No.26501/2014 year 2004, but the said fact is not proved by the Defendant, by leading cogent evidence. Existence of structure- house belonging to the Defendant in the Suit Schedule Property, is not in dispute. But the Plaintiff Society has failed to show the correct measurements and specification of the said structure.
23. Coming to the first line of defence, raised by the Learned Counsel for the Defendant that, Plaintiff Society has not proved the identity, measurements and specification of the structure, available in the Suit Schedule Property, in the form of house.
23.01. The Plaintiff Society in Para No.18 of the Suit Plaint contends that, "the construction, if any, alleged to have been made by the Defendant, over the land belonging to the Plaintiff Society is illegal and unauthorized and the Defendant is liable to remove the same, at his costs and expenses".
23.02. The Plaintiff Society has not specified the nature of construction; the measurement of the land, on which construction is taken place; and 51 OS No.26501/2014 specification withregard to the structure available in the schedule of property, annexed to the Suit Plaint.
23.03. Coming to the ocular evidence, on this point, more specifically, cross examination PW.1, at Page No.13, Para No.1, Line Nos.13 to 16, which reads as under:-
"... It is true to suggest that neither we have pleaded in the suit plaint nor have deposed in the examination in chief affidavit as to the extent of structure over the suit schedule property, by the Defendant."
As per this evidence, PW.1 admits that, neither they have pleaded in the Suit Plaint, nor he has deposed in the examination- in chief - affidavit as to the extent of structure, over the Suit Schedule Property belonging to the Defendant.
23.04. Inorder to claim the relief of Mandatory Injunction, it is one of the trite and important element to show the exact nature of the structure, with measurements, specification with boundaries and its nature.
Incase, if a relief of Mandatory Injunction is granted, it should be executable in nature. Inorder to 52 OS No.26501/2014 bring executability to the order of Mandatory Injunction, ascertainment of the structure with its specification and measurements, is utmost important. In the absence of the same, hallow relief of Mandatory Injunction cannot be granted. Inotherwords, a blanket order of Mandatory Injunction cannot be granted, without taking into consideration the specification and measurement of the structure, to be removed. Inotherwords, identity of the structure to be removed, plays a very important role, for issuance of an order of Mandatory Injunction. It is a serious order, which speaks of undoing a thing, which has already been done. Inotherwords, it amounts to restoring a thing to its earlier position.
23.05. When the Plaintiff Society has failed to provide and prove the identity, measurement and specification of the structure, to have been constructed by the Defendant, over the Suit Schedule Property, then a blanket order of Mandatory Injunction cannot be issued.
53 OS No.26501/201424. Coming to the second line of defence taken up by the Learned Counsel for the Defendant that, the Hon'ble High Court of Karnataka in WP No.10054/2008 (BDA) dtd.24.07.2008, has held that, the encroachment is to be got removed by the BDA.
24.01. The Plaintiff Society has produced the certified copy of the orders passed by the Hon'ble High Court of Karnataka in WP No.10054/2008 (BDA) dtd.24.07.2008, at Ex.P9. Para No.2 at Page No.6 of the said order reads as under:-
"As regards the encroachments in the land, as per the undertaking of the BDA themselves the encroachment have to be removed by them. However, BDA can also take the assistance from the Petitioners in removing the encroachments jointly instead of whiling away time in correspondence between them."
24.02. The Learned Counsel for the Plaintiff Society contends that, the orders passed by the Hon'ble High Court of Karnataka in WP No.10054/2008 (BDA) dtd.24.07.2008, was challenged by the BDA in WA No.1485/2008, which was c/w WA Nos.1332/2008 (BDA) and the said 54 OS No.26501/2014 Writ Appeals were disposed off, by the Hon'ble High Court of Karnataka, on 22.09.2009, wherein it was held that, the observation made by the Hon'ble Single Judge, that BDA has to remove the encroachment, is uncalled for.
