Karnataka High Court

Shri B S Nagaraju vs Shri S N Mohan Kumar @ Gnr Mohan on 7 March, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2024

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A. NO.6683/2023 (CPC)

BETWEEN:

1.     SHRI. B.S. NAGARAJU
       SON OF LATE B.V. SAMPATH,
       AGED ABOUT 55 YEARS,
       RESIDING AT BILEKAHALLI VILLAGE,
       BANNERGHATTA ROAD,
       BENGALURU - 560076

2.     SHRI. B.V. PAPANNA
       SON OF LATE VALAPPA,
       AGED ABOUT 68 YEARS,
       RESIDING AT BILLEKAHALLI VILLAGE,
       BANNERGHATTA ROAD,
       BANGALORE - 560 076.
                                             ... APPELLANTS

     (BY SRI DHANANJAY V. JOSHI, SENIOR COUNSEL FOR
          SMT. KAVITHA DAMODHARAN, ADVOCATE)

AND:

1.     SHRI. S.N.MOHAN KUMAR @ GNR MOHAN
       SON OF LATE G. NARAYANASWAMY REDDY,
       AGED ABOUT 59 YEARS,

2.     SHRI. S.N. SHEKAR
       SON OF LATE G NARAYANASWAMY REDDY,
       AGED ABOUT 56 YEARS,
                                  2




3.      SHRI S N BABU @ GNR BABU
        SON OF LATE G. NARAYANASWAMY REDDY,
        AGED ABOUT 51 YEARS,

        ALL ARE RESIDING AT NO.172/5/1,
        4TH MAIN ROAD, BTM DOLLARS COLONY,
        BILLEKAHALLI, BANNERGHATTA ROAD,
        BANGALORE - 560 076
                                        ... RESPONDENTS

           (BY SRI G.R.GOPALASWAMY, ADVOCATE FOR
            SRI G.R.MOHAN, ADVOCATE FOR R1 TO R3)

       THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 27.09.2023 PASSED ON I.A. NO.
III IN O.S.NO.4869/2023 ON THE FILE OF THE VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-15), BENGALURU,
REJECTING I.A. NO.III FILED UNDER ORDER XXXIX RULE 4 OF
CPC AND ETC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    22.02.2024 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:


                         JUDGMENT

This Miscellaneous First Appeal is filed challenging the

order dated 27.09.2023 passed on I.A.No.III in

O.S.No.4869/2023 by the VIII Additional City Civil and Sessions

Judge, Bengaluru.

2. The factual matrix of the case of the plaintiffs before

the Trial Court the they have filed a suit for the relief of

permanent injunction and inter alia sought for an order of

temporary injunction to restrain the defendants, their family

members, their henchmen and their agents from interfering with

the plaintiffs' peaceful possession and enjoyment of the suit

schedule property. The plaintiffs in the plaint have contended

that they are the absolute owners of the suit schedule property

and their father had acquired the same under the registered sale

deed dated 05.05.1967. The defendants who are stranger to the

suit property, came near the suit schedule property on

26.07.2023 and made an attempt to interfere with their peaceful

possession and enjoyment of the suit schedule property on the

basis of created and concocted documents and also threatened

them stating that they will file an atrocity case against the

plaintiffs. By that time, the plaintiffs have resisted their illegal

act and filed police complaint. On 27.07.2023, once again

defendant Nos.1 and 2 came near the suit schedule property

with more men and weapon saying that if anybody stops their

illegal act, they will finish their life thereby, the defendants have

threatened the plaintiffs with dire consequences and told that at

any point of time, they will come and dispossess the plaintiffs

from the suit schedule property. Hence, without any other

alternative, the plaintiffs have filed the suit and also sought for

an order of temporary injunction by filing I.A.No.1.

