Sri Venkatahanumaiah and Sri Ghalappa and Sri Sadashivappa V. The Karnataka Income Tax Department House Building Co-operative Society Limited and The State of Karnataka and Sri Mahadeva

RFA/414/2011

AI Insights

The case involves a dispute over the possession of a property bearing survey No.79 measuring 5 acres 20 guntas, including 8 guntas of kharab land, located at Nagarabhavi Village, Bangalore. The plaintiff, a society registered under the Karnataka Co-operative Societies Act, 1959, sought a perpetual injunction against the defendants, who claimed possession of the property. The trial court partially decreed the suit, granting a perpetual injunction except for the graves located on the property. The defendants appealed, challenging the trial court's reliance on the acquisition proceedings and the possession claimed by the plaintiff society. The High Court of Karnataka upheld the trial court's decision, emphasizing the finality of the acquisition proceedings and the lack of evidence from the defendants to support their claim of possession.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 672053 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 04-07-2014
• Assessment Year: misc
• Laws Referred To: Land Acquisition Act, 1894, Karnataka Co-operative Societies Act, 1959
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: T S KUMAR; VASANTH FERNANDES
• Assessee Lawyers: G RAO
• Keywords: Land Acquisition; Lawful Possession; Perpetual injunction; Unlawful interference
• Section: 4(1); 96; 16(2); 6(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 4TH DAY OF JULY, 2014 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR R.F.A.NO.414 OF 2011 BETWEEN: 1. SRI VENKATAHANUMAIAH S/O LATE MUTHAIAH AGED BOUT 56 YEARS 2. SRI GHALAPPA S/O LATE MUTHAIAH AGED ABOUT 50 YEARS 3. SRI SADASHIVAPPA S/O LATE MUTHAIAH AGED ABOUT 45 YEARS ALL ARE RESIDING AT NAGARABHAVI VILLAGE, ISEC POST, YESHWANTHAPURA HOBLI, BANGLAORE – 560 072 …APPELLANTS (BY SRI G.NARAYANA RAO, ADV.,) AND: 1. THE KARNATAKA INCOME TAX DEPARTMENT HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED CENTRAL REVENUES BUILDING ANNEXE, QUEENS ROAD, BANGALORE – 560 001 REPRESENTED BY SHRI H.M.KRISHNAMURTHY ITS SECRETARY 2. THE STATE OF KARNATAKA BY ITS SECRETARY 2 TO THE REVENUE DEPARTMENT MULTISTORIED BUILDING VIDHANA VEEDHI, BANGALORE – 560 001 3. SRI MAHADEVA S/O MYLARAIAH @ MYLRAPAP AGED ABOUT 45 YEARS, RESIDING AT NAGARBHAVI VILLAGE ISEC POST, BANGALORE – 560 072 NOTE: DEFENDANT NO.5 SRI MYLARAIAH @ MYLRAPPA, DIED DURING THE PENDENCY OF THE SUIT AND HE WAS REPRESENTED BY HIS SON 6TH DEFENDANT, RESPONDENT NO.3 HEREINA ND HENCE HE IS NOT MADE A PARTY ... RESPONDENTS (BY SRI T.S.AMAR KUMAR, ADV. FOR R-1 SRI VASANTH V. FERNANDES, HCGP FOR R-2 R-3 SERVED) THIS RFA IS FILED U/SEC.96, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.09.2010 PASSED IN O.S.No.6474/1998 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE BANGALORE, PARTLY DECREEING THE SUIT FOR THE DECLARATION AND MANDATORY INJUNCTION. THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T Unsuccessful defendants are before this Court challenging the correctness and legality of judgment and 3 decree passed by XXVII Additional City Civil Judge, Bangalore, in O.S.No.6474/1998 dated 18.09.2010, whereunder plaintiff’s suit for perpetual injunction, has been decreed in part. 2. Facts in brief leading to filing of this appeal are as under and parties are referred to as per rank in the trial court: Plaintiff sought for perpetual injunction against defendant Nos.2 to 6 in respect of property bearing survey No.79 measuring 5 acres 20 guntas including 8 guntas kharab land situated at Nagarabhavi Village, Yeshwanthapura Hobli, Bangalore North Taluk (hereinafter referred to as “suit schedule property” for short), contending interalia that plaintiff is a society registered under the Karnataka Co-operative Societies Act, 1959, interalia carrying on the business of acquiring land, forming sites and distributing the same to its members; it was contended that suit schedule property was acquired by defendant No.1 along with other lands under the Land Acquisition Act, 1894, by issuance of notice under Section 4(1) duly published on 4 26.05.1983 and this notification came to be duly published on 07.01.1985 and Gazetted on 10.01.1986; it was also contended that defendant No.1 took possession of suit schedule property along with other lands on 19.09.1986 as notified under notification issued under Section 16(2) of the Land Acquisition Act, 1894, which was duly published in the Gazette on 30.10.1986; plaintiff also contended that beneficiary of acquisition of suit schedule property being the plaintiff – society, Special Land Acquisition Officer by communication dated 16.10.1986 itself had handed over possession to plaintiff – society as is also evident from notification issued under Section 16(2); plaintiff had got revenue records mutated to its name and as such, it has been exercising its right of ownership being in possession of suit schedule property; plaintiff contended that on account of obstruction caused by defendant Nos.2 to 6, suit in question was filed seeking relief of perpetual injunction. 3. On service of suit summons, defendant Nos.2 to 4 and 6 appeared and filed their written statement. 