Karnataka High Court

Smt Padma vs Smt Devaki Subramanya on 14 February, 2022

Bench: M.G.S. Kamal

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                 R.S.A.No.2998 OF 2010

BETWEEN:

1.     SMT. PADMA
       W/O LATE H.J. MAHADEVAIAH
       NOW AGED ABOUT 68 YEARS
       SINCE DEAD, REP. BY HER LEGAL
       REPRESENTATIVES THE APPELLANTS
       2 TO 4 HEREIN

       CAUSE TITLE AMENDED VIDE ORDER DATED:04.01.2022

2.     SMT. H.M. SUJATHA
       D/O LATE H.J. MAHADEVAIAH
       NOW AGED ABOUT 48 YEARS

3.     SMT. KALASHREE
       D/O LATE H.J. MAHADEVAIAH
       NOW AGED ABOUT 43 YEARS

4.     SRI. ARAVIND
       S/O LATE H.J. MAHADEVAIAH
       NOW AGED ABOUT 39 YEARS

       NOS.1 TO 4 ARE R/AT " CAUVERY"
       (SY.NO.118), BASAVANAHALLI
       HINKAL POST
       MYSORE TALUK.
                                        ... APPELLANTS
(BY SRI. C.G. GOPALASWAMY, ADVOCATE)

AND:

1.     SMT. DEVAKI SUBRAMANYA
       W/O B.M. SUBRAMANYA
       AGED MAJOR
                            2


     R/AT NO.3/33/8
     ANAND ROAD MARGA
     AMBALAPADI POST
     UDUPI, DAKSHINA KANNADA.

2.   B.M. SUBRAMANYA
     S/O MEENAIAH
     AGED MAJOR
     R/AT NO.3/33/8
     ANAND ROAD MARGA
     AMBALAPADI POST
     UDUPI, DAKSHINA KANNADA.

3.   MYSORE URBAN DEVELOPMENT
     AUTHORITY, J.L.B. ROAD
     MYSORE CITY
     REP. BY ITS COMMISSIONER
                                       ... RESPONDENTS

(V/O DATED:04.01.2022 A2 -A4 ARE LR'S OF DECASED A
   SRI. VIJAY KUMAR A. PATIL, ADVOCATE FOR R1;
   SRI. CHANDRU AND S. SHUKAR, ADVOCATE FOR R2;
   SRI. M.V. VEDAMURTHY, ADVOCATE FOR R3)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 20.11.2010 PASSED IN R.A. NO.705/2010) OLD
NO.271/08) ON THE FILE OF THE VI ADDITIONAL DISTRICT
JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED:17.06.2008 PASSED IN
OS.NO.60/1997 ON THE FILE OF THE FILE OF THE II CIVIL
JUDGE (JR.DN) MYSORE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

Present regular second appeal is filed by the

plaintiffs aggrieved by the judgment and decree dated

20.11.2010 passed in R.A.No.705/2010 (old

R.A.No.271/2008) on the file of VI Additional District

Judge, Mysore, (hereinafter referred to as the 'first

appellate court') setting aside the judgment and

decree dated 17.06.2008 passed in O.S No.60/1997

by the II Civil Judge, (Jn.Dn.) Mysore (hereinafter

referred to as the trial Court).

2. Parties are referred to by their original

ranking before the Trial Court.

3. The case of the plaintiffs is that;

acres 14 guntas situated at Basavanahalli village,

Kasaba Hobli, Mysore Taluk (hereinafter referred to as

the 'suit schedule property') consisting of a Farm

House, Coconut garden, cattle shed and another shed

for rearing silk-worm cocoons, Borewell with the

pumpset, originally belonged to defendant Nos.1 and

2. That one H. J. Mahadevaiah- husband of the

plaintiff No.1 and father of the plaintiff Nos.2 to 4 had

entered into an agreement of sale dated 03.10.1991

with defendant Nos.1 and 2 to purchase suit schedule

property for a sale consideration of Rs.7,50,000/-. In

furtherance thereof, defendant Nos.1 and 2 had

received an advance consideration of Rs.3,00,000/- on

04.10.1991. In part performance thereof, possession

of suit schedule property was delivered to H.J.

