Allowed

D H Krishna Sa v. the Bangalore Development Authority

Karnataka HC20 Nov 2023RFA/1162/2008

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by unsuccessful plaintiffs against the dismissal of their suit for declaration and permanent injunction. The Court set aside the trial court's judgment, allowed fresh evidence produced by the plaintiffs including documents from the defendant, and decreed the suit in favor of the appellants.

What did the court decide?

The appeal was allowed, the impugned judgment and decree were set aside, and the suit for declaration and permanent injunction was decreed in favor of the appellants.

D H Krishna Sa Vs the Bangalore Development Authority — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.1162 OF 2008 (INJ)

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BETWEEN:

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D H KRISHNA SA SINCE DEAD BY HIS LR’S

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(A) SRI. SRIDHARA

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S/O LATE D.H. KRISHNASA

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AGED ABOUT 57 YEARS.

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(B) VENKATAGIRI D.S

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S/O LATE D.K. SRINIVAS

AGED ABOUT 34 YEARS.

AGED ABOUT 32 YEARS.

ALL ARE R/AT: NO.198/2 (OLD 198) KRISHNA ROAD, 1^ST STAGE BASAVESHWARANAGAR III STAGE, IV BLOCK, BENGALURU – 560 079.

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…APPELLANTS

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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(BY SRI.NITISH K.N., ADVOCATE FOR SRI. K.V.NARASIMHAN, ADVOCATE)

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AND:

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THE BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER KUMARA PARK WEST BANGALORE- 560 020.

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…RESPONDENT

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(BY SRI. SACHIN B.S., ADVOCATE)

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THIS RFA IS FILED U/S 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DT.21.08.2008 PASSED IN OS NO.5402/07 ON THE FILE OF THE IX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-5), DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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NC: 2023:KHC:42007 RFA No. 1162 of 2008

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THIS APPEAL, COMING ON FOR FINAL HEARING , THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.5402/2007 on the file of the IX Addl.City Civil and Sessions Judge, Bangalore, is directed against the impugned judgment and decree dated 21.08.2008 whereby the said suit filed by the appellant – plaintiff against respondent – defendant for declaration, permanent injunction and other reliefs in relation to the suit schedule property was dismissed by the trial court.

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Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

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For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.

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The material on record indicates that appellant – plaintiff instituted the aforesaid suit in relation to the suit schedule property being portion of Sy.No.198 of Laggere village, converted for industrial use and numbered as No.198/1 of Laggere measuring 15 ft x 40 ft as described in the schedule to the plaint. It was contended that the plaintiff was the absolute owner in lawful and

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3 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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peaceful possession and enjoyment of the suit schedule property and the defendant not only granted permission to change the said land for industrial purpose / use but also permitted formation of a private layout and issued sanction plan and licence in favour of the plaintiff. It is further contended that just prior to filing the suit, the plaintiff learnt that the defendant-BDA, who did not have any manner of right, title, interest or possession over the suit schedule property was falsely claiming the suit schedule property as site bearing No.676 and was attempting to illegally and highhandedly auction the same and the plaintiff approached this Court in W.P.No.9841/2005, which was disposed of on 14.06.2007 relegating the parties to the civil court and as such, the plaintiff instituted the aforesaid suit against the defendant-BDA before the trial court.

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The defendant – BDA filed its written statement and contested the suit not only denying and disputing the claim of the plaintiff but also contended that it had formed site No.676 in Sy.No.20/3 of Saneguruvanahalli village after having acquired the said property from the land owner and that the plaintiff did not have

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NC: 2023:KHC:42007 RFA No. 1162 of 2008

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any right over the suit schedule property and the suit was liable to

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be dismissed.

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Based on the above pleadings, the trial court framed the following issues:-

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(i) Whether the plaintiff proves that the schedule property exists to the south of 16^th main road?

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(ii) Whether the plaintiff proves that the schedule property and site No.676 are one and the same?

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(iii) Whether the plaintiff is entitled to the declaration sought for?

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(iv) Whether the plaintiff is entitled to the permanent injunction sought for?

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The plaintiff examined himself as PW-1 and Exs.P1 to P20 were marked. The defendant – BDA examined its Assistant Engineer as DW-1 but did not adduce any documentary evidence.

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After hearing the parties, the trial court proceeded to dismiss the suit by passing the impugned judgment and decree, which is assailed in the present appeal.

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During the pendency of the appeal, the appellant – plaintiff filed an application I.A.No.4/2015 under Order 41 Rule 27 CPC along with three documents. The respondent did not file any objections to the said application.

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5 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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The following points arise for consideration in the present appeal:-

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(i) Whether the application I.A.4/2015 filed by the appellant – plaintiff under Order 41 Rule 27 CPC deserves to be allowed?

