Karnataka High Court
Smt. S.P. Salma vs Sri. Basha Baig on 22 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 7612 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 7612 OF 2023 (GM-CPC)
BETWEEN:
SMT. S.P. SALMA
DAUGHTER OF SRI. S. PASHA,
WIFE OF SRI. R. ABDUL MAJEED,
AGED ABOUT 27 YEARS,
RESIDING AT NO.30/143,
CHIKKABASTI, ULLALU,
ULLALU UPANAGARA POST,
CHIKKABASTI MAIN ROAD,
RAMASANDRA DAKHLE,
BENGALURU-560 110.
...PETITIONER
(BY SRI. NAGAIAH, ADV.)
Digitally signed by
A K CHANDRIKA AND:
Location: High
Court Of 1. SRI. BASHA BAIG
Karnataka
SON OF SABJAAN BAIG
AGED ABOUT 39 YEARS,
RESIDING AT NO.21/1/N,
SHAMMANNA GARDEN,
NEW GUDDADAHALLI,
BAPUJINAGARA,
BENGALURU-560 026.
2. SMT. AYESHA SIDDIQUA
WIFE OF SRI. ARIF AHMED SHARIFF,
AGED ABOUT 47 YEARS,
3. SRI. ARIF AHMED SHARIFF
SON OF LATE FAYAZ AHMED SHARIFF,
AGED ABOUT 47 YEARS,
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WP No. 7612 of 2023
RESPONDENTS NO.2 AND 3
ARE RESIDING AT NO. 60/3,
1ST MAIN, 17TH CROSS,
BAPUJINAGAR, MYSURU ROAD
BENGALURU-560 026.
4. THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU-560 020.
5. THE TOWN PLANNING MEMBER
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU-560 020.
6. THE SPECIAL LAND ACQUISITION OFFICER
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU-560 020.
7. THE DEPUTY COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU-560 020.
...RESPONDENTS
(BY SRI A.P. PULAKESHI, ADV. FOR
SRI LOKESH G., ADV. FOR R2 & R3
SRI VASANTHA, ADV. FOR
SRI K KRISHNA, ADV. FOR R4 TO R7
R1- SERVICE OF NOTICE IS H/S V.C.O. DT:09.11.2023)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASHING THE IMPUGNED
ORDER PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE, BENGALURU
RURAL DIST, BENGALURU, IN MA NO.02/2023 DTD 23.03.2023 VIDE
ANNX-J AND ORDERS PASSED BY I ADDL. CIVIL JUDGE, BENGALURU
RURAL DIST. BENGALURU, IN OS NO.300/2022 VIDE ANNX-D AND
MANDAMUS ALLOWING THE IA NO.2 FILED BY THE PETITIONER IN
OS NO.300/2022 ON THE FILE OF I ADDL. CIVIL JUDGE, BENGALURU
RURAL DIST, BENGALURU, VIDE ANNEXURE-B.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 7612 of 2023
ORDER
Petitioner, plaintiff in O.S.No.300/2022 on the file of
the II Additional Civil Judge, Bengaluru Rural District,
Bengaluru (for short, 'Trial Court') is before this Court
aggrieved by rejection of I.A.No.2 filed under Order XXXIX
Rules 1 and 2 of CPC and confirmed by judgment dated
23.03.2023 in M.A.No.2/2023 on the file of the IV
Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru (for short, 'Appellate Court').
2. Heard the learned counsel Sri.Nagaiah for
petitioner/plaintiff, learned counsel Sri.A.P.Pulakeshi for
Sri.Lokesha.G., learned counsel for respondent Nos.2 and
3 and learned counsel Sri.Vasantha for Sri.K.Krishna,
learned counsel for respondent Nos.4 to 7. Perused the
writ petition papers.
