Karnataka High Court
Smt Mahajabeen Nasir vs The Commissioner on 8 February, 2024
-1-
NC: 2024:KHC:5489
RFA No. 215 of 2008
C/W RFA No. 1479 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 215 OF 2008 (DEC/INJ)
C/W
REGULAR FIRST APPEAL NO. 1479 OF 2007 (DEC/INJ)
IN RFA No. 215/2008
BETWEEN:
SMT. MAHAJABEEN NASIR,
W/O SRI NASIR AHMED SHERIFF,
AGED ABOUT 42 YEARS,
NO.442, 8TH MAIN, 4TH BLOCK,
KORAMANGALA,
BANGALORE-560 034.
...APPELLANT
(BY SRI RAGHAVENDRA REDDY, ADVOCATE)
Digitally signed AND:
by
ANNAPURNA G
Location: High THE COMMISSIONER,
Court of BANGALORE DEVELOPMENT AUTHORITY,
Karnataka SANKEY ROAD,
BANGALORE-560 020.
...RESPONDENT
(BY SRI RAVI G SABHAHIT, ADVOCATE)
THIS RFA IS FILED U/S.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 30.3.2007 PASSED IN
O.S.NO.3542/2002 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
-2-
NC: 2024:KHC:5489
RFA No. 215 of 2008
C/W RFA No. 1479 of 2007
PERMANENT INJUNCTION AND REJECTING THE SUIT FOR THE
RELIEF OF DECLARATION.
IN RFA NO. 1479/2007
BETWEEN:
BANGALORE DEVELOPMENT AUTHORITY,
REP.BY ITS COMMISSIONER,
SANKEY ROAD,
BANGALORE-560 020.
...APPELLANT
(BY SRI RAVI G SABHAHIT, ADVOCATE)
AND:
SMT. MAHAJABEEN NASIR,
W/O NASIR AHMED SHERIFF,
AGED ABOUT 37 YEARS,
R/A NO.442, 8TH MAIN, 4TH BLOCK,
KORAMANGALA,
BANGALORE-560 034.
REP. BY HER GPA HOLDER,
SRI AHMED SHERIEFF,
S/O LATE N A RAHMAN SHERIREFF.
...RESPONDENT
(BY SRI RAGHAVENDRA REDDY, AVOCATE)
THIS RFA IS FILED U/S.96 R/W O XLIII R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.3.2007
PASSED IN O.S.NO.3542/2002 ON THE FILE OF THE XXVII
ADDL. CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING
THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:5489
RFA No. 215 of 2008
C/W RFA No. 1479 of 2007
JUDGMENT
Being aggrieved by the judgment in
O.S.No.3542/2002 dated 30-03-2007 passed by the
learned XXVII Additional City Civil, Bangalore, whereby the
suit came to be partly decreed, the plaintiff-Mahajabeen
Nasir is before this Court in RFA No.215/2008 and the
defendant -The Commissioner, Bangalore Development
Authority is before this Court in RFA No.1479/2007.
2. The brief facts germane for the disposal of
these appeals are as below:
The plaintiff has filed the suit for the relief of
declaration that the defendant or its officials have no
authority to auction the suit schedule property and for
permanent injunction to restrain the defendant from
interfering with the peaceful possession and enjoyment of
the suit schedule property by the plaintiff and also from
demolishing the construction that is existing in the suit
schedule property.
NC: 2024:KHC:5489
3. The plaintiff contend that she is the absolute
owner in possession and enjoyment of the suit schedule
property which was a stray site formed by the defendant-
BDA. Plaintiff had applied for the allotment of the site to
the defendant-BDA, and accordingly, defendant issued a
letter dated 10-3-1992 and a consideration of Rs.3,595/-
was paid by the plaintiff to the defendant. Consequent
upon the said payment, defendant executed the Lease-
Cum-Sale agreement in favour of the plaintiff on 23-4-
1992, which came to be registered subsequently on 27-4-
1992, followed by the issuance of the Possession
Certificate on 30-4-1992. Ever since the said allotment,
the plaintiff was in peaceful possession and the entries in
the revenue records of the defendant also changed katha
in her favour by endorsement dated 29-5-1992. It is
contended that the defendant has also executed a
conditional registered sale deed in her favour on 06-05-
1992 and the entire area comprising in the suit schedule
property is situated within the limits of BMP. Accordingly,
NC: 2024:KHC:5489
the plaintiff is paying property tax as per the demand
notice issued by the Bangalore Mahanagara Palike since
1993 and she also made an application to the Bangalore
Mahanagara Palike, applying for building permission which
was granted to her. It is contended that at the time of
applying for the site, she was working as a Part Time
Primary School Teacher and her income was below
Rs.12,000/- per annum and therefore, as per Rule 5 of the
BDA (Allotment of Sites) Rules 1982-84, she was granted
the allotment.
