Dismissed

Smt Munivenkatamma v. the Bangalore Development Authority

Karnataka HC9 Nov 2021RFA/842/2014

Case brief

AI extract

What is this about?

This Regular First Appeal was rejected at the stage of admission. The Single Judge held that the suit against a statutory body suffered from substantial legal defects, including non-compliance with Section 80 CPC and lack of recognized title, rendering it devoid of merits without requiring appreciation of facts.

What did the court decide?

Regular First Appeal no.842/2014 rejected; Interim Application no.1/2014 disposed of.

Smt Munivenkatamma Vs the Bangalore Development Authority — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.F.A NO.842/2014 (DEC/INJ)

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BETWEEN:

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SMT. MUNIVENKATAMMA W/O. LATE CHINNASWAMY, AGED ABOUT 54 YEARS, R/AT NO.629/A, 3RD STAGE, OPPOSITE TO KADAMBA VIDYA KENDRA, BASAVESHWARANAGARA, BANGALORE-560 079

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...APPELLANT

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(BY SRI K SRINIVASA, ADVOCATE)

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AND:

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1 . THE BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, BANGALORE-560 020, REP. BY ITS COMISSIONER.

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2 . THE BASAVESHWARANAGAR POLICE STATION, BASAVESHWARANAGAR, BANGALORE-560 079, REP. BY ITS SUB-INSPECTOR

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...RESPONDENTS

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(BY SMT RASHMI PATEL, HCGP FOR R2)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 17.3.2014 PASSED IN O.S.NO.2233/2010 ON THE FILE OF THE XXVII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION PERMANENT INJUNCTION.

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THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and decree dated 17.03.2014 passed by the learned XXVII Additional City Civil Judge, Bangalore, in O.S.No.2233/2010, wherein the suit of the plaintiff came to be dismissed. Aggrieved by the same, the plaintiff-Smt.Munivenkatamma is before this Court in this appeal.

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The defendants are i) Bangalore Development Authority and 2) Basaveshwaranagar Police Station.

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In order to avoid confusion and overlapping, the parties are addressed in accordance with their rankings and status as stood before the trial Court.

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To avoid wastage of judicial time, the facts of

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the case of the plaintiff is extracted from the certified copy of the judgment which reads as under:

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“This suit is registered by virtue of order passed in P.Misc., 44/2005 permitting the plaintiff to file the suit as indigent person and she has filed the suit against defendants 1 & 2 for declaration that she is in absolute owner in possession of the suit schedule property and for Permanent Injunction restraining defendant no.2 from interfering in her possession and enjoyment of the suit property and to award cost of the suit.

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2. In the plaint, it is contended that, the plaintiff Munivenkatamma belongs to schedule tribe community and her parents were doing agriculture as labours in the land bearing sy.no.27/3 of Saneguruvanahalli, Bangalore North. The owner of the said land permitted her parents to construct small asbestos sheet house measuring 20 x 40 feet in demarcating schedule site no.629/A, Basaveshwaranagar, Bangalore. Her parents were residing in the said site since 1970 and thereafter she is residing with her husband and children by doing coolie in the said

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site and her husband died long back and she has no other property except the suit house. The then City Improvement Trust Board (CITB) had acquired the entire survey number to form the house sites prior to 1972 and separate site number was assigned to the suit site by CITB. The suit site was not allotted to anyone by defendant no.1 Bangalore Development Authority and she had made several representations to defendant no.1 and defendant no.1 allowed her parents and herself to reside in the suit site and she is in uninterrupted possession and enjoyment of the suit site for more than 30 years. However, on 17/2/2013 the surveyor of defendant no.1 BDA directed her to appear before him within 7 days by issuing the notice, and he visited the spot, drawn the mahazar, prepared the sketch of the suit site and identity card is issued in her favour showing the address of suit site. Further, the then CITB under resolution no.4302 dated 25/3/1975resolved to regularize the layout by re-allotment of sites to the revenue site holders on sital value. Further, defendant no.2 Basaveshwaranagar Police directed her to appear on 9/1/2005 and when she appeared

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before the police, she was directed to vacate the suit site. Defendant No. 1 has not considered her repeated request for allotment of suit site and defendant no.2 police have also threatened her illegally to dispossess her from the suit site. Thus, she had filed W.P.2965/2005 before High Court of Karnataka and the High Court of Karnataka on 28/1/2005 directed her to approach the Civil Court for appropriate relief. On 7/2/2005, she had made representation that she is in possession of the suit site for more than 30 years. But defendant no.1 has not considered her request. However, defendant no.1 has collected taxes from her with respect to the suit site and having accrued with the cause of action she was constrained to file the suit and prayed to decree the suit.”

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The defendant No.1-Bangalore Development Authority has filed written statement and opposed the claim of the plaintiff, but defendant No.2-

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Basaveshwaranagar Police Station was set exparte.

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The learned Trial Judge has framed the following issues:

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(1) Whether the plaintiff proves that she is the absolute owner in possession and enjoyment of the suit schedule property along with the family members as alleged in the plaint?

