THE AIRCRAFT EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY v. DR KRISHNA REDDY

No.112 measuring 2 acres 6 guntas of land situated in Singasandra Village, Begur Hobli, Bengaluru South Taluk, hereinafter referred to as 'suit properties' for short. Plaintiff contended that the suit properties earlier belonged to Smt. Muniyallamma and Sri

S. Krishnappa. Father of the plaintiff by name Sri V. Murireddy, purchased the suit property from its owners under two sale deeds dated 20.06.1986 and 30.10.1986. After the purchase of the land, necessary revenue entries were mutated and thereafter, father of the plaintiff was in peaceful possession and enjoyment of the suit property. Government initiated acquisition proceedings by issuing notification under Section 4(1) and 6(1) of the Land Acquisition Act for acquiring the suit property for the purpose of first defendant Society.

The land acquisition proceedings were initiated in the names of earlier owners i.e., Smt, Muniyallamma and Sri S. Krishanppa. Plaintiff's father who purchased the land was not notified and therefore, plaintiff contended that

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initiation of the Land Acquisition proceedings is illegal and incorrect. It is also contended that principles of natural justice is violated and since there was no notice, plaintiff's father could not participate in the Land Acquisition proceedings.

4. It is specifically contended that even after issuing notice under Section 6(1) of the Land Acquisition Act, actual possession of the land remained with the father of the plaintiff, as admittedly, Muniyallamma and S.Krishnappa were not the owners in possession of the suit properties at the time of initiation of the Land Acquisition proceedings and taking the possession. It is further contended that Government never took possession of the land from the father of the plaintiff and it did not allot the same to the first defendant Society by handing over the actual physical possession and the possession certificate if any issued by the Government is also on paper. It is further contended that there was a suit filed by one of the brothers of the plaintiff against the father of the plaintiff

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and all other brothers in OS No.11263/1996 and plaintiff is one of the defendants in the said case. It is further contended that the said suit was compromised and final decree proceedings were also drawn and suit properties fell to the share of the plaintiff and thereafter, final decree proceedings were also registered, thereby the plaintiff is in peaceful possession and enjoyment of the suit property then onwards. Father of the plaintiff had filed an application before the first defendant Society stating that he had purchased the property prior to the alleged Land Acquisition proceedings. After such application being filed, first defendant Society has conducted the spot inspection. They were convinced the construction and improvements made in the suit property. On 5.3.1987 first defendant Society passed a resolution and concluded to give up the acquisition proceedings insofar as the property of the father of the plaintiff is concerned and allowed the father of the plaintiff to continue in possession of the suit properties. It is also contended that first defendant Society undertook that they will not cause any interference

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to the possession of the father of the plaintiff and accordingly, there was an agreement entered into on 30.03.1997 in favour of the plaintiff's father by the first defendant Society. Defendant Nos.2 to 5 being the office bearers of the said first defendant - Society, were the signatories to the said agreement. In the mean time, there was also a Writ Petition filed before the High Court by the father of the plaintiff challenging the acquisition proceedings which came to be dismissed on 30.05.1998. As on the date of suit, plaintiff continued with the possession of the suit property. Suit property was enclosed with a compound wall and a farm house are built and now the GPA holder of the plaintiff is managing the suit property by investing huge funds. However, when the matter stood thus, again first defendant started interfering and trying to dispossess the plaintiff from the suit property.

5. After service of suit summons, defendants appeared through their Advocate and first defendant filed

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written statement denying the plaint averments in toto. It is further contended that the suit is hit by Section 125 of the Karnataka Co-operative Societies Act and non compliance of the mandatory condition of issue and service of prior notice to the Registrar of Co-operative Societies. Hence, suit is to be dismissed in limine.

