Allowed

M/S Nti Employees House Building Co. - Operative Society v. Sri.S. Narayanaswamy

Karnataka HC18 Jan 2024CRP/721/2023

Case brief

AI extract

What is this about?

Defendant sought rejection of a plaint filed by plaintiffs in settled possession of acquired land seeking perpetual injunction against dispossession. The High Court held the suit was not maintainable since acquisition had attained finality and title vested elsewhere, allowed the revision, set aside the trial court's order rejecting the Order VII Rule 11 application, and ordered the plaint rejected

What did the court decide?

Trial court order set aside; application under Order VII Rule 11 r/w Section 151 CPC allowed; plaint ordered rejected; defendant to give up 3704.40 sq.ft. with house, compensation adjusted towards cos

M/S Nti Employees House Building Co. - Operative Society… — Land Acquisition | Karnataka HC (2024)

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1 - NC: 2024:KHC:2415 CRP No. 721 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.721/2023 (IO)

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BETWEEN:

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M/S. NTI EMPLOYEES HOUSE BUILDING CO - OPERATIVE SOCIETY, NOW CALLED NTI HOUSING COOPERATIVE SOCIETY LTD., (NATIONAL TECHNOLOGICAL INSTITUTIONS HOUSING CO - OPEARATIVE SOCIETY LTD.,) G-5, PALACE ORCHARDS, APARTMENT NO.51, 9^TH MAIN, 6^TH CROSS, RMV EXTENSION, BENGALURU – 560 090, PRESENTLY AT NO.84, I FLOOR, ‘SUN SMILE’ SERPENTINE ROAD, KUMARA PARK WEST, BENGALURU – 560 020 BY ITS SECRETARY - CHIEF EXECUTIVE, PRATAPACHAND RATHOD S/O. LATE PEERAPA, AGED ABOUT 55 YEARS, RESIDENT OF BANGALORE.

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…PETITIONER

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Digitally signed by SUMA Location: High Court of Karnataka

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(BY SRI JAYAPRAKASH R. V., ADVOCATE)

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AND:

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SRI S. NARAYANASWAMY S/O. SRI SRINIVASAIAH, AGED ABOUT 56 YEARS, R/O NO.9, SRI CHOWDESHWARI MAHAL, ”D” ASHWATHAPPA LAYOUT, SAHAKARANAGAR, KODIGEHALLI, BENGALURU – 560 092.

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SRI A. SRINIVASAIAH S/O. ASHWATHAPPA, AGED ABOUT 73 YEARS, R/O NO.9, SRI CHOWDESHWARI MAHAL,

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”D” ASHWATHAPPA LAYOUT, SAHAKARANAGAR, KODIGEHALLI, BENGALURU-560092.

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SMT. AMMAYAMMA W/O SRINIVASAIAH, AGED ABOUT 71 YEARS, R/O NO. 9, SRI CHOWDESHWARI MAHAL, D ASHWATHAPPA LAYOUT SAHAKARANAGAR, KODIGEHALLI, BENGALURU-560092.

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SRI HARISH S. S/O SRINIVASIAH, AGED ABOUT 51 YEARS, R/O NO. 9, SRI CHOWDESHWARI MAHAL, ”D” ASHWATHAPPA LAYOUT SAHAKARANAGAR, KODIGEHALLI, BENGALURU – 560 092.

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…RESPONDENTS

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(BY SRI VARUN GOWDA, ADVOCATE FOR C/R1 TO R4)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 05.09.2023 PASSED ON I.A.NO.5 IN O.S.NO.1372/2022 ON THE FILE OF THE 39^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE REJECTING THE I.A.NO.V FILED UNDER ORDER VII RULE 11 OF R/W SEC. 151 OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE

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COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed by the defendant in O.S.No.1372/2022 challenging an order dated 05.09.2023 passed by the XXXIX Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as ‘Trial Court’), rejecting an application filed by it under Order VII Rule 11 read with Section 151 of CPC.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner was the defendant and the respondents were the plaintiffs.

