Dismissed

Thimmarasappa v. the Commissioner

Karnataka HC14 Aug 2024MFA/145/2024

Case brief

AI extract

What is this about?

In this miscellaneous first appeal against the trial court's rejection of an interim injunction, the High Court held that the appellant is not entitled to an injunction to obstruct development. Relying on a final Division Bench order, the Court noted the appellant is only entitled to compensation if ownership is declared later, making interim protection against interference unnecessary and contrar

What did the court decide?

The appeal filed against the rejection of Interlocutory Application No.3 seeking injunction is dismissed. Interlocutory Applications in this appeal stand closed.

Thimmarasappa Vs the Commissioner — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:33410 MFA No. 145 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 145 OF 2024 (CPC)

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BETWEEN:

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THIMMARASAPPA S/O LATE VENKATAPPA AGED ABOUT 84 YEARS R/O DASEGOWDANAPALYA SOMAPURA DAKHLE VIDHYAPEETA POST, KENGERI HOBLI, BENGALURU SOUTH TALUKA BENGALURU - 60

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…APPELLANT

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

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AND:

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THE COMMISSIONER

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMAR PARK WEST BANGALORE - 20

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DR.MAHESH GUNDAPPA S/O LATE H.S. GUNDAPPA AGED ABOUT 61 YEARS, R/O NO.1-127, WESTONGATE WAY CARY, NC 27513, U S A REP. BY HIS GPA HOLDER, C.SHASIDHARA S/O K.CHANDRASHEKAR AGED ABOUT 61 YEARS R/O NO.23/1, K.R.SINDHA ROAD V V PURAM BENGALURU - 560 004

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SMT.SUMA UNAKAL W/O ASHOK AGED ABOUT 50 YEARS, R/O NO.293, MAHU NIVAS, 12^TH MAIN, B S K 1^ST STAGE, 2^ND BLOCK BENGALURU - 560 060

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…RESPONDENTS

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(BY SRI. GOPI G.A., ADVOCATE FOR R1 SRI.M.SHIVAPRAKASH, ADVOCATE FOR R2 R3- SERVED AND UNREPRESENTED)

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THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED: 06.12.2023 PASSED ON I.A. NO. 3 IN O.S.NO.315/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, REJECTING I.A. NO.3 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the order passed in I.A.No.3 in O.S.No.315/2020 dated 06.12.2023 by the I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, the appellant - plaintiff is before this Court.

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Initially, the plaintiff has filed the suit for injunction and thereafter, he sought for relief of declaration that he is the sole and absolute owner of 1 acre 15 ½ guntas of land and that

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the plaintiff is entitled for possession from the second defendant who have illegally formed the layout and showing it in their custody contrary to the previous survey and the reports. According to the plaintiff, the land measuring 5 acre 7 guntas together with 0-20 guntas of kharab comprised in Sy.No.18/1 of Sompura Village, Kengere Hobli, Bangalore South taluk jointly belonged to one Mr.Venkatappa. Out of the said extent, Mr.Venkatappa was the owner to an extent of 2 acres 23 ½ guntas. Out of the said extent the remaining same extent belonged to Mr.Mohammed Ibrahim Sheriff. The RTC

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and Mutation entries were standing in the names of Mr.Venkatappa and Mr.Mohammed Ibrahim Sheriff. But both of them have been cultivating their respective lands independently and exclusively. Out of the extent owned by Mr.Mohammed Ibrahim Sheriff, 1 acre 20 guntas of land has been sold to one Mr.Hanumaiah by virtue of a registered sale deed and he was put in physical possession of the extend of land sold to him. Further, Mr.Venkatappa who is the father of the plaintiff had purchased an extent of 30 guntas of land from Mr.Hanumaiah by virtue of a registered sale deed dated 06.10.1951, which was registered before the Sub-Registrar, Bangalore taluk. In

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the remaining land retained by Mr.Mohammed Ibrahim Sheriff, had sold and extent of 1 acre 3 ½ guntas by way of sale deed dated 18.06.1956. After the death of Mr.Narasimhaiah, his grandchildren namely Mr.Chikkanna, Mr.Ramakrishna and Mr.Kariyappa have divided the estate of their grandfather by way of partition dated 03.07.1992. In the partition, the property purchased by Mr. Narasimhaiah has been shown as 34x18 feet and on the basis of the said partition under MR.No.7/92-93 the mutation came to be made over in the name of Mr.Chikkanna and others. Mr.Narayanappa, the grandfather of the plaintiff inherited 2 acres 23 ½ guntas from his ancestor in Sy.No.18/1 of Sompura Village and the remaining 2 acres 23 ½ guntas in the same survey number was standing in the name of Mohammad Ibrahim Sheriff, who had sold 1 acre 20 guntas out of 2 acres 23 ½ guntas to Mr.Hanumaiah and the remaining 1 acre 2 ½ guntas of land, an extent of 34x18 feet had been conveyed to Mr.Narasimhaiah and the remaining extent had been sold by Mr.Mohammed Ibrahim Sheriff to Mr.Venkatappa, who is the father of the plaintiff. Out of the extent of 4 acres 16 guntas, an extent of 2 acres 20 guntas came to be donated by Mr.Venkatappa to his

