Allowed

The Commissioner v. Mrs C Tulasija

Karnataka HC4 Sept 2024RFA/969/2010

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal filed by the Bangalore Development Authority and set aside the trial court's decree. The Court held that a suit for mandatory injunction was not maintainable where the plaintiff's title was disputed and she failed to seek a declaration of title.

What did the court decide?

Set aside the judgment and decree dated 06.04.2010 in OS.No.5785/2002 and dismiss the original suit. Party costs awarded.

The Commissioner Vs Mrs C Tulasija — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE S.G.PANDIT

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AND

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THE HON’BLE MR. JUSTICE C.M. POONACHA

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R.F.A. No. 969 OF 2010 (INJ)

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C/W

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R.F.A. No.1565 OF 2010 (RES)

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IN RFA No.969/2010

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BETWEEN

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THE COMMISSIONER

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BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD, BANGALORE 560 020

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...APPELLANT

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(BY SRI VACHAN B, ADVOCATE)

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AND

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1 . MRS C TULASIJA D/O S.SUBBA REDDY AGED ABOUT 45 YEARS R/AT NO.5, SPENCER ROAD, FRAZER TOWN, BANGALORE 560 005 NOW R/AT NO.196, 7TH CROSS INDIRANAGAR, IST STAGE, BANGALORE 560 038

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2 . SRI S NANJUNDAIAH

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FORMER DEPUTY SECRETARY BANGALORE DEVELOPMENT AUTHORITY NO.792, "E" 3RD MAIN, "A" MAIN ROAD, 2ND STAGE, VIJAYANAGAR BANGALORE 560 040

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…RESPONDENTS

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(BY SRI UDAY HOLLA, SENIOR ADVOCATE FOR SRI CHINMAI J MIRJI, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DTD 22.08.2011)

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THIS RFA IS FILED U/S 96(1) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 6.4.2010 PASSED IN O.S.5785/2002 ON THE FILE OF THE IX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 5), PARTLY DECREEING THE SUIT FOR MANDATORY INJUNCTION AND ETC.

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IN RFA No.1565/2010

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BETWEEN

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SMT C TULASIJA D/O S SUBBA REDDY AND W/O C PREMACHANDRA REDDY, AGED ABOUT 45 YEARS, NO.196, 7TH CROSS, INDIRANAGAR IST STAGE, BANGALORE-560038

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...APPELLANT

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(BY SRI UDAY HOLLA, SENIOR ADVOCATE FOR SRI CHINMAI J MIRJI, ADVOCATE)

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AND

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1 . THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD, K.P.WEST, BANGALORE-560020

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2 . SRI S NAJUNDAIAH FATHERS NAME NOT KNOWN TO THE APPELLANT,MAJOR, NO.792, E 3RD A MAIN ROAD, 2ND STAGE, VIJAYNAGAR, BANGALORE-560040

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…RESPONDENTS

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(BY SRI VACHAN B, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DTD 22.08.2011)

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THIS RFA IS FILED U/SEC. 96, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.04.2010 PASSED IN O.S.5785/2002 ON THE FILE OF THE IX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR DIRECTION AND PERMANENT INJUNCTION AND ETC.

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THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT ON 21.08.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, POONACHA J, DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE C.M. POONACHA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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RFA.No.969/2010 is filed by defendant No.1 – Bangalore Development Authority¹ and RFA.No.1565/2010 is filed by the plaintiff. Both the first appeals are filed under Section 96(1) of the

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1 Hereinafter referred to as ‘BDA’

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Code of Civil Procedure, 1908² challenging the judgment and decree dated 06.04.2010 passed in OS.No.5785/2002 by the IX Additional City Civil and Sessions Judge, Bangalore City (CCH-5)³ . Hence, both the appeals are taken up together for consideration.

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For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.