24.03. The Plaintiff Society has produced the certified copy of the orders passed by the Hon'ble High Court of Karnataka in WA No. No.1332/2008 (BDA), c/w WA No.1435/2008 (BDA), WA No.1485/2008 (BDA), WA No.1812/2008 (BDA), WA Nos.2349 to 2471/2009 (BDA), dtd.22.09.2009, at Ex.P10. Para Nos.12 and 13 of the said order reads as under:-
"12. It is now made clear from the report of the Commissioner of BDA and also from the modified layout plan that the areas stated to be in possession of the members of Shantivana Residents Association is not comprised within the area shown as civic amenities sites, park etc., in the layout plan and therefore, the apprehension of the Appellants in WA No.1332/2008 that pursuant to layout plan and work order that may be issued by the BDA, the constructions put up by the members of the Society are likely to be demolished either by the Society or by BDA is allayed. Now the Society has given an undertaking that it would evict the members of the Association only in 55 OS No.26501/2014 accordance with law and that they will not be evicted otherwise than due process of law. Therefore, in our considered opinion, in the light of the said undertaking given by the Society there is no need to consider the various contentions urged in the appeals except placing the undertaking given by the Society on record and directing the Society not to evict the members of the Association from the possession of their respective sites, details of which have been furnished in the appeal, otherwise than the due process of law.
13. The apprehension of BDA has also been allayed by the undertaking given by the Society. As the area shown as Civic amenities, park etc., in the modified layout plan dtd.01.07.2008 are now reported to be vacant and no constructions are existing thereon, question of BDA requiring to remove any encroachment as directed by the learned single judge do not arise. As the Society has undertaken to execute the relinquishment deed inrespect of the area now shown by the Society as civic amenities and park in the modified plan dtd.01.07.2008, in our opinion, the BDA has no grievance to make. In any case, the observation that the learned Single Judge that the BDA has to remove the encroachment if necessary even by adopting extract judicial method is uncalled for and unjustified. Such a direction cannot be issued by a constitutional authority. Courts should act in protecting the constitution and the law established thereunder. The Courts cannot direct any authority to adopt extract judicial method for either removing encroachment and construction of the 56 OS No.26501/2014 buildings made thereon. Therefore, the said observation of the learned Single Judge is erroneous and liable to be expunged. Accordingly, the said observation is ordered to be expunged. However, we do not see any error in the other directions issued by the learned Single Judge directing the BDA to release the modified layout plan, to issue work order and to release 60% of the sites."
24.04. As per the orders passed by the Hon'ble High Court of Karnataka, in WA No. No.1332/2008 (BDA), c/w WA No.1435/2008 (BDA), WA No.1485/2008 (BDA), WA No.1812/2008 (BDA), WA Nos.2349 to 2471/2009 (BDA), dtd.22.09.2009, it is made clear that, the BDA shall comply the directions withregard to issuance of modified layout plan, Work Order and release 60% of total sites, the same is to be done within a period one month from the date of the Society executing Rectification Deeds to rectify, the earlier Relinquishment Deeds inrespect of the parks and Civic Amenity area, as per its undertakings. Further the Plaintiff Society was directed not to either demolish any constructions put up by the members of Shanthivana Residence Association (Regd.) or to evict any members of the association - the Appellant 57 OS No.26501/2014 in WA No.1332/2008, except in due process of law, as per the undertaking given by it.
25. The third line of defence taken up by the Learned Counsel for the Defendant that, the Plaintiff Society is not prompt in action, there is a delay, inview of the said delay, Mandatory Injunction cannot be granted.
25.01. A party is not entitle for the relief of Mandatory Injunction for demolition of a building, unless,
a) he is prompt in action;
b) has objected for construction of such building;
c) has taken legal steps to prevent it, on initiation of legal action.
25.02. Prompt means exercise of right, without any delay. Inotherwords, diligence of the party is of utmost importance, to be considered. As per the decision of the Hon'ble High Court of Rajasthan, in the case of Moolchand V/s 58 OS No.26501/2014 Chhoga, reported AIR 1959, Rajasthan 97, wherein it is held that;
"A Mandatory Injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, were a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstances, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done."