Mahadevaiah. Thereafter, on different dates,

additional amount was paid aggregating a sum of

Rs.5,42,792/- as on 17.11.1992. Thus, ever since

04.10.1991 said H.J. Mahadevaiah and plaintiffs were

residing in the suit schedule property and were in

peaceful possession and enjoyment of the same.

(b) That in the meanwhile, defendant No.3 -

Mysore Urban Development Authority (MUDA) had

issued a preliminary notification published in the

official gazette dated 23.12.1991 seeking to acquire

lands including suit schedule property. As such, deed

of sale could not be executed. That the defendant

Nos. 1 and 2 kept on promising to execute and

notification quashed. That H.J.Mahadevaiah passed

away on 04.08.1982. The plaintiffs being his legal

representatives were always ready and willing to

perform their part of the contractual obligation and

were also entitled for equitable relief under Section

53(A) of Transfer of Property Act.

and 2 in collusion with defendant No.3 - MUDA were

trying to realize the award amount of Rs.8,37,000/-

and defendant No.3 was attempting to dispossess the

plaintiffs from the suit schedule property without due

process of law, constraining the plaintiffs to file a suit

in O.S.No.60/1997 before the Trial Court for relief of

permanent injunction.

4. The defendant No.1 filed written statement

admitting the execution of agreement of sale and

receipt of Rs.3,00,000/- however denied having

parted with the possession of suit schedule property in

favour of aforesaid H.J. Mahadevaiah.

5. Based on the pleadings, the trial Court

framed the following issues.

"(1). Whether the plaintiffs prove that they are in possession of the suit schedule property?

(2) Whether the plaintiffs prove the alleged interference by the defendants?

(3) Whether the plaintiffs are entitled for the suit claim?

(4) What order or decree?"

and recorded evidence.

6. Plaintiff No.3 examined herself as P.W.1

and exhibited 17 documents marked as Ex.P1 to

Ex.P17. Defendant Nos.1 and 2 did not lead any

evidence. Defendant No.3-MUDA examined one

G.Prakash working as a First Division Assistant and

exhibited 30 documents marked as Ex.D1 to Ex.D30.

7. The Trial Court by its judgment and decree

dated 17.06.2008 partly decreed the suit restraining

the defendants by way of permanent injunction from

dispossessing the plaintiffs from the suit schedule

property without due process of law.

8. Being aggrieved by the same, defendant

No.3 -MUDA filed regular appeal in R.A.No.705/2010

(old R.A.No.271/2008) contending inter alia that the

possession of land had been taken under Section

16(2) of the Land Acquisition Act, and that the

plaintiffs not having challenged the acquisition were

not entitled for relief of injunction as there were no

transfer of interest in favour of H.J.Mahadevaiah or in

favour the present plaintiffs.

9. Based on the grounds urged in the appeal

memorandum, the First Appellate Court framed the

following points for its consideration.

"(1) Whether the respondents-

plaintiffs prove that they are in lawful possession of suit schedule property and defendant No.3 is interfering in their possession and enjoyment of suit schedule property?

           (2) Whether       the  appellant-
           defendant No.3 proves that    the
           judgment and decree of the Trial

Court are perverse, unsustainable and interference of this court is required?

(3) What order or decree?"

10. The first appellate court by its judgment

and order dated 20.11.2010 allowed the appeal and

set aside the judgment and decree dated 17.06.2008

passed in O.S.No.60/1997, consequently dismissed

the suit. Being aggrieved by the same, plaintiffs are

before this Court.

