Karnataka High Court
Smt. Bhagyalakshmi vs R. Gopala Krishna on 10 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 750 OF 2022
C/W
REGULAR FIRST APPEAL NO. 760 OF 2022
C/W
REGULAR FIRST APPEAL NO. 762 OF 2022
IN REGULAR FIRST APPEAL NO.750/2022
BETWEEN:
SRI. VENKATESH REDDY
S/O LATE H.M.HANUMA REDDY,
AGED ABOUT 65 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE, ITPL ROAD,
BANGALORE - 560 037.
SINCE DEAD, BY HIS LEGAL REPRESENTATIVE/HEIR
SMT. BHAGYALAKSHMI
W/O SRI. VENKATESH REDDY,
AGED ABOUT 65 YEARS,
R/AT NO.2, SLV PLAZA, ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE,
ITPL ROAD, BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
2
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE-73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA, AUSTIN TOWN,
BANGALORE - 47.
4. SRI. S.BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417, HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 - SERVICE OF NOTICE IS DISPENSED WITH VIDE
COURT ORDER DATED 21/09/2023)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5725/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
3
IN REGULAR FIRST APPEAL NO.760/2022
BETWEEN:
SMT. BHAGYALAKSHMI
W/O SRI. VENKATESH REDDY,
AGED ABOUT 55 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE,
ITPL ROAD, BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE - 73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA,
AUSTIN TOWN,
BANGALORE - 47.
4
4.
SRI. S. BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417, HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 IS SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5727/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
IN REGULAR FIRST APPEAL NO.762/2022
BETWEEN:
SMT. KAVITHA REDDY
W/O SRI. SRIKANTH,
AGED ABOUT 37 YEARS,
R/AT NO.2, SLV PLAZA,
ARAVINDA AVENUE,
MUNNEKOLALA EXTENSION,
KUNDALAHALLI GATE, ITPL ROAD,
BANGALORE - 560 037.
...APPELLANT
(BY SRI. SHAILESH KUMAR R., ADVOCATE)
AND:
1. R. GOPALA KRISHNA
S/O LATE RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.G-790, 7TH CROSS,
HAL NEW TOWNSHIP,
BANGALORE - 560 037.
5
2. G. LAKSHMI NARAYANA
S/O K.V.GOPAL,
AGED ABOUT 43 YEARS,
R/AT NO.27, 11TH 'B' CROSS,
SIDDADAHALLI MAIN ROAD,
NAGASANDRA POST,
BANGALORE - 73.
3. SRI. S. AKRAM
S/O LATE S. YUNUS KHAN,
AGED ABOUT 46 YEARS,
R/AT NO.33/34, MASJID STREET,
YELLAGOUDAPALYA,
AUSTIN TOWN, BANGALORE - 47.
4. SRI. S. BABU
S/O LATE K.V.SWAMY,
AGED ABOUT 46 YEARS,
R/AT NO.417,
HIMJIGIRI-ENCLAVE-II,
E-BLOCK, TIMMAREDDY LAYOUT,
BANGALORE - 93.
...RESPONDENTS
(BY SRI. NISHANTH A.V., ADVOCATE FOR R1, R3 & R4;
R2 - SERVICE OF NOTICE IS DISPENSED WITH VIDE
COURT ORDER DATED 21/09/2023)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.11.2021 PASSED IN OS.NO.5729/2014
ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE
SUIT FOR INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 15.03.2024 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
6
RESERVED FOR ORDERS ON: 15.03.2024
PRONOUNCED ON : 10.06.2024
JUDGMENT
These three appeals are filed by the appellants-
plaintiffs under Section 96 of CPC for setting aside the
judgment and decree passed by the XXXIX Additional
City Civil and Sessions Judge, Bengaluru in O.S.
Nos.5725/2014, 5727/2014 and 5729/2014 for having
dismissed the suit of the plaintiffs vide judgment dated
25.11.2021.
2. Heard the arguments of learned counsel for
the appellants and learned counsel for the respondents.
3. The appellants are the plaintiffs and the
respondents are the defendants before the trial Court
and the rank of the parties, before the trial Court, is
retained for convenience.
4. The brief facts of the case of the plaintiff in
O.S. No.5725/2014 (R.F.A No.750/2022) is that the
plaintiff filed a suit for bare injunction restraining
the defendants from interfering with the peaceful
possession and enjoyment of the property bearing
site No.2, Khatha No.121, property No.121 situated at
Kundalahallil village, K.R. Puram Hobli, now comes
under the BBMP limits, measuring East to West 50
feet and North to South 45 feet, in all measuring
2250 square feet and four shops constructed thereon
(hereinafter referred to as 'suit schedule property').