3. The defendants appeared and filed their statement of

objections to the said application contending that the suit of the

plaintiffs is not maintainable and there is no cause of action to

file the suit and the plaintiffs have not approached the Court with

clean hands. It is contended that the defendants and their

family members are the joint and absolute owners of the land

bearing Sy.No.173/2 measuring 1 acre 36 guntas situated at

Billekahalli village, Begur hobli, Bengaluru South taluk. The land

in Sy.No.173 was originally owned by one Chinnappa and his

family members. On 05.12.1990, the said Chinnappa and his

family members entered into an agreement of sale for a total

sale consideration of Rs.1,90,000/-. Thus, from 05.12.1990,

defendant No.2 and B.V.Sampath have been in peaceful

possession and enjoyment of the land bearing Sy.No.173 and

after the execution of the agreement of sale dated 05.12.1990,

they got mutated their names in the revenue records. After the

death of B.V.Sampath, his children i.e., defendant No.1 and his

brothers succeeded to his estate, accordingly, defendant Nos.1

and 2 are in joint possession and enjoyment of the written

statement schedule property and they have been regularly

paying the property tax. The written statement schedule

property consists of several commercial establishments which

have been let out on lease by the defendants and the defendants

have also being running their own Gas Agency in the name and

style SN HP Gas Enterprises. On 24.07.2023, at around 5.30

a.m., the plaintiffs claiming to be owners of the land in

Sy.No.172/2b, have came near the schedule property with their

50 henchmen carrying deadly weapon and threatened the

defendants and directed them to vacate the written statement

schedule property. The boundaries of the schedule property

have been wrongly described in the schedule mentioned in the

plaint. However, on perusal of the schedule provides in the sale

deed dated 05.05.1967, under which the plaintiffs are asserting

their title over the suit schedule property would indicate that the

southern portion of the suit schedule property is bounded by

Rajakaluve and land in Sy.No.14 and now, the written statement

schedule property and accordingly prayed the Court to dismiss

the application. The defendants have also filed I.A.No.3 under

Order 39 Rule 4 of CPC praying to vacate the exparte order of

temporary injunction.

4. The Trial Court after considering the pleadings of the

parties, framed the following points:

1. Whether the plaintiffs have made out prima facie case?

2. In whose favour balance of convenience lies?

3. Who will be put to irreparable loss and injury?

4. Whether the order of ex-part temporary injunction granted by this Court is liable to be vacated as prayed for by the defendants?

5. The Trial Court having discussed the material

available on record answered point Nos.1 to 3 in favour of the

plaintiffs and negatived point No.4 and granted the order of

temporary injunction in favour of the plaintiffs and dismissed the

application filed by the defendants for vacating the temporary

injunction in coming to the conclusion that the relief is sought in

respect of the suit schedule property bearing Sy.No.172/2b and

the claim of the defendants that they are the absolute owners of

the property bearing Sy.No.173 and the material discloses that

the plaintiffs are in possession and enjoyment of the suit

schedule property and the defendants are interfering with their

possession. It is also the claim of the defendants that they got

entered their names in the revenue records in respect of

Sy.No.173 on the basis of the sale agreement and also let out

the said property in favour of third parties. The contention taken

up by the defendants itself discloses that the defendants without

getting executed the sale deed in their name in accordance with

law got entered their names in the revenue records and trying to

interfere with the possession of the plaintiffs. The Trial Court

also taken note of the fact that the defendant Nos.1 and 2 have

suffered decree in O.S.No.4730/2006 and the relief of

declaration and injunction was granted against them in respect

of the property bearing Sy.No.173. Hence, the Trial Court

comes to the conclusion that the plaintiffs have made out a

prima case and balance of convenience lies in favour of the

plaintiffs and the defendants are interfered with the plaintiffs'

possession and enjoyment over the suit schedule property.

6. The learned counsel appearing for the appellants

would vehemently contend that the plaintiffs have deliberately

set out a false and incorrect description of the suit schedule

property. The counsel would vehemently contend that in the

schedule of the plaint, the plaintiffs have stated that the

southern boundary of the property is a road and land in

Sy.No.173 and in the sale deed dated 05.05.1967 produced as

document No.1 along with the plaint, the southern boundary of

the property is shown as rajakaluve and private property in

Sy.No.14 and hence, there is a clear misrepresentation of the

property while seeking the relief of temporary injunction. It is

also contended that except for bald pleadings, the plaintiffs have

not produced any material to show that they are in possession of

the suit schedule property and in the plaint itself, the plaintiffs

contend that the BDA acquired a portion of land in Sy.No.172/2B

and the plaintiffs are in possession of the remaining property

and in order to substantiate the same, no material is produced.