11. Learned counsel for the appellants/plaintiffs

reiterating the grounds urged in the memorandum of

appeal submitted that ;

(a) the first appellate court grossly erred in

reversing the finding of the trial Court with regard to

possession of the plaintiffs over the suit schedule

property by virtue of the agreement of sale dated

03.10.1991. That the defendant Nos.1 and 2 in part

performance of agreement had delivered the physical

possession of the suit schedule property in favour of

H.J. Mahadevaiah which is much prior to the

publication of preliminary notification dated

23.12.1991.

(b) that the first appellate court failed to take

into consideration the improvement made by the

plaintiffs over the suit schedule property.

law could not be dispossessed without due process of

law.

(d) that claim of the defendant No.3 of having

taken possession in terms of panchanama at Ex.D5 is

incorrect inasmuch as the said panchanama has not

been drawn in accordance with law.

(f) that no just and fair compensation has been

paid to the plaintiffs who are the lawful occupiers of

the suit schedule property with the vested rights to

the extent of their share in view of advance sale

consideration paid by them to defendant Nos. 1 and 2.

Thus, it is only on receipt of the award amount by the

plaintiffs, the defendant No.3 would be entitled to

dispossess them from the suit schedule property

under due process of law. Therefore, Ex.D2-

Notification and Ex.D5-Panchanama relied upon by the

defendant No.3/MUDA in furtherance to their claim for

having taking the possession is not admissible.

Hence, learned counsel for the appellants

submits that substantial question of law involves in

the matter requiring consideration.

12. Learned counsel for the appellants has

relied upon the following judgments in support of his

case.

(1) (2011)5 SCC 386-

Prahlad Singh and others vs. Union of India

(2) (2011) 5 SCC 394-

                  Banda          Development
                  Authority, Banda Vs. Moti
                  Lal Agawal and Others

              (3) ILR 2005 KAR 5692
                  V. Gunda Reddy Vs. The
                  Secretary    Department of




                  Revenue and others

           (4) 2013 (1) AKR 639
               Gautam Kamat Hotels Pvt.
               Ltd., Bangalore vs. Bangalore
               Development Authority

           (5) Sri. C.V.Rama Rao and others
               vs. The Secretary, Housing
               and     Urban   Development
               Department and another in
               W.P.No.60065/2016       (LA-
               BDA)

           (6) AIR 1983 AP 177
               Barnikana Appalanaidu and
               others    vs.    Barnikana
               Appayyamma


     13.   Sri.   M.V.Vedamurthy,     learned   counsel

appearing for the defendant No.3-MUDA submitted

that the plaintiffs have no locus standi to maintain the

suit and the instant appeal. That the possession of the

acquired land has been taken in the manner known to

law. Further, he pointed out an affidavit has been filed

by the Commissioner of defendant No.3-MUDA in

furtherance to the order passed by this Court on

14.09.2002 providing the details of the acquisition and

the current status of the property. He relied the upon

the following judgment in support of his case.

(1) AIR 2020 SC 1496-

INDOOR DEVELOPMENT AUTHORITY VS. MANOHARLAL AND OTHERS ETC.,

14. Heard learned counsel for the parties.

Perused the records.

15. The suit schedule property originally

belonging to defendant Nos.1 and 2 and they entering

into an agreement of sale dated 03.10.1991 with

Sri.H.J.Mahadevaiah is not in dispute. Similarly,

issuance of notification dated 23.12.1991 by the

defendant No.3 -MUDA proposing to acquire the suit

schedule property is also not in dispute. The only

aspect that requires consideration is the taking of

possession of the suit schedule property by the

defendant No.3 which is seriously disputed by the

plaintiffs who still claims to be in possession of the

suit schedule property. Learned counsel for the

appellants relied upon several citations referred to

hereinabove with regard to mode of taking possession

of acquired land.

