Smt Akkamahadevi Vs Ministry of Communication Employees

MINISTRY OF COMMUNICATION EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., HAVING IT’S OFFICE AT NO.8/1, LINK ROAD, SHESHADRPURAM, BENGALURU – 560 020. REPRESENTED BY ITS PRESIDENT.

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THE COMMISSIONER, BANGALORE DEVEOPMENT AUTHORITY, BDA OFFICES, KUMARA KRUPPA ROAD, BENGALURU – 560 001.

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THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE,

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CORPORATION BUILDINGS, HUDSON CIRCLE, BENGALURU - 560 002.

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THE EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, BBMP OFFICE,

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SAHAKARA NAGAR “A” BLOCK, BENGALURU – 560 094.

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THE ASSISTANT EXECUTIVE ENGINEER, BRUHAT BANGALORE MAHANAGARA PALIKE, BBMP OFFICE, SAHAKARA NAGAR “A”BLOCK, BENGALURU – 560 094.

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…RESPONDENTS

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(BY SRI. THRIMURTHY K.P., ADVOCATE FOR R-1; SRI. KIRAN C.V., ADVOCATE FOR R2; SRI. S.J.PURANIK, ADVOCATE FOR R3 TO R5)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.01.2021 PASSED IN OS No.26141/2017 ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal by the appellant-plaintiff is directed against the impugned judgment and decree dated 21.01.2021 passed in O.S.No.26141/2017 by LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, whereby the said suit filed by the appellantplaintiff against the respondents-defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property was dismissed by the Trial Court.

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Though the matter is posted for orders, with the consent of both sides and the Trial Court Records having been received, the matter is taken up for final disposal.

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Briefly stated the facts giving rise to the present appeal are as under:

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(a) The appellant-plaintiff institutes the aforesaid suit for permanent injunction and other reliefs inter alia contending that he is the absolute owner in lawful and

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peaceful possession and enjoyment of the suit schedule immovable property having acquired the same from respondent No.1-Society under registered sale deed dated 25.01.1996 executed in her favour by the respondent No.1-Society. It is contended that the khata has been registered/made out in the name of the appellant by the BBMP and when respondent Nos.3 to 5 in collusion with respondent Nos.1 and 2 attempted to interfere with the appellant's peaceful possession and enjoyment of the suit schedule property, appellant filed the instant suit seeking the aforesaid reliefs.

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(b) It is a matter of record and an undisputed fact that defendant No.1 is the Society which executed sale deed in favour of appellant-plaintiff, while defendant No.2 is the BDA and defendant Nos.3 to 5 are BBMP and its officials.

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(c) The defendant No.1 filed the Written Statement admitting that the Society had executed a sale deed in favour of the appellant in relation to the suit schedule

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property. It is contended that respondent No.1 decided to

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use the suit schedule property as a park and accordingly, requested the BDA to receive an affidavit seeking to rectify the layout plan and exclude the suit schedule property but BDA did not take any decision in this regard. Accordingly, the respondent No.1-Society sought for dismissal of the suit.

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(d) The defendant No.2-BDA filed a separate Written Statement inter alia contending that as per the modified plan, the suit schedule property was a civic amenity site and as such, the plaintiff is not entitled to any right over the suit schedule property and the suit was liable to be dismissed.

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(e) The defendant Nos.3 to 5-BBMP also filed a

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separate Written Statement contesting the suit and putting forth the same contentions as defendant Nos.1 and 2 and sought for dismissal of the suit.

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Based on the aforesaid pleadings, the Trial Court framed the following issues:

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"i. Does the plaintiff proves that she is in lawful possession of the suit property as on the date of the suit?

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ii. Does the plaintiff further proves the alleged interference by the defendants as averred in the plaint?

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iii. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

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iv. What order or decree?"

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The plaintiff examined herself as PW.1 and

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documentary evidence at Exs.P1 to P13 are marked on her

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behalf. The BBMP examined defendant No.4 as DW.1 and documentary evidence at Exhibits D1 to D4 were marked. However, defendant No.1-Society and defendant No.2-

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BDA did not adduce any oral or documentary evidence.