The counsel also would vehemently contend that, the plaintiffs

are lying under oath. The counsel also would vehemently

contend that vide memo dated 22.11.2023, the defendants have

produced copies of some of the earlier W.P.No.18788/1997 filed

by the plaintiffs' father; W.A.No.321/1989, BDA file noting,

Award dated 18.08.1990 and order dated 08.06.2021 passed by

this Court in W.P.No.744/2021. It is contended that the

plaintiffs' father was unsuccessful in challenging the acquisition

of their entire 4 acres 33 guntas in Sy.No.172/2b when made a

request to the BDA to drop the said land from acquisition, the

BDA has categorically stated that the entire land has been

acquired and utilized for the formation of layout and the plaintiffs

have given up their challenge to the acquisition and have

restricted their claim to enhancement of compensation. The

counsel also would vehemently contend that the Court

Commissioner who has been appointed by this Court has

reported that the suit schedule property has been acquired by

BDA and the same is in possession of BDA and the defendants

are in possession of their completely separate and distinct

written statement schedule property.

7. The counsel also would vehemently contend that by

an order dated 05.10.2023, this Court appointed an advocate as

Court Commissioner and also directed to take assistance of the

ADLR to identify the plaint suit schedule property and the written

statement schedule property and to also ascertain possession

and interference if any. The Court Commissioner has reported

that the defendants and their tenants are in possession of their

written statement schedule property. The ADLR has drawn up a

survey sketch clearly showing that the plaint suit schedule

property is separate and distinct from the written statement

schedule property and that the plaint suit schedule property has

been acquired by BDA and the same is in possession of the BDA

and the written statement schedule property is in the possession

of the defendants and their tenants and the plaintiffs have not

filed any objections to the ADLR's survey sketch. The counsel

also would vehemently contend that the Trial Court has

committed an error in grating the temporary injunction, hence,

the approach of the Trial Court that the plaintiffs have produced

the material to show that BBMP/BDA authorities have acquired

portion of the property in Sy.No.172/2b leaving 1 acre 10 guntas

which is mentioned in a sketch map prepared by BDA/BBMP

authorities. The counsel would vehemently contend that no such

records are available with BDA and such document is a created

one in order to obtain the temporary injunction. The finding of

the Trial Court is factually incorrect as there is no such material

available on record in the proceedings before the Trial Court.

The counsel also would vehemently contend that the Court has

to take note of the conduct of the plaintiffs since the Court

Commissioner's report and other materials lack to the

contentions of the plaintiffs hence, the very order passed by the

Trial Court requires interference.

8. The counsel in support of his arguments relied upon

the documents namely, copy of the plaint; written statement;

copy of the sale deed dated 05.05.1967; copy of M.R.No.4/1969-

70 and other documents which have been produced before the

Trial Court and also the photographs. The counsel also relied

upon the Commissioner's report; photographs which have been

prepared by the Commissioner. The counsel also relied upon the

copy of the writ petition; copy of the order passed in the writ

petition and the copy of the writ appeal and the copy of the

order passed in the writ appeal; award passed under Section 11

of the Land Acquisition Act dated 11.06.1990 and award notice

dated 22.10.1990; copy of the BDA note; copy of the letter

requesting release of lands from acquisition to BDA dated

14.11.1992; copy of the letter rejecting the requisition for de-

notification dated 19.11.1992; copy of the petition filed before

Special Land Acquisition Officer, BDA and copy of the letter

dated 08.06.2021 passed in W.P.No.7488/2021.