It is stated in the plaint that the plaintiff is the
absolute owner and lawful possession of the suit
schedule property having purchased the same from
one Girish Anand by a registered sale deed dated
13.04.2012 registered at the office of Sub-Registrar,
Shivajinagar (Mahadevapura), Bangalore and
subsequently, got transferred all the revenue records
and paid taxes.
5. It is further alleged by the plaintiff that
originally, the land bearing Sy. No.121 of Kundalahalli
village, K.R. Puram Hobli, East Taluk, measuring 21
guntas belonged to the vendor Girish Anand and the
revenue records were also stood in the name of Girish
Anand, the vendor of the plaintiff. Subsequently, the
plaintiff constructed shops on a portion in the suit
schedule property, secured an electricity connection
and rented out the shops to the tenant, who is running
a hotel in the name and style of Idly Hut. It is further
contended that the defendants alleged to have been
purchased the sites bearing Nos.614/A, 614/B, 614/C
and 614/D from Aircraft Employees Cooperative Society
(hereinafter referred to as 'Aircraft Society') and trying
to interfere with the peaceful possession and enjoyment
of the suit schedule property. The vendor of the
defendants assigned a bogus and illegal number to the
alleged sale deed in favour of the defendants and they
are trying to interfere with the possession of the
plaintiff. It is further contended that the defendants
have no manner of right, title or interference over the
suit schedule property, but are trying to interfere with
the same. It is further contended by the plaintiff that it
could be seen from the approved layout plan, which has
been approved by Bangalore Development Authority as
per their reference No.BDA/TPM/D.D (W) 206/87-88
dated 03.07.1987, and it is clear that there is no
existence of site numbers Nos.614/A, 614/B, 614/C and
614/D, but the defendants have manipulated the
documents in order to knock out the suit schedule
property and they are trying to interfere with the suit
schedule property. It is further contended that on
22.07.2014 at 11.35 a.m., the defendants tried to
interfere with the peaceful possession of the plaintiff.
Hence, the plaintiff approached the police by filing a
complaint, but the police directed the plaintiff to
approach the Civil Court. The cause of action arose on
22.07.2014 when the defendants tried to interfere in
the suit schedule property. Hence, the plaintiff filed the
suit.
6. The facts of the case of the plaintiff-Bhagya
Lakshmi in O.S. No.5727/2014 (R.F.A. No.760/2022)
are that the plaintiff is absolute owner in possession of
the site No.3, Khatha No.121, property No.121 situated
at Kundalahallil village, K.R. Puram Hobli, now comes
under the BBMP limits, measuring East to West 50 feet
and North to South 45 feet, in all measuring 2250
square feet and four shops constructed thereon, which
was purchased from one Girish Anand by the registered
sale deed dated 13.04.2012. The name of the plaintiff
was mutated in the revenue records and taxes were
paid, and the plaintiff is in possession of the suit
schedule property, but the defendants said to be
purchased the site Nos.614/A, 614/B, 614/C and
614/D, from the Aircraft Society and with the alleged
sale deed, they are trying to interfere with the peaceful
possession of the suit schedule property on 22.07.2014
at 11.30 a.m. Hence, the plaintiff filed the suit.
7. The facts of the case of the plaintiff-Kavitha
Reddy in O.S. No.5729/2014 (R.F.A. No.762/2022) are
that the plaintiff is the absolute owner in possession of
the site No.4, Khatha No.121, property No.121 situated
at Kundalahallil village, K.R. Puram Hobli, now comes
under the BBMP limits, measuring East to West 50 feet
and North to South 48 feet, in all measuring 2400
square feet. It is contended that the plaintiff
purchased the said site from one Girish Anand on
13.04.2012 and her name was mutated in the revenue
records and she is paying taxes. Since 13.04.2012, the
plaintiff is in possession of the suit schedule property,
but the defendants are claiming to have purchased the
sites bearing Nos.614/A, 614/B, 614/C and 614/D
from Aircraft Society and trying to interfere with the
peaceful possession and enjoyment of the plaintiff over
the suit schedule property on 22.07.2014. Hence, the
plaintiff filed a suit against the defendants.
8. After receiving summons, defendant No.1 and
4 did not chose to appear before the Court and they
placed ex-parte. Defendant No.2 though appeared
through their counsel, but not filed any written
statement O.S. No.5729/2014. Defendant Nos.1, 2 and
4 were placed ex-parte in O.S. No.5727/2014 and O.S.
No.5725/2014.