16. The Apex Court in the case of PRAHLAD

SINGH AND OTHERS (supra) referring to its earlier

judgments has reiterated the principles with regard to

mode of taking possession as under;

"19. The same issue was recently considered in Banda Development Authority V. Moti Lal Agarwal decided on 26.04.2011. After making reference to the judgments in Balwant Narayan Bhagde V. M.D. Bhagwat Balmokand Khatri Educational and Industrial Trust V. State of Punjab, P.K. Kalburgi v. State of Karnataka, NTPC Ltd., v. Mahesh Dutta, Sita Ram Bhandar Society v. Govt. of NCT of Delhi, Omprakash Verma v. State of A.P. and Nahar Singh v. State of U.P. this Court laid down the following principles: (Bandu Development Authority case, SCC p.411, para 37)

"i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchanama will Ordinarily be treated as sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or

the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building/structure may not lead to and inference that the possession of the acquired land has not been taken.

iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession it taken by preparing appropriate document in the presence of independent witness and getting their signatures on such document.

v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken"

17. Similarly, in the case of INDOOR

DEVELOPMENT AUTHORITY VS. MANOHARLAL

AND OTHERS ETC., reported in AIR 2020 SC 1496

the Apex Court at paragraph 254 has held as under;

"245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the

possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. There after, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case".

18. In the instant case, the defendant

No.3/MUDA claims to have issued notices dated

01.07.2000 and 07.06.2000 marked at Ex.D6 and

Ex.D7 informing the plaintiffs about taking possession

of the suit schedule property. Ex.D4 dated 24.07.2000

is the declaration issued by the defendant No.3/MUDA

for having taken possession of the suit schedule

property. Ex.D5 is the panchanama drawn while

taking possession of the suit schedule property by

defendant No.3 witnessed by the panchas.

19. The first appellate Court at paragraph 19 of

its judgment has taken note of the aforesaid dates

and events and has also taken note of the fact that

the aforesaid exhibits evidencing the process of taking

possession of the property have come into existence

subsequent to the order passed by this Court in

CRP No.1303/2000 dated 22.5.2000, wherein this

Court had reserved liberty to defendant No.3/MUDA to

take possession of the suit schedule property under

Land acquisition Act or any other law.

20. It is relevant at this juncture to note that

this Court by order dated 14.09.2017 had directed the

defendant No.3 - MUDA to file a detailed affidavit with

regard to the date on which the possession of the

property measuring 5 acres 14 guntas of land in

Sy.No.118 was taken to state whether the entire

extent of 5 acres 14 guntas was utilized for formation

of layout and if the sites were allotted in the said

layout, how many sites were allotted and how many

sites were still be allotted.

21. In response to the aforesaid order, the

Commissioner of the defendant No.3 -MUDA has filed

an affidavit dated 04.10.2017 along with certain

documents. Relevant portion of the said affidavit is

extracted hereunder;

(a) That the plaintiff herein in the above suit in O.S.No.60/1997 had filed an application an interim order injunction which was dismissed by the trial Court by its order dated 24.01.1998. Being aggrieved by the same, the plaintiffs filed Miscellaneous Appeal in MA.No.21/1998 which was allowed on 01.02.2000 granting

to 3 restraining them with from interfering plaintiffs peaceful possession and enjoyment of the plaint schedule property until they were dispossessed in accordance with law. In the said order it was made clear that " said injunction order would not come in the way of defendant No.3 or the concerned land acquisition officer or any other Government authorities taking possession of the schedule property under provisions of Land Acquisition Act or any other provisions of Law".

(b) The said order was challenged by the defendant No.3 in CRP No.1303/2000 before this Court which petition was dismissed as the interest of the defendant No.3 was sufficiently safeguarded reserving liberty "to take possession of the land in accordance with law notwithstanding the interim order of injunction". That thereafter, the defendant No.3 had issued notices as per Ex.D6 and Ex.D7 dated 01.07.2000 and 07.06.2000 respectively. Panchanama was drawn on 24.07.2000 as per Ex.D5 and a declaration of having taken possession of the property was made as per Ex.D4.