25.03. The second aspect, which was required for the Plaintiff Society to have a relief of Mandatory Injunction is that, it should have objected for construction of a building, sought to be demolished byway of Mandatory Injunction, when the building was initially, under construction.
A person cannot be entitle for the relief of Mandatory Injunction, when he is not vigil, to agitate his rights, by objecting the construction of a building at the initial stage.
59 OS No.26501/201425.04. The third aspect which is to be taken into consideration is, initiation of the legal action.
25.05. All these three aspects have been considered by the Hon'ble High Court of Karnataka, in the case of The Golden Valley Educational Trust Oorgam, Kolar District V/s the Vokkaligara Sagha, relied on behalf of the Defendant, in Para No.43 of its Judgment, referred to supra.
25.06. Applying the aforesaid principles of law, to the instant case at hand, on the basis of the ocular evidence, referred to supra, wherein it can be gathered that, the Defendant said to have constructed the house in the year 2005; and the same was within the knowledge of the Plaintiff Society, then the Plaintiff Society ought to have raised an objections, but has not raised the same; and the Plaintiff Society has also not initiated any legal action against the Defendant, at the earliest point of time, when the said house was taken up for construction.
60 OS No.26501/201425.07. Thus, prompt action is essential, if Mandatory Injunction is a desired remedy. Where the Plaintiff Society has not brought its suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by it, has been completed, then asked for a Mandatory Injunction, such an Injunction will, not in general be granted. The Courts will seldom interfere to pull down the building, which has been erected without any complaint. So also, unless very serious damage would otherwise result will not order, a building already finished to be pulled down.
25.08. Thus, the Plaintiff Society is not entitle for the relief of Mandatory Injunction against the Defendant, to remove the structure standing in the Suit Schedule Property, as residential house, as prayed for by it.
Hence, I am constrained to ISSUE NO.2 IN THE NEGATIVE.
26. ISSUE NO.3:-
The Learned Counsel for the Defendant would contend that, the suit of the Plaintiff in the present 61 OS No.26501/2014 form seeking the relief of Mandatory Injunction without seeking the relief of Declaration, is not maintainable. Percontra, the Learned Counsel for the Plaintiff Society would contend that, as per the acquisition proceedings, Plaintiff Society has become the owner of the lands, which are the subject matter of the acquisition, including the land, in which Suit Schedule Property is located. So there is no need to claim the relief of Declaration. He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Anathuna Sudhakara Rao V/s P. Bucchi Reddy (Dead) by Lrs and Ors., reported in (2008) 4 SCC 594, wherein it is observed at Para No.13.2, as under:-
"13.2. Where the title of the Plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an Injunction. A person out of possession, cannot seek the relief of Injunction simpliciter, without claiming the relief of possession."
27. As observed supra, while dealing Issue No.1 this Court has already held that, by virtue of the Acquisition proceedings the Plaintiff Society has become the owner in possession of the lands, which 62 OS No.26501/2014 are the subject matter of the Final Notification published U/Sec.6(1) of the LA Act; and the Defendant being the purchaser of the Suit Schedule Property, after issuance of the Notification, gets no right, title or interest over the Suit Schedule Property. Under such circumstances, when the Defendant, who has no valid right, title or interest has denied the title of the Plaintiff Society, without cogent evidence, will not amount to raising of clouds withregard to title of the Plaintiff Society, as held by the Hon'ble Apex Court, in the case of Anathuna Sudhakara Rao V/s P. Bucchi Reddy (Dead) by Lrs and Ors., reported in (2008) 4 SCC 594, wherein it is summarized in Para No.21, as under:-
"21. To summarize, the position in regard to suits for prohibitory Injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential Injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential Injunction.
Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an Injunction simpliciter.
