Bangalore Development Authority vs Sri G C Rajashekar
2022 Latest Caselaw 3845 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF MARCH, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.F.A NO. 277 OF 2007

BETWEEN:

1. BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BANGALORE
REP BY ITS COMMISSIONER-560020.

2. THE EXECUTIVE ENGINEER
WEST DIVISION, BDA COMPLEX
VIJAYANAGAR, BANGALORE-560020.
                                              ...APPELLANTS
(BY SRI.ASHWIN S HALADY, ADVOCATE)

AND:

SRI G C RAJASHEKAR
MAJOR
S/O.G R CHENGALARAYA NAIDU,
NO.16, PUTTANNA ROAD, BASAVANAGUDI,
BANGALORE-4.
                                              ...RESPONDENT
(BY SRI.SANGAMESH.R.B, ADVOCATE)

       THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT     AND   DECREE       DT.10.10.06    PASSED   IN
O.S.NO.5222/99 ON THE FILE OF THE IX ADDL. CITY CIVIL
JUDGE, BANGALORE, (CCH-10) DECREEING THE SUIT FOR
PERMANENT INJUNCTION.


       THIS RFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                       JUDGMENT

The captioned regular first appeal is filed by

defendants-Bengaluru Development Authority

questioning the judgment and decree dated 10.10.2006

passed in O.S.No.5222/1999 by the IX Additional City

Civil Judge at Bengaluru.

2. For the sake of convenience, the parties are

referred as per their rank before the trial Court.

3. The facts leading to the case are as under:

(a)The subject-matter of the suit are two items

namely plots bearing site Nos.22/5 and 22/6 situated at

Valagerahalli Village, Bengaluru South Taluk, bearing

corresponding Municipal Katha Nos.895/22/5 and

894/22/6 respectively. The plaintiff filed a suit for

injunction simplicitor against the defendants-BDA. The

contention of the plaintiff is that the suit schedule

properties were originally owned by one Sri.K. Ramanna

s/o.Narasegowda and in the family partition the suit

schedule properties along with the other properties were

allotted to the share of C. Eraju S/o.Chikka Eregowda

and Kum. R. Kavitha d/o. K. Ramanna. The plaintiff

claims that he had purchased the suit schedule item

No.1 property from C. Eraju s/o.Chikka Eregowda under

a registered sale deed dated 2.3.1995 and item No.2

property from R. Kavitha under a registered sale deed

dated 2.3.1995 for valuable consideration. The plaintiff

specifically pleaded that suit schedule properties are

part and parcel of Survey No.78/2 totally measuring 2

acres 10 guntas of Valagerahalli village. The plaintiff

further contended that the original owner K. Ramanna

had submitted an application seeking conversion of the

suit schedule properties from agricultural to non-

agricultural purpose. Having purchased the suit schedule

properties, the plaintiff claims that, after securing

permission from the competent authority, he started

laying foundation. At that juncture, the defendants-BDA

authorities obstructed by contending that the lands are

already acquired. On these set of pleadings, the

plaintiffs filed the present suit seeking permanent

injunction against the defendants-authority.

(b)On receipt of summons, the defendants-BDA

tendered appearance and filed written statement and

stoutly denied the entire averments made in the plaint.

The defendants-authority specifically contended that the

suit is not maintainable for want of notice under Section

64 of the BDA Act. The authority also disputed the title

of one Sri.K. Ramanna s/o.Narasegowda and also

specifically pleaded their ignorance in regard to the

family partition pertaining to the suit schedule

properties. It is the specific contention of the

defendants-authorities that suit schedule properties are

part and parcel of Survey No.78/2 measuring 1 acre 30

guntas. The defendants-authorities claimed that the

authority has passed preliminary and final notifications

and possession of the suit schedule properties was taken

and in lieu of possession, compensation was paid to the

owners and as such sought for dismissal of the suit.

(c)The trial Court based on the pleadings

formulated the following issues:

"1. Whether the plaintiff proves his lawful possession of the suit schedule property as on the date of the suit?

2. Whether the plaintiff further proves unlawful interference by the official of defendants?

3. Whether the defendants prove that the suit schedule property stood vested with the BDA by virtue of acquisition proceedings and as such, the suit is not maintainable?

4. Whether the plaintiff is entitled to a decree of permanent injunction as sought for?"

(d)The plaintiff to substantiate his claim examined

himself as P.W.1 and relied on documentary evidence

vide Exs.P1 to P15. The defendant-authority by way of

rebuttal evidence examined two officials as D.Ws.1 and

2 and relied on documentary evidence vide Exs.D1 to

13.

(e)The trial Court having appreciated the oral and

documentary evidence answered issue Nos. 1 and 2 in

the affirmative and issue No.3 in the negative and

proceeded to decree the suit filed by the plaintiff. The

trial Court having examined the material on record has

come to the conclusion that the plaintiff has succeeded

in establishing his lawful possession over the suit

schedule properties and consequently, held that

interference is also proved by the plaintiff and as such

the trial Court was of the view that the defendant-

authorities have to be injuncted from interfering with the

plaintiff's peaceful possession and enjoyment over the

suit schedule properties.

