Dismissed

The Bangalore Development Authority v. Sri H T Prashanth

Karnataka HC28 Nov 2023RFA/286/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal by the Bangalore Development Authority challenging a trial court's decree granting permanent injunction. The High Court held that the trial court was justified in its decision given the uncontradicted evidence of the plaintiffs and the absence of any rebuttal from the appellant who did not contest the suit below.

What did the court decide?

The appeal was dismissed, upholding the trial court's decree granting permanent injunction in favor of the plaintiffs.

The Bangalore Development Authority Vs Sri H T Prashanth — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:42854 RFA No. 286 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^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. 286 OF 2017 (INJ)

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BETWEEN:

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THE BANGALORE DEVELOPMENT AUTHORITY, REP. BY ITS COMMISSIONER, KUMARA PARK (WEST) T. CHOWDAIAH ROAD, BENGALURU - 560 020.

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…APPELLANT

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

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AND:

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SRI. H.T. PRASHANTH, S/O. LATE THORIAPPA, AGED ABOUT 39 YEARS. R/O. NO. 89,1^ST FLOOR, 5^TH 'B' MAIN ROAD, VIJAYANAGAR 2^ND STAGE, BENGALURU - 560 141.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT. NANDINI S.N., W/O SRI. H.T. PRASHANTH, AGED ABOUT 31 YEARS, R R/O. NO. 89, 1^ST FLOOR, 5^TH 'B' MAIN ROAD, VIJAYANAGAR 2^ND STAGE, BENGALURU - 560 141.

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THE KARNATAKA STATE 'D' GROUP, EMPLOYEES CENTRAL ASSOCIATION, REP. BY ITS PRESIDENT, MULTISTORIED BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001.

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THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. SQUARE, BENGALURU - 560 002. …RESPONDENTS (BY SRI. R. BALAJI, ADVOCATE FOR R1 AND R2; SRI. S.N. PRASHANTH, ADVOCATE FOR R4; R3 - SERVED)

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NC: 2023:KHC:42854 RFA No. 286 of 2017

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THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.07.2016 PASSED IN O.S.NO.3787/2014 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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This appeal by 2^nd defendant-BDA in O.S.No.3787/2014 on the file of the XL Addl.City Civil and Sessions Judge, Bangalore, is directed against the impugned judgment and decree dated 30.07.2016, whereby the said suit filed by respondents 1 and 2 – plaintiffs for permanent injunction and other reliefs against the appellant – 2^nd defendant and respondents 3 and 4 – defendants 1 and 3 in relation to the suit schedule immovable property was decreed by the trial court in favour of the plaintiffs.

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Heard learned counsel for the parties and perused the material on record.

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The material on record indicates that the respondents 1 and 2 – plaintiffs instituted the aforesaid suit for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property and for other reliefs. While the appellant –BDA was arrayed as 2^nd defendant in the suit, the 3^rd respondent – Association was arrayed as 1^st defendant in the suit, in

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NC: 2023:KHC:42854 RFA No. 286 of 2017

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which the 4^th respondent – BBMP was the 3^rd defendant. The 1^st defendant and 3^rd defendant filed their written statement and contested the suit, whereas the appellant – 2^nd defendant / BDA entered appearance but did not contest the suit.

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Pursuant to the pleadings of the parties, the trial court framed the following issues:-

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“ 1. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property?

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2. Whether the plaintiffs further prove the alleged interference of the defendants?

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3. Whether the plaintiffs are entitled for the relief sought for?

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4. What Order or Decree?’’.

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On behalf of the plaintiffs, the plaintiff No.1 was examined as PW-1 and Exs.P1 to P51 were marked on his behalf. PW-1 was crossexamined by the 3^rd defendant, while appellant – 2^nd defendant and 1^st defendant did not cross-examine PW-1. So also, none of the defendants including appellant – 2^nd defendant adduced any oral or documentary evidence. The trial court after hearing the parties, proceeded to pass the impugned judgment and decree in favour of the plaintiffs against the defendants, aggrieved by which, the appellant – 2^nd defendant - BDA is before this Court by way of the present appeal.