63 OS No.26501/2014(b) As a suit for Injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for Injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for Injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for Injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere Injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the court may decide upon the issue regarding title, even in a suit for Injunction. But such cases, are the exception to the normal rule that question of title will not be 64 OS No.26501/2014 decided in suits for Injunction. But persons having clear title and possession suing for Injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
28. Thus, it can be concluded that, in the present set of facts there is no need for the Plaintiff Society to bring a suit for the relief of Declaration, against the Defendant, merely on the basis of denial of its title by the Defendant, without any cogent evidence.
Hence, I do not find any force in the submission of the Learned Counsel for the Defendant.
29. The next contention taken up by the Learned Counsel for the Defendant is that, suit of the Plaintiff is barred by law of limitation. He contends so, by contending that, the Defendant has purchased the Suit Schedule Property on 13.01.2005; he has constructed the house in the said property, he is in 65 OS No.26501/2014 possession of the said property, which is well within the knowledge of the Plaintiff Society. Even the Defendant had filed a suit against the Plaintiff Society. So filing of this suit by the Plaintiff Society after a period of 14 years is barred by law of limitation. Further he would contend that, principles for deciding question of limitation has been dealt with by the Hon'ble Apex Court, in the case of Ajudh Raj and Ors., V/s Motti S/O Mussdi, reported in AIR 1991 SC 1600, wherein it is held in Para No.5, as under:-
"5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well-settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the 66 OS No.26501/2014 same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiff- appellant and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or sub- tenant. The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article
65."
29.01. Percontra, the Learned Counsel for the Plaintiff Society would contend that, when the Plaintiff Society is the owner of the Suit Schedule Property and when it is claiming possession of the Suit Schedule Property, then Art. 65 of the Limitation Act, is applicable. Under the said provision, suit will be barred, when it is filed beyond the period of 12 years, when the possession of the Defendant becomes adverse to the interest of the Plaintiff.
67 OS No.26501/2014Further he would contend that, in this suit the Defendant has not set up the claim of perfecting his title byway of adverse possession. Under such circumstances, this suit cannot be held to be barred by limitation. He has placed his reliance on five decisions viz.,
a) of the Hon'ble Apex Court, in the case of Khatri Hotels Pvt. Ltd., and Anr V/s Union of India and Anr., (Civil Appeal No.7773/2011 D/d09.09.2011), wherein it is observed in Para No.21, as under:-
"21. The Limitation Act, 1963 (for short, `the 1963 Act') prescribes time limit for all conceivable suits, appeals etc. Section 2(j) of that Act defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the Schedule."68 OS No.26501/2014
b) of the Hon'ble Apex Court, in the case of Indira V/s Argumugam and Anr., reported in (1998) 1 SCC 614, wherein it is observed in Para Nos 4 & 5, as under:-
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of suit Period of limitation Time from which period begins to run 65. For possession of immovable property or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the second appeal, this appeal is allowed. The impugned decision 69 OS No.26501/2014 rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question aforementioned in accordance with law. No costs."
c) of the Hon'ble Apex Court, in the case of Janatha Dal Party Vs the Indian National Congress & Ors., (Spl Leave Petition (Civil) No 38991 of 2013, dated of decision 21.01.2014), reported in (2014) 16 SCC 731, wherein it is observed in Para No 17, as under:-
"when the Defendant has no title over the property inquestion. The entire burden of proving that the possession is adverse to that of the Plaintiff, is on the defendant."
d) of the Hon'ble Apex Court, in the case of Annakili Vs A Vedanayagam & Ors, reported in (2007) 14 SCC 308, wherein it is observed in Para Nos 23 to 26, as under:-
"23. In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of us was a member, this Court held :
29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse.70 OS No.26501/2014
(See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak).
30. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita Para 21.)
24. The said statement of law was reiterated in T. Anjanappa & Ors. v. Somalingappa & Anr. [2006) (8) SCALE 624 = (2006) 7 SCC 570], stating :
It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action.
25. Yet recently, in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 71 OS No.26501/2014 SCC 59], this Court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine :
Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.