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The suit in O.S.No.1372/2022 was filed for the following reliefs:-

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(a) Permanent injunction, restraining the Defendant, its officials or officers or anybody claiming through or under it from interfering in any manner with the plaintiffs peaceful possession and enjoyment of the suit schedule property and also restraining them from demolishing the structures erected and felling standing trees in the suit schedule property, without due process of law;

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(b) Such other relief or reliefs that this Hon’ble Court deems fit in the circumstances of the case and decree the suit with costs in the interests of justice and equity.

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The plaintiffs claimed that they were the owners of

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the land bearing Sy.No.4/4B situate at Kodigehalli Village, Bengaluru North Taluk, they having succeeded to it from their grandfather. The plaintiffs claimed that they were in settled possession of the suit schedule property, which were evidence by the revenue records. The plaintiffs claimed that the suit property and other properties lying in the vicinity, were notified for acquisition for the benefit of the defendant, which was challenged in W.P.Nos.15607-611/2008 before this Court, but was dismissed on the ground of delay and laches. The appeals filed thereagainst in W.A.Nos.16566-570/2011 also were dismissed. They claimed that a Court Commissioner was appointed by this Court in writ appeals and the said Court Commissioner had furnished his report dated 06.04.2017 along with photographs, where it was pointed out that no layout was formed in the suit schedule property, but several buildings were constructed. The plaintiffs claimed that the Special Leave

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Petition filed against the judgment in writ appeals was also dismissed. A review petition filed in F.R.No.468/2021 is stated to be pending before this Court. The plaintiffs claimed that they were in settled possession of the suit schedule property and therefore, were entitled to protect their possession against forcible dispossession by the defendant. They claimed that the defendant had caused a notice dated 21.11.2012 wherein, it claimed that the acquisition of the land mentioned in the notification had reached finality and physical possession stood vested in the State Government which was handed over to the defendant. They contended that the notification under Section 16(2) did not include the suit schedule property. They claimed that even if they were treated as unauthorized occupants in possession, they were entitled to continue in possession until they were evicted in the manner known to law. They claimed that on 07.02.2022, some henchmen of the defendant forcibly entered into the suit schedule property and began demolishing the compound and pulling down the standing coconut trees. However, the crowd which had gathered at the spot prevented the dispossession of the plaintiffs but the defendant threatened to renew its attempt to dispossess the plaintiffs. Hence, the

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plaintiffs sought for perpetual injunction restraining the defendant from disturbing their peaceful possession and also from demolishing the structures erected thereon.

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The defendant contested the suit by filing the written statement. It also filed an application under Order VII Rule 11 read with Section 151 of CPC claiming that the plaintiffs had lost their right, title and interest over the suit schedule property in view of the acquisition being upheld by the Hon’ble Supreme Court and therefore, the plaintiffs cannot sue for perpetual injunction and that the suit is not maintainable as the plaintiffs have no subsisting locus standi. It also contended that the power of the Civil Court under Section 9 of CPC is excluded and that the Civil Court had no jurisdiction to entertain the suit. It relied upon the judgment of the Hon’ble Supreme Court in the case of Commissioner, Bangalore

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Development Authority and another vs. Brijesh Reddy and another [(2013) 3 SCC 66] .

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This application was contested by the plaintiffs, who

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claimed that though the acquisition of the suit schedule property was upheld, the plaintiffs continued to be in

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possession and enjoyment of the suit schedule property and therefore, the defendant cannot take law into its hands by dispossessing the plaintiffs. They contended that the notice dated 21.11.2012 issued by the defendant contained the details of the survey numbers in respect of which acquisition proceedings had reached finality and physical possession was taken by the State Government and handed over to the defendant, but that notice did not include the suit schedule property. Therefore, they contended that the defendant cannot dispossess or attempt to dispossess the plaintiffs from the suit schedule property.

