Karnataka High Court

Bangalore Development Authority vs Venkataramanaih on 9 June, 2023

Bench: H T Prasad

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                                                       NC: 2023:KHC:19743
                                                           RFA No. 23 of 2008




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 9TH DAY OF JUNE, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                          REGULAR FIRST APPEAL NO. 23 OF 2008 (DEC)


                   BETWEEN:

                   BANGALORE DEVELOPMENT AUTHORITY
                   OFFICE AT T CHOWDAIAH ROAD
                   BANGALORE
                   REPRESENTED BY ITS COMMISSIONR.
                                                                 ...APPELLANT
                   (BY SRI. K.KRISHNA., ADVOCATE)


                   AND:

                   1.     VENKATARAMANAIH
                          S/O LATE VENKATACHALAIAH
                          SINCE DECEASED BY HIS LR'S

                   1(a) SMT. SAVITHRAMMA
Digitally signed
by                      W/O LATE VENKATARAMANAIAH
DHANALAKSHMI            MAJOR.
MURTHY
Location: High     1(b) SRI. VENKATESH
Court of
Karnataka               S/O LATE VENKATARAMANAIAH
                        MAJOR

                   1(c) SRI. VENUGOPAL
                        S/O LATE VENKATARAMANAIAH
                        MAJOR

                   1(d) SRI. NATARJ
                        S/O LATE VENKATARAMANAIAH
                        MAJOR
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                                 NC: 2023:KHC:19743
                                        RFA No. 23 of 2008




1(e) SMT. VEDAVATHI
     D/O LATE VENKATARAMANAIAH
     MAJOR

     RESPONDENT Nos. 1(a) TO 1(e) ARE
     RESIDING AT No. 279
     20TH MAIN ROAD, M.C. LAYOUT
     MARENAHALLI MAIN ROAD
     VIJAYANAGAR
     BANGALORE-560 040.

2.   SMT K V SHAKUNTHALA
     W/O T S PUTTAVEERAIAH
     MAJOR, NO 272, I BLOCK
     JAYANAGAR, BANGALORE 11

3.   BANGALORE METROPOLITAN TASK FORCE
     URBAN DEVELOPMENT DEPARTMENT
     GOVERNMENT OF KARNATAKA
     BY ITS SECRETARY
     OFFICE OF THE CITY CORPORATION
     OF BANGALORE, J C ROAD
     BANGALORE.

4.   STATE OF KARNATAKA
     BY ITS SECRETARY
     DEPARTMENT OF HOUSING AND
     URBAN DEVELOPMENT
     MS BUILDING, BANGALORE 1.
                                        ...RESPONDENTS
(BY SRI. K S NAGARAJ RAO, ADVOCATE FOR R1(A-E):
SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR R3:
SMT. H.R. ANITHA, HCGP FOR R4:
R2 IS DELETED)
     THIS RFA IS FILED UNDER SECTION 96 R/W O XLI R 1
OF CPC AGAINST THE JUDGMENT AND DECREE DT.10.8.2007
PASSED IN O.S.NO.6127/1996 ON THE FILE OF THE XVI ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
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                                           NC: 2023:KHC:19743
                                                  RFA No. 23 of 2008




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

This appeal is filed by the second defendant

Bangalore Development Authority (for short, 'the BDA')

under Section 96 r/w. Order XLI Rule 1 of Civil Procedure

Code challenging the judgment and decree dated

10.08.2007 passed by the XVI Additional City Civil &

Sessions Judge, Bangalore, in O.S.No.6127/1996, whereby

the suit filed by the plaintiff has been decreed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The case of the plaintiff is that he is the

absolute owner in possession and enjoyment of the

residential property bearing No.59 new No.279 situated at

20th Main road, Hosahalli Extension, Kempapura Agrahara,

now it is known as Magadi road, Chord Road Extension

Layout, Bangalore-40, measuring East-West - 30 ft. and

North-South - 60 ft., which was purchased by him from its

previous owner - M.Munivenkatappa under a registered

NC: 2023:KHC:19743 RFA No. 23 of 2008

sale deed dated 30.05.1964. Thereafter, he has

constructed a building, approximately in 8 squares, part of

the building in RCC towards north and asbestos sheets

towards south. He constructed the building in the year

1965 and he was residing in the said property.

The further case of the plaintiff is that suit schedule

property was not acquired by the second defendant, no

notification has been issued in this regard and no award

has been passed. Hence, the plaintiff is in an

uninterrupted possession and enjoyment of the suit

property right from 1964 till the date of filing the suit and

he has perfected his title by adverse possession.

The further case of the plaintiff is that the second

defendant allotted the suit property to the first defendant

and on that basis the defendants are trying to dispossess

the plaintiff on the guise of acquisition of the suit property.

The plaintiff issued notice to the second defendant. On

02.09.1996, defendant Nos.1 and 2 approached defendant

NC: 2023:KHC:19743 RFA No. 23 of 2008

No.3 to demolish the suit schedule property by using the

force. Hence, plaintiff filed a suit for adverse possession or

in the alternative to declare that the plaintiff is in settled

possession of the suit schedule property and other

consequential reliefs. Later, plaintiff filed a memo giving

up the prayers in respect of the adverse possession.