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It is the case of the plaintiff that she was allotted a site measuring 50 X 80 feet bearing No.18, BTM 2^nd Stage, 1^st phase, Bangalore⁴ vide letter of allotment bearing No.BDA/18/BTM/2^nd stage/1^st Phase/95-96, dated 26.04.1995 for value of 41,514/- and out of the said amount, a sum of 100/- is to be payable as lease amount in the instalments for a period of 10 years. That consequent to the allotment made to the plaintiff, the then Deputy Secretary to the BDA - defendant No.2 vide his letter dated 01.06.1995 intimated the plaintiff to pay a sum of 41,514/together with interest in a sum of 2,320/-, consequent to which the defendant remitted the total sum of `43,934/- vide remittance challan bearing No.558399 dated 02.06.1995 in Canara Bank, BDA extension counter, Bangalore, which amount has been

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2 Hereinafter referred to as ‘CPC’

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3 Hereinafter referred to as ‘Trial Court’

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4 Hereinafter referred to as ‘Suit Property’

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acknowledged by defendant No.1 – BDA. Thereafter, the Engineering Section of BDA having inspected the said site with respect to its measurements and boundaries and on the receipt of the correct dimension report from the Engineering Section as per the rules and regulations of the BDA, the BDA represented by defendant No.2 executed a registered lease cum-sale-agreement dated 02.06.1995 in favour of the plaintiff which was registered as document No.666 of 1995-96 on 03.06.1995 in the office of the Sub-registrar, Jayanagar, Bangalore City. That the BDA has also issued the possession certificate bearing No.PCR/12/95-96 dated 08.06.1995 to the plaintiff by confirming that he has been put in possession of the suit property.

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It is the further case of the plaintiff that vide application dated 13.06.1995, he sought for permission to mortgage the suit property in favour of M/s LIC Housing Finance Limited for the purpose of raising a loan for construction of the building on the suit property, which permission was granted by the BDA vide its memo dated 28.06.1995 which confirmed the allotment made. That the plaintiff availed a loan of `32,15,769.64/from the said LIC Housing Finance Limited.

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It is the further case of the plaintiff that she has applied to BDA for sanction of building plan on 12.02.1996 and the sanction plan was issued on 18.03.1996 which was to be enforced within a period of two years. That the notice dated 09.10.1996 was also issued under Section 117 of the Karnataka Municipal Corporation Act, 1976⁵ read with Section 29 of the Bangalore Development Authority Act, 1976⁶ to assess the site for property tax. Thereafter, since the suit property came in the jurisdiction of the Bangalore Mahanagara Palike⁷ with effect from 01.10.1996, the plaintiff has paid property tax to the BMP. That the plaintiff has put up construction of building in the suit property and has also applied for grant of electricity, water and sewage connection to the said building and the plaintiff has incurred various expenses in that regard. That the plaintiff has further leased the said building in favour of a tenant namely GMM Co., Ltd., on a monthly rent of `81,000/- vide lease dated 13.10.1998. That the plaintiff has also insured the building with M/s Oriental Insurance Company Limited in terms of the condition imposed by M/s LIC Housing Finance Limited while advancing housing loan. That the plaintiff has been in

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5 Hereinafter referred to as ‘KMC Act’

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6 Hereinafter referred to as ‘ BDA Act’

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7 Hereinafter referred to as ‘BMP’

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peaceful possession and enjoyment of the suit property together with building constructed and thereafter the tenant of the plaintiff has been in occupation of the same by paying monthly rent from the date of the lease.

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It is the further case of the plaintiff that when matter stood thus, on 13.07.2002 (which was a government holiday), all of a sudden the officials of respondent No.1 – BDA illegally trespassed over the suit property without any authority and demolished the building constructed by using heavy machinery in a high handed and arbitrary manner. That the Commissioner of the BDA has issued a Press statement that it has recovered the property worth about 1.00 crore. Hence, the plaintiff got issued a statutory legal notice dated 16.07.2002 to respondent No.1 – BDA. Despite service of notice, no reply has been received by the plaintiff. The plaintiff has assessed the damages in a total sum of 2,48,89,584/-. That, for any reason, if it is held that the plaintiff is not entitled to any damages by way of compensation, the plaintiff has sought a direction to respondent No.1 – BDA to allot a site of equal dimension measuring 50 X 80 feet in favour of the plaintiff in any one of its layouts. Hence, the plaintiff has filed the suit claiming for the following reliefs:

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“(a) Directing the first defendant to pay a sum of Rs.1,00,00,000/(Rupees One Crore only) as compensation by way of damages to the plaintiff;

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(b) In the alternative, the Hon'ble Court be pleased to direct the first defendant-BDA to allot a site of equal dimension measuring 50x80 feet in favour of the plaintiff in any one of its layouts;

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(c) Be pleased to grant a Decree for Permanent Injunction restraining the first defendant and its officials from in any way alienating the suit schedule property by way of sale or by way of public auction or in any manner in favour of the third persons and in favour of the third parties including any member of the general public; and

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(d) Be pleased to grant such other reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the case as are necessary together with interest from the date of the suit till the date of recovery and together with costs of the proceedings, in the interest of justice, equity and law.”

