Karnataka High Court
The Commissioner vs Smt P Rajeshwari Murthy on 28 June, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:22370
RFA No. 784 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 784 OF 2008 (INJ)
BETWEEN:
THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, BANGALORE.
...APPELLANT
(BY SRI. K KRISHNA.,ADVOCATE)
AND:
1. SMT P RAJESHWARI MURTHY
W/O. P S S MURTHY
AGED ABOUT 46 YEARS
2. SRI P S S MURTHY
S/O. P S SWAMY
AGED ABOUT 54 YEARS
Digitally signed R1 & R2 ARE RESIDING IN
by H L NO.112/1-KATHA NO. 436
DHANALAKSHMI (OLD NO. 437)7TH CROSS ROAD
MURTHY
Location: High J P NAGAR 2ND PHASE
Court of BANGALORE - 560078.
Karnataka
3. THE COMMISSIONER
CORPORATION OF
THE CITY OF BANGALORE
BANGALORE.
...RESPONDENTS
(BY SRI. P KRISHNAPPA, ADVOCATE FOR R1-R2[ABSENT]:
SRI. M.A. SUBRAMANI, ADVOCATE FOR R3[ABSENT].)
-2-
NC: 2023:KHC:22370
RFA No. 784 of 2008
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED:27.02.2008 PASSED IN
OS.NO.3092/1999 ON THE FILE OF THE XXVII ADDL.CITY CIVIL
JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the appellant-defendant No.2
Bangalore Development Authority (for short, 'the BDA')
under Section 96 of Civil Procedure Code challenging the
judgment and decree dated 27.2.2008 passed by the
XXVII Additional City Civil Judge, Bangalore, in
O.S.No.3092/1999, 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 plaintiffs is that originally the suit
schedule property belonged to one Smt.K.S.Meenakshi,
NC: 2023:KHC:22370
RFA No. 784 of 2008
who had purchased it from one Sri.K.B.Krishna under the
registered sale deed dated 17.6.1991. Smt.K.S.Meenakshi
in turn had sold the western half of the suit schedule
property measuring 30x40 feet to plaintiff No.1 under
registered sale deed dated 3.12.1994 and subsequently,
she sold the eastern half of the suit schedule property
measuring 30x40 feet to one Sri.Sanjay.K. Shah under
registered sale deed dated 25.1.1995. Subsequently,
Sri.Sanjay.K.Shah sold the portion purchased to plaintiff
No.2 under registered sale deed dated 13.1.1998. From
the date of purchase, the plaintiffs are in possession and
enjoyment of the suit schedule property and they are
paying taxes to the BBMP. In the second week of October
1998, defendants' officials tried to interfere with the suit
schedule property and tried to dispossess the plaintiffs
from the suit schedule property. Therefore, the plaintiffs
got issued a legal notice dated 20.10.1998 to defendant
No.2. Thereafter, the plaintiffs have filed the suit for
injunction.
NC: 2023:KHC:22370
RFA No. 784 of 2008
4. After service of summons, defendants appeared
through their counsel. Defendant No.1 filed written
statement and contended the he is not a necessary and
proper party to the suit. He has not interfered with the
possession of the suit schedule property of the plaintiffs.
Defendant No.2 filed written statement, but the same was
taken on record since the same was filed belatedly. Hence,
the Trial Court has proceeded further considering that
defendant No.2 has not filed written statement.
5. On the basis of the pleadings of the parties, the
following points were framed before the trial court:
1. Whether the plaintiffs prove their lawful
possession of the suit schedule property on the
date of the suit?
2. Whether the plaintiffs further prove
unlawful interference by the defendants?
3. Whether the plaintiffs are entitled to a
decree of permanent injunction as prayed for?
NC: 2023:KHC:22370
RFA No. 784 of 2008
6. To prove the case, plaintiffs have examined plaintiff
No.2 as PW-1 and produced 35 documents marked as
Exs.P-1 to P-35. Defendants neither examined any
witness nor produced documents. On appreciation of the
oral and documentary evidence, the trial court answered
all the three issues in the affirmative and decreed the suit.
Being aggrieved by the same, the defendant No.2 has filed
this appeal.
7. The learned counsel for the appellant-defendant No.2
has contended that the plaintiffs have no manner of right
and title over the suit schedule property. The suit schedule
property belongs to BDA. The Trial Court has erred in
decreeing the suit. He contended that the suit schedule
property comes within the Survey No.31 of Marenahalli
Village, J.P. Nagar, Bengaluru. The said land was acquired
by the BDA for formation of layout. Preliminary
notification has been issued on 30.11.1967; final
notification has been issued on 11.6.1970; award has
been passed on 27.11.1972 and possession was taken on
NC: 2023:KHC:22370
RFA No. 784 of 2008
23.2.1973. Thereafter, the BDA has formed the layout.
The vendor of the plaintiffs without authority of law has
sold the suit schedule property in favour of the plaintiffs.
The Trial Court without considering this aspect of the
matter, has decreed the suit. He further contended that
the plaintiffs purchased the suit schedule property after
the land has been acquired by the BDA. Hence, the suit 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 respondents-plaintiffs.
9. Heard the learned counsel for the appellant. Perused
the judgment and decree of the Trial Court and original
records.
10. The point that arises for consideration in this appeal
is as follows:
NC: 2023:KHC:22370
RFA No. 784 of 2008
"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 plaintiffs is that they purchased the
suit schedule property under registered sale deeds dated
3.12.1994 and 13.1.1998 as per Exs.P-1 and 2
respectively. From the date of purchase of the sites, the
plaintiffs are in possession of the suit schedule property
and are paying taxes to the BBMP.
12. The specific case of the appellant is that the suit
schedule property has been acquired by the BDA under
Preliminary notification dated 30.11.1967 and final
notification has been issued on 11.6.1970; award has
been passed on 27.11.1972 and possession was taken
under Section 16(2) of the Land Acquisition Act on
23.2.1973. Thereafter, the BDA has formed the layout.
The vendor of the plaintiffs have no right and title to sell
the suit schedule property. Even BDA has filed written
NC: 2023:KHC:22370
RFA No. 784 of 2008
statement, but the same is not taken on record by the
Trial Court, as the same was filed belatedly.
13. 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 giving an opportunity to
the BDA to file written statement and opportunity to both
the parties to adduce additional evidence and additional
documents. Hence, I pass the following order:
ORDER
a) The appeal is allowed.
b) The judgment and decree dated 27.2.2008
passed by the XXVII Additional City Civil Judge,
Bangalore, in O.S.No.3092/1999, is set aside.
c) The matter is remanded to the Trial Court for
fresh consideration of the suit.
d) Parties are directed to appear before the Trial
Court on 25.07.2023 without waiting for any notice
from the Trial Court.
NC: 2023:KHC:22370
RFA No. 784 of 2008
e) The BDA is permitted to file written statement
on or before 25.7.2023.
f) Both the parties are at liberty to adduce
additional evidence and produce additional
documents.
g) The Trial Court after hearing the parties shall
pass appropriate orders in accordance with law
within six months from the date of appearance of the
parties.
h) Parties are directed to maintain status-quo in
respect of the suit schedule property till the disposal
of the suit.
Sd/-
JUDGE
DM
