Karnataka High Court
The Commissioner vs P Narasimha Murthy on 13 December, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:45415
RFA No. 778 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.778 OF 2008 (INJ)
BETWEEN:
THE COMMISSIONER
THE BANGALORE DEVELOPMENT AUTHORITY,
HEAD OFFICE, SANKEY ROAD,
KUMARA PARK (WEST),
BANGALORE- 560 020.
...APPELLANT
(BY SRI SHRAVAN FOR SRI B.S.SACHIN, ADVOCATES)
AND:
1. P NARASIMHA MURTHY
S/O PUTTASWAMY
AGED ABOUT 45 YEARS,
RESIDING AT NO.231, 4TH MAIN,
KEMPEGOWDA NAGAR,
Digitally BANGALORE-560 019.
signed by R
MANJUNATHA
Location: 2. SMT SAVITHRAMMA
HIGH COURT W/O K.C.SHIVANNA,
OF
KARNATAKA AGED ABOUT 40 YEARS,
RESIDING AT NO.231/12,
4TH MAIN, KEMPEGOWDA NAGAR,
BANGALORE-560 019.
3. SMT PUSHPA
W/O.S.K.N.MURTHY,
AGED ABOUT 38 YEARS,
RESIDING AT NO.734, 4TH MAIN ROAD,
BSK III STAGE,
SRINAGAR,
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RFA No. 778 of 2008
BANGALORE-560 050.
...RESPONDENTS
(BY SRI G.S.RAVISHANKAR, ADVOCATE FOR R1 TO R3)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER XLIII RULE 1 OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED 22.02.2007
PASSED IN O.S.NO.8538/2002 ON THE FILE OF THE XVI
ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
CCH.NO.12, DECREEING THE SUIT FOR RELIEF OF PERMANENT
INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Shravan for B.S. Sachin, learned counsel for
the appellant and Sri G.S. Ravishankar, learned counsel for
respondent Nos.1 to 3.
2. Bengaluru Development Authority (for short 'BDA') has
filed the present appeal challenging the validity of the judgment
and decree in O.S.No.8538/2002, dated 22.02.2007, on the file
of XVI Additional City Civil and Sessions Judge, Bengaluru City
(CCH-12).
3. Parties are referred to as plaintiffs and defendant for the
sake of convenience as per their original ranking in the trial
Court.
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4. The facts which are utmost necessary for disposal of the
appeal are as under:
5. Suit came to be filed by the plaintiffs against the BDA in
respect of following properties:
SCHEDULE
1. Property of first plaintiff:-
Half square house comprised in property bearing
house list No.87 and 88 in V.P.Katha No.16,
measuring East to West: 40 feet, North to South: 60
feet, bounded on the:
East by: Property No.69 and 70,
West by: Road,
North by: Road, and
South by: Property No.89.
2. Property of second plaintiff:-
One square house comprised in property bearing
house list No.95 in V.P.Katha No.16, measuring East
to West: 40 feet, North to South: 30 feet, bounded
on the:
East by :Road,
West by : Site No. 121,
North by : Site no.96, and
South by : Site No.94.
3. Property of third plaintiff:-
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One square house comprised in property bearing
house list No.112 in V.P.Katha No.16, measuring
East to West: 40 feet, North to South: 30 feet,
bounded on the:
East by: Site No.104,
West by: Road,
North by: Site No.111, and
South by: Site No.113.
(Hereinafter referred to as suit properties)
6. According to plaintiffs, they are the purchasers of the
revenue sites from the erstwhile owner who has formed the
layout and they are put into the possession of the property and
they have put up their construction and they are residing in suit
property. When the BDA started interfering with their peaceful
possession and enjoyment, they were constrained to file the
suit.
7. Upon service of suit summons, BDA appeared before the
Court through their Advocates, but failed to file the written
statement. Thereafter the learned trial Judge, recorded the
evidence of one of the plaintiffs namely; Savithramma, who is
the second plaintiff. Plaintiffs relied on the five documents
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which were produced and marked as Exs.P.1 to P.5, comprising
of sale deeds as Exs.P.1 to P.3, copy of the legal notice as
Ex.P.4, postal acknowledgment as Ex.P.5.
8. Since the defendant did not choose to file the written
statement and not cross-examined P.W.1, the learned trial
Judge raised the formal points and answered the points in
favour of the plaintiffs and decreed the suit of the plaintiffs.
9. Being aggrieved by the same, BDA has filed the present
appeal. BDA has also filed an application under Order XLI Rule
27 of CPC to rely upon the additional evidence on the following
grounds:
The judgment and decree passed by the
court below is opposed to law, facts and
probabilities of the instant case and is liable to
be set aside.
The Trial Court without verifying the
authenticity of the documents produced by the
plaintiffs, blindly accepted the contention of the
plaintiffs/respondents and decreed the suit. The
Trial Court erred in decreeing the suit only on
the ground that the plaintiffs have produced
registered documents which pertain to the year
1995 and the defendant-Bangalore
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Development Authority has not denied those
documents and the written statement has not
been filed by the Appellant.
The Trial Court ought to have dismissed the
suit on the ground that the plaintiffs have not
disclosed the fact that the property was
acquired by the Bangalore Development
Authority much earlier to the purchase of the
schedule property.
The Trial Court has not given sufficient
opportunity to the defendant to file its written
statement and for cross examination of PWI.
The plaintiffs in their plaint deliberately not
mentioned with regard to the acquisition of
property for formation of BSK V Stage. When
that being the case, the trial Court ought to
have dismissed the suit on the ground of
suppression of facts.
