BDA appealed against a decree granting permanent injunction to a plaintiff in possession of a site. The Court distinguished Sripostheshwar Precedent as the land was only partially acquired, holding the plaintiff's title valid and appeal dismissed.
The appeal is dismissed. No order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.668 OF 2014
BETWEEN:
THE BANGALORE DEVELOPMENT AUTORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI. M.V.CHARATI, ADVOCATE )
AND:
A CHANDRASHEKAR S/O. LATE P. ANJANAPPA, AGED ABOUT 54 YEARS, CORPORATION NEW NO.222, OLD NO.2, 4TH MAIN, HEBBAL, GANGANAGAR LAYOUT, BANGALORE - 560 032. R/O NO.34, 2ND MAIN ROAD, GANGANAGAR, BANGALORE - 560 032.
…RESPONDENT
(BY SRI. BIPIN HEGDE, ADVOCATE )
THIS RFA FILED UNDER SEC 96 R/W.ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:20.12.2013 PASSED IN O.S.NO.3203/2008 ON THE FILE OF THE IX ADDL. C.C. & S.J., BANGALORE DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.11.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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RESERVED FOR ORDERS ON : 19.11.2024 PRONOUNCED ON : 02.12.2024
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
CAV JUDGMENT
This appeal is filed by the appellant defendant under Section 96 of CPC for setting aside the judgment and decree passed by the IX Additional City Civil and Sessions Judge, Bengaluru in O.S. No.3203/2008 dated 20.12.2013, for having decreed the suit of the respondent/plaintiff.
the plaintiff in the suit. The rank of the parties is retained for convenience.
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that the said property is formed out of Sy.No.32/1, Gangenahalli village belonged to one Smt. Muniyamma, wife of Vasanthappa in a land measuring 1 acre which has been purchased by Arogyappa, son of Chowrayallappa under the sale deed dated 08.08.1963. The said Arogyappa having formed the layout of sites sold site No.2 to Sri C. David @ Chowreddy under sale deed dated 12.08.1964. It is bounded on East by site No.7, West by land left for 50 feet width road, North by site No.3 and on the South by site No.1. The said Chow Reddy expired on 29.07.1988 and his wife Papamma, her son and daughter succeeded to his estate, got khatha registered in the name of Papamma vide khatha certificate 18.02.1992, taxes were paid to the said property. The property is consisting of residential house which has been purchased by K.S. Vijaya Dev from Papamma under the sale deed dated 13.08.1993. Thereby, the said Vijaya Dev became the absolute owner and in lawful possession of the suit schedule property, and he got the khatha certificate in his name, paid taxes to the said property. The plaintiff has purchased the suit schedule property from Vijaya Dev on 17.08.1995 for Rs.4,90,000/-. Since then, the plaintiff is in enjoyment of the suit schedule property, he put up compound wall gate and got the khatha transferred in his name. His worker Shanthamma along with her family is staying in the said house.
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Section 16(2) of the Land Acquisition Act. The plaintiff purchased the site from Vijaya Dev in the year 1995, which was purchased from the wrongful owner who had no right, title or interest over the property. The defendant is in no way responsible for purchasing the said property, the defendant is the owner of the entire land in Sy.No.32/1. The plaintiff is neither an allottee nor purchased the site from the allottee. The defendant authority acquired the land for public purpose and formed the layout and the sites have been allotted to the public at large. The plaintiff is a stranger to the suit schedule property. He has no right, title over the property. There is no cause of action for the plaintiff to file the suit. Hence, prayed for dismissing the suit.
following issues:
(1) Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of suit?
P.W.1 and also examined one more witness as P.W.2 and there
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were 51 documents marked as per Exs.P.1 to P.51. On behalf of defendant, D.W.1 was examined and 5 documents were marked as per Exs.D.1 to D.5.
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also contended that once the final notification was issued and the possession was taken, the property rests with the State Government and would be handed over to the BDA. Therefore, claiming the site by the plaintiff, is not correct. The learned counsel has also contended the suit is barred by Section 9 of CPC. When the acquisition proceedings is taken, the same shall be challenged before the High Court under the writ jurisdiction. The Civil Court has no jurisdiction to entertain the suit or give any finding. Hence, he prayed for allowing the appeal.
