Smt. Gangamma Vs Dishanka S Gowda

SMT. GANGAMMA, D/O LATE JAYARAM, AGED ABOUT 33 YEARS, ALL APPELLANT NO.1 TO 5 ARE R/AT 228/45, 5TH D CROSS, P SHANKAR ROAD, MARIAPPANAPALYA, GNANA BHARATHI POST, BENGALURU - 560 056.

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…APPELLANTS

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(BY SRI. SHARATH S GOWDA, ADVOCATE)

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AND:

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DISHANKA S GOWDA S/O LATE SUNIL CHARAN R, AGED ABOUT 31 YEARS, R/AT NO. 691, 3RD MAIN, 9TH A CROSS, WEST OF CHORD ROAD, 2ND STAGE, MAHALAKSHMIPURAM, BENGALURU.

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SRI. MIRLE VARADARAJ, S/O LATE BOREGOWDA, AGED ABOUT 61 YEARS, R/AT NO. 544, 5TH MAIN, KENGERI UPANAGARA, ENGALURU - 560 060.

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SRI. H SOMU, S/O LATE MADAPPA, AGED ABOUT 63 YEARS, R/AT NO. 93/21, SRI NIDHI, BENGALURU - 560 056.

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…RESPONDENTS

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(BY SRI. K.L. ASHOK, ADVOCATE FOR SRI. L. SRIDHAR, ADVOCATE FOR C/R1; R2 AND R3 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.07.2023 PASSED IN OS No.5760/2018 ON THE FILE OF THE C/C XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the defendant assailing the decree for perpetual injunction granted by the Trial Court in O.S.No.5760/2018 pertaining to Site No.39.

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For the sake of brevity, the parties are referred to

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as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The plaintiff claims absolute title and lawful

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possession of the suit schedule property bearing Site No.39, formed in Sy.Nos.42/65, 42/68 and 42/70. It is her specific case that the said lands were acquired by the State for the benefit of Gavipuram House Building Cooperative Society Limited. Consequent upon acquisition, the housing society is stated to have formed a residential layout pursuant to a layout plan approved by the Bangalore Development Authority (BDA), and the sites so formed were released in favour of the society for allotment to its members.

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It is further asserted that the suit site was allotted to one Smt. Rajeshwari under an allotment letter dated 06.09.2002, followed by execution of a registered sale deed in her favour. Smt. Rajeshwari thereafter executed a registered gift deed dated 19.11.2009 in favour of her daughter, Smt. Nandini. The said Nandini, in turn, conveyed the property in favour of Sri Prathap Kumar under a registered sale deed dated 28.01.2016, who thereafter sold the same to Sri K.H. Ramaiah under a registered sale deed dated 31.01.2018. Sri K.H. Ramaiah died on 19.03.2018, and the plaintiff claims to have reacquired absolute title to the suit property by virtue of a registered release deed dated 28.04.2018 executed by the legal heirs of the deceased Ramaiah.

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The plaintiff alleges that defendants Nos.1 and 2, claiming under an agreement of sale said to have been executed by defendants Nos.3 to 7, who project themselves as original owners of the land, attempted to

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interfere with her lawful possession, necessitating the institution of the present suit for injunction.

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Upon service of summons, the defendants entered appearance and filed their written statements, stoutly denying the very acquisition of their lands by the State and disputing the plaintiff’s claim of title as well as possession over the suit schedule property.

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Pursuant to framing of issues, both parties were afforded opportunity to lead oral and documentary evidence. The plaintiff examined her power of attorney holder as P.W.1 and produced thirteen documents, which were marked as Exs.P-1 to P-13. On behalf of the defendants, D.Ws.1 and 2 were examined and eleven documents were marked in support of their defence.

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The Trial Court, while appreciating the evidence on record, placed substantial reliance on the judgment rendered by the Division Bench in W.A.No.2792/2018, marked as Ex.P-11. The Trial Court noted that the

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contention of the original land owners, namely defendants Nos.3 to 7, disputing acquisition, had already been comprehensively examined and adjudicated by the Division Bench. In view of the clarification issued therein that the challenge and consequential quashing of acquisition proceedings pertained only to Survey No.119, and not to the lands forming the suit site, the Trial Court held that the defendants had failed to establish any subsisting right over the suit property. On such reasoning, the Trial Court decreed the suit and granted a decree of permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.

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This Court has heard the learned counsel

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appearing for defendants Nos.3 to 7 and the learned counsel appearing for respondent No.1/plaintiff. This Court has bestowed its anxious consideration to the judgment rendered by the Division Bench in W.A.No.2792/2018 and has also adverted to the judgment of this Court in

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RFA.No.171/2023, wherein, under similar circumstances, a decree of injunction granted in favour of a site holder was affirmed.

