Allowed

The Commissioner v. Sri. v Nagaraj

Karnataka HC20 Jun 2023RFA/1271/2016

Case brief

AI extract

What is this about?

This appeal challenged a decree granting mandatory injunction regarding a BDA property. The High Court found the case unfit for final adjudication due to unresolved factual disputes concerning allotment conditions and notice issuance under the BDA Act. The appeal was allowed, the decree set aside, and the matter remanded with a direction to record evidence afresh.

What did the court decide?

The appeal is allowed, the impugned judgment and decree are set aside, and the matter is remanded to the Trial Court for fresh consideration with a direction to record evidence.

The Commissioner Vs Sri. v. Nagaraj — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:21304 RFA No. 1271 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 1271 OF 2016 (INJ)

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BETWEEN:

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY CHOWDAIAH ROAD,BANGALORE.

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…APPELLANT

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(BY SRI. MURUGESH V CHARATI.,ADVOCATE)

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AND:

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SRI. V. NAGARAJ S/O. VISHWANATH AGED ABOUT 32 YEARS R/AT NO.40, CHAMUNDINAGAR SLUM 5TH BLOCK, RAJAJINAGAR BANGALORE-560 010.

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…RESPONDENT

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Digitally signed by DHANALAKSHMI (BY SRI. K.NAGARAJ., ADVOCATE AND MURTHY SRI. M.S. SURYANARAYAN RAO, ADVOCATE) Location: High Court of Karnataka

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THIS RFA IS FILED UNDER SECTION.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 27.08.2015 PASSED IN OS.NO.7070/2013 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR MANDATORY INJUNCTION.

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

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NC: 2023:KHC:21304 RFA No. 1271 of 2016

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JUDGMENT

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This appeal is filed by the appellant-defendant

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under Section 96 of CPC challenging the judgment and decree dated 27.8.2015 passed by XI Addl. City Civil Judge, Bengaluru in O.S.No.7070/2013, whereby the suit filed by the plaintiff has been decreed.

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For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in the original suit.

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The case of the plaintiff is that the suit schedule property has been allotted by BDA vide allotment letter dated 31.12.1997 in favour of the grand mother of the plaintiff i.e., Smt.Jayamma w/o Govindaswamy. Smt.Jayamma died on 20.5.2009 and plaintiff has succeeded to the properties of Smt.Jayamma and also Smt.Jayamma executed a Will dated 12.12.2006 and

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hence, the plaintiff and his family members are in actual possession of the suit schedule property. After the death

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of Smt.Jayamma, the plaintiff has requested the respondent-authority to transfer the ownership of the suit schedule property. Though the plaintiff submitted the required documents by his compliance dated 28.10.2011, but the defendant did not transfer the ownership by executing the sale deed. Hence, the plaintiff has filed the suit seeking relief of declaration and injunction.

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On service of suit summons, defendant appeared through counsel and filed the written statement denying the averments made in the plaint. It was contended by the defendant that the plaintiff is not in possession and enjoyment of the suit schedule property. It was further contended that the suit schedule property was allotted to one Smt.Bhagyamma vide allotment letter dated 3.4.1992. The defendant has denied the execution of the Will by Smt.Jayamma in favour of the plaintiff. Hence, the defendant sought for dismissal of the suit.

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NC: 2023:KHC:21304 RFA No. 1271 of 2016

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On the basis of the pleadings of the parties, the Trial Court has framed following issues:

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(1) Whether the plaintiff proves that his grandmother by name Jayamma w/o Govindaswamy was in possession and enjoyment of the schedule property and the defendant authority has issued allotment order dated 31.12.1997 in her favour by allotting the schedule property?

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(2) Whether the plaintiff further proves that the defendant has to execute the same deed and issue possession certificate in his favour in respect of the schedule property and has failed to do so as alleged?

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(3) Whether the plaintiff is entitled for the relief sought for?

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(4) What order or decree?