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7. The defendants entered appearance through their

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respective counsels. Defendant No.1 - BDA has filed written statement denying the case of the plaintiff. The claim of the plaintiff that she is the absolute owner in lawful possession of the suit property is denied. It is specifically contended by the BDA that execution of the documents in favour of the plaintiff is fraudulent

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and concocted. That the plaintiff colluding with the assistance Shirastedar in the BDA by name Razaak and a First Division Clerk by name Sundaresh forged, fabricated and concocted the documents pertaining to the suit property. That when the same came to light, the BDA has initiated action against the said Razaak and Sundaresh who were dismissed from the service. It is contended that the plaintiff has no title to the suit property.

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It is the further contention of the BDA that records do not show any application to the BDA for allotment of site in response to any specific notification. That there is no record with the BDA of the plaintiff’s application in accordance with the BDA (Allotment of Sites) Rules. That the lands were acquired for formation of the BDA layout in the year 1978 and the layout of sites was formed in the year 1984-85. That the said situation was being watched by certain land grabbers and with the connivance of certain officials of the BDA, fictitious and fraudulent documents were created and executed in favour of certain persons and the case of the plaintiff is one such. Hence, it is contended that the plaintiff is a trespasser and not entitled for any relief much less any damages. It is further contended that on the contrary the BDA has

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incurred lot of expenses to recover possession of the site. Hence, the defendant No.1 sought for dismissal of the suit.

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No written statement has been filed by defendant

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No.2.

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Consequent to the pleadings of the parties the Trial Court has framed the following issues:

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i. “Whether the plaintiff is entitled to the compensation of ` 1 crore by way of damages?

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ii. Whether the plaintiff is entitled to the mandatory injunction sought for in the alternative?

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iii. Whether the plaintiff is entitled to the permanent injunction sought for?

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iv. To what decree or order?”

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The plaintiff examined her husband as her General Power of Attorney holder⁸ as PW.1. Ex.P.1 to Ex.P.48 have been marked in evidence. Defendant No.1 examined its Assistant Executive Engineer as PW.1 and its First Division Assistant as DW.2. Ex.D.1 to Ex.D.3 have been marked in evidence. The Trial Court by its judgment and decree dated 06.04.2010 partly decreed the suit and passed the following order:

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8 Hereinafter referred to as ‘GPA’

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“The suit is decreed, but in part with proportionate costs against the defendants. The 1^st defendant is directed by means of a decree of mandatory injunction, allot a site of the dimension of the schedule property to the plaintiff in any of its layouts within 3 months from this day.”

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Being aggrieved the present appeals are filed.

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Learned counsel Sri. B. Vachan appearing for the BDA

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contends that defendant No.1 having denied the title of the plaintiff ought to have sought for a relief of declaration of title in order to prove her title. It is further contended that having regard to the fact that the plaintiff is not in possession of the property, she also ought to have sought for the relief of possession. That in the absence of the plaintiff seeking for the said relief, it cannot be held that the action of BDA is in any manner unlawful. It is further contended that in the absence of a suitable declaratory relief sought for as contemplated under Section 34 of the Specific Relief Act, 1963⁹ , the Trial Court ought not to have decreed the suit. It is further contended that the plaintiff has failed to demonstrate that she is entitled to the relief of mandatory injunction as contemplated under Section 39 of the Act of 1963.

