The Bangalore Development ... vs Smt R Pankajavalli
2023 Latest Caselaw 6748 Kant

                           1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 23RD DAY OF SEPTEMBER, 2023

                         BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

          REGULAR FIRST APPEAL NO.578 OF 2017

BETWEEN:

THE BANGALORE DEVELOPMENT AUTHORITY
BY ITS COMMISSIONER
KUMARA PARK WEST
BANGALORE - 560 020
                                          ... APPELLANT
(BY SRI G M ANANDA, ADVOCATE
 AND MS. ASHA B.L., ADVOCATE)

AND:

SMT. R. PANKAJAVALLI
AGED ABOUT 85 YEARS
W/O P.S. RAMAMURTHY
R/O 4129, HAL II STAGE
13TH MAIN
BENGALURU - 560 008
                                        ... RESPONDENT
(BY MS. J.P. UDGATA, ADVOCATE
 AND MS. SANDHYA JAMADAGNI, ADVOCATE
 AND SRI. KANTHARAJ, ADVOCATE)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED
29.9.2015 PASSED IN OS NO.8268/2008 ON THE FILE OF THE
XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DECREEING SUIT FOR PERMANENT INJUNCTION.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 13.9.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
                                  2


                        JUDGMENT

This appeal is filed by the appellant under Section 96

of CPC for setting aside the judgment and decree dated

29.09.2015 passed by the XL Additional City Civil and

Sessions Judge, Bangalore, in O.S.No.8268/2008 for

decreeing the suit of the respondent.

2. Heard the arguments of the learned counsel

appearing for the parties.

3. The appellant was the defendant and the

respondent was the plaintiff before the trial Court. The

rank of the parties before the trial Court is retained for

sake of convenience.

4. The case of the plaintiff before the trial Court is

that the plaintiff filed a suit for perpetual injunction

restraining the defendant-Bangalore Development

Authority (hereinafter referred to as 'BDA') for taking any

steps to demolish the building standing over the property

bearing site No.4129 together with double storeyed

residential building standing thereon, situated a HAL II

Stage, 13th Main, Bengaluru - 560 008, measuring East to

West 30 feet and North to South 40 feet, totally,

measuring 1200 sq. feet (hereinafter referred to as 'suit

schedule property').

5. The case of the plaintiff is that the plaintiff filed

an application before the BDA for allotment of site and

received intimation on 01.10.1992 for depositing the sum

of Rs.19,950/-. Accordingly, she deposited the said

amount as per the direction of BDA on 06.10.1992 with

additional amount of Rs.30/-. Then a lease-cum-sale

agreement was executed by BDA on 14.10.1992. The BDA

also issued possession certificate on 23.10.1992.

Following the possession certificate, the BDA executed

conditional sale deed before the Sub Registrar vide

document No.4402 of 1992-93. The plaintiff obtained the

possession of the site, applied to the Bangalore City

Corporation for sanction and during the year 1995, she has

constructed the building. Again the survey department

issued notice for enquiry, she produced title deeds and

obtained water and electricity connection and she is in

possession of the property from 23.10.1992 and

constructed the building thereon. Subsequently, the

plaintiff made representation to the BDA for executing

absolute sale deed, but they have not executed the same

and finally, once again, she applied to the Commissioner of

BDA on 14.03.2007 and thereafter, 28.11.2008, a team of

officials headed by Assistant Engineer came to the

property stating that the property was not allotted to her

and directed the plaintiff to vacate the premises and

hence, she filed the suit.

6. The defendant appeared through the counsel and

filed written statement denying the plaint averments made

in para Nos.3 to 14 as false. The defendant specifically

contended that it has not allotted any site to the plaintiff

and the plaintiff had also not filed any application for

allotment of site and the BDA never executed any lease-

cum-sale agreement or lease cum conditional sale deed

and not issued any possession certificate in favour of the

plaintiff. The defendant specifically taken the contention

that the suit schedule site has been allotted to one

Sri. U.S.Reddy on 18.11.1987 on his application dated

13.01.1987 and subsequently, the said Reddy requested

the BDA on 30.01.1988 for cancelling the allotment of said

site and requested to allot a site at Koramangala layout I

Block under application dated 22.01.1987. Accordingly,

the allotment of the suit schedule site has been cancelled

and the BDA alternatively, allotted site to the said U.S.