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The Trial Court after considering the contentions urged by the defendant as well as the plaintiffs, rejected the application in terms of the impugned order on the following grounds:-

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(i) that the issues in the suit were framed and the trial had commenced and the plaintiffs had examined plaintiff No.4 as PW.1 and had marked Exs.P1 to P13 and the case was posted for further chief examination of PW.1. At that stage, the application was filed for rejection of the plaint. It

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relied upon the judgment of the Hon’ble Supreme Court in the case of R.K.Roja vs. U.S. Raidu and another [(2016) 14 SCC 275] and held

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that when a case was posted for further examination in chief of PW.1, an application for rejection of the plaint cannot be entertained at that stage.

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(ii) That there was no explanation as to why the application was not filed at the earliest point in time before filing the written statement or framing of issues and before commencement of recording of evidence.

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(iii) That the application is filed to delay the disposal of the suit on merits.

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Being aggrieved by the said order, the defendant has filed this revision petition.

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The learned counsel for the defendant contended

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that the Trial Court committed an error in rejecting the application on the ground that the application was filed belatedly that too, after examination-in-chief of PW.1 had

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commenced. He contended that the application for rejection of the plaint may be filed any time after the suit was filed, before the judgment was pronounced. Therefore, he contended that the Trial Court committed an error in rejecting the application on this flimsy ground. In this regard, he relied upon the judgment of the Hon’ble Apex Court in the case of R.K. Roja, supra, and Saleem Bhai and others vs. State of Maharashtra and others [(2003) 1 SCC 557] and contended that the application to reject the plaint could be filed at any stage of proceedings. He also sought support from the judgment of the Hon’ble Supreme Court in the case of Samar Singh vs. Kedar Nath @ K.N. Singh and others [1987 (Supp) SCC 663] and Azhar Hussain vs. Rajiv Gandhi [1986 (Supp) SCC 315]. He contended that the averments in the plaint, even if it is taken at its face value, the fact that the plaintiffs had lost challenge to the acquisition, was apparent and therefore, the plaintiffs could not have filed a suit for perpetual injunction in respect of very same acquired land. He referred to the judgment in the case of Commissioner, Bangalore Development Authority and Another Vs. Brijesh Reddy and Another [2013 3 SCC 66] . He also

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contended that the plaint is cleverly drafted to create an illusory cause of action and that this court has to pierce cloak to find out whether the cause of action mentioned in the suit was

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genuine or was an attempt to deprive the defendant of the benefit of the land acquired by the state government. In this regard, he relied upon the judgment of the Hon’ble Supreme Court in the case of Commissioner, Bangalore Development Authority and another , supra. He also referred to the judgment of the Coordinate Bench of this Court in G.V. Reddy vs. Ministry of Communication Employees

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Co-operative Housing Society Ltd., Bangalore [AIR 2019 KAR 205] and contended that when once the land owner had lost the challenge to the acquisition, even a suit for the relief of injunction was not maintainable.

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Per contra, the learned counsel for the plaintiffs submitted that the possession of the property was not recovered by the State Government and handed over to the defendant and the same is evident from the fact that the plaintiffs are in possession of the portion of the suit property, where they have constructed a house and also some cow sheds and several shops. He contends that it is for the defendant to

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file appropriate proceedings to recover the possession of the suit property. He submitted that the instant suit is for perpetual injunction and therefore, cannot be rejected on the ground that the plaintiffs have lost the challenge to the acquisition. He relied upon the judgment of the Hon’ble Supreme Court in the

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case of Rame Gowda (Dead) by Lrs. Vs. M. Varadappa Naidu (Dead) by Lrs. And another [(2004) 1 SCC 769].

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I have considered the submissions made by the learned counsel for the defendant and the learned counsel for the plaintiffs.