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9 Hereinafter referred to as ‘Act of 1963’

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It is further contented by the learned counsel that Ex.P4 relied upon by the plaintiff refers to the grant of an alternate site. However, it is contended that the plaintiff has not pleaded as to what the original allotment was. He further contends that the resolution No.222 referred to in Ex.P4 does not pertain either to the plaintiff or to the suit property. Referring to the admission of PW.1 in the cross-examination that the plaintiff and her husband i.e., PW.1 own 2 sites each in Bangalore, learned counsel for the BDA submits that the plaintiff is not entitled to allotment of any site from the BDA since she already owns 2 sites. He further contends that the plaintiff has failed to demonstrate that she is in possession of the suit property. He further contends that the Trial Court has not adequately appreciated the material on record and the case of the parties and the judgment of the Trial Court would tantamount to legitimising the fraud sought to be perpetuated by the plaintiff. Hence, he seeks for allowing of the appeal filed by the BDA and dismissal of the suit.

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Per contra, learned Senior Counsel, Sri Uday Holla appearing along with learned counsel Sri Chinmai J.Mirji for the plaintiff contends that the plaintiff has produced the necessary documents to prove her ownership of the suit property including the

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allotment letter, lease-cum-sale agreement, possession certificate, etc. That consequent to the lease-cum-sale agreement registered in favour of the plaintiff, the revenue records in respect of the suit property have been changed in the name of the plaintiff by BMP and the plaintiff has also paid the requisite property tax to the said authority. That the BDA has also permitted the plaintiff to mortgage the suit Property and raise a loan. That the BDA has sanctioned plan for putting up of construction of a building in the suit property, consequent to which the plaintiff has also put up construction of a building in the suit property and as well as let out the same on lease and a tenant of the plaintiff is in occupation of the same. Hence, it is contended that the plaintiff is the absolute owner in position and enjoyment of the suit property, which has been recognized by the statutory authorities, including the BDA. It is further contended that DWs.1 and 2 have admitted the allotment letter and possession certificate issued in favour of the plaintiff by the BDA.

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It is further contended that the BDA has unlawfully demolished the construction put up by the plaintiff and hence, the plaintiff is entitled to the relief sought for in the plaint. It is further contended that since the BDA has not replied to the statutory notice

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issued by the plaintiff, there was no requirement for the plaintiff to file a suit for declaration of title. It is further contented that the BDA has alleged that the allotment made in favour of the plaintiff has been cancelled and that the property has been auctioned and with regard to the same it is contended that cancellation can only be made by a Court of law.

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It is further contended that the plaintiff was in possession and enjoyment of the suit property for more than 7 years and without any notice or without affording an opportunity of hearing, the BDA has illegally demolished the building. It is further contended that the mandatory injunction issued by the Court is to grant a site in any other layout, whereas the suit property is situated in BTM layout. Hence, the learned Senior Counsel seeks for grant of relief as sought in the plaint.

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Both the learned counsels have relied upon various judgments which shall be considered during the course of this judgment to the extent that the same is necessary for adjudication of the questions that arise for consideration.

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The submissions of the learned Senior Counsel for the plaintiff and the learned counsel for the BDA have been considered

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and the material on record including the records of the Trial Court have been perused. The questions that arise for consideration are:

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i) Whether the Trial Court was justified in answering issue No.1 in the negative and issue No.2 in the affirmative holding that the plaintiff is entitled to the alternative relief of mandatory injunction?

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ii) Whether the judgment and decree passed by the Trial Court is erroneous and liable to be interfered with?

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It is the case of the plaintiff that she has been allotted

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the suit property vide allotment letter dated 26.4.1995 (Ex.P4). It is forthcoming from Ex.P4 that the allotment is made pursuant to an application made by the plaintiff and in furtherance to the resolution bearing No.222 dated 4.2.1984. Further it is stated in Ex.P4 that the allotment of site in favour of the plaintiff is in the nature of allotment of an alternative site. It is pertinent to note that it is not averred by the plaintiff as to the nature of original allotment in lieu of which Ex.P4 has been issued. The plaintiff has further produced the registered lease-cum-sale agreement dated 2.6.1995 (Ex.P7) and possession certificate (Ex.P8). The plaintiff

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has also produced other documents i.e., building licence (Ex.P9), with respect to the issuance of katha and payment of tax to BMP (Exs.P10 to P20) and documents evidencing availing of loan from LIC (Ex.P21 to P24) as also loan discharge certificate (Ex.P30).