9. Defendant No.3 appeared in all three cases
and filed a similar written statement by denying the
right, title and interest over the suit schedule property
by the plaintiff. The suit of the plaintiff is abuse of
process of law. The site Nos.2, 3 and 4 in khatha
No.121 are not at all in existence, the plaintiff claiming
right in respect of non-existed property. Hence, the suit
is not maintainable in its present form. It is further
contended that on the basis of scheme formulated by
the Aircraft Society, the state government has initiated
acquisition proceedings in respect of various lands
situated at Kundalahalli and other villages and issued
the notification under Section 4(1) of the Land
Acquisition Act, vide notification
No.LAQ(1)CR/468(A)80-81 dated 24.9.1981 the same
has been published in Karnataka gazette acquiring
several survey number of the land including the entire
land in Sy.No.121 of Kunadalahalli measuring 5 acres 3
guntas and subsequently the final notification has been
issued and the compensation has been disbursed to the
khatedar viz, Ananda Rama Reddy, whose name was
notified represented by his GPA holder, who received
the award amount from the Special Land Acquisition
Officer (SPLO) and the SPLO handed over the
possession of the property to the society on 13.12.1982
and the said society had formed the layout and after
the completion or formalities, sites have been allotted
to its members, defendant No.3 got site No.614/C.
Accordingly, the Aircraft society allotted the site in
favour of defendant No.3 vide allotment letter dated
17.6.2011, the defendant NO.3 put in possession of the
said site. no objection was also issued to the defendant
on 22.6.2011. The society has executed sale deed on
20.6.2011 in favour of defendant NO.3 and he being
the purchaser of the site No.614/C, he is in peaceful
possession and enjoyment of the same. the plaintiff
and the vendors knowing fully about the fact filed the
suit intention to harass the defendant. neither the
plaintiff nor the vendor of the plaintiff have got right
over the suit schedule property. The alleged sale dated
13.04.2012 is a collusive document created by the
plaintiff in collusion with Girish Anand, the plaintiff
cannot and shall not claim any title under the guise of
the sale deed. The plaintiff in collusion with revenue
authorities created document in 2012, the land has
been acquired in 1982 itself, the present Kundalahalli
village is under the BBMP limit, the alleged khatha, tax
paid receipts, all created and concocted, the plaintiff is
not at all in possession of the suit schedule property.
Hence, prayed for dismissing the suit.
10. Based upon the pleading, the trial Court
framed the similar issues, in all three suits, which are
as under:
(1) Whether the plaintiff
proves that he/she is in peaceful
possession and enjoyment of plaint
schedule property as on the date of
suit?
(2) Whether the plaintiff
further proves the defendants are
interfering with his/her peaceful
possession and enjoyment over the
suit schedule property?
(3) Whether plaintiff is
entitled for the relief of permanent
injunction against the defendants
as prayed for?
(4) What order or decree?
11. In RFA No.750/2022, the Plaintiff is
examined himself as P.W.1 and documents got
marked as Exs.P.1 to P.19. In RFA No.760/2022,
the GPA holder of Plaintiff has been examined as
P.W.1 and documents got marked as Exs.P.1 to P.20.
And, in RFA No.762/2022, the GPA holder of Plaintiff
has been examined as P.W.1 and got marked the
documents as Exs.P.1 to P.22.
12. The GPA holder of defendant No.3, in all
the cases, has been examined as D.W.1 and got
marked the documents as Exs.D.1 to D.26.
13. After hearing the arguments, the trial court
answered the issue Nos.1 to 3 in the negative and
finally dismissed the suits of the plaintiffs. Being
aggrieved with the same, the appellants are before
this court by filing these appeals.
14. Learned counsel for the appellant has
strenuously contended that the trial court committed
error in dismissing the suits of the plaintiffs since the
plaintiffs are able to prove their possessions for
having purchased the properties from the erstwhile
owners in the year 2012 itself. The Trial court did not
consider the issue No.3. The Exs.P3 to P10 and P18
there is no reference regarding acquisition, the
Ex.P19 is tax paid receipts, which reveals Sy.No.121.
He further contended that the Land Acquisition Officer
awarded the compensation only for 4 acres 13 guntas
but not for 4 acres 34 guntas, the 21 guntas
remained with the vendor of the plaintiff. The very
documents of the defendant at Ex.D13 and Ex.D15
establishes the retention of 21 guntas, only 4 acres
and 13 guntas acquired by BDA and remaining
portions were retained by the land owner and the son
of the land owner sold the property to the plaintiffs.
It is further contended that the defendants have not
produced the layout plan to show the existence of the
4 site numbers claimed by the defendants and no
such sites were formed by the society. The BDA
normally will not approve the fraction numbers of the
sites which clearly reveals the plaintiffs are in
possession and enjoyment of schedule properties,
when the plaintiffs are able to show their possession
of their property by way of sale deed and therefore
they need not file suit for declaration as observed by
the trial court.
15. Learned counsel for the appellant further
contended that the defendant No.3 who is respondent
No.2 herein is the only person contesting the matter,
the other defendants have not contested the matter.
The finding of the trial court is that the entire land in
sy.no.121 was acquired, is not correct. A report was
prepared by the officer as per Ex.P15 which reveals
there is no encroachment and plaintiffs are in
possession of the sites. There is no cloud over the
title of the plaintiff in order to file suit for declaration.