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The plaintiffs claimed that they were the owners of the suit property and that the land was acquired by the State Government for the purpose of the defendant and also that such acquisition was challenged unsuccessfully before this Court as well as the Hon’ble Supreme Court. Therefore, the plaintiffs have lost their title to the suit schedule property. The question therefore which arises for consideration is whether the land has vested in the defendant. The plaintiffs have claimed that the defendant had published a notice dated 21.11.2012, where the defendant had set out in detail the particulars of the land, whose acquisition had attained finality and whose

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possession was recovered by the State Government and handed over to the defendant. The plaintiffs specifically contended that the suit property was not one of those, which

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were mentioned in the notice dated 21.11.2012. Therefore, they contend that they continued to be in possession of the suit schedule property and hence, they were entitled to protect their possession against forcible dispossession. The reliance placed by the learned counsel for the defendant in the case of

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Commissioner, Bangalore Development Authority and

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another , supra, was a case where some persons had purchased an acquired land from the landlooser and when development authority interfered with their possession, they filed a petition under Article 226 of the Constitution of India, which was subsequently withdrawn seeking liberty to file a fresh suit and a suit was thereafter filed, but was dismissed as not maintainable. An appeal was filed in RFA No.947/2003. which was allowed and the case was remitted back to the Trial

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Court and it was directed to dispose off the case after permitting the plaintiffs to adduce evidence on merits. It was this order of remand, which was challenged before the Hon’ble

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Supreme Court. The Hon’ble Supreme Court while disposing off the said proceedings held,

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“The only point for consideration in this appeal is: whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial court without examining the question with regard to the maintainability of the suit?”

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The Hon’ble Supreme Court after considering its

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earlier judgments in State of Bihar vs. Dhirendra Kumar [(1995) 4 SCC 229], Laxmi Chand vs. Gram Panchayat, Kararia [(1996) 7 SCC 218] and Bangalore Development

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Authority vs. K.S. Narayan [(2006) 8 SCC 336], held,

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“The Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil Court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution.”

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14. Therefore, it held that,

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“It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with selfimposed restrictions on their exercise of extraordinary power.”

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15. The Hon’ble Supreme Court also noticed that

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“It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action, etc., the said suit is not maintainable.”

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16. It further held,

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“In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial court for fresh disposal.”

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Consequently, the Hon’ble Supreme Court set aside

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the judgment and decree of the High Court and restored the judgment and decree passed by the Trial Court.

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In the case on hand too, the plaintiffs have

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admitted that the acquisition of the suit schedule property had attained finality. Therefore, they could not have filed a suit for perpetual injunction restraining the defendant from interfering with their possession, as that would virtually come in the way of process of acquisition. Since the acquisition had attained finality, the plaintiffs do not have any subsisting right, title or interest in the suit property and therefore, they do not have any right to continue to claim that they are in possession of the

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suit schedule property and consequently, their suit for perpetual injunction was not maintainable. The Trial Court instead of considering the case from this perspective, committed an error in rejecting the application on the ground that it was filed at belated stage i.e., at the stage when the case was listed for further examination of PW.1. As rightly contended by the learned counsel for the defendant, the application to reject the plaint could be filed at any stage of the suit and the reason of the Trial Court is unacceptable and therefore, deserves to be set aside.

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Consequently, this petition is allowed . The order dated 05.09.2023 passed by the XXXIX Additional City Civil and Sessions Judge, Bengaluru in O.S.No.1372/2022 is set aside. The application filed by the defendant under Order VII Rule 11 read with Section 151 of CPC seeking rejection of the plaint is allowed. The suit filed by the plaintiffs in O.S.No.1372/2022 pending trial before the XXXIX Additional City Civil and Sessions Judge, Bengaluru is ordered to be rejected.

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At this stage, the learned counsel for the defendant submitted that as has been the practice followed by the

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defendant, it has no objection to give up 3704.40 sq.ft. of the suit property, where the plaintiffs have constructed their residential house. In view of this undertaking, the defendant shall take immediate steps for giving up aforesaid extent of land in favour of the plaintiffs by executing appropriate deeds of transfer at the cost of the plaintiffs. It is made clear that the compensation amount that is determined in respect of the acquisition of the suit schedule property shall be adjusted by the defendant towards the cost of 3704.40 sq.ft. of land that would be given up in favour of the plaintiffs.

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Sd/JUDGE

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PMR List No.: 19 Sl No.: 4 CT-ASC

M/S Nti Employees House Building Co. - Operative Society v. Sri.S. Narayanaswamy

Case brief

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M/S Nti Employees House Building Co. - Operative Society v. Sri.S. Narayanaswamy

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