Sri S Basavaraju Vs the State of Karnataka

(BY SRI. KIRAN KUMAR, HCGP FOR R1; SRI. SACHIN B.S., ADVOCATE FOR R4; SRI. SUMANGALA GACHCHINAMATH, ADVOCATE FOR R5; R2 AND R3 ARE SERVED AND UNREPRESENTED)

¶24

THIS RFA IS FILED U/S 96, OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.11.2010 PASSED IN O.S.2813/2004 ON THE FILE OF THE XXVII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

¶25

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

¶26

CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶27

ORAL JUDGMENT

¶28

This appeal is by the unsuccessful plaintiff assailing the judgment and decree rendered in O.S.No.2813/2004, wherein the trial Court has dismissed the plaintiff's suit seeking relief of declaration of ownership. Hence, this appeal.

¶29

For the sake of brevity, the parties are referred to as per their rank before the trial Court.

¶30

3 -

¶31

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶32

HC-KAR

¶33

Facts leading to the case are as under:

¶34

The plaintiff, claiming title under a registered sale deed dated 18.02.1993, instituted the suit seeking a declaration that he is the absolute owner of the suit schedule property on the strength of alleged settled possession. Consequentially, the plaintiff sought a decree of perpetual injunction restraining defendant No.4 – Bangalore Development Authority (BDA) from interfering with his alleged peaceful possession and enjoyment of the suit property.

¶35

Upon service of summons, defendant No.4 – BDA entered appearance and filed a detailed written statement, stoutly denying the plaint averments. It was specifically contended that the suit schedule property forms part and parcel of land acquired by the BDA pursuant to a preliminary notification dated 02.02.1989, followed by a final notification published in the Official Gazette on 03.03.1994. It was further pleaded that an

¶36

4 -

¶37

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶38

HC-KAR

¶39

award was duly passed and possession was taken in accordance with law, resulting in statutory vesting of the land in favour of the BDA. On these premise, it was contended that the plaintiff’s alleged sale deed, being subsequent to the acquisition proceedings, does not confer any right, title, or interest and that the suit itself is not maintainable.

¶40

The suit filed by the present plaintiff came to be clubbed along with several other suits instituted by similarly placed purchasers claiming under sale deeds executed after initiation of acquisition proceedings. Common evidence was led. The plaintiffs, including the present plaintiff, adduced oral and documentary evidence in support of their claim. The BDA contested the proceedings by examining its official as DW.1 and produced documentary evidence including copies of the preliminary notification, final notification, award, and possession mahazar evidencing taking over of possession under Section 16 of the Land Acquisition Act.

¶41

5 -

¶42

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶43

HC-KAR

¶44

The Trial Court, upon a comprehensive

¶45

appreciation of the oral and documentary evidence on record, dismissed all the suits, including the present suit in O.S.No.2813/2004, holding that the plaintiff failed to

¶46

establish any enforceable right over the acquired land. Aggrieved by the dismissal of his suit, the plaintiff in O.S.No.2813/2004 has preferred the present appeal.

¶47

Learned counsel appearing for the appellant– plaintiff, reiterating the grounds urged in the memorandum of appeal, vehemently contended that the plaintiff is a bona fide purchaser for valuable consideration and is in actual physical possession of the suit property. It

¶48

was argued that the plaintiff’s possession is traceable to a registered sale deed and, therefore, the BDA cannot assert rights over the suit schedule property without resorting to due process of law. Placing reliance on the judgment of

¶49

the Division Bench of this Court in John B. James and

¶50

Others vs. Bangalore Development Authority and

¶51

6 -

¶52

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶53

HC-KAR

¶54

Another¹ , learned counsel contended that when possession is established, the only course open to the BDA is to initiate eviction proceedings either before the Civil Court or under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.

¶55

Per contra, learned High Court Government Pleader appearing for the State and learned counsel representing the BDA, supporting the judgment of the Trial Court, placed reliance on the authoritative pronouncement of the Hon’ble Supreme Court in The Commissioner, Bangalore Development Authority & Another vs. Brijesh Reddy & Another² . It was contended that once land stands acquired and vests absolutely in the acquiring authority, any sale transaction executed thereafter is void ab initio and does not create any legal right. It was further argued that a civil suit seeking declaration of title and

¶56

1 2001(1) Kar.L.J. 364(DB)

¶57

2 AIR 2013 SCW 2378

¶58

7 -

¶59

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶60

HC-KAR

¶61

injunction in respect of acquired land is not maintainable

¶62

and that the Trial Court has rightly dismissed the suit.