The vendor of the plaintiff obtained the Pouthikatha
from the Assistant Commissioner and sold the
property. The very award passed by the Land
Acquisition Officer reveals the compensation paid for
4 acres 13 guntas but not for 4 acres and 34 guntas.
16. Learned counsel further contended that the
society has not mentioned the sites claimed by the
defendant vide site Nos. No.614/A, 614/B, 614/C and
614/D and BDA also not approved such sub-numbers
when the layout plan is not produced by the
defendant, the court can draw the adverse inference
against them. The boundary mentioned in the
property of the defendants and the boundary
mentioned in the plaintiff are not matching.
17. It is further contended by the learned
counsel for the appellant that the defendants have
not examined any persons from the AECS society.
Therefore, it is contended that the judgment of trial
court is liable to be set aside and decree the suit.
18. Per contra, learned counsel for the
respondent supported the judgment of the trial court
contending that, the suit is barred since the land in
Sy.No.121 has been acquired by the BDA way back in
1982 an award has been passed, possession has
been delivered to the society and in turn, the Society
formed the layout and allotted sites to the members.
If at all any dispute over the acquisition, the remedy
available to the plaintiff to approach the High Court
under writ jurisdiction, the question of filing civil suit
does not arises. Here it is clear case of sale deed
executed by the society in favour of the defendant.
Once the plaintiff having knowledge about the sale
deed of the defendant, the plaintiff suit for bare
injunction is not maintainable. The plaintiff could
have converted the suit into declaration and
possession. The defendants are in possession of the
schedule property. The survey number is not
mentioned in the schedule properties. Once the land
has been acquired by the BDA, the owner loses the
right. The father of the vendor of the plaintiff already
obtained the compensation. Once the plaintiffs are
aware about the sale deed of the defendant there is a
cloud over the title, hence suit for bare injunction is
not maintainable. The properties already comes
under BBMP limit, therefore issuing RTC receiving tax
by the revenue authorities source which is created
documents. Out of the said land 9 guntas of kharab
land has been utilized by the government for forming
Hoodi- Kundalahalli road. The plaintiffs encroached
the road. There is no survey number in the sale deed
but it is stated in the mutation. The Exs.P1 to P19
produced by the plaintiff are subsequent to the sale
deed of the defendants. The Exs.D16 and D17 are
the notice given to the land owner and receipt of the
compensation and Ex.D18 is RTC shows the name of
the society sold to the defendants. The PW1 admits
the sale deed of the defendants. Therefore, the suit
is barred by Section 9 of the CPC and bare injunction
suit is not maintainable in view of ANATHULA
SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY L.RS
& ORS. reported in 2008 AIR SCW 2692 decided by
the Hon'ble Supreme Court and hence, prayed for
dismissing the appeals.
19. During the pendency of the appeal, the
learned counsel for the respondent also filed
interlocutory application I.A.No.1/2023 for violation
of the interim order under Order 39 Rule 2A of CPC
contending that, when the court granted status quo
and appellants have violated the order of status quo
and put up the construction. Therefore, prayed for
taking action against the appellants and convicting
them, in accordance with law.
20. Learned counsel for the appellant by way of
reply once again contended that the entire extent of
land was not acquired. The award passed only for 4
acres 13 guntas therefore plaintiff proved the
possession and suit for bare injunction is
maintainable. The other defendant Nos.1, 2 and 4
have not filed any written statement, they are placed
Ex-parte, only defendant No.3 filed written statement
and the site number claimed by the defendant No.3 is
No.614/C measuring 2500 sq.ft., and the DW1
admitted in the cross examination that there is no
khata issued by BBMP in his name. There is no
document to show the site No.614/A, 614/B, 614/C
and 614/D has been formed by the society and it has
to be sold by the public auction. There is no auction
conducted by the society for selling the sites to the
defendants. Both counsels have relied upon the
judgments of Hon'ble Supreme Court and hence
prayed for allowing the appeal.
21. Having heard the arguments and perused
the record, the point that arises for my consideration
are
"1) Whether all the 3 plaintiffs
proves that they are in lawful
possession and enjoyment of the suit
schedule properties?
2)Whether the defendants are
interfered with the possession and
enjoyment of the suit schedule
properties?
3) Whether the suit of the
plaintiff for suit for injunction is not
maintainable as contended by the
defendant?
4) Whether the respondents
also made sufficient cause for leading
evidence and production of document
Order XLI Rule 27 of CPC ?
5) Whether the judgment of
the trial court calls for any
interference?"