3. Learned counsel for the petitioner/plaintiff
would submit that petitioner/plaintiff is in possession and
enjoyment of site No.24, Village Panchayath Khatha
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No.79, Property No.24/2, situated at Doddabasti Village,
Ramasandra Dhakle, Kengeri Hobli, Bengaluru South
Taluk. It is submitted that petitioner/plaintiff's father
purchased said site on 15.06.2012 and since then
petitioner/plaintiff is in possession and enjoyment of the
suit schedule property. As there was interference with
enjoyment and possession of suit schedule property, it
necessitated petitioner/plaintiff to file suit against
respondents/defendants for permanent injunction in
respect of the suit schedule property. Learned counsel
would submit that Trial Court and Appellate Court
committed an error in not appreciating the prima-facie
case made out by petitioner/plaintiff. Learned counsel
referring to Annexure-L would submit that without
acquiring land, respondent/BDA has shown site Nos.3001
and 3002 in Grama Tana and thus to protect the right and
interest of the petitioner/plaintiff, Trial Court and Appellate
Court ought to have granted injunction. Thus, he prays for
allowing writ petition and restrain defendants from
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interfering with possession and enjoyment of the suit
schedule property.
4. Per contra, learned counsel Sri.Vasantha for
Sri.K.Krishna, learned counsel for respondent/BDA would
submit that Sy.No.24 of Ramasandra Village in which
petitioner claims her site falls is acquired under
Preliminary Notification dated 14.12.2001 and Final
Notification dated 31.10.2002 for formation of 'Sir M.
Vishweswaraiah Layout'. It is also submitted that award
was passed on 10.10.2002 and possession was taken on
13.01.2003. Therefore, it is submitted that suit itself is
not maintainable.
5. The suit of the petitioner-plaintiff is one for
permanent injunction against the defendants restraining
them from interfering with the peaceful possession and
enjoyment of the plaintiffs over the suit schedule property.
The suit schedule is described as Site No.24, V.P.Khatha
No.79, property bearing No.24/2 of Doddabasti Village,
Ramasandra Dakhle, Kengeri Hobli, Bengaluru South
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Taluk. It is the case of the petitioner-plaintiff that Site
No.24 is Doddabasti Gramatana property and it is not land
in Sy.No.24 of Ramasandra Village. The plaintiff admits
that Sy.No.24 is acquired and respondents-BDA, has
formed Sir M.Vishweswaraiah Layout. At Para-6 of the
plaint, the plaintiff has specifically averred that in the
process of formation of the said Layout, Site Nos.3001 and
3002 have been shown on the Gramatana property as
if they were formed and comes in Sy.No.24 of Doddabasti
Village. Thus, the petitioner-plaintiff admits that the BDA
has formed Site Nos.3001 and 3002 in Gramatana
property.
6. The statement of objections filed on behalf of
respondents-BDA, wherein it is made clear that the land in
Sy.No.24 of Ramasandra Village is acquired under
Preliminary Notification dated 14.12.2001; Final
Notification dated 31.10.2002 for formation of Sir
M.Vishweswaraiah Layout. Award was passed on
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10.12.2002 and possession of the land was taken on
13.01.2003.
7. The petitioner-plaintiff claims that the suit
schedule property was gifted under the registered gift
deed dated 17.07.2013 by her father Sri. S.Pasha, who
had purchased the property under the registered sale deed
dated 15.06.2012 from Sri. Ameer Saheb, Sri. Baba Jaan,
Sri. Maqbul and Sri. Nawab Jaan. The statement of
objections of the respondents-BDA indicates that the
vendors of the petitioner's father were notified before
acquisition.
8. Whether the suit schedule property i.e., Site
No.24, V.P.Khatha No.79, property bearing No.24/2 of
Doddabasti Village, Ramasandra Dakhle, Kengeri Hobli,
Bengaluru South Taluk, falls within Sy.No.24 or as claimed
by the petitioner-plaintiff it is a Gramatana land, is to be
decided after trial. When the respondents-BDA claims
that Sy.No.24 is acquired for formation of
Sir M.Vishweswaraiah Layout and when it is a case of the
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petitioner-plaintiff that Site Nos.3001 and 3002 have been
formed by BDA in Gramatana land, balance of convenience
would be in favour of respondents-BDA. Moreover, the
petitioner-plaintiff has failed to make out a prima-facie
case. Thus, I am of the view that there is no merit in the
writ petition.
Accordingly, writ petition stands rejected.
Sd/-
JUDGE
NC
CT:bms