4. After service of summons, defendant No.1

appeared in the suit through counsel and filed written

statement and additional written statement contending

that the suit property was allotted to her mother by

second defendant through lease-cum-sale agreement

dated 11.10.1968. At the time of the allotment, the suit

site was a vacant site. After the death of her mother, the

said site was transferred to her name under an agreement

dated 22.11.1976. After completion of 10 years of lease,

second defendant wanted to cancel the allotment made to

her. Accordingly, notice was issued and she has challenged

the notice by filing a writ petition in W.P.No.7173/1979

before this Court. This Court directed the second

NC: 2023:KHC:19743 RFA No. 23 of 2008

defendant to execute absolute sale deed in favour of the

first defendant. Thereafter, BDA executed absolute sale

deed on 19.08.1989. Thereafter, khata was changed in

her name and she is paying the taxes. She has denied all

the allegations made in the plaint.

The second defendant appeared through counsel

and filed written statement denying the claim of the

plaintiff stating that the suit schedule property is a part of

the land bearing Sy.No.211 of Kempapura Agrahara, which

totally measures 21 acres 31 guntas. The entire land was

acquired in the year 1961 by issuing preliminary and final

notifications, award was passed, possession of the entire

land has been taken in the year 1964 and it was utilized

for the formation of the layout. After the formation of the

layout, site bearing No.279 was allotted in favour of

Thayamma, mother of the first defendant. It was further

pleaded that since the plaintiff claims to be the subsequent

purchaser, the suit filed by the plaintiff is not

NC: 2023:KHC:19743 RFA No. 23 of 2008

maintainable. On the basis of the pleadings of the parties,

the following points were framed before the trial court:

"1) Whether the plaintiff proves that he has purchased the suit schedule property through a registered sale deed?

2) Whether the plaintiff proves that he has put up a building spending huge money?

3) Whether plaintiff proves that he is in settled possession of the suit property?

           4)    Whether        the     plaintiff    proves
     interference?

5) Whether the defendant No.1 proves that only a symbolical possession was given in respect of the property to her?

6) Whether the defendant BDA proves that the suit is not maintainable for want of notice under Section 64 of BDA Act?

7) To what decree and order the parties are entitled for?"

NC: 2023:KHC:19743 RFA No. 23 of 2008

5. To prove the case, plaintiff examined himself as

PW-1 and produced Exs.P-1 to P-11. Defendants

examined two witnesses as DWs.1 and 2 and produced

Exs.D-1 to D-10. On appreciation of the oral and

documentary evidence, the trial court answered issue

Nos.1 to 4 in the affirmative, issue Nos. 5 and 6 in the

negative and decreed the suit. Being aggrieved by the

same, the second defendant has filed this appeal.

6. The learned counsel for the appellant-second

defendant has contended that the land in dispute has been

acquired by the Government under the CITB and has

taken the possession and BDA has formed layout and

allotted sites to the beneficiary. BDA has filed a detailed

written statement in the suit before the Trial Court and

contended that the land has been acquired by the BDA and

they have issued preliminary and final notifications. It has

specifically contended that the suit filed by the plaintiff is

not maintainable, since it is barred under Section 9 of

CPC. In support of his contention, he has relied upon the

NC: 2023:KHC:19743 RFA No. 23 of 2008

decision of Apex Court in the case of Commissioner,

Bangalore Development Authority and another -v-

Brijesh Reddy and another (2013) 3 SCC 66.

He further contended that, admittedly, as per the

finding of the Trial Court, the plaintiff is in possession from

1989. The suit is filed in the year 1996. The relief sought

by the plaintiff for settled possession and adverse

possession is not maintainable. He contended that to

prove the settled possession, he should have been in

possession of the property for more than 12 years without

any kind of interference by the BDA. In support of his

contention, he has relied upon the judgment of this Court

in the case of John B James and others -vv Bangalore

Development Authority and Another ILR 2000(4)

KAR 4134. The Trial Court contrary to the materials

available on record has erred in holding that the plaintiff is

in settled possession and enjoyment of the suit schedule

property. Hence, he sought for allowing the appeal.

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NC: 2023:KHC:19743 RFA No. 23 of 2008

7. Per contra, Mr.K.S.Nagaraj Rao, learned counsel

for the respondent No.1(a to e)-plaintiff has contended

that in respect of relief sought by the plaintiff for adverse

possession is concerned, the plaintiff has given up the

prayer. He further contended that plaintiff has purchased

the property from erstwhile owner vide registered sale

deed 30.5.1964 and he is in possession of the property

uninterruptedly from the date of purchase. He further

contended that in an earlier occasion, first defendant had

filed W.P.No.28535/1996 seeking direction against the

BDA to deliver possession of the suit property. This court

by order dated 30.7.1997 disposed of the writ petition

reserving liberty to the first defendant to approach the civil

court for appropriate remedy. In the said order, there is

also a clear finding that the plaintiff is in possession of the

property. Therefore, he has contended that it is admitted

fact that as on the date of filing of the suit till today, the

plaintiff is in possession of the property and the Trial Court

has rightly decreed the suit and granted injunction

restraining the defendants from evicting the plaintiff from

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NC: 2023:KHC:19743 RFA No. 23 of 2008

the suit property. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and decree of the Trial Court and

original records.