Reddy in Koramngala layout. This suit schedule site has

been retained and not allotted to any person. Therefore, it

is contended that the contention of the plaintiff that the

BDA required to execute the sale deed is not acceptable,

when the site was not at all allotted and transferred by the

defendant-BDA to any person. Hence, prayed for

dismissing the suit.

7. Based upon the pleadings, the trial Court framed

the following issues:

1. Whether the plaintiff proves her lawful possession and enjoyment of the suit schedule property as on the date of suit as alleged in the plaint?

2. If so, whether the plaintiff further proves the alleged interference of her peaceful possession and enjoyment of the suit schedule property and threat of demolition of the suit schedule property by the defendants as alleged in the plaint?

3. Whether the plaintiff is entitled for the relief of injunction as prayed?

4. What decree or order?

8. On behalf of the plaintiff, GPA holder of the

plaintiff was examined as P.W.1 and got marked 28

documents as per Exs.P.1 to P.28. On behalf of the

defendant, one Madhusudan, an official of BDA, was

examined as D.W.1 and got marked 6 documents as per

Exs.D.1 to D.6. After hearing the arguments, the trial

Court answered issue Nos.1 to 3 in the affirmative and

finally, decreed the suit. Being aggrieved by the same, the

defendant-BDA filed this appeal.

9. Learned counsel for the appellant-BDA has

vehemently contended that the suit for bare injunction is

not maintainable when the defendant-BDA denied the title

and execution of the agreement or issuing any possession

certificate in favour of the plaintiff. The defendant also

taken the contention that, earlier, the site was allotted to

one Sri. U.S. Reddy and after cancelling the same, the said

property has been retained by the defendant and not

allotted to any person. Even otherwise, the plaintiff has

not produced any decrement or made any averments in

the pleadings that she filed an application for allotment in

respect of the notification issued by the defendant calling

the applications from the general public for allotment of

site. Such being the case, the plaintiff is required to file a

suit for declaration, consequential injunction / mandatory

injunction for executing the sale deed. When no such

agreement of sale was executed by BDA, the question of

executing the sale deed does not arise and the suit for

simplicitor injunction is not maintainable. Therefore, it is

contended that the trial Court has committed an error in

decreeing the suit. Hence, prayed for allowing the appeal

and to dismiss the suit.

The learned counsel for the appellant further

contended that the defendant-BDA directed the plaintiff to

produce the application for allotting the site, but the same

was not produced. The file produced by the plaintiff was

pertaining to the disputed site, which was not at all

allotted to any person and the plaintiff produced fabricated

documents claiming that some person executed sale deed

in the name of the BDA, which cannot be acceptable.

Therefore, prayed for allowing the appeal and to dismiss

the suit.

The learned counsel for the appellant-BDA also relied

upon the unreported judgment of the Hon'ble Supreme

Court in Civil Appeal No.5577/2021 in the case of T.V.

RAMAKRISHNA REDDY Vs. M. MALLAPPA AND

ANOTHER delivered on 07.09.2021 and contended that

the Hon'ble Supreme Court held that when the title is

disputed, the suit for perpetual injunction is not

maintainable and the said judgment has followed the

judgment of Hon'ble Supreme Court in the case of

ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD)

BY L.RS. AND OTHERS reported in (2008)4 SCC 594.

10. Per contra, learned counsel for the respondent-

plaintiff has supported the judgment of the trial Court and

contended that a notice was issued to the plaintiff by the

defendant-BDA for remitting the balance amount.

Accordingly, the plaintiff deposited Rs.19,950/- and once

again for Rs.30/- under two bank challans, which was

received by the BDA. It is contended that the Deputy

Secretary from BDA executed the sale deed in the

presence of Sub-registrar and the plaintiff is in possession

of the suit schedule property. Subsequently, she obtained

the sanction plan from Bangalore City Corporation and

constructed the building and also obtained electricity and

water connection and she is paying taxes. The plaintiff

submitted a representation to the defendant-BDA for

executing the absolute sale deed, but they slept over the

file and finally, the plaintiff filed the suit. Therefore, when

the plaintiff is in possession of the property for long years,

in order to protect the property, a suit for bare injunction

is maintainable. Hence, prayed for dismissing the appeal.

11. Having heard the arguments of learned counsel

for the parties, perused the records.

12. The points that arise for consideration in this

appeal are :

(i) Whether the plaintiff proves that she is in lawful possession of the suit schedule property on the conditional sale deed executed by the defendant-BDA ?

(ii) Whether plaintiff proves that the defendant is trying to interfere under the threat of demolition of the building ?