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After hearing the parties, the Trial Court proceeded to dismiss the suit by coming to the conclusion that as per the modified layout plan marked as Ex-D2, the plaintiff does not have any right or possession over the suit schedule property. Aggrieved by the impugned judgment and decree passed by the Trial Court, the

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appellant-plaintiff is before this Court by way of the present appeal.

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The following points arise for consideration in

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the present appeal:

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(i) Whether the Trial Court was justified in

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dismissing the suit for permanent injunction filed by the appellant-plaintiff?

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(ii) Whether the impugned judgment and decree passed by the Trial Court warrants any interference by this Court in the present appeal?

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Since both the points are interlinked with each

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other, the same are taken up for consideration together.

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Re-Point Nos. 1 and 2:

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A perusal of the material on record including

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the impugned judgment and decree will indicate that the sole/primary ground on which the Trial Court has rejected the claim of the plaintiff is by coming to the conclusion that as per the modified layout plan dated 20.10.2012, the

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suit schedule property is shown as Civic Amenity site, which is said to have been handed over to the BDA by the respondent No.1-Society and that the plaintiff is not entitled to claim any right over the said property. In this context, before adverting to the rival submissions, it would be necessary to refer to the judgment of the Apex Court in the case of ANATHULA SUDHAKAR vs. P. BUCHI

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REDDY (DEAD) BY LRS AND OTHERS, AIR 2008 SC

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2033 at paragraphs - 11, 12 and 13 in relation to filing of suits for permanent injunction, which reads as under:

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"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.

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We may refer to them briefly.

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11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a

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prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

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11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

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11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

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12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or

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when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

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13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally."

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9.1 In the instant case, the material on record discloses that much prior to the modified layout plan dated 20.10.2012, the defendant No.1-Society had executed a registered sale deed at Ex.P1 dated 25.01.1996 in favour of the appellant-plaintiff in whose favour, the khata was registered by the BBMP, assessed for tax and the appellant/plaintiff started paying taxes. The cumulative

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effect of the unimpeached, uncontroverted and

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unchallenged oral and documentary evidence adduced by the appellant-plaintiff comprising of the sale deed at Ex.P1, khata certificates at Exs. P2 and P3, khata extract at Ex.P4 and tax paid receipts (10 numbers) at Ex.P5, photographs, legal notice, etc., will clearly indicate that much prior to issuance of the modified layout plan dated 20.10.2012, the appellant-plaintiff was in lawful and peaceful possession and enjoyment of the suit schedule property. It follows therefrom that merely because subsequent to issuance of execution of a sale deed in favour of appellant-plaintiff in respect of the suit schedule property and the appellant-plaintiff having got the khata registered in her name and having paid taxes, the title as well as lawful and peaceful possession and enjoyment of the appellant-plaintiff over the suit schedule property would not be affected by issuance of a modified layout plan in the year 2012, issued much subsequent to sale

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deed, khata certificate, tax paid receipts and other

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documents issued in favour of the plaintiff.

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9.3 As held by the Apex Court in the aforesaid judgment, so long as the respondents-defendants do not prove better title or possession over the suit schedule property and so long as cloud is not cast upon the title of the plaintiff who acquired the suit schedule property by virtue of a registered sale deed in her favour, a suit for permanent injunction would entail examination/scrutiny of the question as to whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit. In this context, as stated supra , except issuance

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of a modified layout plan in the year 2012, there is absolutely no other material produced by the respondentBBMP or respondent No.2-BDA or by Society to establish that any steps were taken to cancel the registered sale

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deed executed by the defendant No.1-Society in favour of the plaintiff. So also, the respondent Nos.3 to 5-BBMP have not taken any steps to cancel the khata registered in

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the name of the appellant/plaintiff in relation to the suit

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schedule property.

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9.4 Under these circumstances, I am of the considered opinion that the Trial Court fell in error in rejecting the claim of the plaintiff, merely on the basis of a modified sanctioned plan, which came into existence much subsequent to the execution of sale deed in favour of appellant-plaintiff and other documents which indicate that the plaintiff is the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property.

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9.5 In the light of the aforesaid discussions, I am of

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the view that the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the appellant-plaintiff deserves to be decreed in her favour.

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Point Nos. 1 and 2 are answered in favour of the appellant – plaintiff and against the respondentsdefendants.

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