6. In view of the principles of law enunciated in the case of State of Bihar Vs. Dhirendra Kumar and Others reported in AIR 1995 SC 1955, Civil Court had no jurisdiction to entertain the suit. Further, it was alleged that the society wanted to form a layout and distribute house sites to its members and submitted requisition to the Government to acquire the suit property. It is further contended that on 5.9.1988, notice of acquisition proceedings was issued under Section 4(1) of the Land Acquisition Act and final notification was issued on 28.09.1998 under Section 6(1) of the Land Acquisition Act and award came to be passed on 04.05.1990 and actual possession of the suit property was taken by the

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Government under Section 16(2) of the Land Acquisition Act on 12.4.1992 and the same was published on 16.4.1992. It is specifically stated that on 9.10.1992 first defendant society was put in possession of the entire acquired land including the suit property by Special Land Acquisition Officer. Thereafter, it is the Society which has been formed layout in the suit property including the adjoining lands and obtained approval from the Bengaluru Development Authority and sites were allotted to the members of the first defendant Society. It is further contended that since Writ Petition No.29745/1993 filed challenging the Land Acquisition proceedings came to be dismissed and after dismissal of the Writ Petition, present suit is not maintainable and therefore, the suit of the plaintiff is to be dismissed.

7. First defendant also contended that the remedy if any the plaintiff is to approach the Land Acquisition Officer for taking compensation and thereafter sought for dismissal of the suit.

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8. It is further contended that defendant Nos.2 to 5 have colluded with the plaintiff. It is further contended that the lands acquired in similar acquisition proceedings have been challenged by one Purushothama Reddy, naighbouring land owner in OS No.6484/2001. Said suit came to be dismissed and another person by name Smt. Leela Bai also filed OS No.7430/2001, which also came to be dismissed and the appeal also came to be dismissed on merits.

9. Second defendant filed separate written statement and the same is adopted by defendant Nos.3 and 5 by filing Memo, wherein they have admitted that they are office bearers of first defendant-Society earlier and the Government has acquired the suit properties of the plaintiff for the purpose of first defendant Society. But, having regard to horticultural plants and farm house and servant quarters belonged to the plaintiff was found in suit property and without notifying the name of the father of the plaintiff, acquisition has taken place and the Society

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passed a resolution on 5.3.1987 on behalf of defendant No.1 Society and thereby decided to give up the acquisition of the land and allow the father of the plaintiff to continue in possession of the suit property. It is further contended that the resolution passed by defendants 2 to 5 is legal and binding on first defendant - Society and sought for decree the suit in favour of the plaintiff.

10. In view of the rival contentions of the parties, following issues are framed:

"1) Whether Plaintiff proves that, he is in lawful possession over the suit property, as on the date of suit?

2) Whether plaintiff proves that, defendants are illegally trying to demolish the building and causing interference to his possession over the suit schedule property?

3) Whether defendant No.1 proves that, suit is not maintainable under Sec.125 of Karnataka Co-operative Societies Act?

4) Whether defendant No.1 proves that, in view of the principle of the ruling reported by the Hon'ble Supreme Court in AIR 1995 SC 1955,

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this court has no jurisdiction to try and decide Issues-1 and 2?

5) Whether defendant No.1 proves that, Land Acquisition Officer has acquired the lands by issue of final notification under Sec.6(1) of Land Acquisition Act on 28.9.1989?

6) Whether defendant No.1 proves that, on 8.4.1992, notification was issued under Sec.16 of the Land Acquisition Act and possession of the suit schedule lands were already taken by the Land Acquisition Officer and thereafter, possession was handed over to defendant No.1's Society on 9.10.1992?

7) Whether the plaintiff is entitled for judgement and decree of Permanent Injunction, as sought in the plaint?

8) To what order or decree?"

11. In order to prove the case of the plaintiff, Ramachandrareddy, Nagaraja and Nagarajareddy are examined as PWs.1 to 3. Plaintiffs relied on 12 documents which were exhibited and marked as Exs.P1 to P10. There is no evidence placed on behalf of the defendants. PW-1 did not choose to lead evidence and post remand vide order passed by this court in RFA No.159/2009, the defendants 1 to 5 did not appear before the Court. Special

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Power of Attorney holder of the plaintiff filed an affidavit in lieu of examination in chief and defendants 1 to 5 having failed to appear for cross examination of PW-1 thereafter, Trial Court posted the matter for defendants evidence and since the defendants failed to appear, the evidence of the defendants was taken as Nil.