The Trial Court ought not to have decreed
the suit absolutely without reserving liberty to
the defendant/appellant to proceed in
accordance with law. Hence, the impugned
judgment and decree is liable to be set aside.
It is submitted that the property is acquired
and taken possession in accordance with Land
Acquisition Act, hence, the question of the
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subsequent purchaser having right over the
property does not arise.
The Trial Court erred in decreeing the suit
only on the ground that the defendant/appellant
has not filed the written statement.
The trial court failed to notice the decision of
the Division Bench of this Hon'ble Court
reported in case of POORNAPRAJNA HOUSE
BUILDING CO-OPERATIVE SOCIETY LIMITED
VS. BYLAMMA @ DODDABYLAMMA, reported in
ILR 1998 KAR 1441, wherein, this Hon'ble Court
held that, the right of purchaser of land
subsequent to issuance of Notification under
Section 4(1) do not get any right and
consequently has no right to challenge the
acquisition proceedings.
The Appellant may be permitted to urge any
other grounds which are germane to the facts of
the case at the time of arguments."
10. Reiterating the grounds urged in the appeal
memorandum, Sri Shravan appearing on behalf of Sri B.S.
Sachin, learned counsel for the appellant, contended that the
counsel who represented the BDA in the Court below did not
take proper interest in contesting the suit properly. Therefore,
suit has been decided exparte. As such, sought for one more
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opportunity to contest the suit on merits and sought for
allowing the appeal.
11. In respect of additional evidence is concerned, learned
counsel for the appellant submits that the BDA has notified the
entire area in Sy.No.16 of Vaddarapalya, Bangashankari-V
stage, Bengaluru South Taluk, by receiving a preliminary
notification on mortgage on 13.04.1989 and followed by the
final notification on 18.05.1994 and the sale deeds of the
plaintiffs are in the year 1995. Therefore, no right has been
flown to the plaintiffs in respect of suit property after the final
notification came to be issued by the BDA and sought for
allowing the appeal.
12. He also submits that necessary documents in this regard
are filed along with the application under Order XLI Rule 27
CPC and the same may be considered and the matter be
remitted to the trial Court for fresh disposal in accordance with
law.
13. Per contra, Sri G.S. Ravishankar, learned counsel
representing the respondent Nos.1 to 3 who are the plaintiffs
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before the trial Court seriously opposes the application filed
under Order XLI Rule 27 of CPC. So also he opposes the appeal
grounds by contending that the BDA cannot put the blame on
the counsel who contested on behalf of the BDA in the trial
Court and no satisfactory reasons are assigned in the affidavit
in support of the application filed under Order XLI Rule 27 CPC
to admit the additional evidence on record and remitting the
matter to the trial Court and sought for dismissal of the
application as well as the appeal.
14. This Court perused the material on record meticulously in
view of the rival contention of the parties. On such perusal of
the material on record, the sole point that would arise for
consideration of this Court is:
1) Whether the appellant has made out a case for
remitting the matter to the trial Court for fresh
disposal in accordance with law?
2) What order?
15. In the case on hand, admittedly the defendant/appellant
appeared before the trial Court, but failed to file the written
statement. Thus, the decree that has been passed in the trial
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Court which is impugned in the present appeal is to be termed
as exparte decree.
16. Further, according to the appellant, the suit property
which was carved out of Sy.No.16 of Vaddarapalya, Bengaluru
South Taluk has been acquired by issuing the necessary
preliminary notification in the year 1989 followed by the final
notification in the year 1994 and the sale deeds of the plaintiffs
are of the year 1995. Therefore, no rights have flown under
the said sale deeds in favour of the plaintiffs from the erstwhile
owner who has lost all his interest after issuance of the final
notification and all the rights, title and interest in respect of the
suit property has vested with the BDA.
17. Whether at all the suit properties are part of the
acquisition or not cannot be decided by this Court by recording
the evidence in this appeal.
18. Further, for the reasons best known to the BDA, BDA did
not choose to contest the suit properly before the trial Court.
For the mistake of the BDA, the plaintiffs cannot be penalized.
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19. Nevertheless, taking note of the fact that even before the
sale deeds of the plaintiffs that there was a final notification
issued by the BDA, there is sufficient force in the submissions
made on behalf of the appellant that matter requires
reconsideration in the light of the grounds urged in the appeal
and especially the additional evidence sought to be placed
before the Court.
20. Accordingly, this Court is of the opinion that the matter
requires reconsideration before the trial Court. However, the
plaintiffs are unnecessarily dragged on to the unwanted
litigation. Negligence of BDA in this regard needs to be taken
note of by this Court and plaintiffs are to be compensated by
reasonable costs payable by BDA while remitting the matter for
fresh trial.
Accordingly, in view of foregoing discussion, point No.1 is
answered in the affirmative and following order is passed.
ORDER
Appeal is allowed.
The impugned judgment and decree passed in
O.S.No.8538/2002 is hereby set aside and the matter
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is remitted to the trial Court for fresh disposal in
accordance with law on the condition that the BDA
shall pay cost of Rs.5000/- to each of the plaintiffs, in
all Rs.15,000/-.
It is also made clear that this Court has not
expressed any opinion on the additional evidence to be
placed on record by the BDA.
Without further notice, the appellant shall appear
before the Court on 04.01.2024.
If the respondents/plaintiffs do not appear on
04.01.2024, the Court may issue necessary notice to
the plaintiffs and proceed with the suit in accordance
with law.
Further, since the matter is remitted to the trial
Court, no further orders are necessary on the
application filed order XLI Rule 27 CPC and the same is
consigned to records.
Ordered accordingly.
Sd/-
JUDGE
MR