4. When things stood so, the official of the
defendant attempted to demolish the structure that
existed in the suit schedule property and she was
constrained to file W.P.No.35435/20010 wherein, an order
of stay was granted. Even then the defendant went ahead
with issuing the public notice on 21-9-2001 notifying the
auction of the suit schedule property. Thereafter, she has
moved the High Court in W.P.No.36066/2001 and this
Court felt that a dispute involved between the parties
cannot be resolved in a writ petition and therefore, she
NC: 2024:KHC:5489
was directed to approach the Civil Court. Accordingly, the
plaintiff has filed the suit for the above mentioned reliefs.
5. On issuance of summons, the defendant-
Bangalore Development Authority, appeared through its
counsel before the trial Court and filed its written
statement, while denying the contentions of the plaintiff, it
was contended that the plaintiff relying upon forged and
fabricated documents is claiming rights over the suit
schedule property. It is stated that the defendant had
issued the allotment letter dated 10-3-1992 and in fact,
the plaintiff by taking advantage of the fabricated and
forged documents, started putting up construction over
the suit schedule property unauthorizedly. It is alleged
that there was no such allotment of site to the plaintiff and
the complaint was also lodged by the defendant in
Koramangala police station. It has denied that the plaintiff
is in lawful possession and enjoyment of the suit schedule
property and therefore, the dismissal of suit was sought by
the defendant.
NC: 2024:KHC:5489
6. On the basis of the above pleadings, the
following issues were framed by the trial Court:
1.Whether the plaintiff proves the allotment of the suit
schedule property by the BDA in her favour?
2.Whether the plaintiff proves her lawful possession of
the suit schedule property on the date of the suit?
3.Whether the plaintiff further proves unlawful
interference by the officials of the defendant?
4.Whether the defendant proves that the documents
relied upon by the plaintiff are forged and
fabricated?
5.Whether the valuation of the suit and court fee paid
thereon are proper and sufficient?
6.Whether the plaintiff is entitled to declaration as
sought for?
7.Whether the plaintiff is entitled to permanent
injunction as sought for?
8.What decree/order.
7. The plaintiff's General Power of Attorney Holder
Shri Noor Ahmed Sheriff was examined as PW1 and
Exhibits P1 to P55 were marked. One Shri B. Bheemappa,
Deputy Secretary to Bangalore Development Authority was
examined as DW1 and Ex.D1 was marked.
NC: 2024:KHC:5489
8. The trial Court after hearing both the sides, has
answered issue No. 1 in the negative, issue Nos. 2,3,5,7 in
the affirmative and answering the remaining issues as
redundant, decreed the plaintiff's suit in part and rejected
the suit for the relief of declaration as the said relief has
become redundant and granted permanent injunction
restraining the defendant and its officials fro m interfering
with the plaintiff's peaceful possession and enjoyment of
the suit schedule property till she is evicted by resorting to
due process of law.
9. The said judgment and decree is challenged
before this Court both by the plaintiff and defendant in
these appeals.
10. On issuance of notice, the parties have
appeared through their counsel before this Court in both
the appeals.
NC: 2024:KHC:5489
11. On admitting the appeals, the trial Court
records have been secured and heard the arguments by
both the sides.
12. The learned counsel appearing for the plaintiff
would contend that the plaintiff was allotted a site by BDA
and a conditional Sale Deed was executed as per Ex.P6 on
06-05-1992 after the payment of a sum of Rs.3595/- as
per the demand notice dated 10-03-1992 at Ex.P1. He
further contended that thereafter, the plaintiff had katha
changed in her favour before Bangalore Mahanagara Palike
and then had obtained the building permission for
construction of the building by raising loan from financial
institutions. It is contended that the defendant BDA put
the site allotted to the plaintiff for auction which was
challenged by the plaintiff before this Court in Writ
Petition. In the said writ petition, it was found that
complicated questions of fact are involved, and therefore,
liberty was given to the plaintiff to approach the Civil
Court. Accordingly, the plaintiff has approached the trial
- 10 -
NC: 2024:KHC:5489
Court. It is submitted that when the documents of the
defendant itself show that there was allotment, execution
of sale cum lease deed, payment of the consideration
amount by way of challan, execution of the conditional
sale deed and acting upon of the sale deed, the trial Court
was not justified in rejecting the claim of the plaintiff that
a declaration that the defendant had no right or
jurisdiction to auction could be granted. Therefore, he
submits that the impugned judgment is contrary to the
documentary evidence which are available on record and
the trial Court has not considered the admissions given by
DW.1 before it.