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It is the specific contention of the BDA that the allotment of the suit property as claimed by the plaintiff is a fraudulent one and the same has been done by the plaintiff in collusion with the officials of the BDA. In order to demonstrate that the allotment is a fraudulent one, the BDA has examined its Assistant Executive Engineer as DW.1, who in his affidavit by way of examination-in-chief has stated that the plaintiff has put up an unauthorised building and that the title deeds of the plaintiff are forged and concocted documents. It is deposed that the BDA is the owner of the suit property. It is further deposed that the resolution No.222 dated 4.2.1984 reflected in the possession certificate relates to enhancement of rates of BDA sites and not allotment of

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any site to the plaintiff. DW.1 has further produced a copy of the auction confirmation letter dated 28.9.2002 issued by the BDA in favour of one P.Balaji and one P.Shoba.

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The BDA has also examined its First Division Assistant as DW.2 who has also adduced evidence in support of the stand

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taken in the written statement. The resolution book of the BDA (Ex.D1) and resolution No.222 (Ex.D1(a)) disclose that the same does not pertain to allotment of any property to the plaintiff or of the suit property. Ex.D2 is the ledger maintained by the BDA pertaining to BTM layout, II stage and there is an endorsement (Ex.D2(a)) that the suit property has been auctioned on 11.9.2002 in favour of P Balaji and P Shoba. There is also an endorsement that the allotment in favour of the plaintiff has been cancelled on 9.5.2003. Ex. D3 is the allotment register and the allotment of site No.18 (Ex.D3(a)) discloses that the same has been allotted in favour of Sri P.Balaji and Smt.P.Shoba pursuant to auction held on 11.9.2002.

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It is relevant to note that although it is the specific case of the plaintiff that she is the owner of the suit property and that she had put up construction of a building in the suit property after obtaining requisite approval from the statutory authorities and that she had let out the property on rent and the tenant of the plaintiff was paying a monthly rent and that the BDA had illegally demolished the building constructed on the suit property, the plaintiff has merely sought for a compensation of `1.00 crore from the defendant or in the alternative to direct the defendant to allot a

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sight of equal dimension measuring 50 x 80 feet in favour of the plaintiff. The plaintiff has also sought for a decree of permanent injunction to restrain the defendant and its officials from in any way alienating the suit property by way of sale or public auction.

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It is pertinent to note here that the manner in which the reliefs are sought for in the plaint would itself disclose that as on the date of the suit, the plaintiff was not in possession of the suit property/site. Further having regard to the specific defence of the BDA that the allotment of the suit property and execution of the registered lease-cum-sale agreement dated 2.6.1995 is a fraudulent and concocted one, which was the result of the collusion of a Shirastedar of the BDA by name Rzaak and First Division Clerk of the BDA by name Sundaresh, who forged, fabricated and concocted the documents, it is clear that the plaintiff ought to have sought for a declaration with regard to her title and possession of the suit property. In this regard, it is relevant to notice the judgment of the Hon’ble Supreme Court in the case of Anathula Sudhakar v. P.Buchi Reddy¹⁰ relied upon by the learned counsel for the BDA, wherein, the Hon’ble Supreme Court has held as follows:

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10 (2008) 4 SCC 594

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“ 21 . To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

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(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

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(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

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(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue

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regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

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(emphasis supplied)

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It is further relevant to notice the judgment of the Hon’ble Supreme Court in the case of Jharkhand State Housing Board v. Didar Singh¹¹ relied upon by the learned counsel for the

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BDA, wherein the Hon’ble Supreme Court has held as follows:

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“ 11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

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12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction.”

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(emphasis supplied)

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11 (2019) 17 SCC 692

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In this context, it is also relevant to notice Sections 34

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and 39 of the Act of 1993, which are extracted hereunder for ready

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reference:

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“ 34. Discretion of court as to declaration of status or right.—

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Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

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Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

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Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

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39. Mandatory injunctions.—

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When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. .”

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Section 34 of the Act of 1963 stipulates that a person

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whose title to any character or right is denied, may institute a suit against such person denying or interested to deny such character or right and seek for a declaration thereof. Section 39 of the Act of 1963 stipulates that the Court, in its discretion can grant a

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mandatory injunction to prevent the breach of an obligation or to compel performance of certain/requisite acts which the Court is capable of enforcing.