12. Learned counsel appearing for the appellant has vehemently contended that the case was not listed and called as per the directions of this court on 29.01.2013. Learned Trial Judge in the impugned judgment has noted that even though parties were directed to appear on 29.01.2013, the order of this court in RFA No.159/2009 reached only on 31.01.2013. Hence, the case was not listed on 21.09.2013. The learned Trial Judge suo moto took up the matter on 21.09.2013 and since the parties were absent, the case was adjourned to 2.2.2013. However, only GPA holder of the plaintiff was present before the Trial Court and defendants remained absent. Therefore, the Trial Court for the defendants to

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appear on 8.2.2013, but again on 8.2.2013 also, the defendants failed to appear and therefore, the next date of hearing was ordered to be published in the court notice board. After publishing the court notice on the notice board, the defendants failed to appear before the Court on 12.09.2013. Since there was a direction by this court to conclude the proceedings on or before 31.03.2013, the Trial Court proceeded to record the evidence of GPA Holder of the plaintiff and dispose of the suit on merit.

13. The present appeal is filed challenging the impugned judgment on the following grounds:

The impugned judgement and decree of the trial court is opposed to the probabilities of the case, material on record, and, such, liable to be set aside.

On 29/1/2013 the date for appearance of parties before the trial court was fixed by this Hon'ble Court, as the case papers were not received from this Hon'ble Court suit was not listed before the trial court and case was not called out

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in open court. As the case papers were received on subsequently after few days, at least to comply with the principles of natural justice, a notice atleast a emergent notice of short duration, for appearance ought to have been issued to the appellant herein who is the only contesting defendant in the said suit. However, the trial court on an erroneous interpretation of the direction issued from this Hon'ble Court has not issued the notice to the appellant. However a formal notice regarding the next date of hearing is said to have been published in the notice board, that too on 8/2/2013. Hence, the procedure adopted by the trial court is not justifiable and it is arbitrary, one sided and erroneous. Hence, on this ground alone the impugned judgement and decree is liable to be set aside.

Except oral evidence, the plaintiff has not produced any documentary proof or evidence to show the compliance of mandatory provision of Section 125 of the Karnataka Co-operative Societies Act. Said matter goes to the very root of the suit itself. Though it is the bounden duty of the plaintiff to prove the same by cogent,

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believable and documentary evidence. Even the copy of notice alleged to have been issued and the postal receipts evidencing the dispatch of notice are not produced. In the absence of any documentary proof, the trial court has committed a serious error in holding the issue in that regard in favour of the plaintiff. It clearly establishes the non application of mind by the trial court, to the matter in issue and also in respect of the established principles of law. The trial court has strongly relied on the document at Ex.P-6 and the written statements filed by the Defendants No.2 to 5 supporting the plaintiff. The appellant has contended in its written statement that the alleged documents relied on by the plaintiff are concocted and bogus documents. The plaintiff has not examined the author of Ex.P-6 to establish its genuineness. Even the Agreement and resolution alleged to have been made by the Defendants No.2 to 5 were not produced. The Defendants No.2 to 5 except supporting the claim of the plaintiff by filing written statement, have not stepped into witness box. These material aspects are not properly considered and

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appreciated by the trial court. Hence, the judgment and decree passed by the trial court is un-just and un-sustainable.

When the writ petition filed by the plaintiff's father challenging the acquisition proceedings was dismissed by this Hon'ble Court, the instant suit was not at all maintainable and ought to have been dismissed. But, the same was not properly considered and appreciated by the trial court and it had resulted in mis-carriage of justice.

The appreciation of evidence and documents by the trial court is perverse, capricious and not maintainable.

