The Commissioner vs K P Shamanna
2023 Latest Caselaw 317 Kant

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                                                        RFA No. 947 of 2005




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 5TH DAY OF JANUARY, 2023

                                          BEFORE

                        THE HON'BLE MR JUSTICE N S SANJAY GOWDA

                        REGULAR FIRST APPEAL NO.947 OF 2005 (INJ)

                BETWEEN:

                THE COMMISSIONER
                BANGALORE DEVELOPMENT AUTHORITY,
                KUMARA PARK WEST,
                T.CHOWDAIAH ROAD,
                BANGALORE-560 020.
                                                               ...APPELLANT

                (BY SRI. MURUGESH V CHARATI, ADVOCATE)

                AND:

                1.     SRI. K.P.SHAMANNA
                       S/O LATE SMT.YELLAMMA
                       MAJOR.

                2.     SRI. K.P.MURTHY
                       MAJOR,
Digitally signed       S/O. LATE SMT.YELLAMMA
by PANKAJA S
Location: HIGH
COURT OF         3.    SMT. GAJALAKSHMI
KARNATAKA              MAJOR, W/O SHRI K.P.MUNI REDDY

                       ALL ARE RESIDING AT
                       KACHARAKANAHALLI VILLAGE,
                       KASABA HOBLI,
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                                         RFA No. 947 of 2005




    BANGALORE NORTH TALUK,
    PIN-560 084.
                                             ...RESPONDENTS

(BY SRI. H.MUJTABA, ADVOCATE FOR R-2 AND R-3;
VIDE ORDER DATED 18.04.2017, APPEAL ABATED
AS AGAINST R-1)
                         ****

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED
IN O.S.NO.4508/1991 DATED 13.12.2004 ON THE FILE OF
XXVII ADDL.CITY CIVIL JUDGE, BANGALORE AND DISMISS THE
SUIT IN THE INTEREST OF JUSTICE AND GRANT SUCH OTHER
RELIEF OR RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO
GRANT UNDER THE FACTS AND CIRCUMSTANCES OF THE
CASE.

     THIS RFA COMING ON FOR HEARING, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

1. The defendant BDA is in appeal.

2. The plaintiffs instituted a suit, seeking for

decree of perpetual injunction to restrain the BDA and its

officials from interfering with their peaceful possession and

enjoyment of the suit property, which was land bearing

Sy.Nos.191/1 and 191/2 of Kacharakanahalli, Kasaba

RFA No. 947 of 2005

Hobli, Bangalore North Taluk, measuring 1 acre 36 guntas

and in which there were four houses standing in the said

land.

3. The case of the plaintiffs was that the plaintiffs

1 and 2 were the sons of late Yellamma and G. Papi

Reddy, while the third plaintiff was the widow of the

brother of the plaintiffs 1 and 2, i.e K.P. Muni Reddy. They

contended that they had succeeded to the property from

their mother Yellamma, who had purchased 2 acres 34

guntas of land including Kharab land in the suit property

under a Sale Deed dated 07-05-1969 and were

accordingly in possession of the same.

4. It was contended that after the death of their

mother Yellamma on 26-01-1982, the plaintiffs continued

in possession and thereafter Erappa Reddy, one of the

legal heirs of Yellamma was given 38 guntas as his share

and the remaining 1 acre 36 guntas continued to be in the

RFA No. 947 of 2005

possession of the plaintiffs and it was this 1 acre 36

guntas which was the subject matter of the suit.

5. It was stated that it was the understanding of

the family members that the plaintiffs had been allotted 1

acre 36 guntas and they continued in possession.

However, the entries in the revenue records indicated the

names of Narayana Reddy, Erappa Reddy and Guru Reddy,

who were the sons of late Papi Reddy, i.e. the father of the

plaintiffs 1 and 2.

6. It was stated that the revenue entries continued

in the name of siblings since there was cordial relationship

amongst the family members. It was also stated that

though the Sale Deed dated 07-05-1969 in favour of

Yellamma indicated that she had purchased only 1 acre 36

guntas, the same was a mistake since the entire extent

measuring 2 acres 34 guntas had been sold and this was

clear from the fact that the boundaries for the entire land

was mentioned in the Sale Deed.

RFA No. 947 of 2005

7. It was stated that Yellamma accordingly was in

possession of 2 acres 34 guntas and she had given an

extent of 38 guntas to Erappa Reddy and the remaining

extent of 1 acre 36 guntas remained with the plaintiffs.

8. It was contended that the suit properties were

not subjected to any acquisition and they continued to be

in possession, but on 27-03-1991, certain people claiming

to be the officials of BDA sought to interfere with their

possession and therefore they were constrained to file a

suit.

9. The BDA entered its appearance and contested

the suit. Apart from denying all the averments from the

plaintiffs, they contended that Sy.Nos.191/1 and 191/2 of

Kacharakanahalli village, Kasaba Hobli, Bangalore North

Taluk was notified under a preliminary Notification dated

27-06-1978 and this was followed by a declaration dated

09-01-1985. The BDA stated that the notified khatedars

were Suttanapalya Bokodi Payahal kom Gangan,

RFA No. 947 of 2005

Narayanappa, Papaiah, Erappa Reddy and notices had

been issued to them. BDA stated that an award was

passed on 16-07-1986 by the Land Acquisition Officer and

the Deputy Commissioner, BDA had also approved the

award on 14-08-1986 and thereafter possession was taken

from the landlords on 27-08-1986. BDA contended that

the plaintiffs were trespassers and had not filed any

objections to the acquisition proceedings.

10. They stated that as on the date of the

preliminary Notification, there were no structures or

foundation and as on the date of taking possession, there

were no structures but were only foundation and therefore

the plaintiffs were not entitled for any relief.