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It is clear from the factual matrix that there is a cloud

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on the title of the plaintiff in respect of the suit property. Even after filing of the written statement, although the plaintiff has amended the plaint and incorporated para 25(a) and prayer (aa) in the plaint pursuant to the order dated 31.10.2007 passed on IA.No.9 by the Trial Court, the plaintiff has not sought for the relief of declaration of title or recovery of possession. The very fact that the plaintiff is claiming damages of `1.00 crore or in the alternative, a mandatory injunction would demonstrate that the plaintiff is seeking the relief since the defendant has demolished the construction put up in the suit property. However, the relief sought for by the plaintiff by way of damages or in the alternative a mandatory injunction for grant of an alternate site, cannot be considered without the plaintiff first seeking a declaration of a right in respect of the suit property. In the absence of declaration of a right being sought by the plaintiff, the question of considering granting of the relief of either damages or mandatory injunction as sought for by the plaintiff in the plaint does not arise.

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The vehement contention put forth on behalf of the plaintiff that she need not seek for a declaration since the BDA did not reply to her statutory legal notice dated 16.7.2002 (Ex.P2) is ex facie untenable and liable to be rejected having regard to the fact that in the written statement the BDA has specifically denied the right, title and interest asserted by the plaintiff in respect to the suit property. Even after filing the written statement, the plaintiff has not amended the plaint seeking for suitable reliefs.

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It is also relevant to note that in the plaint, the plaintiff has specifically averred at para 21 regarding the BDA demolishing the property constructed over the suit property. At para 22 of the plaint it is specifically averred regarding Press statements issued on behalf of the BDA regarding recovery of the suit property on the ground that the suit property which belonged to the BDA was in illegal possession of the plaintiff. Hence, as on the date of the suit itself, it was within the knowledge of the plaintiff that the BDA had disputed the title of the plaintiff in respect of the suit property. The title of the plaintiff in respect to the suit property having been disputed prior to the suit itself and the plaintiff having not sought for an appropriate declaration of a right as contemplated under Section 34 of the Act of 1993, the question

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of considering the other reliefs sought for by the plaintiff in the suit does not arise.

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It is the vehement contention on behalf of the plaintiff that she had put up construction of a building over the suit property after a valid approval from the requisite statutory authorities and the plaintiff has also availed financial assistance for the same and that the BDA had also given its no objection for the plaintiff to mortgage the suit property would not aid the case of the plaintiff, inasmuch as, the plaintiff was required to seek for a declaration of a right vis-à-vis the suit property. In the absence of the same, the factual matrix as asserted by the plaintiff in the plaint with regard to the construction of the building on the suit property and being in possession of the same, will not enure to the benefit of the plaintiff. 32. It is the specific contention on behalf of the BDA that there is no material to demonstrate that the plaintiff was an applicant for a site with the BDA. That the plaintiff is, prima facie not eligible for allotment of a site from the BDA and that there are no proceedings in the BDA to demonstrate valid execution of the lease-cum-sale agreement dated 2.6.1995 (Ex.P7) as well as issuance of the allotment letter dated 26.4.1995 (Ex.P4) and the possession certificate (Ex.P8). It is clear from the original

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documents produced by the BDA at Exs.D1 to D3 that there is no material on record to demonstrate any proceedings which culminated in the issuance of allotment letter dated 26.4.1995 (Ex.P4), execution of lease-cum-sale agreement dated 2.6.1995 (Ex.P7) and possession certificate (Ex.P8). Having regard to the specific assertion and defence of the BDA that the documents executed in favour of the plaintiff was a result of collusion, fabrication, as also forgery and concoction of documents, mere production of documents by the plaintiff without any adequate relief for a declaration sought for by the plaintiff, will not aid the case of the plaintiff.

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The Trial Court has merely noticed that DWs.1 and 2 have admitted the letter of allotment (Ex.P4) and the intimation letter (Ex.P5). It is forthcoming from the cross-examination of DWs.1 and 2 that Exs.P4 and P5 are confronted to the said witnesses and they admitted that they were the allotment letter and intimation letter. Mere admission of DWs.1 and 2 of Exs.P4 and P5 will not demonstrate that the plaintiff is the owner of the suit property.