(f)Feeling aggrieved by the judgment and decree

of the trial Court, the defendant-BDA is before this

Court.

4. The learned counsel appearing for the

defendants-authority would vehemently argue and

contend that the judgment and decree of the trial Court

is contrary to the clinching rebuttal evidence on record

and therefore, would warrant interference at the hands

of this Court. He would vehemently argue and contend

before this Court that the suit schedule properties are

part and parcel of Survey No.78/2 measuring 1 acre 30

guntas and therefore would contend that Ex.D8 which is

the mahazar drawn while taking possession of 1 acre 30

guntas would clearly demonstrate and establish that suit

schedule properties are situated within the portion

measuring 1 acre 30 guntas and not in the portion of 22

guntas which was left out while passing the final

declaration. Placing reliance on Exs. D4 and D5, he

would submit that by way of rebuttal evidence, the

defendant-authorities have succeeded in proving that

the suit schedule properties stood vested with the BDA

and therefore, the plaintiff cannot file a bare suit for

injunction against the BDA when admittedly, the owner

lost possession of the suit schedule properties on

account of acquisition initiated by the BDA. To buttress

his arguments, the learned counsel has also placed

reliance on the judgment rendered by the Apex Court in

the case of Commissioner, Bangalore Development

Authority and another .vs. Brijest Reddy and

another1. Drawing attention of this Court to para 18 of

the judgment, he would submit that in view of clinching

rebuttal evidence adduced by the BDA, it is clearly

established that suit schedule properties were acquired

by the competent authority under the provisions of the

Land Acquisition Act and therefore the provisions of

Section 9 CPC would immediately come into play and

(2013) 3 SCC 66

the jurisdiction of the Civil Court stands excluded. On

these set of grounds and also the grounds urged in the

appeal memorandum, he would submit that the appeal

requires to be allowed and the suit requires to be

dismissed.

5. Per contra, the learned counsel appearing for

the plaintiff repelling the contentions urged by the

learned counsel for the defendants-authority would

submit that the judgment and decree passed by the trial

Court is based on clinching evidence adduced by the

plaintiff. The documentary evidence, which is placed on

record by the plaintiff would clearly establish that he is

in lawful possession over the suit schedule properties.

Therefore, the trial Court was justified in granting

perpetual injunction against the BDA. Taking this Court

to the ocular evidence of D.W.1, the learned counsel

would submit that D.W.1 in his ocular evidence in an

unequivocal terms has stated that the suit schedule

properties which were existing in the area of 22 guntas

was dropped from acquisition and final declaration was

issued only in respect of 1 acre 30 guntas which was a

vacant land excluding 22 guntas which also comprised

structure. He would further take this Court to the

clinching documentary evidence which is placed on

record by him and placing reliance on building plan and

also tax paid receipts as per Exs.P9, 10 and 13 would

submit that it would clinch the issue. Lastly, he would

conclude his arguments by contending that in a bare suit

for injunction, the Courts are only bound to examine as

to whether the plaintiff has succeeded in establishing

lawful possession as on the date of filing of the suit. The

fact that the BDA as miserably failed to demonstrate

that suit schedule properties are part and parcel of 1

acre 30 guntas which was acquired in itself amounts to

interference. The trial Court having taken note of this

significant details has rightly proceeded to decree the

suit and therefore, would request this Court to dismiss

the appeal which is devoid of merits.

6. Heard the learned counsel for the

defendants-BDA and the learned counsel for the plaintiff.

I have given my anxious consideration to the findings

recorded by the trial Court. The following points would

arise for my consideration:

(1)Whether the trial Court was justified in granting perpetual injunction against the defendants-BDA by recording a categorical finding that plaintiff is in lawful possession over the suit schedule property?

(2)Whether the trial Court was justified in holding that the defendants-

BDA has failed to prove that the suit schedule properties stood vested with BDA on account of acquisition proceedings and as such the suit is not maintainable?

7. Regarding Points 1 and 2:

The plaintiff is asserting title in respect of suit

schedule properties on the basis of the registered sale

deed dated 2.3.1995 executed by the erstwhile owners

as per Exs.P1 and P2. The plaintiff to demonstrate flow

of title in favour of his vendors has also produced copy

of the partition deed, which is marked as Ex.P3. The

plaintiff has also relied on katha endorsements and tax

paid receipts as per Exs.P5,6 and 10. On perusal of

Ex.P13-sanctioned plan, this Court would find that the

plaintiff applied for building permission and the

competent authority has approved the sanction plan.

On perusal of these documents, which comprises of title

documents as well as building permission, this Court

would find that the plaintiff has purchased the suit

schedule properties under the registered sale deeds and

consequently has put up construction in the suit

schedule properties which is also evident from Ex.P13.

Therefore, this clinching oral and documentary evidence

would clearly indicate that the plaintiff is in lawful

possession over the suit schedule properties. The

plaintiff's lawful possession is preceded by acquisition of

right and title under registered sale deeds which are of

the year 1995.

