The Commissioner vs Sri. V. Nagaraj
2023 Latest Caselaw 3510 Kant

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                                                    NC: 2023:KHC:21304
                                                      RFA No. 1271 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 20TH DAY OF JUNE, 2023

                                         BEFORE
                     THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      REGULAR FIRST APPEAL NO. 1271 OF 2016 (INJ)
                   BETWEEN:

                   THE COMMISSIONER
                   BANGALORE DEVELOPMENT AUTHORITY
                   CHOWDAIAH ROAD,BANGALORE.
                                                              ...APPELLANT
                   (BY SRI. MURUGESH V CHARATI.,ADVOCATE)

                   AND:

                   SRI. V. NAGARAJ
                   S/O. VISHWANATH
                   AGED ABOUT 32 YEARS
                   R/AT NO.40, CHAMUNDINAGAR SLUM
                   5TH BLOCK, RAJAJINAGAR
                   BANGALORE-560 010.
Digitally signed                                            ...RESPONDENT
by
DHANALAKSHMI       (BY SRI. K.NAGARAJ., ADVOCATE AND
MURTHY             SRI. M.S. SURYANARAYAN RAO, ADVOCATE)
Location: High
Court of
Karnataka
                        THIS RFA IS FILED UNDER SECTION.96 OF CPC., 1908
                   AGAINST THE JUDGMENT AND DECREE DATED 27.08.2015
                   PASSED IN OS.NO.7070/2013 ON THE FILE OF THE XI ADDL.
                   CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT
                   FOR MANDATORY INJUNCTION.

                        THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                    NC: 2023:KHC:21304
                                      RFA No. 1271 of 2016




                         JUDGMENT

1. This appeal is filed by the appellant-defendant

under Section 96 of CPC challenging the judgment and

decree dated 27.8.2015 passed by XI Addl. City Civil

Judge, Bengaluru in O.S.No.7070/2013, whereby the

suit filed by the plaintiff has been decreed.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court in

the original suit.

3. The case of the plaintiff is that the suit schedule

property has been allotted by BDA vide allotment letter

dated 31.12.1997 in favour of the grand mother of the

plaintiff i.e., Smt.Jayamma w/o Govindaswamy.

Smt.Jayamma died on 20.5.2009 and plaintiff has

succeeded to the properties of Smt.Jayamma and also

Smt.Jayamma executed a Will dated 12.12.2006 and

hence, the plaintiff and his family members are in actual

possession of the suit schedule property. After the death

NC: 2023:KHC:21304 RFA No. 1271 of 2016

of Smt.Jayamma, the plaintiff has requested the

respondent-authority to transfer the ownership of the

suit schedule property. Though the plaintiff submitted

the required documents by his compliance dated

28.10.2011, but the defendant did not transfer the

ownership by executing the sale deed. Hence, the

plaintiff has filed the suit seeking relief of declaration

and injunction.

4. On service of suit summons, defendant appeared

through counsel and filed the written statement denying

the averments made in the plaint. It was contended by

the defendant that the plaintiff is not in possession and

enjoyment of the suit schedule property. It was further

contended that the suit schedule property was allotted

to one Smt.Bhagyamma vide allotment letter dated

3.4.1992. The defendant has denied the execution of the

Will by Smt.Jayamma in favour of the plaintiff. Hence,

the defendant sought for dismissal of the suit.

NC: 2023:KHC:21304 RFA No. 1271 of 2016

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

Trial Court has framed following issues:

(1) Whether the plaintiff proves that his grandmother by name Jayamma w/o Govindaswamy was in possession and enjoyment of the schedule property and the defendant authority has issued allotment order dated 31.12.1997 in her favour by allotting the schedule property?

(2) Whether the plaintiff further proves that the defendant has to execute the same deed and issue possession certificate in his favour in respect of the schedule property and has failed to do so as alleged?

(3) Whether the plaintiff is entitled for the relief sought for?

(4) What order or decree?