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(ii) Whether the trial court was justified in rejecting the claim of the appellant?

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(iii) Whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal?

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Re-Point No.1:-

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A perusal of the material on record will indicate that the trial court rejected the claim of the appellant in relation to the suit schedule property. While doing so, the trial court answered issue No.2 against the plaintiff by holding that he had failed to establish that the suit schedule property and portion of site No.676 sought to be auctioned by the BDA are one and the same. In order to substantiate his contention, the appellant – plaintiff filed the instant application I.A.4/2015 along with three documents issued by the BDA itself, viz., the property tax, house tax and no due certificate, tax paid receipt and letter addressed by the BDA to the Assistant

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6 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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Revenue Officer, BBMP. A perusal of the said documents clearly indicates that the same are relevant and essential for the purpose of adjudication of the issues in controversy between the parties and for disposal of the present appeal. Under these circumstances, I am of the view that I.A.4/2015 filed by the appellant under Order 41 Rule 27 CPC deserves to be allowed and the same is accordingly allowed and the additional 3 documents produced by the appellant are marked with mutual consent of both sides as Exs.P21, P22 and P23 respectively.

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Point No.1 is accordingly answered in favour of the appellant.

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Re-Point Nos. 2 and 3:-

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A perusal of the material on record including the impugned judgment and decree will indicate that while it is the specific contention of the plaintiff that the suit schedule property is part and parcel of Sy.No.198 of Laggere village and the same was illegally sought to be designated as portion of Site No.676 by the defendant – BDA, who attempted to auction the same, the BDA contends that the suit schedule property was part and parcel of Sy.No.20/3 which was acquired by the BDA, in which, site No.676

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7 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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is situated. As per the impugned judgment and decree, the trial court took into account the unimpeached, uncontroverted and unchallenged evidence of the plaintiff (PW-1) in order to answer issue No.1 in favour of the plaintiff by holding that the suit schedule property existed to the south of 16^th main road. In order to arrive at the said conclusion, the trial court took into account the cumulative effect of the documentary evidence produced by the appellant at Exs.P1 to P20 coupled with the fact that the evidence of PW-1 had not been discredited in the cross-examination and no rebuttal evidence had been adduced by the defendant – BDA. However, while dealing with issue No.2, the trial court failed to consider and appreciate the aforesaid material on record coupled with the various admissions, discrepancies, contradictions and inconsistencies in the pleadings and evidence of DW-1 coupled with the complete and total absence of any documentary evidence produced by the defendant to substantiate its specific contention that the suit schedule property was situated in Sy.No.20/3 out of which, the entire site No.676 had been carved out in the layout, all of which, unmistakably establish that the said finding on issue No.2 is contrary to the material on record and deserves to be set aside.

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NC: 2023:KHC:42007 RFA No. 1162 of 2008

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11.1 Further, while dealing with Point No.1, I have already allowed I.A.4/2015 and the additional evidence / documents produced by the appellant have been marked with the consent of both sides as Exs.P21, P22 and P23.

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11.3 The cumulative effect of the pleadings and evidence of the plaintiff including the additional evidence which has come from the BDA itself as against the unsubstantiated pleadings and evidence of the defendant, is sufficient to come to the sole conclusion that the impugned judgment and decree passed by the trial court deserves to be set aside and the suit of the plaintiff deserves to be decreed in his favour.

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Point Nos.2 and 3 are accordingly answered in favour of the appellant.

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Upon re- appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the trial court has committed a grave and serious error in dismissing the suit filed by the appellant by improper and erroneous appreciation of the material on record and in the light of the additional evidence comprising of documents issued by the BDA itself, the impugned judgment and decree passed by the trial

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9 - NC: 2023:KHC:42007 RFA No. 1162 of 2008

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court deserves to be set aside and the suit of the plaintiff deserves

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to be decreed in his favour.

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In the result, I pass the following:

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ORDER

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(i) Appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 21.08.2008 passed in O.S.No.5402/2007 by the trial court is hereby set aside.

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(iii) I.A.4/2015 filed by the appellant is hereby allowed. (iv) The additional documents produced along with I.A.4/2015 are received on record and with consent of both sides,

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the said documents are marked as Exs.P21, P22 and P23 respectively.

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(v) The suit of the plaintiff is decreed as prayed for.

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(vi) Registry is directed draw decree accordingly.

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Sd/JUDGE

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SV/SRL

D H Krishna Sa v. the Bangalore Development Authority

Case brief

What is this about?

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D H Krishna Sa v. the Bangalore Development Authority

Case brief

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What did the court decide?

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