(c) That in the layout plan of the scheme, the suit scheduled land has been designated for the purpose of roads and residential sites and that after utilizing the portion of the land, the respondent authority has formed 24 meters of wide road and two 12 meters wide roads and has erected high tension line on the land in question. That 7 residential sites each measuring 12X18 meters have been formed and sale deed in respect of one of the sites has also been executed.

(d) However, the trial Court decreed the suit in O.S.No.60/1997 filed by the plaintiffs on 17.06.2008 granting permanent injunction infavour of the plaintiff restraining defendant No.3 from dispossessing them from suit schedule property without due process of law. Aggrieved by the same defendant No.3 had filed regular Appeal in R.A.No.705/2010 which was allowed by

the first appellate Court setting aside the judgment and decree of the trial Court. The plaintiff aggrieved by the same filed the present appeal and this Court by order dated 23.02.2011 had stayed the operation and execution of the judgment and decree passed by the first appellate Court.

(e) That in view of the filing of the appeal and obtaining the order further development activities could not be undertaken. In view of the same, no further development activities would be carried on.

(f) That in the meanwhile, the plaintiffs had filed Writ petition No.10966/2006, even during the pendency of the original suit seeking issue of writ of mandamus directing the defendant No.3 - MUDA to consider their representation dated 06.06.2005. That the very submission of the said representation would establish that the defendant No.3 have taken possession of the land except to the extent of the residential house of the plaintiffs and plaintiffs were completely aware of the said fact.

who had lost the title of the land pursuant to the acquisition were pursuing their claim for allotment of land loosers site by filing W.P.No.35063/2016. That defendant Nos. 1 and 2 had earlier filed a writ petition in W.P.No.27446/1994, which was withdrawn. Thereafter, the said defendant No.1 had filed another writ petition in

W.P.No.24663/1998 seeking writ of mandamus for immediate release of compensation of Rs.2,00,000/- and also for allotment of three sites each measuring 40X60 feet in Vijayanagara 4th Stage, 2nd phase. Said writ petition was disposed of on 17.09.1998 by this Court directing the defendant No.3 -MUDA to pay compensation of Rs.2,00,000/- within two weeks from the date of the order. That said defendant No.1 had initiated contempt proceedings in C.C.No.2254/1998 complaining disobedience of the order passed in W.P.No.24663/1998. During the pendency of the said contempt proceedings, Rs.2,00,000/- were paid to defendant No.1 and consequently contempt proceeding were dropped.

(h) The plaintiffs herein had filed a writ appeal in W.A.No.5334/1998 before the Division Bench of this Court challenging the aforesaid order in W.P.No.24663/1998. The said writ appeal was disposed of with following observation;

"In view of the fact that already compensation is paid to the respondent No.1, nothing remains to be decided in these appeals. It is open to the appellant to pursue the remedy for recovery of compensation from respondent No.1 by resorting to reference under Section 18 read with Section 30 of the Land Acquisition Act."

(i)The defendant No.1 had also filed writ appeal challenging the order dated 17.09.1998 in W.P.No. 24663/1998 which appeal was dismissed holding that rights of defendant No.1 was sufficiently safeguarded.

(j)That in terms of the order in W.A.No.5334/1998 the plaintiffs and others had issued a notice on 21.02.1997 to defendant No.3-MUDA calling upon them to make reference to the Civil Court. Since the plaintiffs had no locus-standi to seek reference for enhancement of compensation. No reference was made. Thereafter, plaintiffs had filed a petition under Section 18(3)(d) of the Land Acquisition Act before the reference court , which was numbered as LAC No.461/1998, which was rejected on 14.10.2008. Aggrieved by the same, an appeal in LAC No.46/2008 was filed before III Additional Sessions Judge, Mysore. Said appeal was also dismissed by judgment and decree dated 09.09.2010.