6. On behalf of the plaintiff, the plaintiff himself has

been examined as PW-1 and produced 13 documents

marked as Exs.P-1 to P-13. On behalf of the defendant,

neither any witness was examined nor any document

was produced. On appreciation of oral and documentary

NC: 2023:KHC:21304 RFA No. 1271 of 2016

evidence, the Trial Court has answered issue Nos.1 to 3

in the affirmative and accordingly decreed the suit.

Being aggrieved by the same, the defendant has filed

this appeal.

7. The learned counsel for the appellant-defendant

has contended that the suit filed by the plaintiff is not

maintainable under Section 64 of the Bangalore

Development Authority Act, 1976 (for short 'BDA Act').

The plaintiff has to issue notice before the institution of

the suit. But no such notice has been issued. He further

contended that even though the allotment letter has

been issued as per Ex.P-1, the conditions mentioned in

the allotment letter has not been fulfilled by the plaintiff.

Therefore, absolute sale deed cannot be executed in

favour of the plaintiff. He further contended that since

the suit schedule property has been allotted to one

Smt.Bhagyamma vide allotment letter dated 3.4.1992,

the plaintiff is not entitled for allotment of site. The Trial

NC: 2023:KHC:21304 RFA No. 1271 of 2016

Court has erred in decreeing the suit. Hence, he sought

for allowing the appeal.

8. The learned counsel for the respondent-plaintiff has

contended that the plaintiff has issued the notice on

20.10.1997. Since the defendant has failed to execute

the absolute sale deed, plaintiff has filed the suit. He

further contended that as per Ex.P-1, the letter of

allotment has been issued in favour of the plaintiff. The

plaintiff has complied with the conditions mentioned in

Ex.P-1. Since the defendant has failed to execute the

absolute sale deed in favour of the plaintiff, the plaintiff

has filed the suit. The Trial Court after considering the

evidence of the parties and materials available on record

has rightly decreed the suit. Hence, he sought for

dismissal of the suit.

9. Heard the learned counsel for the parties. Perused

the judgment and decree of the trial court and original

records.

NC: 2023:KHC:21304 RFA No. 1271 of 2016

10. The point that arises for consideration in this

appeal is:

"Whether the judgment and decree passed by the Trial Court is erroneous, arbitrary and does it call for interference of this court?"

11. The case of the plaintiff is that the suit schedule

property was allotted by the BDA in favour of the

plaintiff's grandmother Smt.Jayamma as per Ex.P-1

allotment letter. From the date of Ex.P-1, the plaintiff is

in possession of the property. The plaintiff has complied

with the conditions mentioned in Ex.P-1. Since the

defendant has not executed the absolute sale deed in

favour of the plaintiff, the plaintiff has filed the suit. The

specific contention of the defendant is that as per Ex.P-

1, the plaintiff has not complied with the conditions

mentioned in the allotment letter. No notice has been

issued under Section 64 of the BDA Act. The suit itself is

not maintainable. In the written statement filed by the

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BDA, the BDA has not taken any specific condition

regarding issuance of notice under Section 64 of the

BDA Act and regarding non compliance of provisions of

the Bangalore Development Authority (Allotment of

Sites) Rules, 1984 and they have not examined any

witnesses.

12. Under the circumstances and in the interest of

justice, I am of the opinion that the matter deserves to

be remanded to the Trial Court for fresh consideration.

Hence, I pass the following order:

ORDER

a) The appeal is allowed.

b) The judgment and decree dated 27.8.2015 passed

by XI Addl. City Civil Judge, Bengaluru in

O.S.No.7070/2013, is set aside.

c) The matter is remanded to the Trial Court with a

direction to the Trial Court to reconsider the suit

afresh.

NC: 2023:KHC:21304 RFA No. 1271 of 2016

d) The parties are directed to appear before the

Tribunal on 18.07.2023 without awaiting for any

further notice from the Trial Court.

e) Both the parties are at liberty to adduce additional

evidence and produce additional documents.

f) The Trial Court after hearing the parties shall pass

appropriate orders in accordance with law, without

being influenced by any observations made in this

judgment.

g) Parties are directed to maintain status-quo in

respect of the suit schedule property till the

disposal of the suit.

Sd/-

JUDGE

DM