Dismissed

The Karnataka Industrial Areas Development Board v. Smt Damayanthi N

Karnataka HC25 Sept 2023RFA/223/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the recall file appeal filed by KIADB against a decree for permanent injunction in favor of two daughters. The Court held that the trial court correctly distinguished the suit property from the acquired land, finding evidence that one acre was excluded from acquisition and remained with the plaintiffs.

What did the court decide?

The appeal filed by the appellant-KIADB is dismissed with costs.

The Karnataka Industrial Areas Development Board Vs Smt… — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:34780 RFA No. 223 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 223 OF 2012 (INJ)

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BETWEEN:

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THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, NO.14/3, NRUPATHUNGA ROAD, BANGALORE-560 002. REPRESENTED BY ITS EXECUTIVE MEMBER.

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…APPELLANT

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(BY SRI P V CHANDRASHEKAR, ADVOCATE)

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AND:

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SMT. DAMAYANTHI N, D/O K. NARASAPPA, MAJOR IN AGE.

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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SMT. N. PARVATHI, D/O K. NARASAPPA, MAJOR IN AGE.

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BOTH ARE R/AT: BAILU SIDDASHRAMA, NALLAKADIRENAHALLI, YESHAWANTHAPURA HOBLI, 4TH PHASE, PEENYA INDUSTRIAL ESTATE, BANGALORE-560 058.

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…RESPONDENTS

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(BY SRI PAWAN KUMAR.S, ADVOCATE FOR SRI M N MADHUSUDHAN, ADVOCATE)

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NC: 2023:KHC:34780 RFA No. 223 of 2012

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THIS RFA IS FILED U/SEC.96, R/W, O-41, RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.11.2011 PASSED IN O.S.4356/1996 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR INJUNCTION.

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

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JUDGMENT

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Aggrieved by the judgment and decree dated 4-11-2011 passed in OS No.4356/1996 by the learned XXVII Additional City Civil Judge, Bangalore, the defendant-KIADB has approached this Court in appeal.

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The parties would be referred to as per their

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rankings before the trial Court for the sake of convenience.

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The facts are as below:

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The plaintiffs contended that they are the daughters of one K. Narasappa who was the absolute owner of one acre of land in Survey No. of 46/22 of Nallakaderanahalli village, Yeshwanthpur Hobli, Bangalore North Taluk, which is described in the plaint as below:

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East by : Maruthi Machine Tools;

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West by : Property of KIDB;

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North by: Government tank bed; situated in sy.no.65; and

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South by: Private property; site of which has been allotted by the KIDB

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The appellant-defendant-KIADB sought to acquire

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the entire extent of survey No.46/22 for the formation of

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the Industrial Layout by Preliminary Notification dated 13-9-1972 and Final Notification which was issued in

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March 1973. Being aggrieved by the acquisition of the one acre of land in the said survey number, the plaintiffs and their mother Smt. Bylamma filed a Writ Petition before this Court in W.P.No.17396/1983 on the ground that in the said one acre of land there is an Ashrama and there exists three tombs of their ancestors and a temple apart from well and a garden. This Court, after considering the submissions and hearing both the sides allowed the writ petition by its order dated 10-02-1984. They further

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contended that in pursuance to the said order, the Government excluded the suit schedule property from the acquisition proceedings and therefore, the defendant-

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KIADB has no right, title or interest in the said property. It was contended that the officials of the defendant tried to interfere in the plaintiffs' peaceful possession and enjoyment of the suit schedule property and they attempted to remove the stone slabs and barbed wire fencing and the plaintiffs resisted the act of the defendant's officials and they were constrained to file the suit seeking permanent injunction against the defendantKIADB. Inter alia , they also contended that when there was an interference by the defendant-KIADB, the plaintiffs

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had approached the Tahasildar for fixation of the boundaries and the Tahasildar has passed an order to that effect. But it went in vain.