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On behalf of the plaintiff, the plaintiff himself has

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been examined as PW-1 and produced 13 documents marked as Exs.P-1 to P-13. On behalf of the defendant,

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neither any witness was examined nor any document was produced. On appreciation of oral and documentary

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5 - NC: 2023:KHC:21304 RFA No. 1271 of 2016

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evidence, the Trial Court has answered issue Nos.1 to 3

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in the affirmative and accordingly decreed the suit. Being aggrieved by the same, the defendant has filed this appeal.

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The learned counsel for the appellant-defendant

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has contended that the suit filed by the plaintiff is not maintainable under Section 64 of the Bangalore Development Authority Act, 1976 (for short ‘BDA Act’). The plaintiff has to issue notice before the institution of the suit. But no such notice has been issued. He further contended that even though the allotment letter has been issued as per Ex.P-1, the conditions mentioned in the allotment letter has not been fulfilled by the plaintiff. Therefore, absolute sale deed cannot be executed in favour of the plaintiff. He further contended that since the suit schedule property has been allotted to one Smt.Bhagyamma vide allotment letter dated 3.4.1992, the plaintiff is not entitled for allotment of site. The Trial

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Court has erred in decreeing the suit. Hence, he sought

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for allowing the appeal.

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The learned counsel for the respondent-plaintiff has contended that the plaintiff has issued the notice on 20.10.1997. Since the defendant has failed to execute the absolute sale deed, plaintiff has filed the suit. He further contended that as per Ex.P-1, the letter of allotment has been issued in favour of the plaintiff. The plaintiff has complied with the conditions mentioned in Ex.P-1. Since the defendant has failed to execute the absolute sale deed in favour of the plaintiff, the plaintiff has filed the suit. The Trial Court after considering the evidence of the parties and materials available on record has rightly decreed the suit. Hence, he sought for dismissal of the suit.

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Heard the learned counsel for the parties. Perused the judgment and decree of the trial court and original records.

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NC: 2023:KHC:21304 RFA No. 1271 of 2016

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The point that arises for consideration in this appeal is:

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“Whether the judgment and decree passed by the Trial Court is erroneous, arbitrary and does it call for interference of this court?”

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The case of the plaintiff is that the suit schedule property was allotted by the BDA in favour of the plaintiff’s grandmother Smt.Jayamma as per Ex.P-1 allotment letter. From the date of Ex.P-1, the plaintiff is in possession of the property. The plaintiff has complied with the conditions mentioned in Ex.P-1. Since the defendant has not executed the absolute sale deed in favour of the plaintiff, the plaintiff has filed the suit. The specific contention of the defendant is that as per Ex.P1, the plaintiff has not complied with the conditions mentioned in the allotment letter. No notice has been issued under Section 64 of the BDA Act. The suit itself is not maintainable. In the written statement filed by the

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BDA, the BDA has not taken any specific condition

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regarding issuance of notice under Section 64 of the BDA Act and regarding non compliance of provisions of

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the Bangalore Development Authority (Allotment of Sites) Rules, 1984 and they have not examined any witnesses.

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Under the circumstances and in the interest of

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justice, I am of the opinion that the matter deserves to be remanded to the Trial Court for fresh consideration.

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Hence, I pass the following order:

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ORDER

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a) The appeal is allowed.

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b) The judgment and decree dated 27.8.2015 passed

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by XI Addl. City Civil Judge, Bengaluru in O.S.No.7070/2013, is set aside.

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c) The matter is remanded to the Trial Court with a

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direction to the Trial Court to reconsider the suit afresh.

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NC: 2023:KHC:21304 RFA No. 1271 of 2016

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d) The parties are directed to appear before the Tribunal on 18.07.2023 without awaiting for any

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further notice from the Trial Court.

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e) Both the parties are at liberty to adduce additional evidence and produce additional documents.

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f) The Trial Court after hearing the parties shall pass appropriate orders in accordance with law, without being influenced by any observations made in this judgment.

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g) Parties are directed to maintain status-quo in respect of the suit schedule property till the disposal of the suit.

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Sd/JUDGE

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DM List No.: 1 Sl No.: 57

The Commissioner v. Sri. v Nagaraj

Case brief

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The Commissioner v. Sri. v Nagaraj

Case brief

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