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In the light of the rival submissions, the following points arise for consideration in this appeal:

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(i) Whether the judgment and decree of the Trial Court granting a decree of permanent injunction against defendants Nos.1 to 7 suffers from perversity, illegality or material irregularity warranting interference by this Court?

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(ii) What order?

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Finding on point no.(i):

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This Court, on a meticulous re-appreciation of the evidence let in by the plaintiff, more particularly Ex.P.11, which is the judgment rendered by the Division Bench in W.A.No.2792/2018, finds that the core controversy examined therein was whether the quashing

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of acquisition proceedings at the instance of one landowner would automatically enure to the benefit of other landowners, who had neither challenged the preliminary nor the final notifications.

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The Division Bench, after an elaborate analysis, has categorically held that the challenge to the acquisition was confined only to the land bearing Survey No.119. The Division Bench, while allowing the writ appeal filed by the housing society, has issued a clear and unambiguous clarification that the quashing of acquisition proceedings was restricted to Survey No.119 alone and that the acquisition proceedings insofar as Sy.Nos.42/65, 42/68 and 42/70 were concerned, had attained finality.

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This Court has also examined Ex.D.6, which is the order passed by the Co-ordinate Bench in W.P.No.1845/1990, in juxtaposition with the judgment of the Division Bench in W.A.No.2792/2018. Ex.D.6 unmistakably reveals that the writ petition was instituted

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by one K.A. Nainan, who claimed ownership exclusively over Survey No.119. The acquisition proceedings were quashed only to the limited extent of Survey No.119, and the said order neither concerned nor adverted to the lands bearing Sy.Nos.42/65, 42/68 and 42/70.

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The present defendants Nos.3 to 7, who now project themselves as original owners, admittedly did not challenge the acquisition proceedings relating to Sy.Nos.42/65, 42/68 and 42/70 at any point of time. Therefore, the reliance placed by the defendants on Ex.D.6 is wholly misplaced and legally untenable.

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In fact, the Division Bench in W.A.No.2792/2018 has expressly clarified that the lands bearing Sy.Nos.42/65, 42/68 and 42/70 were never the subject matter of challenge in W.P.No.1845/1990. This clarification completely demolishes the foundation of the defence set up by defendants Nos.3 to 7, who seek to extend the

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benefit of quashing beyond what was expressly granted by the writ Court.

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In the face of such a clear and authoritative

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pronouncement by the Division Bench, this Court has no hesitation in holding that the defendants are estopped, both in law and on facts, from contending that the order passed in W.P.No.1845/1990 should be construed as quashing the acquisition proceedings in respect of all survey numbers. Any such interpretation would be contrary to the express findings recorded by the Division Bench.

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It therefore follows that, unless and until the acquisition proceedings pertaining to Sy.Nos.42/65, 42/68 and 42/70 are set aside or interfered with by the Hon’ble Apex Court in Civil Appeal No.4968/2020, the acquisition must be held to have attained finality. Consequently, the title traced by the plaintiff through the housing society,

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which is a beneficiary of the acquisition, continues to remain valid, subsisting and legally sustainable.

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This Court finds that the plaintiff, by producing cogent, consistent and clinching documentary evidence, has not only established an unbroken flow of title, but has also succeeded in proving her lawful possession and enjoyment of the suit schedule property as on the date of institution of the suit.

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This Court also cannot lose sight of the fact that the suit property has been the subject matter of multiple registered conveyances, and the plaintiff’s grandfather was the last transferee in the chain of transactions, preceded by at least four registered sale deeds. In such circumstances, the larger principles enunciated by the Hon’ble Apex Court in Chhedi Lal Yadav vs. Hari Kishore Yadav(2018) 12 SCC 527 squarely apply, wherein the rights of bona fide subsequent purchasers

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have been accorded due protection in the absence of a successful challenge to the root of title.

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Unless defendants Nos.3 to 7 succeed in the pending Civil Appeal No.4968/2020 before the Hon’ble Apex Court, they have no locus standi to obstruct or interfere with the plaintiff’s lawful possession. In that view of the matter, this Court finds that the Trial Court has rightly relied upon the binding judgments of the Division Bench, as evidenced from the record, and has correctly concluded that the plaintiff was in lawful possession of the suit schedule property on the date of the suit.

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The continued assertion of title and acts of interference by the defendants, despite the acquisition having attained finality, clearly amount to unlawful interference. The decree of permanent injunction granted by the Trial Court is therefore just, proper and in accordance with settled principles of law. The defendants are always at liberty to establish their alleged rights, if

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any, before the Hon’ble Apex Court in the pending civil

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appeal. Until such adjudication, this Court finds no justification to interfere with the well-reasoned judgment and decree of the Trial Court. Accordingly, Point No.(i) is answered in the " Negative" .

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Finding on point no. (ii)

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