BANGALORE DEVELOPMENT AUTHORITY v. ANNAPURNA EDUCATION TRUST

This appeal is filed by the appellant-defendant under Section 96 of CPC challenging the judgment and decree dated 27.11.2015 passed by XLI Addl. City Civil Judge, Bengaluru in O.S.No.365/2006, whereby the suit filed by the plaintiffs has been decreed.

For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in original suit. - 3 - NC: 2024:KHC:3774 RFA No. 1748 of 2016

Brief facts of the case: Plaintiff No.1 is a registered Educational Trust and plaintiff Nos.2, 3 and 4 are the trustees of plaintiff No.1 and they have purchased 5 sites (hereinafter referred to as ‘suit schedule property’) vide 5 different registered sale deeds from 5 different persons in the year 2004. Thereafter, the plaintiffs have constructed a building in the suit schedule property to run the educational institution. On 19.12.2005, the officials of the defendant-BDA came near the suit schedule property and threatened to demolish the building erected in the suit schedule property. Therefore, the plaintiffs have filed the suit for bare injunction. On service of suit summons, defendant appeared through counsel and filed the written statement denying the averments made in the plaint. It was stated that the suit was filed without issuing notice under Section 64 of the Bangalore Development Authority Act (for short ‘BDA Act’). It was further stated that the suit schedule property has been acquired by the BDA by issuing preliminary notification dated 15.07.1982 and final notification dated - 4 - NC: 2024:KHC:3774 RFA No. 1748 of 2016

05.08.1986. In respect of Sy.No.14/1 of Malagala Village, the award has been passed on 02.01.1988 and in respect of Sy.No.14/2 of Malagala Vilalge, the award has been passed on 31.05.1988. The award amount has been deposited before the City Civil Court, Bangalore under Section 30 and 31(2) of the Land Acquisition Act. It was further stated that the defendant has drawn mahazars and taken possession in respect of Sy.No.14/1 on 22.02.1988 and possession in respect of Sy.No.14/2 on 30.06.1988 and notification under Section 16(2) of the Land Acquisition Act has been issued on 06.07.1991 and from the said date, the BDA is in possession of the property. It was further stated that the suit schedule property is vacant land and plaintiffs have illegally and unauthorisedly occupied the suit schedule property and they have constructed the building, even after notification under Section 16(2) has been issued from the competent authority. Since the plaintiffs have purchased the suit schedule property after final notification has been issued by the BDA and possession has been taken, they have no - 5 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 right or title over the suit schedule property. It was further stated that the suit schedule property was purchased by the plaintiffs in the year 2004 from third parties, who are not the kathedar. The defendant has stated that the suit is not maintainable and hence sought for dismissal of the suit. On the basis of the pleadings of the parties, the Trial Court has framed the following issues:

Whether the plaintiff proves their lawful possession over the suit schedule property as on the date of the suit?.

2. Whether the plaintiffs prove the alleged interference of defendant the suit schedule property?

3. Whether the plaintiffs are entitled for the relief of permanent injunction against the defendant as prayed?

Whether the suit is bad for want of notice under Section 64 of Bangalore Development Authority Act?. - 6 - NC: 2024:KHC:3774 RFA No. 1748 of 2016

4. On behalf of the plaintiffs, the Secretary of the plaintiff No.1 has been examined as PW-1 and one witness has been examined as PW-2 and produced 26 documents and marked as Exs.P-1 to P-26. On behalf of the defendant, the Assistant Engineer of BDA has been examined as DW-1 and produced 7 documents as Ex.D-1 to D-7. On appreciation of oral and documentary evidence, the Trial Court has answered issue Nos.1 and 2 in the affirmative and issue No.4 in the negative and accordingly decreed the suit and reserved liberty to the defendant to evict the plaintiffs in due process of law. Being aggrieved by the same, the defendant has filed this appeal.