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daughter Kabbalamma by way of a registered gift deed thereby retaining 1 acre 36 guntas. After the death of Mr.Narayanappa, his only son Mr.Venkatappa became the owner to the estate of his deceased father to an extent of 1 acre 36 guntas of land together with kharab of 20 guntas. As such, the plaintiff's father Mr.Venkatappa has been in physical possession of 2 acres 16 guntas of land which includes a kharab of 20 guntas. After the death of his father, the plaintiff had become the absolute owner of the property and the revenue entries also reflect his name.

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The defendant-BDA has notified the entire Sy.No.18/1 of Sompura Village, measuring an extent of 5 acre 27 guntas including the kharab in the said notification dated 20.11.2001. On request by the plaintiff, it was intimated that an extent of 1 acre 10 guntas of land has been notified and the compensation has been awarded to him. On 14.01.2003, the BDA has issued a Supplementary Note showing the details of the lands acquired and the payment of amount to the plaintiff as well as to the other adjoining owners. It is the case of the plaintiff that the BDA has acquired an extent of 1 acre 10 guntas of land out of the extent of 2 acres 16 guntas for the formation of BSK VI

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stage. Contrary to the acquisition and payment of compensation, the BDA has drawn a consolidate layout plan of BSK VI stage by giving individual site numbers so formed on the said land. The plaintiff had found that the BDA has included the remaining land for the formation of the layout without paying the compensation to the plaintiff. Then the plaintiff has resisted the formation of the layout and requested the BDA to conduct the survey and to separate the land retained by the plaintiff from the layout. It is the case of the plaintiff that the remaining part of the land was not acquired by the BDA and there cannot be a layout and they cannot take the property which is in possession of the plaintiff, which is an extent of 1 acre 13 guntas.

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The plaintiff filed writ petition before this Court i.e., W.P.No.24371/2012 and W.P.Nos.24901-24904/2012

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which came to be disposed off by order dated 30.07.2012 . Aggrieved by the said order, the BDA had filed an appeal before the Division Bench of this Court and the Division Bench by order dated 27.02.2013 had observed that the learned counsel for the parties have fairly stated that the Court need not record

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any reasons for disposing of these appeals and they have agreed for the following order:

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i)"Appellant–BDA shall have a joint survey to be conducted by the jurisdictional Deputy Director of Land Records of the lands acquired by them bearing Sy.No.18/1, measuring 5 acres 07.5 guntas, situated at Sompura Village, Kengeri Hobli, Bangalore South Taluk, in the presence of respondent and the other land owners, viz., Shivanna S/o Sangappa, Mariyappa S/o Hanumaiah and/or their legal representatives. The exercise of measuring the lands to be completed within a period of 12 weeks from the date of request for measurement from BDA. Respondent to furnish a copy of this order to the concerned Authority within two weeks from today. The concerned Authority, after measuring the lands shall furnish copies of the report to all the land owners.

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ii) If there is any dispute about ownership of the land or the extent of land that was acquired from their possession, the same will have to be considered and adjudicated in the appropriate proceedings taken out by the aggrieved party.

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iii) In any case, after adjudication of the rights of the appellant, he shall be entitled for compensation, in respect of the undisputed portion of the land out of Sy.No.18/1.

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iv) After measurement/survey, if any dispute is raised by the appellant, the compensation in respect of the disputed portion of the lands is directed to be

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invested in a fixed deposit, subject to outcome of the dispute/suit, if instituted by him or the aggrieved party within a period of three months from the date of report of the surveyor.

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v) The jurisdictional Deputy Director of Land Records is directed to complete the work of measurement of the land within the time stipulated, provided the appellant–BDA makes such request within a period of four weeks from today.

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vi) The respondent shall not have any right to obstruct development of the sites by the allottees.

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vii) The directions issued by this order shall not prevent the Authorities and/or the Court from proceeding with the hearing of pending matter/s, if any, between the parties on merits."