¶63

Having heard the learned counsel appearing for

¶64

the parties and upon an independent re-appreciation of the pleadings and evidence on record, the following points arise for consideration:

¶65

i) Whether the suit filed by the plaintiff in O.S.No.2813/2004 is maintainable in view of the evidence adduced by the BDA and the State establishing that the land was acquired prior to the execution of the plaintiff’s sale deed and had vested in the acquiring authority?

¶66

ii) What order?

¶67

Finding on Point No.i:

¶68

Before this Court proceeds to examine the pure questions of law arising for consideration in the present appeal, it would be apposite to extract the reliefs sought

¶69

by the plaintiff in the plaint. The prayer reads thus:

¶70

8 -

¶71

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶72

HC-KAR

¶73

“i) To declare that the plaintiff is the absolute owner of the suit schedule property by virtue of settled possession.

¶74

ii) To grant permanent injunction restraining defendant No.4, his agents, servants, nominees and any other persons claiming under him from interfering with the peaceful possession and enjoyment of the suit schedule property by way of dispossession or by demolishing the structure standing on the suit schedule property. iii) To grant such other relief or reliefs as this Hon’ble Court deems fit in the circumstances of the case, in the interest of justice.”

¶75

A careful reading of the extracted prayer clause discloses a significant and crucial aspect of the plaintiff’s case. Though the plaint proceeds on the assertion that the plaintiff has purchased the suit schedule property under a registered sale deed dated 18.02.1993 from the erstwhile owner, the declaratory relief sought is not one of absolute title simpliciter. Instead, the plaintiff has consciously

¶76

9 -

¶77

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶78

HC-KAR

¶79

couched the relief by seeking a declaration of ownership “by virtue of settled possession.” This manner of framing the relief is not accidental, but clearly indicates the plaintiff’s awareness of the acquisition proceedings initiated by the State in favour of defendant No.4 – BDA and the consequent cloud over title. The prayer itself presupposes that the plaintiff was conscious of the infirmity in title and, therefore, sought to rest the claim on alleged possessory rights rather than lawful ownership.

¶80

The legal position governing the rights of transferees in respect of lands subjected to acquisition by the State or its instrumentalities is well settled. In cases of acquisition under the Bangalore Development Authority Act, once a preliminary notification is issued, the land stands earmarked for public purpose and, upon completion of statutory formalities culminating in a final notification and award, the land vests absolutely in the acquiring authority free from all encumbrances. Any alienation effected after the issuance of a preliminary notification

¶81

10 -

¶82

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶83

HC-KAR

¶84

does not confer valid title nor does it create enforceable

¶85

possessory rights against the acquiring authority.

¶86

In the case on hand, it is an admitted fact that the preliminary notification was published on 02.02.1989, whereas the plaintiff traces his claim through a registered sale deed dated 18.02.1993, which is clearly subsequent to the initiation of acquisition proceedings. Though learned counsel for the plaintiff has placed reliance on the judgment of the Division Bench in John B. James (supra), the said decision cannot advance the plaintiff’s case in view of the authoritative pronouncement of the Hon’ble Supreme Court rendered in the context of acquisition by

¶87

the BDA. The Hon'ble Apex Court has categorically held that the Land Acquisition Act constitutes a complete code in itself and that, by necessary implication, the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure stands excluded insofar as questions relating to the validity or legality of acquisition proceedings are concerned. The Hon’ble Supreme Court has further held

¶88

11 -

¶89

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶90

HC-KAR

¶91

that Civil Courts are equally barred from granting injunctive reliefs in respect of lands that have been validly acquired and vested in the acquiring authority. The remedy, if any, available either to the erstwhile owner or to a subsequent transferee is only to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India.

¶92

In the light of the law laid down by the Hon’ble Apex Court, the pivotal question that arises for consideration is whether the plaintiff, who has purchased the suit schedule land subsequent to the acquisition proceedings initiated by the BDA, could have maintained a civil suit seeking declaration and injunction and whether such reliefs are legally tenable.