9. On the other hand, the counsel for the respondents

filed the statement of objections contending that the Court

Commissioner has visited the disputed spot on 21.10.2023 and

thereafter, the Commissioner has collected the documents from

both the parties and at last, filed the present report. The report

further reveals that the respondents' property bearing

Sy.No.173/2 consisting of commercial establishments which

have been let out by the respondents. The document No.2 is an

electricity bill furnished by the respondents which does not

disclose either the name or the place of the property. Document

No.3 is a Tax paid receipt for the year 2022-23 in the name of

B.V.Sampath in respect of property No.173/2 and the said

receipt does not disclose either the nature of the business or

extent of the construction made. Document No.4 is also the

electricity bill dated 08.04.2021 which disclose neither name nor

particulars of the property. Document No.6 is a copy of the

ledger account as on 01.04.2011 to 31.03.2012 pertaining to

property No.50, R.V.Raod, Basavanaguri, Bengaluru. Contrary to

the address furnished in the document, the description says that

the said document pertaining to rent of Bannerghatta godown,

therefore, the particular document is totally irrelevant. The

report reveals that the Granites Store owned and operated by

M/s. Shri Chamundeshwari Granites and as such the

Commissioner came to conclusion that it belonged to

respondents. Obviously, the document Nos.10 and 11 have not

supported the report of the Commissioner. Document No.10 is

dated 31.08.2006 and the nature of business is consultant

brokerage in Sy.No.173/2. Document No.11 is a rental

agreement between B.S.Ravi and Mr.Ravi Dikshit and defined

the nature of business as C2C used cars showroom Bilekahalli.

The said document is dated 03.11.2005. It is pertinent to

mention that the property where the C2C used cars showroom

business is said to be situated and the property where the Shri

Chamundeshwari Granites is running were acquired by the

competent authority and the possession was also handed over

by the respondents. The respondents have received the

compensation in terms of crores for that particular property.

The rest of the documents, that is electricity bills from document

Nos.12 to 15, are nowhere support the opinion of the

Commissioner. The counsel for the respondents would

vehemently contend that statement of objections filed disputing

the commissioner's report.

10. The counsel also would vehemently contend that the

Court Commissioner has no locus to go beyond the direction of

this Court without the assistance of survey report. Only on the

basis of the statement of the parties, arrived to the conclusion

that the particular parties are in possession is unsustainable on

the other hand amounts to biased to him. The Court

Commissioner's report does not contain the report of ADLR and

the Court Commissioner cannot decide the survey number and

other particulars of the property only on the basis of document

which have been placed by the parties. The counsel also would

vehemently contend that admittedly the respondents contending

in their written statement that they have nothing to do with the

suit schedule property. Admittedly the suit is filed in respect of

Sy.No.172/2b and claim of the defendants is land bearing

Sy.No.173/2 hence, both the properties are distinct properties.

It is contended that 1 acre 36 guntas of the land as per the claim

of the appellants, 8 guntas is karab land, apart from that 0.13

guntas were sold by B.V.Sampath and B.V.Papanna To

M/s.Puravankara Projects. In this regard appellants have

executed a document dated 24.01.2001 in favour of Puravankara

Projects Limited, 12 guntas of land was acquired by BBMP as per

the notification published in Vijaya Karnataka daily newspaper

dated 21.02.2019, 12.5 guntas of land in possession and

enjoyment of original grantees as per the judgment and decree

passed in O.S.No.4730/2006 dated 17.04.2023 on the file of the

City Civil Court, Bengaluru. In fact, the appellants are claiming

the property of the respondents by affixing boards and

nameplate in the overnight after the order of temporary

injunction granted by the Trial Court. So far as claimed by the

respondents in respect of C2C Car showroom and Shri

Chamundeshwari Granites. It is pertinent to mention that KIADB

has notified the said land for industrial purpose and taken

possession as per the Gazette notification.