22. In order to prove the case of the plaintiffs,
the GPA holder of the plaintiff examined as PW1 and
got marked 19 documents, out of which Ex.P18 is
sale deed dated 13.04.2012. All these 3 plaintiffs are
claiming the title and possession of the property
through the Sale deed dated 13.04.2012. The case
of the plaintiff is that the land in Survey No. 121 of
Kundalahalli village belongs to the father of the
Vendor Ananda Rama Reddy and the said land has
been acquired by the BDA on behalf of the Aircraft
Employees Co-operative Society Ltd., Admittedly, the
land in survey number 121 was of 4 acres 34 guntas
and 9 guntas kharab land. The further case of the
plaintiff is that, though the entire land has been
notified for acquisition, but after the completion of
final notification, an award has been passed in favour
of the father of the vendor and compensation was
awarded only for 4 acres 13 guntas including the
kharab land. The remaining 21 guntas, were left out
by the BDA and it was not handed over to the society
for formation of the sites. The remaining property in
Sy.No.121, the son of the land owner got mutated in
his name, after the death of his father by obtaining
the pouthikatha, formed four sites, out of which site
Nos.2 to 4 were sold to the plaintiffs by sale deed.
After the sale deed the plaintiff/appellants have
obtained the khata and paid the taxes to the revenue
authorities. On the other hand, the case of the
defendant No.3 in all these three suits was that, the
land in Sy.No.121 of Kundalahalli measuring 4 acres
34 guntas and 9 guntas kharab land were entirely
acquired by the BDA and was given to the society.
The society has formed the layout and allotted the
site to its members i.e., defendant Nos.1 to 4, vide
sites bearing No.614/A, 614/B, 614/C and 614/D.
Therefore, it is contended that by the appellant
counsel that once the land has been acquired by
notification, it was published in the official gazette
and therefore the owners are left with only
challenging the acquisition and set aside the same by
filing the writ petition before the High Court and that
issue cannot be decided in the civil court, as there is
bar under section 9 of CPC. Admittedly defendant
Nos.1, 2 and 4 did not contested the matter. Only
the defendant No.3 was contested the matter and
filed written statement and he is the GPA holder who
lead the evidence. The Ex.D2 is allotment letter
dated 17.6.2011 issued by 'Aircraft Society'. Ex.D3 is
Possession certificate of the 'Aircraft Society'. Ex.D4
is no objection certificate issued by the 'Aircraft
Society'. Ex.D5 to D7 are receipts for having
received the money. Ex.D8 is sale deed dated
20.6.2011. Ex.D9 is the Encumbrance certificate
form No.15 in respect of site No.614/C. Ex.D10 is
certified copy of the Notification of the BDA under
Section 4(1) of Land Acquisition Act dated
24.09.1981. Ex.D11 is the publication under Section
6(1) of Land Acquisition Act dated 14.10.1982.
Ex.D12 is handing over and taking over the
possession dated 13.11.1982. Ex.D13 is notification
under Section 16(2) of Land Acquisition Act dated
21.07.1989. Ex.D14 is survey sketch of sy.no.121 of
Kundalahalli village. Ex.D15 is copy of the award.
D.16 is notification under Section 12(2) of Land
Acquisition Act dated 7.4.1983. Ex.D17 is the
voucher dated 08.04.1983 for having received the
compensation by the land owner.
23. On perusal of these documents the
respondent defendant relied upon the notification
issued by the BDA under section 4( 1) and 6 (1) and
also 16 (2) of Land Acquisition Act. In order to show
the entire land has been acquired by the BDA
measuring 4 acres 35 guntas and the same was
handed over after final notification and award has
been passed and the compensation has been received
by the owner, the father of the vendor of the plaintiff.
The appellant counsel also seriously disputed and
contended that the Ex.D15 is the award passed by
the Special Land Acquisition Officer where the award
refers the acquisition of the land to an extent of 4
acres 34 guntas of land and 9 guntas of Kharab land
and but the compensation was awarded only for 4.13
guntas. While passing the award, the calculation of
compensation, is mentioned as under:-
"AWARD
The Special Deputy Commissioner, Bangalore District,
Banglaore, in preliminary notification No. LAQ DCR 468 (A)/ 80-
81 dated nil published in Karnataka Gazette dated 24.09.1981
in Page No.1309, 1310 in Part IX notified the intention to
acquire land measuring 4-34 guntas in s.No.121 of Kundalahally
Village, K.R.Puram Hobli, Bangalore South Taluk, Bangalore
South, in favour of Aircraft Employees' Co-operative Society
Ltd., Bangalore, under section 4 (1) of the Land Acquisition Act
1894 as amended by the Karnataka Act No.17 of 1961.
Government in their Notification No.RD 61 AQB 82 dated
06/10/1982 under Section 6 of the Land Acquisition Act 1894 as
amended by the Karnataka Act No.17 of 1961 have accorded
sanction and the same has been published in Page No.870 and
871 in Part IX dated 14.10.1982 in the Karnataka Gazette.