¶156

It is relevant to note here that to prove her case the plaintiff examined her GPA holder i.e., her husband as PW.1. In the

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cross- examination, PW.1 has specifically stated that he does not remember the exact date of allotment of the suit property and it is further stated that the plaintiff has signed the allotment ledger. PW.1 admits that BDA has not issued any membership card to his wife. He further admits that the plaintiff and himself own 2 sites each in Bangalore. PW.1 further states that he is not aware that Balaji and Shoba who were the auction purchases are in possession of the suit property and that he does not know whether the BDA auctioned the suit property on 11.9.2002.

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It is clear from the admission of PW.1 also that the plaintiff is not in possession of the suit property.

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Learned counsel for the BDA refers to BDA (Allotment of Sites) Rules, 1984¹² and points out to various stages that are required for allotment of a site. Rule 7 stipulates that the site allotted under the said Rules shall be deemed to have been leased to the allottee until the lease is determined or the site is conveyed in the name of the allottee in accordance with the said Rules. Rule 8(1) specifically stipulates that every applicant for a site shall register his name on payment of registration fees as prescribed in Form No.I. Rule 9(1) stipulates that a person so registered has to

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12 Hereinafter referred to as ‘said Rules’

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apply in Form II for allotment of a site along with the initial deposit and that the application shall be presented in person or by a registered post. Rule 10 specifically prescribes the eligibility criteria, wherein it is stated that the applicant should not own any other property in Bangalore. Rule 11 also prescribes under what circumstances allotment of an alternate site could be made.

¶164

In the present case, as noticed above, the plaintiff has not placed any material on record as to what was the original allotment made in her favour and in lieu of the said original allotment by what proceedings the suit property was allotted as an alternate site. Further, the plaintiff has not averred or placed any material on record to demonstrate that she has registered with the BDA as required under Rule 8 of the said Rules and that she has made an application as required under Rule 9, as also that she is eligible for allotment of a site as required under Rule 10 of the said Rules.

¶165

The Trial Court has further recorded a finding that the BDA has not produced any documents to demonstrate the action taken against the officials for concoction of documents even though the names of Razaak and Sundaresh are averred in the written statement. The Trial Court has further recorded a finding that the

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cross-examination of PW.1 does not discredit his testimony or impeach it.

¶168

It is relevant to note here that the specific admission of PW.1 regarding him and the plaintiff owning 2 sites in Bangalore have been ignored. It is further relevant to note that the Trial Court has failed to notice the admission of PW.1 regarding the plaintiff not being in possession of the property. Further, the fact that the BDA has not produced any material on record to demonstrate action taken against its 2 officials i.e., Razaak and Sundaresh, will not in any manner aid the case of the plaintiff to entitle her to the relief sought for in the plaint. The Trial Court has noticed that demolition of the building in the suit property is admitted. However, without the plaintiff seeking for any relief of declaration and without the title of the property being declared in favour of the plaintiff, the question of granting the reliefs sought for by the plaintiff in the plaint does not arise.

¶169

It is further relevant to note that the Trial Court has granted a mandatory injunction directing defendant No.1 – BDA to allot a site of the dimension of the suit property to the plaintiff in any of its layouts. As noticed above, a relief of mandatory injunction can be granted only to prevent breach of an obligation

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and to compel performance of certain requisite acts. In the present case, the plaintiff has failed to demonstrate her right and as to in what manner the said right has been infringed. Hence, the plaintiff has failed to demonstrate the requisite criteria for grant of a mandatory injunction as required under Section 39 of the Act of 1993 and the Trial Court erred in directing defendant No.1 by way of a mandatory injunction to allot a site.

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The Trial Court has erred in answering issue No.1 in the negative and issue No.2 in the affirmative and holding that the plaintiff is entitled to a mandatory induction.

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In view of the discussion made above, the questions framed for consideration are answered in the affirmative.

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Hence, the following:

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ORDER

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i. RFA No.969/2010 is allowed;

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ii. RFA No.1565/2010 is dismissed;

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iii. The judgment and decree dated 6.4.2010 passed in OS.No.5785/2002 by the IX Addl.City Civil and Sessions Judge, Bangalore City (CCH-5) is set aside;

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iv. OS No.5785/2002 filed by the plaintiff on the file of the IX Addl.City Civil and Sessions Judge, Bangalore City (CCH-5), is dismissed.

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v. Parties to bear their respective costs.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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Pnv/nd