ORDER 41 RULE 1 OF THE CPC, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 20.04.2006 PASSED IN O.S. NO.4150/2005
ON THE FILE OF THE XVI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT
INJUCTION.
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THIS R.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Heard further arguments of Sri.G.M.Ananda, learned counsel for appellant and Sri. M. U. Poonacha, learned counsel for respondent.
2. The appeal is filed by the Bangalore Development Authority (hereinafter referred to as 'the BDA' for short) challenging the validity of the judgment and decree passed in O.S.No. 4150/2005 on the file of the XVI Additional City Civil and Sessions Judge, Bangalore.
3. The parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking. Shorn of unnecessary details and facts in brief necessary for the disposal of the present appeal are as under.
4. Plaintiff has filed the suit in O.S.No. 4150/2005 with a prayer for permanent injunction contending that plaintiff is the absolute owner of the property bearing
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No.77/1 situated at BTM Layout, II Stage, Madivala Village, Begur Hobli, Bangalore, (hereinafter referred to as "Suit Property") having purchased the same from erstwhile owner - Smt. K. Nagamma, through her GPA Holder Smt. Venkatalakshmamma, who had executed the sale deed dated 07.07.1999. It is further contended that ever since the date of purchase of the suit property, plaintiff is in peaceful possession and enjoyment of the suit property exercising absolute right of ownership over the suit property. Suit property was assessed and property tax was paid by the plaintiff, so also betterment charges were paid by the plaintiff and plaintiff has put up a permanent structure in the suit property and a portion of the structure is rented out to the tenants. It is further contended that BDA transferred the entire area to Bangalore Mahanagara Palike and plaintiff got approved the plan from the concerned authority and obtained electricity and water connection to the suit property.
5. When the matter stood thus, the officers of the defendant - BDA threatened the plaintiff to demolish the
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construction on the ground that the said land is belonging to the BDA and therefore, suit was filed.
6. On receipt of suit summons, defendant entered appearance and defended the suit by filing a written statement contending that the suit is not maintainable in view of want of statutory notice. It was further contended that the land in question was acquired in accordance with law for the formation of layout called "Byrasandra Tavarekere Madiwala Scheme" popularly known as "BTM Layout". Defendant also contended that the suit property formed part of Sy. No.77/2 totally measuring 3 acres, which was notified for acquisition for the purpose of forming BTM Layout and award came to be passed and the BDA took possession of the land as per Section 16(2) of the Land Acquisition Act. It was further contended that suit property said to have been purchased from the vendor of the plaintiff is illegal as her entire land was acquired by the BDA and therefore, vendor of the plaintiff did not have any title to
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sell the property in favour of the plaintiff and thus sought for dismissal of the suit with costs.
7. In view of the rival contentions, the trial Court raised the following issues:
"1. Whether the plaintiff proves that she is in lawful possession, exclusive and peaceful enjoyment of the suit schedule property as on the date of the filing of the suit?
2. Whether the plaintiff proves the alleged interference and obstructions caused by the defendants?
3. If so, whether the plaintiff is entitled to have a relief of perpetual injunction against the defendants as prayed?
4. To what order and decree?"
8. In order to prove the burden cast on the Plaintiff, plaintiff got examined herself as P.W.1 and relied on 17 documents which were exhibited and marked as Exs.P1 to Ex.P17 comprising of Sale Agreement, General Power of Attorney, Receipt, BWSSB Bill, Telephone Bill, Registered
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Sale Deed, Endorsement, Encumbrance Certificate, Tax Paid Receipt, Khata Extract (2 in nos.), Photographs (3 in nos.), Ration Card, Voters Identification.
9. On behalf of defendant, two witnesses were examined, viz., Sri. S. R. Sridhar and Sri. N. S. Prasad. The BDA relied on 4 documents which were exhibited and marked as Exs.D1 to Ex.D4 comprising of Attested copy of layout plan, attested copy of possession certificate, attested copy of public notice, attested copy of final notification.
10. On conclusion of the trial, the learned trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, decreed the suit of the plaintiff directing that defendant, his agents or anybody claiming under them are restrained from demolishing the structure found on the suit property. Further, the trial Court also directed that there should not be any interference with the peaceful possession and enjoyment of the suit property by the plaintiff.