11. The counsel would vehemently contend that

B.V.Sampath has received an amount of Rs.1,77,35,443/- on

08.12.2018 and Rs.36,25,912/- on 11.10.2019 from KIADB and

the rest of the land 8 guntas is rajakaluve. Another 22 and odd

guntas are already occupied and hold by Brand Factory. Thus,

the respondents have not been in possession of the land more

particularly in Sy.No.172/2b of Belekahalli. It is admitted fact

that the appellants have claiming the property on the basis of

the agreement of sale executed by the original grantee. It is the

settled principle that mere agreement to sell is not a conveyance

under Transfer of Property Act. The appellants have lost their

entire property and now, claiming the respondents property

hence, prayed the Court to dismiss the appeal.

12. The counsel in support of the statement of objections

also produced the documents to show the acquisition of some of

the portion of the property of the respondents. The counsel also

produced the document dated 08.12.2018 of BMRCL; document

dated 22.07.2017 of BMRCL; the sketch and agreement of sale

dated 24.01.2001 and having received an amount by way of

Cheque. The counsel also relies upon the document that is

extract of survey sketch pertained to BTM 2nd stage layout and

also village map. The counsel also produced a copy of the

written statement and brought to notice of this Court that to

paragraph 5 of the written statement wherein the defendants

categorically stated that they have nothing to do with the suit

schedule property and they have not interfering with the

plaintiffs possession and enjoyment of the suit schedule property

in any manner whatsoever. When such averment is made in

respect of suit schedule property, the Trial Court rightly granted

the relief of temporary injunction in favour of the respondents

herein. The counsel also relies upon the copy of the RTC

pertaining to Sy.No.173/1 and 173/2 and copy of the registered

exchange deed in respect of old Sy.No.173. The counsel also

filed additional documents that is the copy of the

acknowledgment issued by BDA on 11.01.2024 regarding the

layout plan in Sy.No.172/2b of Belikahalli village wherein it is

stated that layout has been formed only to the extent of 3 acres

19 guntas and in remaining 1 acre 10 guntas of land, the layout

has not been formed, in which, the respondents are in

possession and also they have also submitted an application

before BDA on 04.11.1992 and also details of filing of writ

petition and the Court has directed to consider the NOC for the

said land.

13. In the additional statement of objections it is

contended that the plaintiffs are the successors of late G

Narayanaswamy Reddy who demised on 04.05.1989. Though,

BDA has acquired the said land, but the possession was taken

only in respect of 3 acres 19 guntas as the same was sufficient

for completion of the project. The remaining 1 acre 10 guntas of

land with specific boundaries commencing from Bannerghatta

main road bounded on east by the portion of the property of

Sy.No.172/2b which is already developed, west by Banneghatta

main road, north by road and south by road and Sy.No.173.

Earlier, it was within the limit of Bommanahalli City Municipal

Council and at present, subjected to the administration of BBMP.

It has lost the agricultural character and on the other hand, it

become fully commercialized. However, the

defendants/appellants attempted to interfere with the possession

of the property to the extent of 1 acre 10 guntas. It is also

specifically contended in the written statement that they have

nothing to do with the property bearing Sy.No.172/2b. The

counsel also would vehemently contend that the claim of the

respondents is only in respect of Sy.No.172/2b. It is contended

that BDA has approved the development scheme for formation of

4th stage BTM layout and has notified the scheme and acquired

the lands situated at Bilekahalli village and other villages through

preliminary notification dated 06.08.1998. In the preliminary

notification, the land which is claimed by the

defendants/appellants measuring 1 acre 36 gutnas in Sy.No.173

of Bilekahalli village was notified for formation of BTM 4th stage

layout. The copy of the preliminary notification dated

06.08.1998 and also the final notification dated 03.11.1990

produced as Annexure R3 and R4. Subsequently, BDA has

passed the award on 22.03.1994 and possession was taken on

21.03.1994. The award notice was also served on the respective

parties and the same are produced as Annexure-R5 to R12. The

possession was also taken, mahazar was drawn and Annexure-

R13 and R14 are produced before the Court in this regard.