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NC: 2023:KHC:42854 RFA No. 286 of 2017

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The only point that arises for consideration in the present appeal is, as to whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal at the instance of appellant – 2^nd defendant who had not filed its written statement, not cross-examined PW-1 nor adduced any oral or documentary evidence. In this context, it is relevant to state that even in the present appeal, the appellant – 2^nd defendant has not chosen to either file its written statement or produce any oral or documentary evidence by way of additional evidence despite having not contested the suit before the trial court. Further, the defendants 1 and 3 who had filed the written statement have not preferred any appeal and have accepted the impugned judgment and decree passed by the trial court.

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A perusal of the impugned judgment and decree will indicate that the trial court has taken into account the unimpeached, uncontroverted and unchallenged pleadings and evidence of the plaintiffs which had not been opposed or contested by the appellant – BDA and has recorded a categorical finding of fact that the plaintiffs were in lawful and peaceful possession and enjoyment of the suit schedule property and consequently, none of the defendants including the appellant – BDA were entitled to interfere with the plaintiffs possession and enjoyment over the suit schedule property without following due process of law. The said finding recorded by the trial court is in complete

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conformity with the material on record and in the absence of any rebuttal pleadings and evidence by the appellant either before the trial court or before this Court, I am of the considered opinion that the trial court was fully justified in decreeing the suit in favour of the plaintiffs against all the defendants including the appellant – 2^nd defendant / BDA especially when the contesting defendants 1 and 3 had accepted the impugned judgment and decree which had attained finality and become conclusive and binding upon them. While arriving at the said conclusion, the trial court held as under:-

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“ 10. ISSUE Nos.1 & 2: As these Issues are connected to each other, I have taken both together for discussion for the sake of convenience and to avoid repetition.

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The plaintiffs contended that they are in peaceful possession and enjoyment of the suit schedule property having purchased through Sale Deed dated 07.12.2011and the defendants are illegally interfering with their possession and enjoyment of the same, etc. The defendant No.3 in the written statement denied the title of the plaintiffs over the schedule property and they starting construction as per the sanctioned plan, etc.

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In support of the case, the 1^st plaintiff himself examined as PW.1, who in his affidavit evidence stated regarding ownership and possession of the 1^st defendant over 66-acres14-guntas o f land in various survey numbers situated at Sri Gandhadakaval Village, acquisition of the same for the benefit of its members, formation of layout, approval of the same by the 2^nd defendant, 1^st defendant

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allotting site No.678 to its member Smt.Anuradha, handing over possession vide Possession Certificate bearing No.2744 in her favour, based on NOC issued by the 1^st defendant, she alienating the said site in favour of Smt.H.G.Shivamma on 21.07.2006, thereafter, the said Shivamma alienating the said site in favour of one Sri.Akash A. Suvarna and Smt.Ashwini A. Suvarana vide Sale Deed dated 19.03.2010, thereafter, they alienatingthe said site in favour of plaintiffs vide Sale Deed dated 07.12.2011, the defendant No.3issuing Khata, they paying taxes, after the purchase applying with defendant No.3 for approval of the building plan, approval of the same, applying for temporary power connection with BESCOM, making arrangements for putting up construction, neighborhood, informing about the area allocating for formation of park, realizing the ambiguity, approaching the 1^st defendant for clarification and confirmation, issuance of Legal Notice to the defendants No.1 and 2, no reply from them, the defendants colluding with each other trying to encroach the suit schedule property and fencing the entire area including the schedule property illegally, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.51.