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on 01.08.1964 de-notified for 36 guntas, and thereby, only 2 guntas of land has been acquired by the BDA. The original owner formed the layout and sold the sites to the vendors of the plaintiff in title. Therefore, the plaintiff is shown the possession over the property. It is also contended by the respondent's counsel, that once the land is acquired by the BDA, the same would have to be allotted to any allottee and the allottee would have filed suit against plaintiff or vendors of plaintiff, but nobody has filed any suit. The learned counsel also further contended that, if at all, the land is already acquired and the sites were formed by the BDA, the question of issuing khatha certificate, receiving the tax by BDA, does not arise. Therefore, it is contended that the defendant has suppressed the material fact of the registered de-notification and withdrawing the notification. Such being the case, the trial court has rightly considered the evidence on record, both documentary and oral, and has rightly decreed the suit. Hence, he prayed for dismissing the appeal.
1) Whether the plaintiff proves he is in
lawful possession and enjoyment of the suit schedule property?
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2) Whether he further proves that the
defendant trying to interfere in the enjoyment of the suit schedule property?
3) Whether the judgment and decree passed
by the trial court called for an interference?
4) What order?
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succeeded the estate of the Chow Reddy. They got changed their names in the khatha extract and the khatha certificate also issued in the year 1992 and taxes were also paid. The suit schedule property consisting of a house which has been purchased by the one K.S.Vijaya Dev from Smt.Papamma and their children on 13.08.1993 and the said Vijay Dev became absolute owner of the property and he has obtained the khatha in his name and taxes were also paid. He also approached the City Corporation and paid the taxes after assessing the property under section 143 of KMC Act., The registry khatha certificate also issued on 04.04.1994. The said Vijay Dev sold the property to the plaintiff on 17.08.1995 by way of registered sale deed and received Rs.4,90,000/-. He also obtained the khatha in his name after transferring the khatha. In support of his case the plaintiff himself examined as PW.1, he has reiterated the averments made in the affidavit and got marked documents. Ex.P.1 is the sale deed dated 08.08.1963 executed by Smt.Muniyamma in favour of one Arogyappa. Ex.P.2 is the sale deed dated 12.08.1964 by the children and wife of Chow Reddy, there is reference available in Ex.P.2 that the said property was purchased on 08.08.1963 under the sale deed. The Ex.P.3 is the khatha certificate issued by the BDA in favour of the wife of Chow Reddy namely Smt.Papamma who is vendors vendor of the plaintiff. The Ex.P.4 is the tax paid receipt issued in the name of Papamma
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for the site No.222. The Ex.P.5 is the sale deed dated 13.08.1993 where the Lrs., of the Chow reddy executed the sale deed in favour of the vendors of the plaintiff one K.S.Vijaya Dev. Ex.P.6 is the rectification deed executed by Papamma in favour of one Vijaya Dev through the GPA holder Suresh Babu. Where the site measurement was reduced into 57X40 ft., there is an existence of shed 10X10 ft., AC sheet roofing house. Ex.P.7 is the khatha issued by the BDA in the name of Vijaya Dev on 09.10.1993. Ex.P.8 is the tax assessment made by the corporation and Ex.P.9 is the tax paid receipt of the vendor of the plaintiff. Ex.P.10 and 11 are tax paid receipts, Ex.P.12 is the khatha certificate issued by the Corporation on 04.04.1994 in the name of Vijaya Dev the vendor of the plaintiff. Ex.P.13 is the old tax paid receipt issued by the BCC, Ex.P.14 is the tax assessment extract, Ex.P.15 is the sale deed of the plaintiff dated 17.08.1995, Ex.P.16 is the notice issued by the corporation for payment of taxes, Ex.P.17 is the change of khatha, Ex.P.18 and 19 are the tax paid receipt, Ex.P.20 to 27 are the tax paid receipts of the plaintiff for having paid the taxes to the corporation. Ex.P.28 is the EC, Ex.P.29 and 31 are the khatha extracts, Ex.P.30 is the khatha certificate, Ex.P.32 to 36 are the photographs showing the site as well as construction of shed in the said site i.e., in the suit schedule property. Ex.P.41 to 45 are the electricity bills, Ex.P.46 to 48 payment receipts, Ex.P.49 to 51 are water bills. As per these
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documents which reveals the plaintiff is in possession and enjoyment of the suit schedule property for having purchased the site from his predecessor Vijaya Dev and the said Vijaya Dev purchased from Papamma and others in the year 1964, which reveals the vendors of the plaintiff's were in possession and enjoyment of the suit schedule property. The khatha certificate issued by the BDA, subsequently the Bangalore City Corporation assessed the tax and issued the tax paid receipts.