11. BDA also contended that the award of amount

`87,419/- had been paid to Erappa Reddy on

17-11-1986 and a further sum of `1,63,335/- was kept in

revenue deposit. BDA stated that the entire Layout was

formed and at the time of formation of Layout, there was

RFA No. 947 of 2005

no obstruction and the plaintiffs were trying to put up

structures subsequent to the filing of the suit which were

illegal constructions.

12. The Trial Court framed five issues and after

analysing the evidence on record recorded a finding that

the plaintiffs had proved that they were in lawful

possession of the suit schedule property and there was

interference and as a consequence, the plaintiffs were

entitled for a decree of injunction.

13. The Trial Court, however, made it clear that if

BDA had any right over the suit schedule property, it

would be at liberty to proceed in accordance with law to

dispossess the plaintiffs.

14. Sri.Murugesh V. Charati, learned counsel for

BDA contended that the judgment of the Trial Court could

not be sustained. He submitted that there was clear

evidence on record that the entire Sy.Nos.191/1 and

191/2 were acquired and were in possession of the BDA.

RFA No. 947 of 2005

15. Learned counsel for the appellant/BDA sought

to place reliance on documents which were produced along

with an application which had been filed under Order XLI

Rule 27 of the Code of Civil Procedure, 1908, in which BDA

sought to produce the claim made by Erappa Reddy

towards compensation and also the allotment letters that

it had issued in favour of various allottees to indicate that

possession of the property had been taken over by BDA

and that a Layout had been formed and also sites allotted

to the members.

16. Learned counsel contended that in the light of

the documents which were produced before the Trial Court

and also the documents which were sought to be produced

along with the application, it was clear that the plaintiffs

were not in possession and therefore the decree was to be

reversed.

17. Learned counsel for the plaintiffs/respondents,

on the other hand, contended that the judgment and

RFA No. 947 of 2005

decree passed by the Trial Court was just and proper and

did not call for any interference. Learned counsel

submitted that it was admitted by DW-2 in his

examination-in-chief itself that there were structures

standing on the property and in the light of this clear and

categorical admission, it could not be in doubt that the

plaintiffs were in possession and therefore, the decree was

justified.

18. At the out set, it is to be stated here that the

suit filed by the plaintiffs was only for permanent

injunction and thus in order to succeed, the plaintiffs were

required to prove that they were in settled possession as

on the date of filing of the suit. The question as to

whether the lands were acquired or not would only be an

incidental question to be considered in this suit and in that

view of the matter, since the preliminary Notification,

declaration and award have been produced which indicate

that the entire Sy.No.191, measuring 2 acres 34 guntas

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RFA No. 947 of 2005

had been acquired, it cannot be in doubt that the land

bearing Sy.No.191 stood vested in BDA.

19. The argument of the learned counsel for the

plaintiffs/respondents that Sy.Nos.191/1 and 191/2 had

not been notified cannot be accepted since obviously

Sy.Nos.191/1 and 191/2 would be carved out of the

original Sy.No.191 itself.

20. As far as the factum of possession is concerned,

the Trial Court has recorded a clear finding that BDA at

paragraph 5 of its written statement itself has stated that

the plaintiffs were trespassers and in the course of his

cross-examination, DW-2 had admitted that certain

structures had come up on the suit property

unauthorisedly subsequent to the acquisition.

21. In paragraph 5 of the written statement, the

BDA has in fact stated as follows:

"... The plaintiffs are trespassers....."

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RFA No. 947 of 2005

22. In the light of this statement, the BDA basically

admitted the possession of the plaintiffs. Furthermore,

DW-2, in his examination-in-chief has stated as follows:

"The structures alleged to have come up on the schedule property are unauthorized and they have come up subsequent to acquisition of the said land."

23. In the course of his cross-examination, DW-2,

who was the Junior Engineer of BDA has also stated as

follows:

"I have inspected suit schedule property. There are buildings in the suit schedule property."

24. In the light of the fact that both in the written

statement as well as in the evidence, the BDA admitted

that the plaintiffs had put up structures, it is obvious that

the Trial Court was justified in granting a decree of

injunction.

25. Moreover, it is to be stated here that the

plaintiffs produced photographs of four buildings which

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RFA No. 947 of 2005

they claim to have constructed in Sy.Nos.191/1 and 191/2

and the same were marked as Exs.P-8, P-9, P-10 and

P-11. Obviously by production of only four photographs,

the plaintiffs have admitted that they have put up only

four structures and the remaining land continue to be

vacant.

26. It is settled law that possession would normally

follow title and since the BDA has established that it had

acquired the land, the land apart from four structures

indicated in Exs.P-8, P-9, P-10 and P-11 will have to be

considered to be in the lawful possession of the BDA. Since

the plaintiffs produced only four photographs to indicate

their possession and it is with reference to these four

photographs, the Junior Engineer also admitted that the

unauthorised structures have been put up, it would be

appropriate to restrict the finding of the Trial Court

regarding possession of the plaintiffs and the grant of the

decree of injunction in respect of the four houses indicated

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RFA No. 947 of 2005

in the photographs which are produced as Exhibits P-8,

P-9, P-10 and P-11.

27. It is made clear that there would be no decree

of injunction in favour of the plaintiffs in respect of the

remaining portion of Sy.Nos.191/1 and 191/2.

28. As already indicated by the Trial Court, the BDA

would be at liberty to initiate appropriate proceedings

against the plaintiffs in respect of these four structures in

accordance with law.

29. The appeal is thus allowed in-part to the

extent stated above.

SD/-

JUDGE

BMV*