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(2) Whether defendant no.1 proves that suit schedule property being situated in Sy.no.11 of Sanegoravanahalli village was acquired by the then CITB for the formation of West of Chord Residential layout and possession was already taken over as per law as contended in the written statement?

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(3) Whether the defendant no.1 further proves that the said survey number already stood vested with the Bangalore Development Authority as contended?

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(4) Whether plaintiff proves the alleged interference and disturbance with her peaceful possession and enjoyment of the suit schedule property by the defendants as alleged?

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(5) Whether the plaintiff is entitled for the relief of declaration as prayed?

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(6) Whether the plaintiff is entitled for the relief of injunction as claimed?

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(7) What decree or order?

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The learned Trial Judge was accommodated

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with the oral evidence of PW1-Munivenkatamma and DW1-Rajanna and documentary evidence at Ex.P1certified copy of the Ration card, Ex.P2-certified copy of the Election Identity, Ex.P3-copy of the application submitted to Bangalore Development Authority, Ex.P4-Receipt, Ex.P5-letter addressed to Surveyor, Ex.P6-certified copy of the orders passed in W.P.No.2965/2005, Exs.P7 to P9-3 tax paid receipts, Exs.P10 and P11-one electricity bill and water bill, Exs.P12 and P13-2 tax paid receipts on behalf of the plaintiff; Ex.D1-copy of allotment letter, Ex.D2-copy of possession certificate, Ex.D3-copy of site exact dimension report, Ex.D4-copy of sale deed dated 26/5/2003, Ex.D5-copy of representation dated

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7/2/2005 and Ex.D6-Endorsement on behalf of the defendants.

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Learned Trial Judge considering the materials

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on file, dismissed the suit of the plaintiff. The said judgment and decree is challenged by the plaintiff in this appeal.

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Learned Counsel Sri K.Srinivasa appearing for

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the plaintiff/appellant submitted that the learned Trial Judge erred in dismissing the suit irrespective of nonfiling of the written statement and objection by the 1^st defendant/Bangalore Development Authority. Further, the possession of the plaintiff for decades together was not considered. The learned Trial Judge erred in not considering the documents filed by the plaintiff. There was no documents produced on behalf of the defendant No.1-BDA to substantiate their possession or opposition. The documents filed by the plaintiff

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establish her right over the schedule property. Earlier the schedule property was an agricultural land in Sy.No.27/3, Saneguruvanahalli, Bangalore North Taluk and later it was just a vacant site in the possession and enjoyment of the plaintiff. The plaintiff with hard earned money put up a asbestos sheet roofed house on the schedule property and she is in possession and enjoyment of the same.

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Smt.Rashmi Patil, learned HCGP appearing on behalf of defendant No.2-Basaveshwaranagar Police Station, opposes the claim made by the plaintiff and submits that the suit of the plaintiff is not maintainable.

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The sum and substance of the claim is that the plaintiff seeks declaration of ownership over the schedule property against the defendant. Regard being had to the fact the first defendant is a statutory body and the second defendant is Basaveshwaranagar

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Police Station. Considering the suit is against the statutory body and the relief sought is for declaration of title and injunction. The compliance under Section 80 CPC in arraying the defendants is not strictly in accordance with law. Further, the plaintiff seeks declaration of title and no source recognized by law is even pleaded for acquisition of ownership. A direction given by this Court in W.P.No.2965/2005 for adjudication of the rights cannot be considered as recognition of rights of the plaintiff over the schedule property. A civil suit is to be adjudicated in the manner identified and recognized by law.

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It is stated that ubi jus ibi remedium where there is a right, there is a remedy. In the instant case, basically plaintiff cannot assert rights of ownership against statutory body which is entrusted with its own powers and duties as a development authority and insofar as the Government. Regard

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being had to the fact that the parties are not properly impleaded in the suit.

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Insofar as the documents filed by the plaintiff is concerned, none of them establish either prima facie title or probative force in the claim and insofar as Regular First Appeal under Order 96 CPC is concerned, no doubt, it may require appreciation of facts, but disposal of appeal on substantial question of law is not confined to Regular Second Appeal filed under Section 100 CPC and the question of law always has a predominant recognition. When the suit of the plaintiff is devoid of merits at the threshold by virtue of well established points of law, it has to fail and it is not the question that even the appeal cannot be entertained in law but it has to be considered by appreciation of facts. This principle is recognized by the Apex Court in the case of Shyam Prasad Mishra

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Vs. Pratap Singh reported in AIR 2006 Allahabad

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56 .

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In the overall circumstances of the case, I find there is no necessity to proceed further and the appeal fails at the stage of admission itself and is accordingly rejected .

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In view of the disposal of the appeal, I.A.No.1/2014 does not survive for consideration and

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accordingly stands disposed of.

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Sd/JUDGE

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JT/-

Smt Munivenkatamma v. the Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

Smt Munivenkatamma v. the Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

What the court decided

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