Karnataka High Court
The Commissioner Bangalore ... vs Sri P Dhanraj on 27 June, 2023
Bench: H T Prasad
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NC: 2023:KHC:22242
RFA No. 133 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 133 OF 2008 (INJ-)
BETWEEN:
THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BANGALORE
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI. B.S. SACHIN.,ADVOCATE)
AND:
SRI P DHANRAJ, MAJOR
S/O LATE PAPAIAH REDDY
R/AT NO.10, 7TH CROSS,D STREET
JAIBHARATHI NAGAR, BANGALOR-41.
...RESPONDENT
Digitally signed
by (BY SRI. K R BHARADWAJ .,ADVOCATE[ABSENT])
DHANALAKSHMI
MURTHY
Location: High
Court of
Karnataka THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED:4.10.2007 PASSED IN
O.S.NO.15626/99 ON THE FILE OF THE XIII ADDL. CITY CIVIL
JUDGE, MAYOHALL UNIT, BANGALORE, DECREEING THE SUIT
FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 133 of 2008
JUDGMENT
1. This appeal is filed by the appellant-defendant
Bangalore Development Authority (for short, 'the BDA')
under Section 96 of Civil Procedure Code challenging the
judgment and decree dated 4.10.2007 passed by the XIII
Additional City Civil Judge, Bangalore, in
O.S.No.15626/1999, 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 one Krishna Reddy s/o
Chikkatayappa along with his brothers are the joint owners
of the land bearing No.107/4 measuring 2 acres 11 guntas
and 5 guntas of Kharab land situated at Challakere Village,
K.R.Puram Hobli, Bangalore. The said land has been
acquired by the BDA under the Bangalore Development
Authority Act for the formation of layout called Hennur
Road-Banaswadi Road Layout vide preliminary notification
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RFA No. 133 of 2008
dated 21.3.1979 and final notification was issued on
14.5.1980. Further case of the plaintiff is that the
Government by notification dated 16.1.1998 denotified the
land measuring 21 guntas of land. After denotification,
Krishna Reddy being the absolute owner of 21 guntas of
land of Sy.No.107/4, formed private layout compromising
of 9 sites and sold site Nos.6 and 7 in favour of
K.N.Nagendra and Rizwanulla under two sale deeds dated
28.5.1998. They inturn sold the same in favour of plaintiff
by registered sale deed dated 17.8.1998. From the date of
purchase, the plaintiff is in possession and enjoyment of
the sites and he is paying taxes to the BBMP. On 8.6.1999
at about 3:00 p.m. the officials of BDA came to the suit
schedule property and demolished the entire compound
wall and portion of the building. Immediately, the plaintiff
got issued a legal notice to the BDA. Thereafter, the
plaintiff has filed the suit for injunction.
4. After service of summons, defendant appeared
through counsel and filed written statement denying the
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RFA No. 133 of 2008
entire averments made in the plaint. It was contended
that the suit is not maintainable. The suit schedule
property has been acquired for the formation of the
layout. BDA has taken possession of the suit schedule
property on 13.6.1983. BDA is the absolute owner and
possession of the same. Hence, he sought for dismissal of
the suit.
5. 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 is in
lawful possession and enjoyment of the
suit schedule property?
2) Whether the plaintiff proves that the
defendant is attempting to dispossess him
from the suit property besides threatening
to demolish the compound wall and a
portion of the building?
3) Whether the defendant proves that the
suit property is acquired by it for
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RFA No. 133 of 2008
formation of layout as averred in para
No.2 of the written statement?
4) Whether the plaintiff is entitled to the
relief as prayed for?
5) What decree or orders?
6. To prove the case, plaintiff has examined pf No.2 as
PW-1 and produced 31 documents marked as Exs.P-1 to
P-31. Defendant examined one witness as DW-1 but did
not produce any documents. On appreciation of the oral
and documentary evidence, the trial court answered issue
Nos.1, 2, and 4 in the affirmative and issue No.3 in the
negative and consequently 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 BDA has acquired the land bearing
Sy.No.107/4 measuring 2 acres 11 guntas and 5 guntas of
kharab for the formation of Hennur Road-Banaswadi Road
Layout. BDA has taken possession on 13.6.1983. The land
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RFA No. 133 of 2008
measuring 21 guntas of land in Sy.No.107/4 has been
denotified as per Government notification at Ex.P-7. The
suit schedule property comes within the land acquired by
the BDA. The plaintiff has failed to prove that suit schedule
property existed within the denotified area. The Trial Court
only on the basis of Ex.P-7 has held that the plaintiff is
entitled for injunction. He further contended that the suit
schedule property is coming within the acquired property.
The suit for injunction is not maintainable. In support of
his contention, he has relied upon the decision of Apex
Court in the case of Commissioner, Bangalore
Development Authority and another -v- Brijesh
Reddy and another (2013) 3 SCC 66. Hence, he sought
for allowing the appeal.
8. None appears for the respondent-plaintiff.
9. Heard the learned counsel for the appellant. Perused
the judgment and decree of the Trial Court and original
records.
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RFA No. 133 of 2008
10. The point that arises for consideration in this appeal
is as follows:
"Whether the judgment and decree passed by
the Trial Court is erroneous or perverse and does it
call for interference of this court?"
11. The case of the plaintiff is that land bearing
Sy.No.107/4 measuring 2 acres 11 guntas and 5 guntas of
kharab land situated at Challakere Village, K.R.Puram
Hobli, Bangalore originally belonged to Krishna Reddy s/o
Chikkatayappa. The said land has been acquired by BDA
under the BDA Act vide Preliminary notification dated
21.3.1979 and final notification has been issued on
13.6.1983. The case of the plaintiff is that on 16.1.1998,
21 guntas of land has been denotified by the Government
as per Ex.P-7. Thereafter, Krishna Reddy has formed sites
in 21 guntas of land and sold the same to different
persons. The plaintiff has purchased one of the sites from
the owner under the registered sale deed dated
21.5.1998. Even though plaintiff has claimed that the suit
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RFA No. 133 of 2008
schedule property is coming within the denotified area, the
same has been denied by defendant by filing written
statement. The plaintiff has not proved whether the suit
schedule property is coming within the denotified area.
The Trial Court only on the basis of Ex.P-7 has held that
the plaintiff is in possession of suit schedule property in
the denotified area. This finding of the Trial Court is
contrary to the materials available on record. The Trial
Court ought to have given a finding on the evidence of the
parties whether the suit schedule property is coming
within the denotified area of 21 guntas land.
12. Under the circumstances and in the interest of
justice, I am of the opinion that the matter requires to be
remanded to the Trial Court for reconsideration. Hence, I
pass the following order:
ORDER
a) The appeal is allowed.
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RFA No. 133 of 2008
b) The judgment and decree dated 4.10.2007
passed by the XIII Additional City Civil Judge,
Bangalore, in O.S.No.15626/1999, is set aside.
c) The matter is remanded to the Trial Court for
fresh consideration.
d) Both the parties are at liberty to adduce
additional evidence and produce additional
documents.
e) The Trial Court after hearing the parties shall
pass appropriate orders in accordance with law.
f) All the contentions of the parties are kept
open.
Sd/-
JUDGE
DM