8. Therefore, on perusal of the title documents

coupled with tax paid receipts and also building

permission, this Court is of the view that the plaintiff has

succeeded in establishing his lawful possession over the

suit schedule properties. What needs to be looked into

by this Court is as to whether the defendants-BDA

having taken a specific plea that the suit schedule

properties are also part and parcel of Survey No.78/2

wherein 1 acre 30 guntas was acquired have succeeded

in establishing the same by leading rebuttal evidence.

My answer is "No". On perusal of rebuttal evidence let

in by the defendants, this Court would find that there is

absolutely no evidence to indicate that the suit schedule

properties are also part and parcel of 1 acre 30 guntas

which was acquired by the BDA. Though a feeble

attempt is made by the authorities by placing reliance

on the Mahazars as per Exs.D4 and D8 and other

documents to indicate that possession was taken in

respect of portion which was acquired by the BDA,

however, these documents do not indicate that the

present suit schedule properties were also subject

matter of acquisition.

9. The BDA is a statutory authority and

therefore, if 1 acre 30 guntas was acquired in Survey

No.78/2, then it was incumbent on the part of the BDA

authority to discharge their burden by producing cogent

and clinching evidence to demonstrate that the suit

schedule properties are also part and parcel of 1 acre 30

which was acquired. The rebuttal evidence which is

placed on record by the defendants-authority would not

come to the aid of the authorities. Exs.D4 and 8 also

does not come to the aid of the defendant to prove that

the suit schedule properties were also acquired and the

same forms part and parcel of Survey No.78/2

measuring 1 acre 30 guntas.

10. On perusal of examination-in-chief of D.W.1,

this Court is of the view that this would clinch the entire

controversy between the parties. Therefore, this Court

would deem it necessary to cull out the relevant portion

of examination-in-chief, which reads as under:

"2. I submit that the land measuring 1 acre

village, kengeri Hobli, Bangalore South Taluk has been acquired by defendants authority for the formation of Layout called "Jnanabharathi": in pursuance of preliminary Gazette dated 19.01.1989, followed by final Notification No.HUD.483, MNX.91 dated 19.01.1994 and published in Karnataka Gazette dated 03.03.1994. Though the entire extent of 2 acres 12 guntas in sy.No.78/2 of Valagerehalli village was proposed for acquisition considering the structures existing in an area measuring 22 guntas, the said built up area was not included in the final notification."

11. The relevant cross-examination of D.W.1

conducted on 28.10.2005 would rather disprove the

case of the defendant-authority, which reads as under:

"It is true that we have not produced the original Notification and the possession mahazar before court."

12. If the ocular evidence of D.W.1 is taken into

consideration, then this Court is of the view that the

defendants-BDA have failed to prove that the suit

schedule properties stood vested on account of

acquisition of Survey No.78/2. On the contrary, this

Court would find that the plaintiff has succeeded in

producing sufficient materials indicating that he has

constructed a building after securing permission from

the authority and he is in lawful possession as on the

date of filing of the suit. Though, it is more than a trite

that in a bare suit for injunction, the issue relating to

title cannot be gone into, however, the plaintiff's

possession is based on title documents and the same is

placed on record as per Exs.P1 and P2. The plaintiff has

further produced documentary evidence to corroborate

and substantiate his claim that he is in lawful possession

over the suit schedule properties and the same can be

gathered from Exs.P1 and P2. On perusal of cross-

examination of D.W.2, the plaintiff has succeeded in

eliciting from the mouth of the concerned officials and

has demolished the defence set up by the defendants-

authority. The plaintiff has succeeded in establishing

that evidence on record clearly indicates that the BDA

has failed to establish the alleged mahazars. Even

otherwise, the mahazars which are produced before the

Court are quite ambiguous and the said mahazars do not

depict the topography and location of the property. It

also does not indicate that the present suit schedule

properties are part and parcel of 1 acre 30 guntas.

13. Therefore, I am of the view that the defence

set up by the defendants-authority is not substantiated

and corroborated by producing cogent and clinching

evidence. If the cogent and clinching evidence adduced

by plaintiff coupled with ocular evidence of D.W.1 is

taken into consideration, I am of the view that the

plaintiff has succeeded in establishing his lawful

possession over the suit schedule properties. The BDA

has not produced any documents to support its

contention that suit schedule properties are part and

parcel of 1 acre 30 guntas which was acquired.

Therefore, I am of the view that the BDA has made a

false claim and under the garb of false claim has tried to

interfere with the plaintiff's peaceful possession and

enjoyment over the suit schedule properties. In that

view of the matter, the judgment and decree of the trial

Court in granting injunction is in accordance with law

and does not suffer from any irregularities and

infirmities. Accordingly, the points formulated by this

Court are answered in the affirmative.

14. For the foregoing reasons, the appeal is

devoid of merit and accordingly stands dismissed.

Sd/-

JUDGE

*alb/-