5 Defendant No.5 had expired during the pendency of suit and his son – defendant No.6 was already on record. It was contended by these defendants that plaintiff is not the owner of suit schedule property. Out of 5 acres 20 guntas including 8 guntas kharab land defendant Nos.1 to 3 are in continuous possession and enjoyment of 20 guntas land and the entire Mylaraiah’s share in the suit schedule property has not been transferred to any one much less plaintiff - society. The very process of acquisition was also disputed by these defendants. It was specifically contended that defendants are in continuous possession and enjoyment of same and other averments made in the plaint came to be denied in toto. 4. On the basis of pleadings of the parties, trial court framed the following issues for its determination or adjudication thereof: 1. Whether the plaintiff proves its lawful possession of the suit schedule property on the date of the suit? 6 2. Whether the plaintiff further proves unlawful interference by the defendants 2 to 6? 3. Whether the plaintiff is entitled to a decree of Permanent Injunction as sought for? 5. On behalf of plaintiff, its Secretary was examined as P.W.1 and through him 12 documents were produced and they were got marked as Exs.P-1 to P-12. On behalf of defendants, 2nd defendant got himself examined as D.W.1 and 2 witnesses were examined on their behalf as D.W.2 and D.W.3 and in all 5 documents were produced and they were got marked as Exs.D-1 to D-5(a). On appreciation of evidence and after considering rival contentions raised by respective learned Advocates appearing for the parties, trial court by its judgment and decree dated 18.09.2010 decreed the suit in part namely, relief of perpetual injunction was granted in respect of suit schedule property except to the extent of comprising graves located in the suit schedule property. Aggrieved by this judgment and decree, defendants are in this appeal. 7 6. I have heard the arguments of Sriyuths G.Narayana Rao, learned counsel appearing for appellant, Sri T.S.Amar Kumar, learned counsel appearing for respondent No.1 and Sri Vasanth V. Fernandes, learned HCGP appearing for respondent No.2 – State. Respondent No.3 is served and unrepresented. Since it has taken 12 long years to dispose of the suit before trial court and records having been secured from trial court, by consent of learned Advocates appeal is taken up for final disposal. 7. It is the contention of Sri G.Narayana Rao, learned counsel appearing for appellant that trial court could not have decreed the suit by merely relying upon the preliminary and final notifications, Exs.P-1 and P-2 without examining its validity or legality in view of serious lapse in the acquisition proceedings and as such, trial court could not have decreed the suit. He would also contend that plaintiff has been in lawful possession and enjoyment of suit schedule property and alleged possession said to have been obtained by society 8 under notification issued under Section 16(2) of the Land Acquisition Act, is without any proper mahazar and when respondent No.1 was not in possession, question of granting injunction in favour of a person, who is not in possession of the property, does not arise. 8. He would further contend that material evidence available on record discloses that plaintiff is not in possession of suit schedule property and as such, it is not entitled for relief of perpetual injunction. He would also contend that according to admitted facts plaintiff has formed a layout, carved out sites and delivered possession thereof to its members and as such, plaintiff cannot claim to be in lawful possession of suit schedule property or sites formed therein. He would also submit that trial court erred in holding that a small portion of suit schedule property, which was retained by Bangalore Development Area for forming a public park is the portion where grandmother and parents of defendants are buried and their graves being in existence, are erroneous findings, since there was no documentary proof that said graves were in existence in 9 suit schedule property, which had been earmarked for the purposes of forming a public park. Hence, according to him it has resulted in miscarriage in the administrative of justice. On these grounds, he seeks for allowing the appeal and prays for dismissal of the suit. 9. Per contra, Sri T.S.Amar Kumar, learned counsel appearing for respondent No.1 would support the judgment and decree passed by trial court and would elaborate his submission by contending that very fact that 1st defendant’s father had sold the suit schedule property way-back in the year 1968 itself was sufficient to hold that defendants cannot claim to be in possession of suit schedule property and even otherwise, when acquisition proceedings has come to an end and possession thereof has been delivered to respondent No.1 – society, a presumption arises under Sub-Section (2) of Section 16 of Land Acquisition Act about the occupied owners of such property having been divested possession and as such, defendants cannot claim to be in possession of any portion of suit schedule property. He would further elaborate his 10 submission by contending that evidence available on record as per Ex.P-4 would indicate that respondent No.1 - society has been delivered possession of suit schedule property by Special Land Acquisition Officer, which was the material evidence considered by trial court to decree the suit except to the extent of 2 graves, which is an area has earmarked for the purposes of formation of a public park and as such, he contends that there is no infirmity, whatsoever, in the judgment and decree passed by trial court calling for interference at the hands of this court. He would also draw the attention of this Court to various admissions in the cross-examination of D.W.1 to indicate that suits filed by the father of defendants seeking perpetual injunction against plaintiff (in the present suit) having been dismissed, also swayed in the mind of trial court to grant equitable relief of perpetual injunction in favour of plaintiff. On these grounds, he seeks for dismissal of the appeal. 