14. It is also contended that the appellants have

challenged the acquisition proceedings before this Court in

W.P.No.8451/1994 and the same came to be dismissed. Inspite

of that the defendants have conveniently suppressed the fact

before the Trial Court as well as this Court and a copy of the writ

petition and order passed by the Court are also produced at

Annexure-R15 and R16. It is crystal clear that the defendant's

entire land has been taken over the BDA despite which

appellants/defendants attempting to squat on the property of the

plaintiffs. In fact, the Commissioner of BDA by its letter dated

03.08.1995 addressed to the Principal Secretary, Housing and

Urban Development Department has communicated that

Sy.No.173 measuring 1 acre 36 guntas of land has been

acquired for the purpose of formation of 4th stage of BTM layout

and the possession of the land was handed over to the

engineering department on 21.03.1994 and copy of the same is

produced at Anneuxre-R17. In W.P.No.8451/1994, the

petitioners represented by B.V.Sampath has categorically

contended that they are the owner of the land bearing

Sy.No.173/2 and the same has been acquired by the BDA by

final notification dated 03.11.1990. Therefore, it is very evident

that the claim of the appellants/defendants is only to the extent

of 25 guntas in Sy.No.173 in respect of total land acquired 1

acre 36 guntas. Now, the defendants have come up with a new

plea that they are the owner of 1 acre 36 guntas and on the

other hand, the plaintiffs contended that they are the owners of

1 acre 11 guntas. Hence, it is clear that the defendants have

included the plaintiffs' property to their 25 guntas and claiming

in all total 1 acre 36 guntas.

15. The counsel also would vehemently contend that the

respondents have challenged the acquisition notification dated

19.09.1977 and 07.02.1978 in W.P.No.7446/2021 on the ground

that the notifications are deemed to have been lapsed. In the

said writ petition, this Court has passed an order directing BDA

to consider the representation of the plaintiffs dated 19.03.2021

submitted seeking deletion of their property in Sy.No.172/2b.

The defendants also in the other W.P.No.12646/2010

questioning the validity and correctness of the acquisition of

their land and maintainability of the same. The main contention

that they have been in possession of the land by virtue of

agreement of sale dated 05.05.1985, 04.02.1986 and

07.03.1986 together with GAP said to have been executed by

land owners. The schedule mentioned in the writ petition is

measuring 1 acre 36 guntas, whereas in the written statement

claiming their written statement schedule property, thus, both

the properties are different and defendants have suppressed all

these facts before the Court and now, they cannot seek for the

relief of vacating the interim order. It is also contended that

surveyor of BDA has conducted the survey in respect of property

bearing Sy.No.172 and given a complete topography of the land.

The land in respect of the sites are formed and the land which is

vacant. The respondents have obtained the same from BDA

under Right to Information Act, 2005. The copy of the same is

produced at Annexure-R20. Annexure-R20 is clear with regard

to the vacant land is concerned. Hence, the question of

interference does not arise.

16. Having heard the learned counsel appearing for the

appellants and the learned counsel appearing for the

respondents, the point that would arise for the consideration of

this Court is:

Whether the Trial Court has committed an error in

granting the relief of temporary injunction and

whether it requires interference?

17. Having perused the plaint, it discloses that the relief

is sought for permanent injunction in respect of Sy.No.172/2b

and the claim of the defendants is in respect of Sy.No.173/2

hence, both the properties are distinct properties. It is the

contention of the plaintiffs/respondents before the Trial Court

that the appellants herein have made an attempt to dispossess

the plaintiffs. It is their claim that the suit schedule property

originally belongs to one Narayanaswamy Reddy and they claims

their title though their father. It is also the case of the plaintiffs

that the defendants, without any semblance of right, interfering

with their possession. It is not in dispute that in the written

statement, the defendants contended that they are not claiming

any right in respect of the suit schedule property i.e.,

Sy.No.172/2b and also they have not tried to interfere with the

possession of Sy.No.172/2b. It is important to note that the

very contention of the appellants in the written statement

particularly in paragraph 5 that they have nothing to do with the

suit schedule property and they have not interfered with the

plaintiffs possession over the suit schedule property in any

manner whatsoever.