The impugned judgment and decree passed in violation of principles of natural justice is vitiated and liable to be set aside. The plaintiff has made Defendants No.2 to 5 who are in collusion with him, as formal parties without seeking any relief against them and through them has made an attempt to create non existing right which is prejudicial to the

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interest and rights of the 1 Defendant society created/conferred on it by the Government with due process of law. The trial court without proper appreciating the same in proper perspective and even in the absence of production of alleged resolution and agreement has passed the impugned judgment and decree. Same is un-just and un-sustainable. In the facts and circumstances of the case, it is very much evident that the trial court has not afforded fair and reasonable opportunity to the appellant to participate in the proceedings and to contest the claim of the plaintiff. Hence, the way in which the case is proceeded before the trial court after it's remand from this Hon'ble Court, appears to be one sided, arbitrary and unjustified. Hence, the impugned judgement and decree is liable to be set aside. The reasonings of the trial court to decree the suit are not sound and proper.

The conduct of the plaintiff and his father throughout. disentitle them from claiming any relief against the 1 Defendant society. Same was not properly appreciated by the trial court.

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In the facts and circumstances of the case, the suit of the plaintiff ought to have been dismissed with exemplary costs. But the same has not been done.

The power of attorney holder of plaintiff was not competent to give evidence and his evidence could not have been accepted by the lower court. The adverse inference ought to have been drawn against the plaintiff for not entering the witness box for giving evidence and subjecting himself for cross examination."

14. Reiterating the above grounds, learned counsel for the appellant, vehemently contended that non calling of the case on 29.09.2013 and subsequently non issuing court notice to the defendants 1 to 3 have caused serious prejudice to the case of the defendant and there was no notice to the defendant while the impugned judgment came to be passed and therefore, sought for allowing the appeal.

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15. Per contra, learned counsel for the contesting respondent opposed the said prayer by placing reliance on the following Judgments:

(1) AIR 2004 SC 4609 - [Rame Gowda, Since dead by LRs. Vs. Varadappa Naidu;

(2) AIR ONLINE 2014 SC 87 - [Ra Dann dead through LRs. Vs. Urban Development Trust Paras 15, 16, 18];

(3) AIR 1968 SC 1165 - [Nair Service Society Ltd., Vs. K.C. Alexander and others Para 15;

(4) Reg. Mahazar for having not taken possession WP NO.35517/21/2019 dated 4.11.2021; Dr.A. Parthasarathi & Others Vs. BDA WA No.5752-56 connected with 6828-32/2010(LA-BDA);

(5) Defendant despite filing written statement has not entered the witness box - adverse inference to be drawn. AIR 1999 SC 1441 - Vidhyadhar Vs. Mankikrao and another.

16. Having regard to the rival contentions of the parties, admittedly, after remand of the suit by this Court, the case was not called on 29.01.2013, but it was called on 31.01.2013. The reasons assigned by the Trial Court in

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this regard is that it got the records from the High Court only on 31.01.2013 and therefore, the matter could not be called on 29.01.2013. When such being the situation, non appearance of the appellant who are the defendants before the Trial Court cannot be faulted with, as admittedly, the defendants are required to appear on 29.01.2013 and not on 31.01.2013. However, that does mean that the defendants were not duty bound to enquire about the receipt of the records and stage of the suit post remand. There is a negligence on the part of the appellant in this regard. However, since the right of the immovable properties are involved in the matter, the said negligence on the part of the defendants cannot be considered to deny the right of the defendant in participating further in the trial before the Trial Court post remand. Since the Trial Court failed to properly notify the parties and only proceeded to publish the court notice on the Notice Board directing the defendant-appellant to appear on 12.09.2013, the rights of the defendant- appellant has

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been put to jeopardy and the principles of natural justice has not been complied.

17. Accordingly, this court is of the considered opinion and having regard to the fact that the rights of the immovable properties are involved in the suit to be adjudicated, it was the duty on the part of the Trial Court to notify the parties to the suit about the remand of the suit and next hearing date. But, in the case on hand, Trial Court failed to do so. In this regard, the learned counsel for the plaintiff/respondents relied on few decisions cited supra.