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On being issued with the summons, the defendant -KIADB appeared before the trial Court through its counsel. Initially, the defendant-KIADB had not filed any written statement and the suit came to be decreed by a judgment dated 9-11-2001 and thereafter, the defendant went in appeal in RFA No. 234 of 2002 whereby the appeal

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was allowed on 26.03.2007 and the matter was remanded to the trial Court with a direction to afford opportunity to the defendant to file written statement. Accordingly, the defendant-KIADB has appeared before the trial Court and filed written statement resisting the claim of the plaintiffs.

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The defendant-KIADB contended that the said survey No.46/22 was being acquired by the defendantKIADB and it was admitted that a Writ Petition No.17396/1983 was filed. But however, the boundaries mentioned in the said writ petition was wrong. It was contended that in the writ petition the boundaries were shown as below:

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East : By land formerly belonging to Marichikkamma; West & South: The remaining portion in the same survey number retained by the donors of the petitioner; North: Hosakere Angla

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Therefore, the defendant-KIADB contended that by giving wrong description of the properties the plaintiffs are trying to knock off the property belonging to the

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defendant-KIADB. It has also contended that there was no such interference by the defendant and the suit has been filed with malafide intention and therefore, the suit is liable to be dismissed.

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On the basis of the above pleadings, the following issues were framed by the trial Court:

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1. Whether plaintiffs prove that they are in lawful possession over the suit schedule property as on the date of suit?

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1. Whether the plaintiffs prove the alleged interference of defendant in the suit schedule property?

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1. Whether defendant proves that suit schedule property stood vested with it by virtue of acquisition?

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1. Whether suit is bad for want of notice under Section 80 CPC and Section 45 of KIADB Act?

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1. Whether plaintiffs are entitled for the relief of Permanent injunction against defendant as prayed?

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1. What decree or order?

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Plaintiff No.1 entered the witness box as PW1

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and Exs.P1 to P16 were marked. The official of the

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defendant-KIADB entered the witness box as DW1 and Ex.D1 was marked.

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During the course of the trial, a Court Commissioner was appointed for survey of the suit schedule property and he filed a detailed report before the Court along with a sketch. The report of the Court Commissioner was marked as Exs.C1 to C3 and the Court Commissioner was examined as Court witness as CW1.

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After hearing the arguments by both the sides, the trial Court answered issue Nos.1, 2 and 5 in the affirmative, issue Nos. 3 and 4 in the negative and finally decreed the suit.

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Being aggrieved by the said judgment and decree, the defendant-KIADB has approached this Court in appeal.

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The defendant-KIADB contends that the trial Court failed to take into consideration the boundaries

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mentioned in W.P.No.17396/1983 questioning the

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acquisition notifications and the said property was different than the suit schedule property and as such, the suit of the plaintiffs ought to have been dismissed on this ground alone.

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On issuance of notice by this Court, the plaintiffs/respondents have appeared before this Court through their counsel. The trail Court records have been secured on admitting the appeal.

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Arguments by learned counsel Sri P.V. Chandrashekar, appearing for the appellant-KIADB and the learned counsel Sri Pawan Kumar S for Sri M.N. Madhusudhan, appearing for the plaintiffs/respondents were heard and perused the trial Court records.

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The only point that arises for consideration in

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this appeal is,

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Whether the trial Court erred in appreciating the boundaries of the suit schedule property as

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depicted in the plaint and the writ petition No.17396/1983?

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My finding on the above point is in the negative, for the following;

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Reasons

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The fact that the suit schedule property i.e. survey No.46/22 which earlier consisted of 4 acres of land was subject matter of an acquisition proceedings; and also, the fact that the plaintiffs had approached this Court in W.P.No.17396/1983 and the portion of the property which was occupied by plaintiffs by way of Ashrama, Temple, tombs, well etc., measuring 1 acre was excluded from the acquisition proceedings is not in dispute. The copy of the order passed by this Court in W.P.No.17396/1983 has been produced by the plaintiffs at Ex.P1. In Ex.P1, it is clear that the portion of one acre of

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land which is abutting and which was the subject matter of the acquisition was excluded. Obviously, in pursuance to

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the allowing of the writ petition, the said one acre of land was excluded from the acquisition proceedings and as such, the plaintiffs remained to be in holders in title of the said property. The defendant-KIADB could not have claimed any right or interest in respect of one acre of land which was excluded from the acquisition.