18. It is the contention of the appellants that the

plaintiffs who have tried to illegally trespass on to the

defendants' property, have threatened to dispossess the

defendants from their written statement schedule property. It is

also the contention of the appellants before this Court that the

entire property of 4 acres 29 guntas was acquired and there is

no remaining property as claimed by the plaintiffs/respondents.

It is also important to note that the defendants are not disputing

the property of the plaintiffs. On the other hand, it is the

contention of the appellants that they are the owners of the

property to the extent of 1 acre 36 guntas and the same was

originally owned by one Chinnappa and his family members.

They have executed an agreement of sale for total sale

consideration of Rs.1,90,000/- and put them into possession and

revenue records also changed into their names. It is also

contended that the written statement schedule property consists

of several commercial establishments which have been let out on

lease by the defendants. It is also their specific case that when

the entire property of the plaintiffs was acquired by BDA, the

question of retaining the property by the plaintiffs does not

arise. Though the plaintiffs have relied upon the document of

sketch issued by BDA with regard to remaining extent of 1 acre

10 guntas, the same is also disputed by the appellants. The

appellants have produced a memo along with an endorsement

issued by BDA dated 09.02.2024 wherein it is stated that 4 acres

29 guntas was acquired and also produced the Map wherein it

discloses that nothing is retained by the plaintiffs.

19. On the other hand, it is the contention of the

plaintiffs that only 3 acres 19 guntas was utilized by BDA and

remaining property that is 1 acre 10 guntas is with the plaintiffs

and in support of their contention, they relied upon the

document at Annexure-R20 which discloses that same is issued

by BDA. It also important to note that the appellants have also

relied upon number of documents and also mainly relied upon

the Commissioner's report. On perusal of the report of the

Commissioner which was filed before this Court as appointed by

this Court, it discloses that in respect of Sy.No.173/2, property

consists commercial existing establishments which have been let

out on the lease by the defendants/appellants and also existence

of some of the buildings are also mentioned and says that

tenants have provided some documents when they visited the

spot. The document of Sy.No.172/2b in column No.11 shows

that the land measuring 4 acre 33 guntas has been acquired by

BDA that is document No.19 and also produced the sketch as

document No.34 and survey sketch dated 09.09.2009 produced

by the appellants counsel in respect of Sy.No.172/2b that shows

that 3 acres 20 guntas of land has developed area and remaining

land is measuring 1 acre 10 guntas and same is also taken note

of at document No.35. The Court Commissioner also taken note

of the Assistant Director of Land Records survey report which

discloses that in respect of Sy.No.172/2a, 172/2b and

Sy.No.173/2, boundaries are measuring 4 acres 33 guntas and

out of which, 4 guntas of karab and remaining land is 4 acres 29

guntas. The Commissioner report also includes Sy.No.173/2.

The report states that in respect of Sy.No.173/2, total land

measuring is 1 acre 37 gungas out of which 9 guntas is karab

and remaining land is 1 acre 28 guntas, the RTC shows that

B.V.Sampath and B.V.Papanna are in joint possession of the land

in Sy.No.173/2. The Commissioner only relied upon the

documents which have been produced by the parties.

20. On the other hand, the respondents also relied upon

the additional statement of objections producing some of the

documents with regard to acquisition of property to the extent of

1 acre 36 guntas. Apart from the statement of objections filed

earlier, having perused the additional statement of objections

which discloses that the other property i.e., Sy.No.173/2 also

acquired and Commissioner's report is only based on the

document which have been supplied by the parties. It is also not

in dispute that when the properties were acquired by BDA and

the same was challenged by the appellants as well as the

respondents and all of them are unsuccessful in getting an order.

The records also discloses that when the same was questioned

by the plaintiffs, the plaintiffs was given liberty to approach BDA

with regard to their claim that they are in possession.