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The Division Bench of this Court had directed the

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defendant - BDA to conduct a joint survey with the Deputy Director of Land Records within a particular period. When the Division Bench order was not complied with by the respondent therein, the contempt petition No.913/2013 was filed. After receipt of notice, Defendant - BDA, in accordance with the order of the Division Bench has conducted the joint survey and submitted the report dated 20.04.2015 and the sketch to the Court and the contempt proceedings came to be disposed off. It is the case of the plaintiff that for the first time, the BDA had

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admitted the possession of the land in Sy.No.18/1 of Sompura Village. The remaining extend has not been confirmed to be in possession. An extent of 30 guntas of land purchased in the sale deed has also been ignored by the BDA and the said area has not been earmarked in the recent joint survey conducted in accordance with the directions of the High Court. It is the case that through the report dated 20.04.2015 made the admission of possession of land of the plaintiff. According to the plaintiff, the cause of action for the suit arose in the year 2001, when the portion of the land is acquired and when the land acquisition supplementary notification came to be issued and after the BDA engineers have conducted the survey. Initially, BDA was the only defendant in the suit. Thereafter, defendant Nos.2 and 3 have filed a petition to implead themselves in the said suit as in the said layout, they have purchased lands from the BDA and the said application came to be allowed. The present I.A. is filed seeking interim injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property.

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The trial court had rejected the application by the defendant. The Court had observed that to show that he is the

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absolute owner of the suit property, the plaintiff had relied on the sale deed dated 17.09.1951, where under an extent of 21 guntas and 31 guntas in Sy.No.18/1 has been acquired by the father of the plaintiff namely Sri.Venkatappa. Further, the plaintiff has produced RTCs of the year 1998-99 to 2005-06 wherein it discloses that the plaintiff as a possessor of land measuring 2 acres 20 guntas of Sy.No.18/1. Then, the Court had discussed in detail about the case of the plaintiff and the contention of the BDA and also the order passed by the Division Bench in Writ Appeal Nos.8006-8010/2012 , wherein the Court has also observed about the particular direction that even in case if the land of the plaintiff is acquired, he is only entitled for compensation and the plaintiff shall not have any right to obstruct the development of the sites allotted by the BDA. The Court observed that when that being the direction, if a injunction as sought by the plaintiff restraining the defendants from interfering with the suit properties is granted, it would cause chaos at the spot. Under such circumstances, the plaintiff has failed to establish prima facie case in his favour and balance of convenience is also not in his favour. Further, if the injunction as sought in the I.A. is

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granted, it would cause a lot more hardship to the allottee than the plaintiff. Accordingly, I.A.No.3 was rejected. Aggrieved thereby, the plaintiff is before this Court.

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Learned counsel appearing for the appellant/plaintiff

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submits that when he is having 2 acres 20 guntas of land and when the defendants has acquired only 1 acre 2 guntas, the remaining land still belongs to the plaintiff and these aspects were not considered by the Court. It is submitted that his possession has been accepted by the BDA and it is the case of the plaintiff that as per the sketch that is filed in the contempt proceedings, it shows that the plaintiff's land is not acquired by the BDA. In such an event, when the plaintiff is in possession of the property, unless and until the injunction is granted, the plaintiff would be put to irreparable loss and inconvenience. These aspects were not at all considered by the Court. When the matter came up before this Court, it is submitted that the plaintiff is in possession of the property. This Court had directed the learned counsel appearing for the BDA to get instructions whether the house of the petitioner is situated within the acquired land. Thereafter, he has come up with a plan showing that the house is situated within the acquired land

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by the BDA. On such report, learned counsel submits that it shows that the appellant is in possession of the property and his possession shall not be interfered.

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Learned counsel for the appellant/plaintiff had relied on the judgment of the Hon'ble Apex Court in the case of Ram Gowda Vs. M.Varadappa Naidu and Another¹ . Relying on the said judgment, learned counsel submits that a settled possession or effective possession of a person even without title is entitled to protect his possession even as against the true owner. A person who is in peaceful possession of the property cannot be interfered. He had also relied on the judgment of the Co-ordinate Bench of this Court in the case of Jayashree Vs. Sudha and Others arising out of W.P.No.100397/2023 . It is submitted that the Courts cannot decline to grant some protection to the person who has succeeded to make out a prima facie case He had relied on another judgment of the Andhra Pradesh High Court in the case of K.Prem Kumar Vs. Andhra Pradesh Eastern Power Distribution Company and Others dated 23.04.2024

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1 AIR 2004 SC 4609

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arising out of W.P.No.15636/2024 , where it is observed that when the person is in possession and enjoyment of the subject land, the respondents are not entitled to interfere with the possession and enjoyment of the same. Such high-handed action of the respondents would amount to depriving the petitioner, violating constitutional right under Article 300A of the Constitution of India, besides violation of Article 14 of the Constitution of India. The learned Judge had relied on the judgment of the Apex Court in case of Ram Gowda referred supra. Learned counsel has relied on another judgment in the case of Maruthi Vs. Govind² and he had relied on para No.9 of the judgment, wherein the learned Judge has observed that a person who is in a peaceful possession and enjoyment of the property is entitled to retain his possession and in order to protect such possession, he may even use reasonable force against the trespasser. A rightful owner, who has been wrongfully dispossessed of the land may retake the possession, if he can do so peacefully and without use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to

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2 LAWS(KAR)-2021-12-66

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take recourse to law. He cannot take the law into his own hands and evict the trespasser or interfere with the possession. Basing on these judgments, learned counsel submits that he is entitled to protect his possession and the trial Court had failed to grant the relief of injunction. It is also submitted that injunction may be granted and in a time bound manner, the trial Court may be directed to dispose off the matter.

