Karnataka High Court
The Commissioner vs Smt. Udupi Subramanya Sumana on 15 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:46516
RFA No. 50 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 50 OF 2016 (INJ-)
BETWEEN:
THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
K.P. WEST, T. CHOWDAIAH ROAD,
BANGALORE - 560 020.
...APPELLANT
(BY SRI. G.M.ANANDA, ADVOCATE)
AND:
1. SMT. UDUPI SUBRAMANYA SUMANA
AGED ABOUT 42 YEARS,
D/O SRI. UDUPI GOPALAKRISHNA SUBRAMANYA,
R/AT: RAVINDRA NAGAR,
SHIMOGA - 577 201.
2. THE PRINCIPAL SECRETARY
Digitally signed by
URBAN DEVELOPMENT DEPARTMENT,
VEDAVATHI A K GOVERNMENT OF KARNATAKA,
Location: High
Court of VIDHANA SOUDHA,
Karnataka BANGALORE - 560 001.
...RESPONDENTS
(BY SRI. R.A.MACHAKANUR, AGA FOR R1;
VIDE ORDER DATED 16/10/2024 NOTICE TO R1 HELD
SUFFICIENT)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 14.07.2015 PASSED IN
OS NO.3824/2010 ON THE FILE OF THE XLI ADDL. CITY CIVIL
JUDGE (CCH NO.42), BENGALURU, DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2024:KHC:46516
RFA No. 50 of 2016
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though this matter has come up for admission.
2. This appeal is filed by the appellant-BDA/defendant
No.2 under Section 96 of CPC., for setting aside the judgment
and decree passed by the XLI Addl. City Civil and Session
Judge, Bangalore, in OS.No.3824/2010, dated 14.07.2015, for
having decreed the suit of 1st respondent/plaintiff.
3. Heard the arguments of learned counsel appearing
for the appellant and R.A.Machakanur, learned AGA appearing
for the respondent No.1, served and represented.
4. The rank of the parties before the Trial Court is
retained for the sake of convenience.
5. The case of the plaintiff before the Trial Court is
that the plaintiff is the owner in possession of the suit schedule
property i.e., site No. 51, having purchased the same from his
vendor under the sale deed dated 11.10.2005 from One
Thimmappa and Muthu Muga. From the date of purchase he is
in possession and enjoyment of the suit schedule property but
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the defendant No.2 -BDA and his officials said to be came with
the JCB for demolishing of the compound wall constructed in
the suit schedule property. Hence, he has approached the court
and filed the suit.
6. Notice issued to the 1st defendant -Urban
Development Authority, they failed to appear before the court,
hence placed as exparte and the notice also issued to the BDA
Commissioner i.e., appellant/defendant No.2, which was served
and advocate represented but not filed any written statement
and not contested the matter.
7. The plaintiff himself examined as P.W.1 and got
marked 11 documents. He has also examined one more witness
as P.W.2. The Trial Court framed four points as under;
1) Whether the plaintiff proves that she is in
possession and enjoyment over the schedule
property as on the date of the suit?
2) Whether the plaintiff further proves that the
defendants interfered with her possession as alleged?
3) Whether the plaintiff is entitled for the relief
sought for?
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4) What decree or order?
8. After hearing the arguments the Trial Court
answered point Nos.1 to 3 in the affirmative and ultimately
decree has been granted by restraining the defendants i.e.,
appellant as well as respondent No.2 from interfering in the
peaceful possession and enjoyment of the property. Being
aggrieved by the same the appellant-BDA is before this court
and filed this appeal.
9. The learned counsel for the appellant submits that
the property claimed by the plaintiff was within the land which
was acquired by the BDA. Though the notification was
challenged by the some of the parties which came to be
dismissed, and only based upon the Ex.P.11 the suit was
decreed. Even though defendants have not contest the matter.
The Trial Court ought not to have taken consider the weakness
of the defendants, the plaintiffs required to prove the case by
producing the oral as well as documentary evidence. These
documents are not sufficient to hold the property is within the
4(1) and 6(1) notifications and acquisition proceedings.
Therefore an opportunity could have given to this appellant-
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BDA to contest the matter. Hence prayed for allowing the
appeal.
10. Learned AGA not objected the appeal, the 1st
respondent/plaintiff served and represented.
11. Upon hearing the arguments and perused the
records which reveals the notice was served to the BDA
Commissioner, and advocate was appeared before the Trial
Court but not filed any written statement and not chosen to
cross examine the P.W.1 and P.W.2 and also not lead the
evidence. From the Ex.P.11 it is seen the property in
Sy.No.50/1 and 50/3 are not acquired by the land acquisition
officer. Subsequently, the portion of the property has been
dropped from the acquisition and there is no award has been
passed. However portion of the property award has been
passed by the LAO. The plaintiffs claimed he has purchased the
property in the year 2005. The 4(1) notification issued by the
land acquisition officer which was challenged by the owners of
the land in the year 2010. The total measurement of Sy.No.50
is 5 acres 35 guntas including 8 guntas of kharab and the
notification came to be quashed by the court. Subsequently one
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more award has been passed as per Ex.P.11. Though the
endorsement was given by the SLAO that Sy.No.50/1 and 50/3
were not included in the acquisition proceedings. Previously
notification was quashed by the Hon'ble High Court of
Karnataka on 07.10.1996. It appears this respondent No.1
have purchased the property in the year 2005 and as per the
Ex.P.11 it is clear case that the land in question Sy.No.50/1 and
50/3 are not part and parcel of the notification issued by the
BDA for acquisition or any award passed by them in respect of
the same land. And considering the documents especially
Ex.P.1 sale deed and other documents like tax paid receipts,
tax demand register extract and the endorsement issued by the
SLAO at Ex.P.11, the Trial Court found plaintiff was in
possession and enjoyment of the suit schedule property, hence
suit has been decreed. The sketch also produced along with the
endorsement given by the SLAO, where there is no acquisition
in respect of the property. Except saying land acquired in
Sy.No.50/1 and 50/3 and there is no acquisition proceedings.
Such being the case the Trial Court considering the evidence on
record rightly decreed the suit. Though the appellant counsel
contended that the Trial Court not given opportunity and should
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not consider the weakness of the defendant etc., that cannot be
accepted. The land acquisition officer himself given
endorsement, the land in question is not part of acquisition
proceedings, the question of denying the relief sought by the
plaintiff does not arises. Even in the appeal filed by the BDA,
they are not produced any acquisition proceedings,
notifications, writ petitions, writ appeal copies before this court
in order to establish their case. Such being the case, from the
view it is not fit case either for setting aside the judgment and
remanding matter back to the Trial Court for fresh
consideration. Appeal is devoid of merit. Hence the following;
ORDER
The appeal is dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