21. It is the case of the plaintiffs that the defendants are

interfering with the possession of the plaintiffs in respect of

Sy.No.172/2b. On the other hand, it is the contention of the

defendants that the plaintiffs are interfering with their

possession in respect of Sy.No.173/2 and both the properties are

distinct properties. The plaintiffs have also relied upon the

document of preliminary notification and final notification in

respect of Sy.No.173/2 and copy of the approval letter dated

22.07.2017 and survey sketch showing the land acquired by

BMRCL/KIADB for the year 2016 for Sy.No.173/2, copy of the

agreement dated 24.01.2001 and exchange registered deed

dated 18.08.1995. On perusal of the documents produced by the

respective parties it discloses that both the properties have been

acquired and the same is not in dispute. The plaintiffs claim is in

respect of Sy.No.172/2b and defendants claim is in respect of

Sy.No.173/2. It is the specific admission on the part of the

defendants that they have nothing to do with the suit schedule

property and they have not interfered with the plaintiffs peaceful

possession and enjoyment over the suit schedule property in any

manner whatsoever. But it is contended that the plaintiffs are

trying to illegally trespass into the written statement schedule

property but the defendants have not filed any application

restraining the plaintiffs from their possession in respect of

Sy.No.173/2.

22. The Trial Court granted the temporary injunction in

respect of 172/2b and not in respect of Sy.No.173/2. In the writ

petition which was filed by the respective parties also the

identity of the property is in dispute. The Trial Court also taken

note of the claim made by the parties comes to the conclusion

that the defendants claim the possession only based on the sale

agreement and got it transferred the property and got it phoded

the property and the claim of the plaintiffs is with regard to 1

acre 10 guntas of land along with the structures surrounded by

compound and it is the claim of the defendants that they are the

owners to the extent of 1 acre 37 guntas in Sy.No.173 with

commercial establishments. The Trial Court also taken note of

the fact that the defendants are not claiming any relief against

the plaintiffs by way of counter claim except filing the written

statement describing their property and the Trial Court taken

note of the photographs produced by the plaintiffs in respect of

the suit schedule property wherein it discloses that the suit

schedule property is covered with zinc sheet and it was partial

demolition.

23. It is also important to note that earlier suit was also

filed in O.S.No.4730/2006 and defendant Nos.1 and 2 have

suffered decree in the said suit and the relief of declaration and

injunction was granted against them in respect of property

bearing Sy.No.173 and the said fact also taken note of by the

Trial Court. When the claim is in respect of distinct property of

the plaintiffs as well as the defendants, defendants are not

claiming any right in respect of Sy.No.172/2b, their claim is only

in respect of 173/2. No doubt, certain photographs are also

produced before this Court by the appellants. When both of them

are claiming very same property, the property is distinct and

very identification of the property is in dispute. Though the

Commissioner filed the report and the same is only based on the

documents which have been given by the parties at the spot and

no survey sketch is placed on record. The documents which have

been produced and issued by BDA are contrary to each other

with regard to very extent of the property in Sy.No.173/2b as

well as 173/2. Though document No.36 is produced before the

Court by the Commissioner with the assistance of ADLR in

Sy.No.173/2b totally mentioned 4 acres 33 guntas based on the

RTC and the claim of the plaintiffs is that entire property is not

taken into possession and they are in possession of the

remaining property. In order to substantiate the said contention

also, the plaintiffs have not produced any documents. When

such being the case, it is appropriate to modify the order of the

Trial Court. When there is a dispute with regard to the identity

of the properties, since the plaintiffs claim their property as

Sy.No.172/2b and the defendants claim their property as

Sy.No.173/2 and also when the acquisition proceedings are there

in respect of both the properties, what is the remaining property

has to be decided only after the trial. At this stage, the same

cannot be decided. Hence, it is appropriate to direct the parties

to maintain status quo and though it is distinct property of

Sy.No.172/2b and 173/2 but both are claiming the very same

property and inspite of causing nuisance at the spot, the matter

requires full-fledged trial with regard to the identification of the

property is concerned. The suit is also for the limited purpose of

permanent injunction and inter alia sought for the relief of

temporary injunction.

24. In view of the discussions made above, I pass the

following:

ORDER

The appeal is allowed in part.

Both the parties are directed to maintain status

quo till the disposal of the suit since there is dispute

with regard to identification of the property.