18. On consideration of the arguments of both sides, it is seen that this Court, in the case of Smt. Bhanumathi Vs. Bayanna and Others in RFA No.2503/2006 by order dated 19^thMarch, 2014, held that service of notice on brother-in-law is a sufficient service. The facts of the present case and the said decision are different and therefore, are not applicable to the case on hand. The

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relevant portion of the said judgment i.e., paragraphs 10 to 13 reads as under:

"10. The facts, as adverted to above, clearly disclose that appellant does not have a fair and reasonable opportunity to participate in the proceedings before the Trial Court. There is a registered Sale Deed executed in her favour in respect of the sites in question. According to her version, her brother-in-law had received notice from the Court and took the responsibility to contest the case by engaging an advocate for her. An advocate was indeed engaged, but he did not file written statement, nor cross-examine P.W.1, let alone leading only evidence of defendant No.3.

11. Defendants 1 & 2 who were the GPA holder and the subsequent purchaser from the original owner were placed exparte. Therefore, the proceedings have virtually gone uncontested. The appellant being a lady, having lost her husband, had indeed faced difficulty in defending herself before the Trial Court. In such circumstances, I am of the view that in the ends of justice, an opportunity has to be given to the appellant herein to contest the suit. The judgment under challenge proceeds only on the basis that the testimony of the plaintiffs remained

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unchallenged and therefore, their version deserves to be accepted.

12. In the light of the above, I am of the view that the judgment and decree deserve to be set aside and the matter has to be remanded for fresh consideration in accordance with law by providing an opportunity to the appellant - 3rd defendant to file her written statement and lead evidence. Hence, the point raised for consideration is answered accordingly.

13. This appeal is allowed. Impugned judgment and decree are set aside. The matter is remanded to the Trial Court for fresh consideration. Appellant is giver. 30 days time from today to file written statement. Both parties are directed to appear before the Trial Court on 04.04.2014. The Trial Court is directed to dispose of the case as expeditiously as possible, at any rate, within a period of eight months from 04.04.2014. Both parties are directed to maintain status-quo as on today till the disposal of the suit. Appellant shall pay costs of 26,000/ to respondent No.2 by the next date of hearing before the Trial Court."

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19. In so far as the decision rendered in the case of Rame Gowda and Ram Dann supra, are with regard to the merits of the matter.

20. Both the decisions are of not much avail to the plaintiff in supporting the impugned judgment inasmuch as the facts of the present case are altogether different from the facts involved in the decisions relied on by the plaintiff.

21. Therefore, this court is of the considered opinion that imposing cost of Rs.25,000/- on the appellant and to permit him to appear before the Trial Court and put forth his case on merits in accordance with law by affording one more opportunity to the defendant.

22. Having said thus, since the suit itself is of the year 2002 and the plaintiff is in settled possession of the suit property, the possession of the plaintiff is to be protected till disposal of the suit. So also, the suit is to be expedited. Accordingly, following order is passed:

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ORDER

The appeal is allowed. The impugned judgment and decree is hereby set aside subject to payment of cost of Rs.25,000/- payable by the defendant to the plaintiff. The matter is remitted to the Trial Court for fresh disposal in accordance with law as is observed in RFA No.159/2009 (earlier) by affording suitable opportunity for both the parties. plaintiff's possession in respect of the suit property is protected till the disposal of the suit on merits. Payment of cost is a condition precedent for defendant to contest the suit on merits.

It is needless to emphasize that the parties shall appear before the Trial Court on 15.11.2022 and co- operate for disposal of the matter. Thereafter, the Trial Court after affording considerable opportunity for the parties shall dispose of the suit on merits before end of

May, 2023. Office to return the Trial Court records with a copy of this order forthwith and ensure that the records would reach the Trial Court well in advance, before the hearing date i.e., on 15.11.2022.

Sd/-

JUDGE

PL*

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