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The perusal of the boundaries in the plaint shows that the said one acre of land is bound by; Maruthi Machine Tools on the east; property of KIADB on the west; Government tank situated in Survey No.65 on the North and a private property site, which was allotted to a beneficiary by KIADB on the South.

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The perusal of the boundaries mentioned in the order of this Court in W.P.No.17396/1983 discloses that, it is bounded by land formerly belonging to Marichikkamma on the East; remaining portion of the same survey number on the West and South and Hosakere angala on the North. It is evident that after acquisition of the land, the

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holders on the sides of the suit schedule property have been changed and the defendants clearly admit that the remaining portion of one acre was excluded from the acquisition.

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In pursuance to an application filed by the plaintiffs, the Court Commissioner was appointed and he has surveyed the same. The report of the Court Commissioner, discloses that he has drawn the sketch and has shown that the one acre of land claimed by the plaintiffs is situated abutting the tank. Under these circumstances, it is evident that the suit schedule property is abutting the tank is not in dispute.

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The trial Court has observed that when the defendant-KIADB admit the fact that one acre of land was excluded from the acquisition proceedings, the defendantKIADB could not have claimed any right, title or interest in the said property. The layout plan produced by the defendant as per Ex.D1 also shows that the one acre of

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land was excluded from the acquisition proceedings and the formation of the Layout by the defendant-KIADB. This being the fact, the defendant could not have interfered with the possession and enjoyment of the property measuring one acre by the plaintiffs.

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It is also to be noted that out of the said one acre of land, a portion measuring 4 guntas was, in fact, encroached by the Forest Department claiming it to be the part of the tank. The trial Court observes this aspect in unequivocal terms and comes to the opinion that the plaintiffs are at liberty to invoke the appropriate provisions of law under the Land Revenue Act to seek appropriate reliefs against the encroachers. Therefore, it is evident that 36 guntas of the land which is in possession and enjoyment of the plaintiffs could not have been interfered with by the defendant-KIADB.

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A perusal of the testimony of the Court

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Commissioner who deposed before the trial Court as CW1

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also discloses that he has measured the property and has come to the conclusion that the plaintiffs are in possession and enjoyment of 36 guntas of land in suit survey number. In the report of the Court Commissioner as well as the document produced by the defendant at Ex.D1 clearly establish that the plaintiffs are in possession and enjoyment of the suit schedule property and this fact having been proved by the plaintiffs, they are entitled for the injunction as prayed for.

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The testimony of DW1 shows that he is ignorant

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about the possession of the land and the demography of suit schedule property. The trial Court has rightly disbelieved the testimony of DW1 saying that he is ignorant of many aspects of the claim made by the plaintiffs. Under these circumstances, this Court comes to the conclusion that the judgment of the trial Court does not suffer from any perversity or arbitrariness. When the documents produced by the defendant-appellant clearly establish that one acre of land was not the subject matter

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of acquisition proceedings, there was no reason for the appellant/defendant-KIADB to claim any right, title or interest in the same or to interfere with the possession and enjoyment of the said portion of the property by the plaintiffs. Thus, there is absolutely, no infirmity in the judgment and decree passed by the trial Court. This Court also comes to the conclusion that the plaintiffs are entitled for the decree as sought for. In the result, the point raised

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above is answered in the negative. Hence, the following:

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ORDER

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The appeal filed by the defendant-KIADB is dismissed

with costs.

Sd/JUDGE

tsn*

List No.: 1 Sl No.: 24

The Karnataka Industrial Areas Development Board v. Smt Damayanthi N

Case brief

What is this about?

What did the court decide?

The Karnataka Industrial Areas Development Board v. Smt Damayanthi N

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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