10. Sri Vasanth V. Fernandes, learned HCGP appearing for the State has vehemently contended that 11 there is no challenge to acquisition proceedings and said acquisition proceedings having reached finality and defendants having been divested of possession are estopped from claiming to be in possession or in lawful possession of suit schedule property. Hence, he seeks for dismissal of appeal and prays for affirming the judgment and decree passed by the trial court. 11. Having heard the learned Advocates appearing for the parties and on perusal of judgment and decree in question and also on re-appreciation of entire evidence, I am of the considered view that following points would arise for my consideration: (i) Whether judgment and decree passed by trial court suffers from any patent illegality on account of non appreciation of available evidence or erroneous appreciation of available evidence? (ii) What order? 12. Facts in detail leading to filing of this appeal namely, pleadings of the parties having already been delved upon, same is not discussed while answering 12 point Nos.1 and 2 except to the extent required as it would be repetition of facts. RE. POINT NO.1: 13. Defendant Nos.2 to 6 claim to be the owners of suit schedule property. Except self assertion nothing was placed before the trial court in this regard. Be that as it may. It is an undisputed fact that to acquire survey No.79 measuring 5 acres 20 guntas including 8 guntas of kharab land namely, suit schedule property respondent No.1 - State issued a notification under Section 4(1) of the Land Acquisition Act, 1894, which came to be duly published in the Gazette Notification on 26.05.1983 as per Ex.P-1. Final notification issued under Section 6(1) has been produced as Ex.P-2. The state for having taken possession of said lands has also issued a notification under sub Section (2) of Section 16 of the Land Acquisition Act, 1894. Undisputedly, defendant Nos.2 to 6 have not challenged the acquisition proceedings. In the cross-examination dated 01.02.2007 D.W.1 admits to the following effect: 13 “We have not filed any writ petition challenging the acquisition proceeding of the suit land.” This material evidence available on record would be a pointer to fact that at no point of time defendant Nos.2 to 6 challenged the acquisition proceedings or in other words, acquisition relating to suit schedule property had reached finality. 14. Insofar as delivery of possession of suit schedule property is concerned as already noticed hereinabove, notification issued under sub Section (2) of Section 16 of the Land Acquisition Act, 1894, dated 30.10.1986 would indicate that in respect of survey No.79 namely, suit schedule property measuring 5 acres 20 guntas including 8 guntas kharab land, possession was taken by the State for formation of residential layout for the members of respondent No.1 – society. Having taken over possession it has been delivered to authorized representative of respondent No.1 – society as per mahazar Ex.P-4. Though Sri Narayana Rao, learned counsel appearing for appellants would contend that said mahazar does not indicate about possession having 14 been taken over from defendant Nos.2 to 6, I am not inclined to accept the said contention for reasons more than one. Firstly, the contents of mahazar is presumed to be true until and unless it is proved to be contrary to facts by tendering any rebuttable evidence. To demonstrate the contents of Ex.P-4 are untrue, no exercise was undertaken in this regard by the defendants. Secondly, defendants did not summon the records of respondent No.1 - State to substantiate their claim of either having retained possession of suit schedule property or respondent No.1 – society having not been delivered possession of suit schedule property, none of these exercises were undertaken by defendant Nos.2 to 6. As such, it cannot be held or construed that defendant Nos.2 to 6 had continued to be in possession of suit schedule property even after acquisition had reached finality and possession was delivered to respondent No.1 – society by issuance of notification under Section 16(2) of Land Acquisition Act. Yet another factor which would sway in favour of respondent No.1 – society is the fact that subsequent to 15 acquisition proceedings attaining finality, revenue records have been mutated to the name of respondent No.1 – society as evidence from Exs.P-5 and P-6, which indicates that 1st respondent – society is in possession and enjoyment of suit schedule property. 