Value of the lands pertaining to Kundalahally village has ready
been filed at Rs.12,000/- per acre for dry lands as per re for dry
lands AS PER ORDERS OF THE SPECIAL DEPUTY
COMMISSIONER, Bangalore District, bangalore in No.LAQ(1)
CR/253/82- 83 dated 1-1982. As such the value for dry lands in
this case also fixed at Rs.12,000/- per acre, and that the award
is as follows:
Amount
1) Value of 4-13 (Dry in S.No.121 51900.00
of Kundalahally village at
Rs.12,000/- per acre
2) Statutory Allowance at 15% 7785.00
-------------
TOTAL 59685.00
(Rupees Fifty Nine Thousand Six Hundred and Eighty Five Only).
The entire amount of compensation together with the interest 5% per annum from
the date of handing over possession till the of payment is to be paid to Sri
C.V.Anantha Murthy who is the Power of Attorney Holder in this case.
The Land Revenue shall abate from the year 1982-83.
Amount
The Establishment charges at 10% 5970.00
Auidt charges at Rs.1% 597.00
-----------
Total Rs. 6567.00
-----------"
24. On careful reading of the award passed by
the Land Acquisition Officer, the award has been
passed and the compensation award is only to the
extent of 4 acres and 13 guntas of land in Sy.No.121
and not for entire land 4 acres 34 guntas which was
alleged to be acquired by the BDA. Though, Ex. D17
is voucher where the owner obtained the
compensation for Rs.59,685/- which is only for 4
acres 13 guntas but not for 4 acres 34 guntas. The
appellant plaintiff counsel categorically contended
that the Government or BDA handed over only 4
acres 13 guntas to the society, the remaining land
was not given to the society. It is left for the road,
it spill over the land which was subsequently got
mutated by the son of the land owner and he has
formed 4 sites and sold to the plaintiffs. It is also
contended that after leftover the piece of land by the
Land Acquisition Officer was belonging to the owner.
The son of the owner of the land acquired the
property as legal heir of the land owner and he has
formed 4 sites and sold to the plaintiffs under the
sale deed. Admittedly, the plaintiffs are claiming
right over the property through the sale deed and
subsequent to the purchase, the plaintiffs have
obtained the RTC in their name prior to that the
Girish Anand son of the land owner obtained the RTC
in his name for remaining 21 guntas.
25. Ex.P1 is the General power of attorney
dated 02.04.2018 executed by Smt.Kavitha Reddy in
favour of Venkatesh Reddy. Ex.P2 to 10 are the tax
paid receipts for having made payment to the BBMP.
Ex.P11 is the complaint made by the AECS dated
02.07.2014 stating that the plaintiffs have
encroached the government road unauthorisedly.
This document Ex.P11 reveals the plaintiffs are in
possession of the suit schedule properties. Hence, the
society has filed the complaint to the BMTF. The FIR
also has been registered as per Ex.P13, where the
Joint Director of Town Planning was the complainant.
The BMTF after the enquiry have filed B final report
as per Exs.P14 and 15, which reveals that the
plaintiffs are in possession and enjoyment of the
properties. Whereas the boundaries mentioned by the
respondent/defendant claiming site 614 A,B,C, D are
different the defendant Nos.1, 2 and 4 not contested
the matter, only third defendant contested the matter
where he is claiming title over the Site No.614/C of
the site.
26. During the pendency of the appeal, the
learned Counsel for the respondents has filed an
interlocutory application in I.A. No.5/2023 under
Order 41 Rule 27 of CPC for production of additional
documents contending that they were not able to
produce these documents in the trial Court and later,
it was obtained by the respondents from their Society
and produced the same. It is submitted that those
documents were not able to be produced at the time
of leading evidence by the defendant. Hence, prayed
for taking those documents as additional evidence.
The respondents' Counsel produced the copy of the
resolution passed by the Society, the allotment of
sites to the respondents by the Society on
17.06.2011 and the sale deed executed by the
Society. These documents in respect of allotment of
sites were already produced by the respondent in the
trial. Though the resolution is not produced before
the trial Court, but the resolution of the Society is
produced hereunder. The respondent also produced
the copy of the layout plan. Perused the same and
taken into consideration as additional evidence and
on perusal of the layout plan, there is no reference in
respect of site No.614/A, B, C and D. Only the sites
were formed mentioned in the layout plan, totally
1645 sites. The copy of the layout plan is not
properly visible. However, the appellants' counsel
produced the blue print of the layout plan, which
clearly reveals that there are no sites formed by the
Society as stated in the sale deed of the defendant.