26. We may also notice that this Court in M. Durai v. Muthu & Ors. [(2007) 3 SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-`-vis, old Limitation Act, holding : The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
e) of the Hon'ble High Court of Karnataka, in the case of Janatha Dal Party, Bangalore Vs The Indian National congress and Ors, reported in ILR 2014 KAR 4726, wherein it is held in Para No 125, as under:
"125. In this context, it is for the defendant who contends that the suit is barred by limitation under Article 65 of the Limitation Act or that he has perfected his title by adverse possession to specifically plead 72 OS No.26501/2014 the day from which his possession became adverse to that of the plaintiff. Therefore, the day on which the possession of the defendant became adverse to plaintiff is of utmost importance. Unless the said date is pleaded, it is not possible to compute the period of limitation. That is the first ingredient which is to be pleaded and proved by the defendant to succeed in his case that the plaintiff's suit is barred by limitation or that he has perfected his title by adverse possession. In the absence of such plea, any amount of evidence would be of no assistance. However, in this case, let us see what is the evidence regarding adverse possession which is adduced, if at all".
30. Applying the above preposition of law to the instant case at hand, 30.01. firstly, it is seen that, the Plaintiff Society is claiming possession of the Suit Schedule Property, based on title and not either on previous possession, or on title, when the Plaintiff Society while in possession of the property, has been dispossessed. So also it is not the case of the Defendant that, he has dispossessed the Plaintiff Society and has come into possession of the Suit Schedule Property.
Therefore, Art 65 of Limitation Act, will be attracted, and not Art 64 of Limitation Act.
73 OS No.26501/201430.02. Secondly, the Defendant inorder to contend that the suit of the Plaintiff Society is barred U/Art 65 of the Limitation Act, then he has to specifically, plead the day from which his possession has become adverse to that of the Plaintiff Society. But the same has not been pleaded and proved, by the Defendant.
30.03. Thirdly, in a claim of Adverse Possession, the title is not disputed, but what is alleged, is only its extinction. Plea of Adverse Possession is necessarily not a Legal Plea.
30.03.01. The concept of Adverse Possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right, but denies the same. Inotherwords, a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed.
74 OS No.26501/201430.03.02. 'Animus possidendi' is one of the ingredients of Adverse Possession. Unless, the person possessing the land has a requisite animus to hold possession, the period prescribed, will not commence.
30.03.03. In the cases of Adverse Possession, physical fact of exclusive possession and animus possidendi to hold as owner in exclusion to the actual owner are the most important facts to be accounted for. Therefore, the person who claims Adverse Possession should show:
(a) on what date he came into possession;
(b) what was the nature of his possession;
(c) whether the factum of possession was known to the other party;
(d) how long his possession has continued;
(e) his possession was open and undisturbed.
30.04. Fourthly, the Defendant has denied the title of the Plaintiff Society over the Suit Schedule Property, so the first ingredient of Adverse Possession is not satisfied.
75 OS No.26501/201430.05. Fifty, the Defendant has not held the possession of the Suit Schedule Property, with requisite animus. Inotherwords, there is absence of Animus possidendi in the Defendant, while hold the Suit Schedule Property, against the Plaintiff Society.
30.06. Sixthly, the starting point of limitation U/Art 65 of Limitation Act, does not commences from the date when the right of ownership arises to the Plaintiff Society, but it commences from the date when the Defendant's possession becomes adverse.
30.07. Seventy, the Defendant has neither pleaded nor proved, the day on which, his possession has become adverse to the interest of the Plaintiff Society, which is of utmost importance, in calculating the period of limitation, as it is the starting point of Limitation U/Art 65 of the Limitation Act.
30.08. Eighty, though the Defendant contends that, he has purchased the Suit Schedule Property on 13.01.2005, but the same is held as 76 OS No.26501/2014 illegal, as the said transaction is taken place after publication of Notification U/Sec 4(1) of LA Act.
In one breath the Defendant contends that, his vendors had already made constructions in the Suit Schedule Property, wayback in the year 2004, (as per the pleadings in Para No.2 of the Written Statement); in another breath, he contends that, he has constructed the house measuring 10 Squares, (as per the cross examination done to the Defendant/DW1, at Page No.7, Para No 1, referred to supra); still in another breath, she contends that, she has constructed the house in 1998 (as per the suggestion made to PW1, in his cross examination, at Page No 17, Para No 4, referred to supra). But none of these contentions have been proved by the Defendant by way of cogent evidence.