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11. Being aggrieved by the same, the BDA has filed the present appeal on the following grounds:
"(i) The impugned Judgment and Decree as passed by the court below is opposed to facts, law and probabilities of the case.
(iii) The impugned Judgment and Decree has resulted in great miscarriage of justice in as much as the Court below was legally not justified in granting an order of Permanent Injunction, The Court below has committed a serious error and illegality on the face of the record in passing the Judgment and Decree under appeal.
(iv) The Court below failed to appreciate the factual position as borne out on record to the effect land to an extent of 3 acres in Sy, No. 77/2 of Madiwala village, Begur Hobli Bangalore South taluk was acquired by the Appellant/ Defendant vide Preliminary Notification No. BDA /SA/LAO/ C. 4/PR/ (s): 131/77-78 dated 19.09.1977 for formation of the layout called
"Byrasandra Tavarekere Madivala Scheme. The Final Notification No. HUD-3 MNJ-78 dated 07.02.1978 came to be issued. The award came to be passed on 23.09.1982. Pursuant to the
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award, the Appellant/Defendant took physical possession of the entire notified extent of land in Sy No. 77/2 on 13.10.1982 and handed over to the Engineering wing for the formation of the layout. The fact of taking possession also published under Section 16 (2) of the Land Acquisition Act on 20.10.1983.
(v) The Court below has failed to take note of the "Public Purpose" involved in the case and has proceeded to grant the relief to the Respondent/Plaintiff who based her case merely on surmises and conjectures. The Respondent /Plaintiff has not made out any case either in law or in equity. Hence, grant of permanent injunction is per se arbitrary and illegal. The impugned judgment is liable to be set aside.
(vi) The Court below has accepted the version of the Plaintiff merely based on Khata Certificate/ Tax paid Receipts issued by the Bangalore Mahanagara Palike; Electricity Bills:
Photographs etc. by completely overlooking the fundamental aspect that the Plaintiff derives her title by virtue of a Sale Deed executed on 07.07.1999 which had no legal effect whatsoever nature since the suit schedule property had
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already vested with the Appellant by virtue of completed acquisition proceedings which had attained finality. The Plaintiff derived no manner of right, title and interest by virtue of the alleged Sale Deed dated 07.07.1999 since the Plaintiff's predecessors lost their title in favour of the Appellant/Defendant by virtue of the completed acquisition proceedings.
(vii) The Court below failed to appreciate the Appellant/Defendant's contention that the suit is bad for non-issuance of statutory notice as required under Section 64 of the BDA Act, 1976. The reasons given for dispensation do not constitute valid grounds for dispensation of the statutory notice. Hence, the suit has to fail on this ground alone.
(viii) The Court below has erred in recording certain erroneous findings to the effect that the Appellant/Defendant has not taken possession of the suit schedule property and
Respondent/Plaintiff continued to be in possession of the suit schedule property even after acquisition. The said finding is contrary to the material placed record. The
Appellant/Defendant is greatly prejudiced by the
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said finding which has far reaching consequences in so far as the validity of the acquisition proceedings. Hence, the said baseless & erroneous finding deserves to be set aside.
(ix) The Court below has failed to appreciate the well settled legal position that the land vested with the Appellant/Defendant upon issuance of the Final Notification. Any subsequent event/ transaction has no legal effect of conferring interest/ownership on the land owner who lost his right, title and interest in the suit schedule property upon issuance of the Final Notification more so when the
Respondent/Plaintiff has not challenged the acquisition proceedings.
(x) The Court below has based its findings on certain stray admissions of the Defendants witnesses and has totally overlooked the documentary evidence placed on record.
(xi) The court below has granted the relief of permanent injunction based on surmises and conjectures. The Court below committed a serious error in overlooking the factual position that the suit schedule property bearing Site No.
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1234 was allotted to one Smt. Balamma W/o Sree Nagappa which was proved by the Appellant Defendant with reference to Possession certificate (Ex. D-2).
(xii) The impugned order as passed by the Court below otherwise bad in law."