9. The points that arise for consideration in this

appeal is as follows:

(a) Whether the suit filed by the plaintiff against

the BDA is maintainable?

(b) Whether the Trial Court is justified in decreeing

the suit of the plaintiff holding that the plaintiff

is in settled possession and enjoyment of the

suit schedule property by constructing house in

the portion of the suit schedule property?

10. The case of the plaintiff is that one

Mr.Munivenkatappa was the owner of the suit schedule

property and he purchased the suit schedule property from

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NC: 2023:KHC:19743 RFA No. 23 of 2008

him by registered sale deed dated 30.5.1964. Thereafter,

he has constructed the building. From the year 1965, the

plaintiff and his family members are residing in the

property.

The specific case of the second defendant is that the

suit site is part of Old Survey No.271 and new No.276 of

Kempapura Agrahara. The said land has been acquired by

the BDA by issuing preliminary notification dated

18.5.1961 and final notification was issued on 19.12.1961

and they have taken possession of the suit schedule

property and they have formed layout and allotted the

same to beneficiaries. The site in question has been

allotted to first defendant. It is very clear from Exs.D-1

and D-2 that suit schedule property has been acquired by

the Government under CITB Act for the formation of

layout. The plaintiff has purchased the suit schedule

property on 30.5.1964 i.e., after final notification dated

19.12.1961 has been issued by the State Government.

The Apex Court in the case of Brijesh Reddy (supra) has

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NC: 2023:KHC:19743 RFA No. 23 of 2008

held that once acquisition proceedings is completed, the

purchaser who has purchased the land after acquisition

has no right to maintain the suit against the BDA.

Paragraph Nos.18, 19 and 20 of the said decision are

relevant and same is extracted hereinbelow:

"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 civil Court to take cognizance of the case under Section 9 of 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.

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NC: 2023:KHC:19743 RFA No. 23 of 2008

19. No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the defendant Nos.

1 and 2,i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial Court and ultimately it rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 of CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that

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NC: 2023:KHC:19743 RFA No. 23 of 2008

their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial Court for fresh disposal.

20. Having regard to the fact that the acquisition proceedings had been completed way back in 1960- 1970, the plaintiffs who purchased the suit land in 1995 cannot have any right to maintain the suit of this nature particularly, against defendant Nos. 1 and 2, namely, the BDA. The High Court clearly erred in remanding the matter when the suit was not maintainable on the face of it. The High Court failed to take note of the fact that even in the plaint itself, the plaintiffs-respondents herein have stated that the suit land was acquired and yet they purchased the suit land in 1995 and undoubtedly have to face the consequence. The possession vests with the BDA way back in 1969 and 1978 and all the details have been

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NC: 2023:KHC:19743 RFA No. 23 of 2008

asserted in the written statements, hence the remittal order cannot be sustained".

Therefore, from the above decision of the Apex

Court, it is clear that the suit filed by the plaintiff against

the BDA is not maintainable.

11. In respect of the relief sought by the plaintiff to

declare that he is in settled possession and enjoyment of

the suit schedule property is concerned, the Trial Court

has given a clear finding that the plaintiff is in possession

from 1989 to 1996. However, the Division Bench of this

Court in the case of John B James (supra) has held that

if the person has to prove that he is in settled possession,

he should be in possession for more than 12 years without

any kind of interference from the BDA. Paragraph No.80 of

the said Division Bench decision of this Court is relevant

and same is extracted hereinbleow:

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"Re: Persons who have put up structures and have remained in settled possession for more than 12 years without any kind of interference from BDA:

80. If anyone, who has trespassed into BDA land or in unauthorized possession of BDA land, has put up a structure and completes and accomplishes the act of possession and continues in such settled possession asserting possession and ownership in himself, openly, peacefully and uninterruptedly to the knowledge of BDA, for more than 12 years, then it is possible for him to contend that he has perfected his title to such property by adverse possession and consequently the title of BDA stood extinguished. It is needless to say that such adverse possession for 12 years should be subsequent to the date of vesting of land in BDA. The person claiming such title by adverse possession cannot call in aid any possession on his part or his predecessor, for any period prior to date of vesting of land in BDA, to establish adverse possession, or possession during the pendency of any litigation regarding the property, cannot be considered as possession adverse to BDA".

In the case on hand, there is a clear finding that the

plaintiff was in possession from 1989 to 1996 and he has

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not been in possession for more than 12 years. Therefore,

under the circumstances and in view of the Division Bench

decision of this Court in the case of John B James

(supra), the relief granted by the Trial Court declaring that

the plaintiff is in settled possession and enjoyment of the

suit schedule property is erroneous. Accordingly, the said

finding of the Trial Court is set aside.

12. In respect of possession is concerned, the