Bangalore Metro Rail Corporation vs Sri. G Prem Kumar
2023 Latest Caselaw 7724 Kant

                                         -1-
                                                     NC: 2023:KHC:41024
                                                     RFA No. 99 of 2018




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 16TH DAY OF NOVEMBER, 2023

                                      BEFORE
                   THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                   REGULAR FIRST APPEAL NO.99 OF 2018 (DEC)
            BETWEEN:
            BANGALORE METRO RAIL CORPORATION
            BMTC COMPLEX, 3RD FLOOR,
            K H ROAD, SHANTINAGAR
            BANGALORE-57
            REPRESENTED BY ITS GENERAL MANAGER
            (LAND ACQUISITION & ESTATES)
                                                           ...APPELLANT
            (BY SRI. VENKATESH P DALWAI, ADVOCATE)
            AND:

            1.   SRI. G PREM KUMAR
                 S/O LATE S M GOVINDARAJU
                 AGE 59 YEARS, OCC: BUSINESS
                 ADD: NO.14, 3RD FLOOR, 6TH CROSS,
                 KILARI ROAD
                 BANGALORE-53.
Digitally
signed by   2.   KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD
VANDANA S        NO.14/3, 2ND FLOOR,
Location:        RASTROTHANA PARISHAD BUILDING
HIGH             NRUPATUNA ROAD, BENGALURU-1
COURT OF
KARNATAKA        REPRESENTED BY ITS
                 CHIEF EXECUTIVE OFFICER.

            3.   SPECIAL LAND ACQUISITION OFFICER
                 KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD
                 NO.3/2, 3RD FLOOR, 1ST CROSS
                 KHENI BUILDING, GANDHI NAGAR
                 BANGALORE-9
                                                   ...RESPONDENTS
            (BY SRI.G.S.VENKAT SUBBARAO, ADVOCATE FOR R-1;
                SRI. H.L. PRADEEP KUMAR, ADVOCATE FOR R-2 & R-3)
                                 -2-
                                               NC: 2023:KHC:41024
                                               RFA No. 99 of 2018




     THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1
OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.10.2017
PASSED IN OS.NO.8336/2013 ON THE FILE OF THE XI ADDITIONAL
CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR
DECLARATION.

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

                            JUDGMENT

This appeal by the Bangalore Metro Rail Corporation (for

short "BMRCL") is directed against the impugned judgment and

decree dated 06.10.2017 passed in O.S.No.8336/2013 by the XI

Addl. City Civil Judge, Bangalore City, whereby the Trial Court

decreed the suit for declaration holding that the appellant -

BMRCL, responded No.2 - Karnataka Industrial Area Development

Board (for short "KIADB") and respondent No.3 - Special Land

Acquisition Officer, KIADB (for short "SLAO") did not have right to

take possession of the suit "B" schedule property from respondent

No.1 - plaintiff and for consequential possession directing the

appellant, respondent No.2 - KIADB and respondent No.3 - SLAO

to hand over possession of the suit schedule property to

respondent No.1 - plaintiff. By the impugned judgment and

decree, the Trial Court upheld the claim of respondent No.1 -

plaintiff and decreed the suit in his favour, aggrieved by which, the

NC: 2023:KHC:41024 RFA No. 99 of 2018

appellant - BMRCL is before this Court by way of the present

appeal.

2. In this context, it is relevant to state that the

respondent No.2 - KIADB and respondent No.3 - SLAO for whose

benefit the suit "B" schedule property was acquired has not

challenged the impugned judgment and decree and the same has

attained finality and become conclusive and binding upon

respondent No.2 - KIADB and respondent No.3 - SLAO.

3. Heard learned counsel for the appellant and learned

counsel for the respondents and perused the material on record.

4. The material on record discloses that respondent No.1

- plaintiff instituted the aforesaid suit interalia contending that he

was the owner of suit "A" schedule property and that suit "B"

schedule property is portion of suit "A" schedule property. It was

contended that respondent No.3 acquired a portion of the suit "A"

schedule property except the suit "B" schedule property for the

benefit of respondent No.2 - KIADB and for the purpose of the

appellant - BMRCL. It was also contended that despite not

acquiring the suit "B" schedule property by following due process of

law and by not taking recourse to acquisition proceedings,

NC: 2023:KHC:41024 RFA No. 99 of 2018

respondent Nos.2 and 3 and the appellant - BMRCL illegally and

high-handedly dispossessed respondent No.1 - plaintiff from the

suit "B" schedule property and also did not pay any compensation

in this regard.