12. Sri. G. M. Ananda, learned counsel representing the BDA reiterating the grounds urged in the appeal vehemently contended that once the suit property has been acquired by the BDA, all other right, title and interest in the acquired land vests with the BDA and therefore, any alienation made by the erstwhile owner in favour of third party would not be of any consequence and significance and therefore, sought for allowing the appeal. He also pointed out that the attested copy of the final notification marked at Ex.D.4 is not properly appreciated by the learned trial Judge while passing the impugned judgment and decree. He also pointed out that the trial Court did not notice that the suit property was purchased by the plaintiff in the year 1999 whereas the acquisition proceedings was of the year 1977
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and therefore, the vendor of the plaintiff did not possess any right, title and interest over the suit property to sell the suit property in favour of the plaintiff and thus sought for allowing the appeal.
13. Per contra, Sri. M.U. Poonacha, learned counsel for the respondent - plaintiff supported the impugned judgment and contended that the fact of possession of the suit property and existence of the structure in the suit property are not in dispute as the witness clearly admitted that there is structure in the suit property. Further, he contended that the plaintiff has obtained necessary plan, licence, electricity and water connection from the concerned authorities and the BDA having handed over the property to the Bangalore Mahanagara Palike, the BDA has no right to interfere with the peaceful possession of the suit property and thus, sought for dismissal of the appeal.
14. In support of his contentions, he relied on the judgment of the Hon'ble Apex Court in the case of
Ananthula Sudhakar Vs. P. Buchi Reddy (dead) by LRs
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and others reported in 2008(4) SCC 594, especially on Paragraph No. 21 which reads as hereunder:
"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
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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
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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."
15. In the light of rival contentions of the parties, the following points would arise for consideration.
(1) Whether the plaintiff has successfully established that she is in lawful possession of the suit property and entitled for an order of permanent injunction restraining the appellant - BDA from interfering with her peaceful possession?
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(2) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference with the order?
(3) What order?
16. In the case on hand, admittedly there is a sale deed in favour of the plaintiff and the plaintiff has obtained plan and licence from the competent authorities to put up construction. Thereafter, the plaintiff has put up the construction as is admitted by D.W.2. Admittedly plaintiff is in peaceful possession and enjoyment of the suit property. It is the case of the appellant - BDA that the entire land in Sy. No.77 of Madiwala Village was acquired by the BDA by issuing necessary preliminary and final notification. Ex.D.4 is the attested copy of the final notification. It is also contended by the appellant that possession of the land was taken as per Section 16(2) of the Land Acquisition Act, and thereafter, any alienation made by any of the erstwhile owners would not enure any right, title and interest in favour of the subsequent alienee and therefore, the
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possession of the plaintiff cannot be termed as a lawful possession.
17. The issue with regard to the person who is in settled possession of the land which is the subject matter of the acquisition and such person should not be dispossessed from the land without due process of law is no longer res integra. In the case of Ananthula Sudhakar referred to supra, the Hon'ble Apex Court in paragraph No.21 as referred to supra has held that the statutory bodies are entitled to take possession in accordance with law. Such a course is always available for the appellant - BDA. Further, D.W.2 has clearly admitted that the plaintiff is in peaceful possession and enjoyment of the property and the BDA did not take any action against the plaintiff when the construction was in progress on the suit site.
18. Further, if the BDA has not allotted the suit property to anybody else, it may as well consider to allot the same to the plaintiff by resorting to the power vested in it under Section 38-C of the Bangalore Development
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Authority Act, if the plaintiff makes necessary application. Suffice to say that the plaintiff being in peaceful possession and enjoyment of the property, she cannot be dispossessed without due process of law.
19. Hence, this Court is of the considered opinion that the appellant - BDA has not made out any grounds whatsoever to interfere with the impugned judgment and decree passed by the trial Court. It is made clear that if an application is made by the plaintiff to the BDA for regularization of the suit site as per Section 38-C of the BDA Act, the same shall be dealt with by the BDA in accordance with law and this Court has not expressed any opinion with regard to the said application to be filed by the plaintiff.
20. In view of the foregoing discussions, this Court is of the considered opinion that the plaintiff's possession needs to be protected and therefore, the same has been rightly appreciated by the learned trial Judge in the impugned judgment and hence, point Nos. 1 and 2 are answered in the affirmative and in negative respectively. In
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view of this Court's findings on point Nos. 1 and 2 as above, following order is passed.
ORDER
(i) Appeal sans merit.
(ii) Accordingly, appeal is dismissed. No order as to costs.
Sd/-
JUDGE
VP
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