30.09. Thus, the Defendant has utterly failed to prove the ingredients of Art 65 of Limitation Act, to hold that filing of the Suit by the Plaintiff Society is barred by law of Limitation.
Hence the contention of the Learned Counsel for the Defendant is negated, accordingly.
77 OS No.26501/201431. Taking into consideration the factors like,
a) Plaintiff has not produced Layout sketch showing the allotment of Site/Plot Numbers to the Suit Schedule Property;
b) as per ExP11, location of the Suit schedule Property is shown in Sy No. 61 of Kodigehalli;
c) yet, portion of the land bearing Sy No. 61, wherein Suit Schedule Property is located is not allotted to any member of the Society by the Plaintiff Society, as the same is not pleaded by the Plaintiff Society in the Suit Plaint. Even the Learned Counsel for the Plaintiff Society fairly conceded that the portion of the land, wherein Suit Schedule Property is located is not allotted to any member of the Society;
d) As per ExP11-Layout sketch, Suit Schedule Property is not coming under the area (Parks, C A Sites & Road), which is Relinquished by the Plaintiff Society infavour of BDA, as per the Relinquishment Deed dated 04.06.2008, or under the area, which is the subject matter of the Rectification Deed dated 18.12.2009. Even this is confirmed by the report of the Commissioner BDA, filed before the Hon'ble High Court of Karnataka in WA No.1332/2008 (BDA), c/w WA No.1435/2008 (BDA), WA No.1485/2008 (BDA), 78 OS No.26501/2014 WA No.1812/2008 (BDA), WA Nos.2349 to 2471/2009 (BDA); and as per the Second Modified Layout Plan, which is approved on 04.03.2010 (as per the observations of the Hon'ble High Court found at Para No.12 in its order-ExP10);
e) Plaintiff Society remitting Rs 5,71,00,000/- to the BDA;
f) Showing the market value of the Suit Schedule Property by the Plaintiff Society in the Suit Plaint, as SR Value Rs 2,000/- per Sq ft; and
g) as per the decision of the Hon'ble High Court of Karnataka in the case of Mirza Sattar Baig Vs Tajuddin, reported in 1965 Mys L J (Supp) 879, wherein it is observed that, ""The issuance of a mandatory injunction is discretionary and rests entirely in the discretion of the Court. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took 79 OS No.26501/2014 any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages."
32. Thus, when the Plaintiff is not Prompt and has failed to bring its suit or apply for Injunction at the earliest opportunity, but has waited till the act complained by it (construction of the house by the Defendant), has been completed; and then asked for a Mandatory Injunction, such a Mandatory Injunction cannot be generally granted. The Court will seldom interfere to pull down a building, which has been erected without complaint.
33. Thus the evidence on record disclose that, the Plaintiff Society did make it possible to the Defendant to cause that injury, such as unauthorized construction and never took any step, such as institution of a suit and/or filing of an application for Injunction, restraining the Defendant, when such unauthorized construction was in progress; and 80 OS No.26501/2014 comes to the Court with this suit, only after such unauthorized construction was completed, then the case of the Plaintiff Society would not be one for the relief of Mandatory Injunction, but for damages. Consequently, the Plaintiff Society will not be entitled for the relief of Possession.
34. Having observed so, looking to the factors, referred to in Para No 31 supra, it will be just, proper and reasonable to grant damages of Rs 2,500/- per Sq ft, to the Plaintiff Society. In the circumstances, it is necessary to direct the Defendant to pay the said damages to the Plaintiff Society, within a period of 4 months, from the date of this Order.
On payment of the said damages by the Defendant to the Plaintiff Society,
a) the Plaintiff Society has to allot the Suit Schedule Property, by issuing allotment letter to the Defendant;
b) to execute necessary Conveyance Deed, infavour of the Defendant; and
c) to regularize the possession of the Defendant over the Suit Schedule Property.