5. It was contended that the action of respondent Nos.2

and 3 and the appellant - BMRCL in dispossessing the respondent

No.1 - plaintiff from the suit "B" schedule property without following

due process of law and without taking recourse to acquisition

proceedings was violative of Article 300A of the Constitution of

India and consequently, the said action was liable to be declared

as illegal and the possession of suit "B" schedule property be

restored to respondent No.1.

6. The appellant - defendant No.1 and respondent No.3

filed their written statements and contested the suit, pursuant to

which the following issues were framed by the Trial Court.

"1. Whether the plaintiff proves that the defendants had no right to take possession of the suit schedule "B" property unless otherwise by due process of law and have illegally taken possession of the same in excess of land under the guise of acquisition as alleged?

NC: 2023:KHC:41024 RFA No. 99 of 2018

2. Whether the plaintiff further proves that the defendants have failed to deliver the possession of the suit schedule "B" property in his favour?

3. Whether the plaintiff is entitled for the relief sought for?

4. What order or decree?"

7. The plaintiff examined himself as P.W.1 and Ex.P.1 to

Ex.P.20 were marked on his behalf. It is seen that neither the

appellant nor respondent Nos.2 and 3 cross-examined respondent

No.1 - plaintiff (P.W.1) and also did not adduce any oral or

documentary evidence on their behalf.

8. Under there circumstances, the Trial Court placed

reliance upon the unimpeached, unchallenged and uncontroverted

oral and documentary evidence adduced by respondent No.1 and

proceeded to decree the suit in his favour. The Trial Court also

relied upon the report of the Court Commissioner to come to the

conclusion that respondent Nos.2 and 3 as well as appellant had

illegally and high-handedly taken over suit 'B' schedule property

from respondent No.1 - plaintiff without following due process of

law and without resorting to acquisition proceedings and

NC: 2023:KHC:41024 RFA No. 99 of 2018

consequently, they were liable to restore possession of the suit 'B'

schedule property to the respondent No.1 - plaintiff.

9. After having heard learned counsel for the parties, the

only point that arise for consideration in the present appeal is

"Whether the Trial Court was justified in decreeing the suit filed by

respondent No.1 - plaintiff against the appellant and respondent

Nos.2 and 3."

10. As stated supra, the evidence adduced on behalf of

respondent No.1 - plaintiff had not been discredited or impeached

in the cross-examination by the appellant or respondent Nos.2 and

3, who had also not adduced any oral or documentary evidence on

their behalf. In addition thereto, the Trial Court appointed a Court

Commissioner, who conducted local inspection and submitted a

report demarcating the suit "B" schedule property and stating that

the suit schedule property was not subject matter of the acquisition

proceedings. Further, it is needless to state that the appellant -

BMRCL claims through and under respondent No.2 - KIADB and

respondent No.3 - SLAO who have not preferred any appeal

against the impugned judgment and decree. Under these

undisputed facts and circumstances, the impugned judgment and

NC: 2023:KHC:41024 RFA No. 99 of 2018

decree having become final, binding and conclusive insofar as

respondent Nos.2 and 3 i.e. KIADB and SLAO are concerned, I am

of the considered opinion that the impugned judgment and decree

passed by the Trial Court does not warrant any interference by this

Court in the present appeal filed by the Appellant - BMRCL who

undisputedly claim through and under respondent Nos.2 and 3.

11. A perusal of the material on record will also indicate

that pursuant to the impugned judgment and decree, the

respondent No.1 - plaintiff has taken actual and physical

possession of the suit "B" schedule property by executing decree in

Ex.No.3548/2017 on 27.04.2019 and the decree passed by the

Trial Court which has not been challenged by the respondent Nos.2

and 3 i.e. KIADB and SLAO has also been fully satisfied. Viewed

from this angle also, the impugned judgment and decree passed by

the Trial Court does not warrant interference by this Court in the

present appeal.

12. In view of the aforesaid facts and circumstances, I do

not find any merits in the appeal and the same is accordingly

dismissed.

NC: 2023:KHC:41024 RFA No. 99 of 2018

13. Liberty is however reserved in favour of the appellant -

BMRCL to take recourse to such other remedies as available in law

against respondent No.1 - plaintiff in relation to the suit schedule

property in accordance with law.

Sd/-

JUDGE

DHA