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therefore the sale deed of the plaintiff's vendors vendor not sustainable but after the examination of the plaintiff and production of Ex.P.37 to 39, the defendant also came with the defence that the land in Sy.No.32/1 has been acquired in 1960 and the entire land has been vested with the State Government, sites have been formed and allotted to the various allottees and etc., in the cross examination of the DW.1 who is the official of BDA, he has admitted in the cross examination regarding de-notification made by the State Government in respect of 36 guntas and also produced Ex.D.1 is the preliminary notification and Ex.D.2 is final notification, Ex.D.3 is the notification u/s 16(2) of Land Acquisition Act, Ex.D.4 is register of lands notified and acquired for the purpose of compensation paid therefore. Ex.D.5 is layout plan. There is no examination in chief or any pleading in the written statement by the defendant-BDA that the portion of land has been de-notified or withdrawn the notification by the State Government subsequent to the preliminary notification but after marking the documents by the plaintiff in order to show the entire land in Sy.No.32/1 measuring 1 acre 34 guntas were not acquired by the Government for the purpose of layout and during the course of trial and argument by the learned counsel which reveals the State Government though notified for acquisition of 1 acre 34 guntas in Sy.No.32/1 of Gangenahalli village but subsequently State issued one more
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notification i.e., a final notification to the extent of only 38 guntas of land as per Ex.P.38 which published on 16.07.1964. Ex.P.39 which reveals they de-notified or withdrawn notification in respect of 36 guntas in Sy.No.32/1 from the first notification i.e., preliminary notification 21.06.1960. It is pertinent to note in the 1960 preliminary notification, though entire land in survey number 1 acre 34 guntas has been shown as for acquisition but in the Ex.P.38 final notification they have taken only 38 guntas of land and for the remaining land they withdrawn the preliminary notification under Section 48 of the Land Acquisition Act., The appellant counsel also contended that the site belongs to the plaintiff is not under the land acquired by the State but it is remaining land which was not notified for the final acquisition and there is no possession has been taken by the State after the notification. Though it is well settled that once the final notification issued the lands are vested with the State and apart from that if any land owners or purchasers they have to challenge the notification before the High Court under the writ jurisdiction and the suit is not maintainable under Section 9 of CPC., The learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY VS BRIJESH REDDY
AND ANOTHER , reported in (2013) 3 SCC 66, wherein the Hon'ble Supreme Court has held that, the power of civil court to
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take cognizance is excluded and suit is not maintainable under Section 9 of CPC., in the land acquisition proceedings, but herein this case, the appellant has acquired only 38 guntas out of 1 acre 34 guntas of land and has denotified remaining portion of 36 guntas of land in the final notification. Hence, it cannot be said that the civil Court has no jurisdiction to entertain the suit.