(iii) Whether the suit for bare injunction is maintainable, when the defendant denies the title ?

             (iv)     Whether the judgment and decree
       passed   by     the        trial    Court    calls   for    any
       interference ?

13. On perusal of the entire record and the evidence

of P.W.1, it is the specific case of the plaintiff that the suit

schedule site has been allotted by the BDA, who issued the

possession certificate and also executed lease-cum-sale

agreement and subsequently, executed the lease-cum-

conditional sale deed in favour of the plaintiff. The plaintiff

paid the entire allotment amount to the BDA and

subsequently constructed the building by obtaining

sanction order from the Bangalore City Corporation. The

same is reiterated by P.W.1 in the evidence. In support of

his contention, P.W.1 has got marked 28 documents.

Ex.P.1 is GPA executed by the plaintiff in favour of the

P.W.1. Ex.P.2 is allotment notice issued by BDA, Ex.P.3 is

the complaint filed before the police, Ex.P.4 is the original

remittance challan dated 06.10.1992, Ex.P.5 is another

remittance challan, Ex.P.6 is copy of BDA notice dated

14.10.1992, Ex.P.7 is certified copy of lease-cum-

agreement of sale, Ex.P.8 is possession certificate, Ex.P.9

is the conditional sale deed, Ex.P.10 is the application

submitted to Bangalore City Corporation, Ex.P.11 is the

endorsement issued by Bangalore City Corporation,

Ex.P.12 is intimation regarding sanctioned plan dated

04.08.1993, Ex.P.13 is rent receipt, Ex.P.14 is another

sanctioned plan, Ex.P.15 is revised assessment, Ex.P.16 is

khatha certificate, Ex.P.17 is tax paid receipt, Ex.P.18 is

the notice issued by the City Survey Department on

24.04.1995, Ex.P.19 is the endorsement dated

30.04.1995, Ex.P.20 is demand notice dated 06.11.2008,

Ex.P.21 is bill issued by BESCOM, Exs.P.22 and P.23 are

encumbrance certificates, Ex.P.24 is copy of representation

dated 30.08.2000 given by the plaintiff to BDA, Exs.P.25

and P.26 are the notices issued by BDA to the plaintiff,

Ex.P.27 is copy of representation dated 14.03.2007 to the

BDA and Ex.P.28 is acknowledgment dated 14.03.2007.

14. On perusal of these documents, Exs.P.10 to

P.23 are the documents which are not pertaining to

defendant-BDA, but these documents were created

subsequent to the conditional sale deed alleged to have

been executed by the BDA under Ex.P.9. Exs.P.24 and

P.27 are the representations given by the plaintiff for

executing the absolute sale deed. On perusal of the Ex.P.2

is said to be issued by the BDA for remitting Rs.19,950/-.

Exs.P.4 and P.5 are the remittance challans for having

remitted Rs.19,950/- to the BDA through Canara Bank.

Ex.P.6 is the letter issued by the Deputy Secretary of BDA

to the Sub-registrar for executing the sale deed and based

upon the same, lease cum agreement of sale said to be

executed, which is produced and marked as Ex.P.7. Ex.P.8

is possession certificate issued by Deputy Secretary of BDA

on 23.10.1992 and Ex.P.9 is a conditional sale deed said to

be executed by the BDA. All these documents were denied

by the defendant-BDA in the written statement. It is the

specific contention of the BDA that the said site was

allotted to one U.S. Reddy and that the said U.S. Reddy

got cancelled the allotment and he sought for an

alternative site and thereafter, no further allotment of the

suit schedule site has been made by the BDA to any

person. It is nothing but denying the title of the plaintiff in

the written statement. It is the further specific case of the

defendant-BDA that the plaintiff had not filed any

application seeking allotment of site on any of the

notifications issued by BDA. In this regard, the plaintiff

taken the contention that the original documents were

misplaced and therefore, a complaint has been filed to the

police on 10.10.2006 stating that allotment letter has been

missing from the house. Admittedly, in Ex.P.3, it is not

mentioned that the plaintiff filed any application seeking

allotment of site from the BDA. In respect of allotting the

site in the said layout, either in the allotment letter or in

the notice in Ex.P.2, nothing has been mentioned that this

allotment was made as per the application filed by the

plaintiff and no-where it is pleaded by the plaintiff in the

plaint that she has filed an application for allotment of site.