81 OS No.26501/2014Hence, I am constrained to answer ISSUE NO 3 PARTLY IN THE AFFIRMATIVE.
35. ISSUE NO. 4:
For having answered Issue No.1 in the Affirmative; Issue No 2 in the Negative; and Issue No 3 Partly in the Affirmative, I proceed to pass the following:
ORDER Suit of the Plaintiff Society is hereby Decreed, inpart.
Reliefs of Mandatory Injunction and Possession, as claimed by the Plaintiff Society, are hereby Rejected.
In the consequences, the Defendant is directed to pay an amount of Rs 2,500/- per Sq ft, to the Plaintiff Society, as damages, within a period of 4 months, from the date of this Order.
Resultantly, on payment of such damages by the Defendant to the Plaintiff Society,
a) the Plaintiff Society has to allot the Suit Schedule Property to the Defendant, by issuing Allotment Letter, followed by 82 OS No.26501/2014 executing necessary Conveyance Deed by the Plaintiff Society infavour of the Defendant; and
b) to regularize the possession of the Defendant over the Suit Schedule Property.
Looking to the peculiar facts and circumstances of the case, both the parties are directed to bear their respective costs.
Draw Decree Accordingly.
----
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 14th day of February, 2022.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 83 OS No.26501/2014 :Schedule Property:
All that piece and parcel of the property bearing No.10, Kodigehalli Panchayath Khatha No.61 formed out of Sy. No.61 measuring East to West: 30 ft (Thirty Feet) and North to South: 40 ft., (Forty Feet) in all measuring 1200 sq.ft., situated at Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk and bounded as follows:-
On the East: Property No.13, On the West: 20 Feet wide road.
On the North: 20 Feet wide road.
On the South: Property No.12.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 84 OS No.26501/2014 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Sri. Pratapchand Rathod. PW.2: G. Siddabasava.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P.1: Certified copy of the Karnataka Gazette (4(1) Notification) dtd.04.01.1985. Ex.P.2: Certified copy of the Karnataka Gazette (6(1) Notification) dtd.25.09.1986. Ex.P.3: Certified copy of the Statement of award. Ex.P.4: Certified copy of the Karnataka Gazette (16(2) Notification dtd.18.04.1991. Ex.P.5 : Certified copy of the Karnataka Gazette (16(2) Notification) dated 04/05.11.1992. Ex.P.6: Certified copy of Possession delivery letter dtd.
05.11.1992.
Ex.P.7: Certified copy of work order issued by B.D.A. dtd. 04.03.2010 Ex.P.8: Certified copy of sale deed dtd. 19.02.2003. Ex.P.9: Certified copy of orders passed in WP No. 10054/2008 (B.D.A).
Ex.P.10: Certified copy of To hear eorders passed in W.A. No. 1332/2008 (B.D.A) c/w WA No. 1435/2008 (B.D.A)m WA No. 1485/2008 (B.D.A), WA No. 1812/2009 (B.D.A) and WA Nos. 2349 to 2471/2009 (B.D.A) dt 22.09.2009.
Ex.P.11: Survey Sketch.
Ex.P.12: BDA approved layout plan. Ex.P.13: Layout plan of Phase - III of Rajeev Gandhi Nagar, Kodigehalli village, Bengaluru North Taluk.
Ex.P.14. Copy of the Resolution.
Ex.P.15. True copy of Bye-Laws.
85 OS No.26501/2014LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Sri. Rajendra.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1: Certified copy of the Registered Sale deed dtd.
13.01.2005.
Ex.D.2 to 5: Certified copy of 4 Encumbrance Certificates. Ex.D6 to 26: Certified copy of 17 Self assessment Tax application alongwith Tax receipt. Ex.D27: Certified copy of the extract from the Property tax register.
Ex.D28 to 31: 4 Receipts.
Ex.D32 & 33: Certified copy of Judgment and Decree passed in OS No.27241/2012.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)