13. Per contra, learned counsel appearing for
defendant-BDA submit that there was no notification
inviting applications, there was no allotment letter, except
an intimation by an alleged official of BDA. He contends
that the conditional sale deed was executed within one
month from the date of the lease cum sale agreement and
therefore, the connivance of the plaintiff with the officials
- 11 -
NC: 2024:KHC:5489
of BDA is visible. It is submitted that there was a COD
enquiry and the BDA has contended that the plaintiff has
got her name entered in the records of Bangalore
Mahanagara Palike on the basis of the forged documents.
It is submitted that the prayer of the plaintiff is negative
declaration and she has not sought for a declaration of
title over the property on the basis of the alleged sale
deed. Therefore, he has submitted that the rejection of
the prayer for declaration cannot be interfered with.
Further, he stated that when the plaintiff was not entitled
for any declaratory relief, the trial Court was not justified
in granting the injunction. When the right, title and
interest of the plaintiff were not established by the
plaintiff, the relief of injunction could not have been
granted.
14. The points that emanate from the above
submissions and the background of the case are:
(i) Whether the negative declaration that the defendant
has no right to auction the site could have been granted?
- 12 -
NC: 2024:KHC:5489
(ii) Whether the grant of injunction restraining the
defendant from dispossessing the plaintiff without due
process of law was proper?
15. The plaint makes following prayer:
a) Declaration that the defendant or its officials have no
authority or jurisdiction to auction the suit schedule
property.
b) Permanent injunction restraining the officials of the
defendant or its workers or anyone claiming through
them from either interfering with the plaintiffs'
peaceful possession and enjoyment of the schedule
property or from demolishing the existing
construction over the schedule property or from
dispossessing the plaintiff from the schedule
property or from causing any sort of obstruction to
the plaintiff's construction activity over the schedule
property.
c) To grant such other relief as this Hon'ble Court
deems fir in the circumstances of the case and in
the interest of justice.
16. It is relevant to note that, it is the case of the
plaintiff that the officials of the defendant came to the suit
schedule property and tried to demolish the building
- 13 -
NC: 2024:KHC:5489
constructed by the plaintiff. Therefore, she approached
this Court in Writ Petition in No.35435/2001 where a stay
was granted for demolition on 16-9-2001. Thereafter, the
defendant issued a notification in Times of India
Newspaper 25-9-2001 whereby the suit site was put for
auction. Therefore, she again approached this Court in
Writ Petition No.36066/2001, there again, a stay was
granted for auctioning the site. Both the writ petitions
were disposed of on 17-4-2002, as per the order produced
at Ex.P31. In Ex.P31, this Court observed at para Nos.3
and 4 as below:
"3. The respondents have file their detailed statement of
objections. In that, they dispute the right, title and
interest of the petitioner in the aforesaid property.
According to them, the letter of allotment under which
the petitioner is claiming title to the property is a
forged document.
4. These are all disputed facts and these disputed facts
cannot be resolved by this court in exercise of its
jurisdiction under Articles 226 of the constitution.
Therefore, the relief sought for by the petitioner in
these writ petitions cannot be granted by this Court.
Accordingly, these writ petitions are rejected.
- 14 -
NC: 2024:KHC:5489
However, liberty is reserved to the petitioner to file an
appropriate civil suit for appropriate relief within two
months time from today, if she so desires. Till such
time, the interim order granted by this Court would
enure to the benefit of the petitioner. Ordered
accordingly."
17. Thus, it is evident that the defendant had
challenged the right, title and interest of the plaintiff over
the suit site. Clearly, the defendant had disputed the title
of the plaintiff over the suit site and had alleged that the
BDA had not allotted the site to the plaintiff and the
documents relied by the plaintiff are forged and fabricated.
Therefore, it was incumbent upon the plaintiff to seek a
declaration regarding her title but not to seek a declaration
that the defendant do not have the right to auction the
suit site. In that view of the matter the negative relief
claimed by the plaintiff was not in the proper conspectus
of the facts that prevail in the case. Declaring that the
defendant cannot auction the suit property could not have
conferred the right over the suit schedule property vis- a -
vis the defendant when it had denied the title. In that
- 15 -
NC: 2024:KHC:5489
view of the matter, the plaintiff had to establish her title to
the suit schedule property which she has not done.
18. Secondly, the evidence on record need to be
assessed by this Court. It is evident that the application
filed by the plaintiff in pursuance to a notification issued
by the defendant calling the eligible persons to file
application for allotment of the sites is not available on
record. Though the plaintiff contend that there was a
notification and she had applied for a site, the particulars
of the notification are neither pleaded nor produced or the
defendant was called upon to produce. The contention of
the defendant that there was no such notification calling
the beneficiaries to file the applications for allotment of the
sites gains significance when there is no pleading by the
plaintiff in this regard.
19. Evidently, Ex.P1 dated 10-3-1992 is only an
intimation but not an allotment letter. Ex.P3 dated
30-4-1992 is the possession certificate issued by the
defendant and signed by one K.N.Chandrashekhar.