On the other hand, the pleadings and documents starts

from the notification for paying the amount of Rs.19,950/-

and subsequently, the amount has been remitted and a

lease-cum-sale agreement said to be executed and the

conditional sale deed also said to be executed by the

Deputy Secretary of BDA. There is no reference available

in the said lease-cum-sale agreement or the conditional

sale deed as to who was the person executed this

conditional sale deed as a Deputy Secretary of BDA. There

is no name mentioned, either in the lease-cum-sale

agreement or the conditional sale deed. Based upon the

said sale deed, the plaintiff might have constructed the

building on obtaining the sanctioned plan.

15. But, on perusal of the evidence of D.W.1 and

Exs.D.1 to D.6, it reveals that as per the evidence of

D.W.1 and Ex.D.1, for the site measuring 30 x 40 feet was

applied by the one U.S. Reddy on the printed format of the

application issued by the BDA. Under the same document,

remittance challan was also produced where the value of

the site was mentioned as Rs.20,000/-. Ex.D.2 reveals

that the BDA issued allotment letter on 18.11.1987 and as

per Ex.D.3, the said U.S. Reddy requested for cancelling of

the allotment. Ex.D.4 reveals the amount which was

remitted by U.S. Reddy was forfeited by BDA. Ex.D.5 is

remittance challan in the format issued by BDA. Ex.D.6 is

enquiry made by the special task force of BDA where a

detailed enquiry was made and it was found that U.S.

Reddy was allotted an alternative site and the present site

No.4129 was not at all allotted to any person as per the

document available in the BDA. It appears that some third

party has created a bogus sale deed and executed in

favour of the plaintiff. It also appears that the plaintiff

has not filed any application for allotment of site, and

therefore, the question of allotting the site to the plaintiff

does not arise. There is cloud over the title of the plaintiff.

Such being the case, the suit for bare injunction is not

maintainable and the plaintiff is required to file suit for

declaration and injunction. The Hon'ble Supreme Court in

Anathula's case (supra) at paragraph 21 has held as

under:

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a

finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v.

Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be

driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

16. The Hon'ble Supreme Court also followed the

said judgment in T.V. Ramakrishna's case (supra), and has

held when the title was disputed by the defendant and

when there is cloud over the title, the plaintiff is required

to file the suit for declaration and injunction, and not to file

the suit for bare injunction.

17. That apart, though the plaintiff is said to be

constructed the building based upon the alleged lease-

cum-sale agreement and the conditional sale deed and in

order to prove the said sale deed, she has not examined

any witnesses either from BDA or any other person and

she is not able to say as to who was the person executed

the lease-cum-sale agreement and she was said to be

stood outside the BDA compound and some person went

inside BDA and got executed the agreement, all these

pleadings cannot be acceptable. Therefore, the possession

of the plaintiff cannot be said to be a lawful possession

over the suit schedule property and the defendant can

definitely to take an action for evicting the plaintiff from

the suit schedule premises in accordance with law.

18. Therefore, I hold that the suit for bare injunction

is not maintainable and the plaintiff is not in lawful

possession of the suit schedule property, though

constructed the building long back. However, the

defendant cannot throw out the plaintiff from the BDA site

without taking due course of law. Though the trial Court

has granted injunction based upon the possession, but the

possession must be a lawful possession. Therefore, in

order to protect a person who is in illegal possession, the

court cannot grant any injunction against the defendant.

Therefore, I answer point Nos.1 to 3 in the negative and

the judgment and decree passed by the trial Court is

required to be interfered with by this Court. When there is

no application for allotment and when there is no letter

issued by the defendant for allotting the site, the question

of remitting the amount, getting the execution of lease-

cum-sale agreement and the conditional sale, the question

of becoming owner to the suit schedule site does not arise.

19. Therefore, in view of the principles laid down by

the Hon'ble Supreme Court in Anathula's case, the suit for

bare injunction is not maintainable and it is liable to be

dismissed. Hence, the judgment of the trial Court calls for

interference by this Court.

20. In view of the above observations, the following

order is passed:

(i) This appeal filed by the appellant-BDA is

allowed.

(ii) The judgment and decree dated 29.09.2015

passed by the XL Additional City Civil

and Sessions Judge, Bangalore, in

O.S.No.8268/2008, is hereby set aside.

(iii) The suit of the plaintiff is hereby dismissed.

        (iv)    No order as to costs.

        (v)     Office is directed to send copy of this judgment

and trial Court records to the concerned Court.

Sd/-

JUDGE

CS CT-SG