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note that site No.2 was purchased by the vendors vendor of the plaintiff, subsequently they made an application to the BDA for change of khatha and they have issued khatha certificate and khatha extract by showing the site No.222. Though the appellant counsel has contended that the site number which was formed by the BDA not by the plaintiff's vendor, the boundary also belongs to the BDA etc., The defendant failed to show who was the allottee of site Nos.221, 222 and 223. Though the learned counsel for the appellant shown some documents registered for allotment of site No.222 to one of the person, subsequently the same was cancelled and however allotted to one ex-judicial officer of Chitradurga but no such documents produced or marked. If at all any sites allotted to any third party/allottee they could have agitate before the court to file the suit against plaintiff or plaintiff's vendor or against the BDA for having allotted the site but no such attempt made by any third persons or any alleged allottees made by the BDA in favour of third parties or public, to show this site has been allotted to some other person. But the fact remains half portion of the property not at all acquired by the State and de-notified 36 guntas. It is clear case of the plaintiff that the vendors vendor formed the layout and sold the sites, accordingly he has purchased the site, and changed the khatha in his name.
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which is suit schedule property belongs to the BDA, there is no question of issuing khatha certificate or khatha extract in the name of the plaintiff by the BDA/BBMP as per Ex.P.7 khatha certificate, Ex.P.8 is notice issued by the revenue department/ corporation authority for collecting the taxes, Ex.P.9 and 10 are the taxes paid receipts issued by the Corporation and khatha certificate also issued as per Ex.P.12 in the name of the plaintiff's vendor. Taxes were paid continuously by the plaintiff's vendor as well as plaintiff. The Ex.P.3 is the endorsement i.e., site No.222 is stands in the name of Papamma wife of Chow Reddy as per the records, Ex.P.4 is the BDA collected the tax as on 01.04.1993. If the sites were formed by BDA, lands were vested in the Government, the question of issuing khatha certificate, collecting the taxes by the BDA from the plaintiff's vendor and vendors vendor of the plaintiff does not arises. These documents clearly reveals from 1964 the plaintiff's vendors vendor is predecessor in title, have formed the layout, site purchased and continuously it was transferred to various persons and finally the plaintiff have purchased the site from his vendor on 17.08.1995, old No.2 and new number given by the BDA as 222. The appellant- BDA cannot blow hot and cold at the very same time by giving the khatha certificate and collected the taxes by showing the site No.222 in the name of the plaintiff and it cannot claim that
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the land was vested with the State/BDA. On the other hand this site was formed long back prior to the notification and sites were purchased by the vendors vendor of the plaintiff as per Ex.P.2 dated 12.08.1964. It reveals the plaintiff is in settled possession of suit schedule property from the year 1960 till filing the suit. Even otherwise, the defendant BDA officer himself admits in the evidence and Ex.P.38 and Ex.P.39 that the entire survey No.32/1 has not been acquired and they acquired only 38 guntas out of 1 acre 34 guntas and they denotified as per Ex.P.39 for 36 guntas of land and the suit schedule property has been formed for the remaining portion of 36 guntas which was denotified by the defendant-State. Such being the case, in a suit for bare injunction the plaintiff required to prove the possession. Here in this case the plaintiff also produced the sale deed for having purchased the same and is in possession and enjoyment of the same, the photographs reveals in the site a small shed was constructed, electricity connection has taken, water connection has been taken, these are all establishes the possession of the plaintiff in the suit schedule property. Such being the case I hold that the plaintiff is in lawful possession and enjoyment of the suit schedule property. The defendant under the guise of acquisition and trying to interfere in the suit schedule property. Therefore the Trial Court has rightly decreed the suit of the plaintiff.
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ORDER
The appeal is dismissed.
No order as to the cost.
Sd/(K.NATARAJAN) JUDGE
CS/SRK CT:SK
3 issues framed by the court
Whether the plaintiff proves he is in lawful possession and enjoyment of the suit schedule property?
Whether the defendant successfully invoked bar of Civil Court jurisdiction via Section 9 of CPC due to partial land acquisition?
Whether the trial court's decree in the suit for permanent injunction called for interference?
Colour shows how this judgement treated each authority
Commissioner Bangalore Development Authority Vs Brijesh Reddy (2013) 3 SCC 66Distinguished¶67
Commissioner Bangalore Development Authority Vs Brijesh Reddy (2013) 3 SCC 66 · Who else cites this
2 provisions across 2 enactments
Bangalore Development Authority
A Chandrashekar
K. Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