- 16 -
NC: 2024:KHC:5489
Accordingly, a katha was created with defendant BDA as
per Ex.P4 dated 29-5-1992. It is relevant to note that
though it is contended that on 27-4-1992, a Lease-Cum-
Sale Agreement was executed, it has not been produced
by the plaintiff.
20. On 6-5-1992, conditional sale deed was
executed by referring to the lease cum sale agreement,
the payment of Rs.3,595/- made by the plaintiff by one
K.N. Chandrashekhar. It is pertinent to note that one M.A.
Sharieff and another official of BDA who had signed Ex.P3-
Possession Certificate were the witnesses to it. On the
basis of these documents, the katha change was effected
at Bangalore Mahanagara Palike in the year 2001 and tax
was paid thereafter. The plaintiff rely on the sale cum
lease agreement, sale deed executed by said K.N.
Chandrashekhar in favour of one Lakshmamma d/o
Kariyappa as per Ex.P18 and P21, similar documents in
favour of M.A. Monappa s/o Aiyappa, as per Exs.P19 and
- 17 -
NC: 2024:KHC:5489
P23, and in favour of Smt. Ruchikapuri as per Exs.P20 and
P22 respectively.
21. A careful perusal of these documents with
respect to the signature of the said K.N.Chandrashekhar in
Ex.P3 would show that they are not tallying to each other.
The said K.N. Chandrashekhar has filed the affidavit before
the trial Court as per Ex.D1. It is relevant to note that
signature of K.N. Chandrashekhar tallies with the
documents of Lakshmamma, Monappa and Ruchikapuri. It
is also evident that the intimation letter at Ex.P1 and the
possession certificate at Ex.P3 are the primary documents
on the basis of which the remaining transactions have
taken place. Therefore, the officials who had signed Exs.P1
and P3 would have been the better witnesses to establish
that the plaintiff had obtained the title over the suit site.
Evidently, they were not examined, but the prayer was not
in respect of proving the title of the plaintiff over the suit
property. Therefore, the contention of the defendant that
the documents are forged and fabricated gains
- 18 -
NC: 2024:KHC:5489
significance. It is not known why the plaintiff did not seek
declaration of her title despite it was denied by the
defendant in unequivocal terms before this court in the
writ petition. Ex.P6 conditional sale deed is also signed by
the same person and witnessed by the same person who
signed Exs.P1 and P3. Therefore, Exs.P1, P3 and P6 are
doubtful documents, which are denied by the defendant,
requiring cogent evidence to prove them. Such evidence is
not forthcoming on behalf of the plaintiff.
22. Under these circumstances, it is evident that
the case of the plaintiff stands on a different set of facts
than the other purchasers, who is referred by the plaintiff.
The cross examination of DW1 show that a police
complaint was also filed and COD investigation was in
progress. It is not known as to what transpired in such
investigation. It would suffice to say that the trial Court
after evaluating the oral and documentary evidence
available on records, came to the conclusion that the
prayer for declaration that defendant does not have the
- 19 -
NC: 2024:KHC:5489
right to auction cannot be granted. Even without referring
to the evidence on record, such a negative prayer could
not have been granted when the plaintiff knew that the
title of the plaintiff was denied by the defendant.
23. Sofar as the injunction is concerned, it is
evident that based on Exs.P1, 3 and 6, the City
Corporation Bangalore,( hereinafter called as Bangalore
Mahanagara Palike) had changed katha and had also
granted permission for construction of the building. The
plaintiff had obtained loan from the bank. Therefore, the
trial Court came to the conclusion that the plaintiff is in
possession of the property. Such a conclusion is
supported by the tax payment receipts accepted by the
BDA as well as the Bangalore Mahanagara Palike
subsequent to Exs.P1,3 and 6. The defendant nowhere
states when it came across the forgery and the fabrication
of the documents. It do not produce any cogent evidence
that it had lodged complaint to the police. The defendant
do not disclose whether any action was taken to find out,
- 20 -
NC: 2024:KHC:5489
who had signed Exs.P1, P3 and P6 purporting to be the
officials of the BDA. Therefore, the possession of the
plaintiff over the suit schedule property was held to be
with the plaintiff. The connivance or the involvement of
the plaintiff in such fabrication and forgery is not
established. Therefore, the trial Court was justified in
holding that the plaintiff can only be evicted by resorting
to due process of law and till then the possession has to
be protected by an injunction. Under these circumstances,
I do not find any reason to interfere with the conclusions
reached by the trial Court. The points raised by this Court
are answered accordingly. Hence, the following:
ORDER
The appeal filed by the plaintiff in RFA No.215/2008 and
the appeal filed by the defendant in RFA No.1479/2007 are
hereby dismissed.
Sd/-
JUDGE