15. It would be appropriate to deal with the second contention of Sri Narayana Rao, learned counsel for appellant at this juncture itself namely that plaintiff has no right to file the suit in question since it is the members, to whom the society had allotted sites would be aggrieved persons and according to the society it has delivered possession to its members and they have to protect their interest by filing suit and plaintiff i.e., respondent No.1 herein cannot claim to have any cause of action to file the suit cannot be accepted and said submission requires to be not only considered with utmost circumspection but it is also to be considered for the purposes of rejection, for the reasons that would follow hereinbelow: The suit in question is for perpetual injunction. Plaintiff had to establish as on the date of filing of suit 16 that it was in lawful possession of suit schedule property. Issue No.1 framed in the instant suit would clearly indicate that plaintiff was required to prove its lawful possession of suit schedule property as on the date of suit. This when read with averments made in plaint it would clearly indicate that plaintiff – society not having stated about delivery of possession to its members of any portion of suit schedule property either in bits or in its entirety. As such, contentions raised by Sri Narayana Rao cannot be accepted and it stands rejected. 16. Trial court has also taken note of evidence tendered by parties to decree the suit in respect of suit schedule property by restraining defendants Nos.2 to 6 from interfering with the possession of respondent No.1 herein except to the extent of two graves located in the suit schedule property. The admission of defendant No.2 i.e., D.W.1 would be of much relevance to affirm the judgment and decree passed by the trial court. In his cross-examination dated 01.02.2007 defendant admits that khatha of suit schedule property has been 17 transferred to the name of plaintiff – society and also admits that plaintiff – society has subsequently formed a layout. His admission reads as under: “It may be that there afterwards khatha came to be transferred in the name of the plaintiff – society. It is true that the plaintiff society formed layout in the suit land.” 17. Yet another factor which would entitle plaintiff for grant of equitable relief, is the fact that 2nd defendant’s father had filed suits after suits for relief of permanent injunction against plaintiff – society in O.S.Nos.5740/1987 and 5885/1989, which also came to be dismissed on 22.04.1989 and on 20.01.1994 respectively. Though Sri Narayana Rao, learned counsel for appellant would hasten to add that said suits were not dismissed on merits, the fact remains they have been dismissed and there was no relief granted to the plaintiff therein either interim or otherwise. They have not pursued their grievance further and the very fact that acquisition proceedings have not been challenged and defendants attempting to assert their possession over suit schedule property and the fact that khatha 18 has been made over to the name of plaintiff – society and the very admissions of D.W.1 that plaintiff – society has formed layout in the suit land are facts, which would clearly indicate that defendant Nos.2 to 6 have been divested of possession of suit schedule property and there is no equity, whatsoever, in their favour and on the other hand equities, it is in favour of plaintiffs. It is also to be observed that plaintiff has been able to demonstrate successfully before the trial court about the suit schedule property having been acquired by State for the benefit of respondent No.1 - society and its members and possession having been taken over by the State and delivered in favour of respondent No.1 – society. As such, this court is of the considered view that there is no infirmity, whatsoever, in the judgment and decree passed by trial court and there has been neither non-appreciation of available evidence or erroneous appreciation of available evidence calling for interference. Hence, point No.1 has to be answered in favour of plaintiff and against appellants – defendant Nos.2 to 6. 19 RE. POINT NO.2: 18. The very fact that defendant Nos.2 to 6 are filing suits after suits on vexatious grounds and stalling respondent No.1 - society from proceeding with the formation of layout and forcing them to approach courts seeking relief of equitable injunction would indicate that defendants are bent upon stalling the project of forming layout by respondent No.1 – society. Hence, not only the judgment and decree passed by the trial court is required to be affirmed but also defendant Nos.2 to 6 are required to be mulcted with exemplary costs. 19. For the reasons aforestated, I proceed to pass the following: ORDER (i) Appeal is hereby dismissed with costs. (ii) Judgment and decree passed by XXVII Addl. City Civil Judge, Bangalore, in O.S.No.6474/1998 dated 18.09.2010, is hereby affirmed. 20 (iii) Defendant Nos.2 to 6 jointly and severally to pay plaintiff –respondent No.1 a sum of Rs.10,000/- towards cost within 4 weeks from today and failure to pay costs, respondent No.1 – society would be at liberty to recover the same by executing the same as if it was a decree for recovery of money and registry shall issue certificate for recovery of costs after four (4) weeks and on plaintiff – society filing an affidavit of costs not having been received. Sd/- JUDGE DR "