¶93

This Court is of the considered view that once a preliminary notification is issued and followed by a final notification, a transferee pendente acquisition cannot assert either title or independent possessory rights in

¶94

12 -

¶95

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶96

HC-KAR

¶97

derogation of the statutory vesting. The prayer clause extracted supra clearly reveals that the plaintiff, being a post-notification transferee, has consciously refrained from seeking a declaration of absolute title and has instead attempted to assert possessory rights on the premise of

¶98

“settled possession.” The concept of settled possession necessarily postulates continuous, peaceful, and undisturbed possession over a sufficiently long period, recognized by law. A sale deed obtained in close proximity to the issuance of the preliminary notification does not, by itself, confer such settled possession. In the present case, even otherwise, the plaintiff has failed to place cogent evidence to establish the essential ingredients of settled possession.

¶99

Be that as it may, once the land stands acquired and the rebuttal evidence adduced by the BDA clearly demonstrates that an award was passed and possession was taken by drawing a lawful mahazar, the plaintiff’s assertion of continued possession cannot be

¶100

13 - NC: 2026:KHC:3748 RFA No. 826 of 2011

¶101

HC-KAR

¶102

accepted. Any possession claimed by either the erstwhile owner or a subsequent transferee after acquisition and vesting has to be construed as unauthorised and illegal. Courts of equity cannot lend their assistance by granting the discretionary relief of perpetual injunction to protect such possession. The equitable jurisdiction of the Civil Court cannot be invoked to perpetuate an illegality. Therefore, the judgment relied upon by the learned counsel for the plaintiff is clearly distinguishable and has no application to the facts of the present case.

¶103

Once land is acquired under the provisions of the Bangalore Development Authority Act, 1976, the consequences that flow from such acquisition are drastic and absolute. Upon issuance of the final notification and passing of the award, followed by taking of possession, the land vests in the acquiring authority free from all encumbrances. Such vesting is statutory, unconditional, and does not depend upon the consent or acquiescence of the landholder or any person claiming under him.

¶104

14 -

¶105

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶106

HC-KAR

¶107

Any transfer, alienation, or encumbrance

¶108

created after the issuance of the preliminary notification does not confer any valid right, title, or interest upon the transferee. A purchaser who acquires property subsequent to the initiation of acquisition proceedings steps into the shoes of the erstwhile owner subject to all statutory disabilities and takes the property with full notice of the acquisition. Such a transferee cannot claim better rights than those available to the original landholder.

¶109

It is well settled that a subsequent transferee cannot question the legality or validity of the acquisition proceedings before a Civil Court. The Land Acquisition Act, read with the BDA Act, constitutes a complete code in itself, and by necessary implication, the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure is barred in respect of matters relating to acquisition, vesting, and possession. Consequently, a Civil Court has no jurisdiction to grant declaratory reliefs or injunctions in respect of land that has vested in the BDA.

¶110

15 -

¶111

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶112

HC-KAR

¶113

Equally, a transferee pendente acquisition

¶114

cannot assert possessory rights against the acquiring authority. Any possession claimed after vesting is unauthorised and illegal in the eye of law. The doctrine of “settled possession” cannot be invoked to defeat statutory vesting, particularly when possession is claimed under a sale deed executed after the acquisition process has commenced. Courts exercising equitable jurisdiction cannot protect such possession by granting injunctive relief, as equity cannot be used to perpetuate an illegality.

¶115

The only remedy, if any, available to an erstwhile owner or a subsequent purchaser aggrieved by the acquisition proceedings is to invoke the extraordinary writ jurisdiction under Article 226 of the Constitution of India. A civil suit seeking declaration of title, possessory rights, or permanent injunction in respect of acquired land is, therefore, not maintainable.

¶116

16 -

¶117

NC: 2026:KHC:3748 RFA No. 826 of 2011

¶118

HC-KAR

¶119

In view of the foregoing discussion, this Court is

¶120

of the opinion that the Trial Court has rightly appreciated the pleadings, the statutory provisions, and the rebuttal evidence adduced by the BDA. A batch of civil suits filed by similarly placed site purchasers was considered together, common evidence was recorded, and all the suits were dismissed by a reasoned judgment. Significantly, none of the other site purchasers have chosen to challenge the decree. The plaintiff in O.S.No.2813/2004 alone has made a feeble attempt to assert possessory rights despite the acquisition having attained finality and the BDA having formed and developed the layout. This Court finds no infirmity or perversity in the findings recorded by the Trial Court. Accordingly, point No.(i) is answered in the negative .

¶121