The category of sites mentioned in the plan was 30
x40 sites - 156 in number, 30 x 40 sites - 200 in
number, 30 x 50 sites - 440 in number, 40 x 60 sites
- 520 in number, 50 x 80 sites 190 in number, and
odd sites 139, which reveals that there are no sites
formed by the Society which was sold to the
defendant measuring 25 x 100 ft. in Site No.614/A,
as per the possession certificate and sale deed.
27. On the other hand, the appellants' counsel
produced some of the documents obtained from the
BDA under the Right to Information Act, where it is
stated by the BDA authorities that there is no
approved layout plan for these site Nos.614 A/B/C
and D. The copy of the approved plan also produced
before the court which reveals that there were no
sites formed by the Aircraft Society vide Nos.614
A/B/C/D. The approved plan does not reveals these
sites claimed by the defendants in their written
statement under the sale deed said to be executed by
the Aircraft Society. The approved plan issued by the
BDA clearly reveals it was marked in yellow where
this land were adjacent to the layout formed by the
society adjacent to the road on the south eastern
side. As per layout plan, the sites were stopped at
the site Nos.614 and 615 on the eastern side and it
appears the Aircraft Society without any approval
from the BDA, they have tried to form the sites by
giving site numbers in fractions as 614/A/B/C/D.
Normally the BDA would not approve such a fraction
number of sites, which clearly reveals, the society
trying to sell these spill over land which is adjacent to
their layout. Therefore, it cannot be said there is a
cloud over the title of the plaintiff, whereas it is clear
case of the plaintiff that though the land was
acquired by the BDA, but award has been passed only
for 4 acres 13 guntas but not for acre 34 guntas.
There was 21 guntas left over, which was belonging
to the land owner and after death of the land owner,
the son obtained the pauthikhatha and the RTC also
obtained in his name. Thereafter, he formed the site
and sold, even if it is taken as consideration, as per
the complaint made by the society to the BDA-BMTF
and FIR has been registered his land has been
unauthorizedly occupied by the plaintiff, whereas the
plaintiff claims right through the sale deed and
through the land owners who have sold the
properties and thereafter they have paid the taxes,
mutated in their names. Such being the case, once
the defendants came to know they are claiming the
title through sale deed they become lawful
possession and enjoyment of suit schedule property.
Therefore, the defendant would have filed suit for
declaration to declare the site Nos.614/A, 614/B,
614/C and 614/D belonging to the society and formed
legally by obtaining the approved plan. But no such
attempt was made by the defendant, they also not
examined the officials of the society and defendant
not produced the approved layout plan in order to
show that the sites were approved by the BDA and
the layout was formed by the society and claims right
over the property. Therefore, in my considered
opinion, there is no cloud over the title of the plaintiff
in order to file suit for declaration. On the other
hand, plaintiff is able to prove they are in possession
and enjoyment of the property after obtaining sale
deed, which is lawful, until it is declared as null and
void and set aside by the court. Therefore, section 9
of the CPC will not bar for filing the suit for bare
injunction. Therefore, I hold the plaintiffs were
successful in proving the lawful possession and
enjoyment of the schedule properties in these three
suits, whereas defendant failed to show the suit for
bare injunction was not maintainable, as contented
by the defendant.
28. I am aware the principle laid down by the
Hon'ble supreme court in case of Anathula
Sudharkar Vs P Buchi Reddy & Ors reported in
(2008) 4 SCC 594 in paragraph No.21, where the
Hon'ble Supreme Court 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."
29. In view of the aforementioned judgment of
Anathula Sudharkar's case stated supra wherein
the suit for injunction filed by the plaintiff due to
interference of the defendants. Therefore, suit for
bare injunction is maintainable as the plaintiff claims
title through the sale deed executed by the son of the
land owner. In view of the award passed by the
Special Land Acquisition Officer not awarding the
compensation for 4 acres 34 guntas and award was
only 4 acres 13 guntas. Therefore, when the
defendant Nos.1, 2 and 4 have not contested the
matter, not filed the written statement, not lead any
evidence except defendant No.3, though he claims
property through the sale deed executed by the
Aircraft Society but the society itself does not have
any right over the property, for selling the site to the
members much less defendant No.3. The approved
plan also not revealed the site numbers claimed by
the defendants in the written statement. The BDA
also issued a letter that there is no modification of
the approved plan, which was issued by the BDA in
favour of Aircraft Society in 1989. Such being the
case, there is no existence of site Nos.614/A, 614/B,
614/C or 614/ D. Hence, if at all defendant wants to
establish the right over the property, they have to file
suit for declaration and injunction by examining the
BDA authorities for having approved the modified
plan, if any. The Aircraft Society members,or their
Secretary or President to show these sites were
formed, out of the land acquired and allotted to the
society and sold to the respondent/defendant. Such
being the case, I am of the view, the trial court failed
to consider the lawful possession and enjoyment by
the plaintiff over suit schedule property and answered
the issue No.1 in all the cases negative, which is not
correct. Therefore, it is liable to be interfered and
held that plaintiff have proved their lawful possession
and enjoyment of the suit schedule property stated in
the plaint. Therefore, even if the documents of the
respondent is considered as additional evidence,
those documents is not useful to the defendant as
there is no approved layout plan for the society in
order to allot the sites and by taking advantage of the
spill over lands, they may be sold to the defendants.