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11.The plaintiffs have produced certified copy of Sale Deed dated 16.06.2003 at Ex.P.20, attested true copy of Possession Certificate dated 10.04.2003 at Ex.p.47, attested true copy of Khata Certificate dated 15.02.2010 at Ex.P.48, attested true copy of No Objections Certificate dated 05.07.2003 at Ex.P.49 and these documents support the contention of the plaintiffs regarding 1^st defendant executing the Sale Deed in favour of Smt. Anuradha, issuance of

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NC: 2023:KHC:42854 RFA No. 286 of 2017

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Possession Certificate, Khata Certificate, No Objections Certificate in her favour, etc. The plaintiffs have produced 2 Receipts at Ex.P.22 and 23, Property Extract at Ex.P.24, Certificate at Ex.P.25 and these documents also support their contention regarding Khata of the schedule property was standing in the name of said Smt.Anuradha and she was paying tax.

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The plaintiffs have produced Certified copy of Sale Deed dated 21.07.2006 at Ex.P.29 wherein the said Smt.Anuradha had executed a Sale Deed in respect of the schedule property in favour of Smt.H.G.Shivamnma. The plaintiffs have produced Certified copy of Sale Deed dated 19.03.2010 at Ex.P.30 wherein the said Shivamma had executed the Sale Deed in respect of the schedule property in favour of Sri.Akash A. Suvarna and Smt.Ashwini A. Suvarna.

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The plaintiffs have produced certified copy of Sale Deed dated 07.12.2011 at Ex.P.2 wherein Sri.Akash A. Suvarna and Smt.Ashwini A. Suvarna have executed the Sale Deedin respect of schedule property in their favour. The plaintiffs have produced Certificate at Ex.P.13 wherein Khata of the schedule property is standing in their names. The plaintiffs have produced Property Extract at Ex.P.14 and Tax Paid Receipt at Ex.P.17 and these documents support the contention that suit property is standing in their name and paying taxes. The plaintiffs have produced sanctioned plan at Ex.P.18, which also supports their contention that they have obtained sanctioned plan from the 3^rd defendant. These documents show the plaintiffs’ possession over the suit schedule property.

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NC: 2023:KHC:42854 RFA No. 286 of 2017

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The plaintiffs have produced Layout Plan at Ex.P.19, wherein in Note column, last number of Layout site is mentioned as 1542 and the defendant No.2 neither filed written statement nor adduced evidence stating why the sites mentioned in Note column are not formed in the layout. Though PW.1 in his cross-examination admitted that as per Ex.P.19, the schedule property is shown as park that itself is not sufficient to believe that the plaintiffs are not in possession of the schedule property. The defendant No.1 Association in the written statement also contended regarding its application pending for reconsideration before the BDA and it’s effort for releasing of sites, which have been earmarked as civic sites and park sites, etc. On the other hand, the defendants have not adduced rebuttal evidence to disbelieve the case of the plaintiffs. From the evidence of plaintiff / PW.1 and above referred documentary evidence go to show that the plaintiffs are in peaceful possession and enjoyment of the suit schedule property and the defendants have interfered with their possession by trying to encroach upon the same and putting fence. The defendants No.2 and 3 being statutory authorities cannot interfere or dispossess the plaintiffs from the schedule property without due process of law. Hence, the plaintiffs have proved that they are in peaceful possession and enjoyment of the suit schedule property and interference by the defendants and accordingly, I answered Issue Nos.1 and 2 in the affirmative.

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12. ISSUE NO.3: The plaintiffs have filed this suit against the defendants for Permanent Injunction restraining the defendants, their representatives, agents, etc., or any one claiming under them from interfering with their peaceful

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possession and enjoyment of the suit schedule property etc. The plaintiffs having proved their peaceful possession and enjoyment of the suit schedule property and interference of the defendants, are entitled for the relief of permanent injunction. Hence, the plaintiffs are entitled for the relief sought for, accordingly, I answered Issue No.3 in the affirmative.”

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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 was fully justified in upholding the claim of the plaintiffs and the impugned judgment and decree passed by the trial court cannot be said to be suffer from any illegality or infirmity warranting interference by this Court in the present appeal.

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In view of the aforesaid discussion, I do not find any merit in the appeal and the same is hereby dismissed.

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CH/SRL

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Sd/JUDGE

The Bangalore Development Authority v. Sri H T Prashanth

Case brief

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The Bangalore Development Authority v. Sri H T Prashanth

Case brief

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