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Learned counsel appearing for the respondent No.1 -

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BDA submits that irrespective of whether the appellant is in possession of the property or not, in the plaint itself he has also mentioned about the judgment of the Division Bench wherein the Division Bench has clearly held that he cannot interfere with the developmental activities and he is only entitled for compensation in the event if the competent Court declares that he is the owner of the property. In those circumstances, he is not entitled for any injunction and the trial Court had rightly dismissed the petition filed by the plaintiff seeking injunction. It is submitted that the properties are acquired and in fact they have also allotted the land in favour of the third parties and the third party rights are accrued long back. In such event, granting of injunction in favour of the appellant cannot be

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granted and the trial Court had rightly dismissed the application.

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Learned counsels appearing for the respondent Nos.2 and 3 submit that though they have purchased the properties long back, in view of the disputes, they are not able to make use of the land and it is submitted there are no grounds to interfere with the order passed by the trial Court and this appeal has to be dismissed.

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Having heard the learned counsels on either side, perused the entire material on record. The whole dispute is pertaining to Sy.No.18/1, where the BDA has acquired an extent of 5 acres 27 guntas including 20 guntas of the kharab land. It is the case of the plaintiff that he is having 2 acres 20 guntas and out of that only 1 acre 2 guntas is acquired and compensation is paid and the remaining land is in his possession. The compensation is deposited before the Civil Court. In respect of the remaining extent, they have not paid any compensation nor the land is acquired. In this regard, he had filed a writ petition. Thereafter, a writ appeal is filed and contempt proceedings were also initiated and the BDA had

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conducted a survey. In the writ appeal, the order passed by the Division Bench is already extracted in the preceding paragraph. As per the order, the Court had observed that if there is any dispute about the ownership of the land, the same will have to be considered and adjudicated in the appropriate proceedings taken out by the aggrieved party. In any case, after adjudication of the rights of the appellant, he shall be entitled for compensation in respect of the undisputed possession of the land. The other important point is that the plaintiff shall not have any right to obstruct development of the sites by the allottees. Now, the suit is originally filed for injunction. Later, they sought for declaration that he is the owner of the property. If the suit filed by the petitioner is declared and it is held by the competent Court that he is the owner of the remaining extent of 1 acre 15 ½ guntas of land, he would be entitled for the compensation as per the Land Acquisition Act. Even if it is decided by the Court that he is the owner of the property, in the light of the judgment of the Division Bench, he cannot obstruct the developmental activities and he is only entitled for the compensation. This order of the Division Bench has attained finality and the same is not questioned by the

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plaintiff and the order passed by the Division Bench is binding on all the parties. When all the judgments that are relied on by the learned counsel for the appellant/plaintiff is with regard to when an injunction can be granted, what is the prima facie case and once a person is in possession of the property, he cannot be dispossessed without following due process of law. All those judgments do not apply to the facts and circumstances of this case for the reason, in a factual background of this case, where they have approached this Court and also the Division Bench, wherein the Division Bench has clarified that the plaintiff herein who is the respondent before the Division Bench is only entitled for the compensation and he shall not interfere with the developmental activities. In such a case, even if the main relief is granted, he is only entitled for compensation. In that case, he cannot seek for an interim relief of injunction not to interfere with his possession. The interim relief that is sought is above the final relief that is going to be granted to the plaintiff in the event he succeeds in the suit. The purpose of granting an interim injunction is to protect the interest of the plaintiff during the pendency of the proceedings. In the light of the Division Bench judgment, the plaintiff is only entitled for the

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compensation. Even if he is declared as the owner of the property, by virtue of the Division Bench order, he will not be entitled for possession of the property. When that is the case, question of granting injunction would not arise. Learned counsel for the appellant has also filed the photographs to show that he is in possession of the property. All those things are not relevant for this Court, as in the light of the Division Bench judgment which had attained finality. In the light of the above discussion, this Court is passing the following:

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ORDER

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i. Accordingly, the appeal is dismissed .

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ii. All the observations made in this order are for the purpose of deciding the I.A. and these observations shall not be construed as expression of the Court and the trial Court shall independently deal with the suit.

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iii. All I.As. in this appeal shall stand closed.

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SD/(LALITHA KANNEGANTI)

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JUDGE

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MEGList No.: 1 Sl No.: 11

Thimmarasappa v. the Commissioner

Case brief

What is this about?

What did the court decide?

Thimmarasappa v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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