Therefore, the I.A.No.5/2023 filed by the respondent
under Order 41 Rule 27 of CPC is liable to be
rejected. Accordingly, answer the point No.1 in the
affirmative in favour of the appellant/plaintiff, and
point NO.3 negative as against defendant No.3.
30. Re.Point No.2: As regards to the
interference by the defendant, the defendant
themselves claiming the property under the sale deed
and allotment letter issued by the Aircraft Society and
are trying to interfere in the suit schedule property of
the plaintiff and claiming the title and also contested
the matter by defendant No.3. Therefore, it is
nothing but interference by the defendant. Thereby
the plaintiff were successful in proving the
interference of the defendant over the suit schedule
property and possession of the plaintiff. Accordingly,
answered the point No.2, in favour of the
appellant/plaintiff. In view of the findings, I am of
the view that the trial court committed error in
dismissing the suit of the plaintiff as the defendant
failed to prove the contention that the suit schedule
property belongs to them which was found formed
layout by the society and they failed to show that
there was any approved plan for the fraction of 614
the sites bearing Nos.614/A, 614/B, 614/C and
614/D. That apart, merely some complaint has been
filed by the aircraft society that the appellant were
encroaching the government property, on perusal of
the records, the BDA left over some property almost
more than 30 guntas, including Kharab towards the
road and this land where the plaintiff sale deed was
executed by the vendor is spill overland situated in
between the road and the layout formed by the
society. Therefore, the trial court not properly
appreciated the evidence on record and dismissed
the suit. Therefore, the same is required to be
interfered by this court and liable to be set aside.
31. The learned counsel for the respondents
has filed an interlocutory application No.1/2023 under
Order XXXIX Rule 2A of CPC along with an affidavit
of respondent No.3 contending that during the
pendency of the appeals, the interim order of status
quo was operating and in spite of the order passed by
this Court to maintain the status quo over the suit
schedule property, the appellants have put up
constructions over the disputed property and
hurriedly made constructions, thereby, they have
violated the order of this Court, which amounts to
contempt. Therefore, the Court requires to take
action against the appellants and to punish them for
violation of the Court order.
32. In support of his contentions, the learned
counsel for the respondents has produced some
photographs dated 25.04.2023 which reveals that
there is some construction under progress. It is
contended by learned counsel for the respondents
that though the respondents moved a Criminal
Contempt Petition in CCC No.286/2023, the same
was withdrawn with liberty to file application under
order XXXIX Rule 2A of CPC. Therefore, prayed for
allowing the application and to punish the appellants.
33. The learned counsel for the appellants has
filed statement of objections at length contending
that the order of status quo is passed in favour of the
appellants by the Court as well as High Court with
regard to the possession of the suit schedule
property. Accordingly, the appellants have
maintained the status quo with regard to possession
during the pendency of the suit as well as in the
appeals. Therefore, there is no contempt committed
by the appellants and denied all the averments in the
application and prayed for dismissing the application.
34. On perusal of the records, there is an order
of status quo passed by this Court and the appellants
said to be put up construction during the pendency of
the appeal. However, the application under Order
XXXIX Rule 2A of CPC is required to be considered by
holding a separate enquiry and the respondents are
liable to prove the case against the appellants for
having committed the contempt of Court and
violation of the interim order. Therefore, in these
appeals, this Court cannot hold an enquiry and
enquiry should be held separately.
35. Therefore, this Court requires the office to
register the separate Miscellaneous case against the
appellants under Order XXXIX Rule 2A of CPC for
enquiry.
36. Accordingly, I pass the following:
ORDER
i) All the three appeals are allowed.
ii) The I.A.No.5/23 filed by the respondent Under
order 41 Rule 27 of CPC is hereby dismissed.
iii) The judgment of dismissal by XXXIX
Additional City Civil and Sessions Judge, Bengaluru in
O.S. Nos.5725/2014, 5727/2014 and 5729/2014 are
hereby set aside.
iv) The suits of the plaintiffs are decreed.
v) The defendants or their henchmen or
anybody claiming under the defendants are hereby
permanently restrained from interfering with the
peaceful possession and enjoyment of suit schedule
property of the plaintiff.
vi) Office is directed to register a separate
miscellaneous case against the appellant for the
purpose of enquiry in respect of the Interim
application No.1/2023 filed under Order XXXIX Rule
2A of CPC.
vii) No order as to the cost.
Sd/-
JUDGE
CS/AKV
CT:SK
