Allowed

Bethany Education Board v. Victoria Swamy

Karnataka HC10 Feb 2023CRP/483/2016

Case brief

AI extract

What is this about?

The High Court, in a civil revision petition, examined the maintainability of a suit for declaration of title and mandatory injunction. The Court held that since the revised claim of title was previously negated, the suit was not maintainable. It set aside the impugned order rejecting the application to reject the plaint, and rejected the plaintiff.

What did the court decide?

The impugned order dated 21.10.2016 was set aside; I.A No. 5 was allowed, and the plaint stood rejected.

Bethany Education Board Vs Victoria Swamy — Property and Title | Karnataka HC (2023)

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1 - CRP No. 483 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CIVIL REVISION PETITION NO. 483 OF 2016

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BETWEEN:

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BETHANY EDUCATION BOARD, A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES, REGISTRATION ACT, 1960, HAVING OFFICE AT NO.12, 20 TH MAIN ROAD, 6TH BLOCK, KORAMANGALA, BANGALORE - 560 034, REPRESENTED BY ITS SECRETARY, MR. AKASH RYALL. …PETITIONER

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(BY SRI. T. SURYANARAYANA, SENIOR COUNSEL FOR SRI. NITIN PRASAD., ADVOCATE)

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AND:

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VICTORIA SWAMY, W/O AGT SWAMY, MAJOR, RESIDING AT NO. 154, 6TH BLOCK, KORAMANGALA, BANGALORE - 560 095.

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, HAVING ITS OFFICE AT KUMARA PARK WEST, CHOWDAIAH ROAD, BANGALORE - 560 020. 3. THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE, HAVING OFFICE AT N.R.SQUARE CIRCLE, BANGALORE - 560 001. …RESPONDENTS (BY SRI. PARASHURAM R. HATTARAKIHAL, ADVOCATE FOR R1; SMT. LATHA S.S., ADVOCATE FOR SRI. MURUGESH V. CHARATI, ADVOCATE FOR R2; SRI. B.V. MURALIDHAR, ADVOCATE FOR R3)

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CRP No. 483 of 2016

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THIS CRP IS FILED UNDER SEC.115 OF CPC., 1908 AGAINST THE ORDER DATED: 21.10.2016 PASSED IN OS.NO.7959/2012 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE I.A.NO.V FILED UNDER ORDER 7 RULE 11 OF CPC., BY DEFENDANT NO.3 PRAYING TO REJECT THE PLAINT.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Revision petition under Section 115 of Cr.P.C. is filed by defendant No.3 challenging the order dated 21.10.2016 passed by the XXXIX Additional City Civil and Sessions Judge, Bengaluru on I.A.V filed under Order VII Rule 11(a) and (d) of CPC in O.S.No.7959/2012 rejecting the application.

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Learned Senior Counsel for the petitioner's counsel would submit that the claim of the plaintiff that he acquired title over the subject property was negated by this Court on 17.11.2004 in WP.No.6443/2004. Hence, there was no cause of action to file suit and also it is barred by limitation.

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He further submits that acquisition proceedings having attained finality, the present suit filed by the plaintiff is not maintainable and the Civil Court has no jurisdiction to go into question of validity or legality of the notification under Sections 4 and 6 of the Land Acquisition Act and also the subsequent proceedings. In support he places reliance on the decision of the Hon'ble Supreme Court in the case of COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER VS. BRIJESH REDDY AND ANOTHER reported in (2013) 3 SCC 66.

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CRP No. 483 of 2016

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Learned counsel for respondent No.1 submits that the plaintiff is in settled possession of the suit schedule property and the suit for declaration and consequential relief for mandatory injunction directing the defendant Nos.1 and 2 to handover the vacant possession of the suit schedule property is maintainable, in light of the liberty granted by this Court in W.P.No.6443/2004. Hence, he submits that the trial Court has rightly passed the impugned order rejecting the application filed by defendant No.3 for rejection of the plaint.

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Considered the submissions made by the learned counsels for the parties.

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The plaintiff had filed W.P.No.6443/2004 challenging the auction notice dated 12.02.2004 issued by the Bangalore Development Authority for auction of the site No.606B. This Court by order dated 17.11.2004 held that the site which the plaintiff was claiming forms part and parcel of the Sy.No.116/6, and it was also held that, Sy.No.116/6 was acquired by the BDA by issuing preliminary notification which culminated in passing of an award dated 28.12.1983, and the possession of the land was taken on 23.01.1984. This Court further held that the subject property purchased by the plaintiff herein was subsequent to the acquisition of the land, and as such, the plaintiff has not acquired any right, title or interest in the said land and consequently, the sale deed executed in favour of the petitioner is void against the State and the BDA. However, this Court held that the question of facts as to whether the plaintiff is in settled possession of the subject

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CRP No. 483 of 2016

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property or not cannot be gone into in this petition and the same requires evidence for being decided. It is open for the plaintiff to approach the competent Civil Court, if he so desires. To put it simply, this Court granted liberty to protect the alleged possession and had not granted any liberty to seek for declaration of the title.

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The plaintiff is not entitled to seek declaration that he is the owner of the subject property, since this Court has already negated the said claim. Liberty was granted to protect the alleged possession. The suit is one for declaration of title and mandatory injunction restraining the defendants from interfering with the peaceful possession. Admittedly, the suit property is vacant plot. The first principle of law in respect of vacant land is that, possession follows title. The claim of the plaintiff that, he has acquired title over the suit property by virtue of the registered sale deed executed in his favour by his vendor having been negated by this Court, his claim that, he is in settled possession of the suit property under the sale deed cannot be established.

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In view of the preceding analysis, I am of the view that the suit filed by the first respondent-plaintiff is not maintainable in law and is barred under Order VII Rule 11(a) and (d) of CPC. Hence, the impugned order passed by the Trial Court is not sustainable in law. Accordingly, I pass the following:

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ORDER

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i. Petition is allowed.

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CRP No. 483 of 2016

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ii. The impugned order dated 21.10.2016 passed in O.S.No.7989/2012 by the XXXIX Additional City Civil Judge, Bengaluru in I.A.5 is hereby set aside and consequently I.A No.5 is allowed and the plaint stands rejected.

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Sd/JUDGE

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RKA List No.: 1 Sl No.: 26

Bethany Education Board v. Victoria Swamy

Case brief

What is this about?

What did the court decide?

Bethany Education Board v. Victoria Swamy

Case brief

What is this about?

What did the court decide?

What the court decided

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