Mr.K.Krishna, learned counsel appearing for the appellant-defendant has contended that the suit schedule property has been acquired by BDA under the BDA Act by issuing preliminary notification dated 15.07.1982 and final notification was issued on 05.08.1986 and mahazar has been drawn and possession has been taken in respect of Sy.Nos.14/1 and 14/2 on 22.02.1988 and 30.06.1988 - 7 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 respectively. Notification under Section 16(2) of the Land Acquisition Act has been issued on 06.07.1991. After the possession has been taken by the BDA, the plaintiffs have purchased the suit schedule property in the year 2004 from third parties, who are not kathedars and plaintiffs have illegally occupied the suit schedule property. Since the plaintiffs are unauthorized occupants in the property, which belongs to the defendant-BDA, the plaintiffs have no right or title over the suit schedule property. They have purchased the suit schedule property in the year 2004 and within two years, they have filed the present suit for injunction. The Trial Court is not justified in giving a finding that the plaintiffs are in settled possession. Under the circumstances, the said finding given by the Trial Court is contrary to the materials available on record. Secondly, the learned counsel contended that the Trial Court has relied upon the judgment of this Court reported in ILR 2005 KAR 295 and held that the possession has not been taken by the BDA in accordance with law. This finding of the Trial Court is also contrary to - 8 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 the materials available on record. Infact, the judgment of this court reported in ILR 2005 KAR 295 has been reversed by the Division of this Court in W.A.No.271/2005 c/w W.A.No.473/2005 on 25.3.2011. Since the suit schedule property is vacant land, drawing mahazar and issuing notification under Section 16(2) of the Land Acquisition Act itself is sufficient to show that the BDA has taken possession. Hence, he sought for allowing the appeal.

The respondents-plaintiffs served unrepresented.

Heard the learned counsel for the appellant. Perused the impugned judgment and decree passed by the Trial Court and also the original records.

After hearing the learned counsel for the appellant, the point that arises for consideration in this appeal is:

Whether the judgment and decree passed by the Trial Court is perverse, arbitrary and contrary to - 9 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 the materials available on record and does it call for interference of this Court?

.

It is the specific case of the plaintiffs that they have purchased the suit schedule property vide 5 different registered sale deeds in the year 2004 from 5 different persons. After purchasing the property, they have constructed the building and they are running an educational institution. Since the officials of the defendant threatened to demolish the building put up in the suit schedule property, the plaintiffs have filed the suit for injunction on 12.01.2006.

The specific case of the defendant is that suit schedule property has been acquired by the BDA under the BDA Act by issuing preliminary notification dated

15.07.1982 as per Ex.D-2 and final notification has been issued on 05.08.1986 as per Ex.D-3. The defendant has produced mahazar dated 22.02.1988 drawn in respect of Sy.No.14/1 at Ex.D-6 and mahazar dated 30.6.1988 drawn in respect of Sy.No.14/2 at Ex.D-7. The defendant- - 10 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 BDA has taken possession and also issued a notification under Section 16(2) of the Land Acquisition Act as per Ex.D-4. Since the suit schedule property acquired was vacant land, by drawing mahazars as per Exs.D-6 and 7 and issuing notification under Section 16(2) as per Ex.D-4, the BDA has taken possession of the suit schedule property after acquisition.

The issue related to settled possession has been well dealt by the Division Bench of this Court in the case of John B James and others –v- BDA and another reported in ILR 2000 KAR 4134. Paragraph 80 is relevant and same the is extracted hereinbelow: Re: persons who have put up structures and have remained in settled possession for more than 12 years without any king of interference from BDA:

If any one, who has trespassed into BDA land or in unauthorized possession of BDA land, has put up a structure and completes and accomplishes the act of possession and continues in such settled possession asserting - 11 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 possession and ownership in himself, openly, peacefully and uninterruptedly to the knowledge of BDA, for more than 12 years, then it is possible for him to contend that he has perfected his title to such property by adverse possession and consequently the title of BDA stood extinguished. It is needless to say that such adverse possession for 12 years should be subsequent to the date of vesting of land in BDA. The person claiming such title by adverse possession cannot call in aid any possession on his part or his predecessor, for any period prior to date of vesting of land in BDA, to establish adverse possession, or possession during the tendency of any litigation regarding property, cannot be considered as possession adverse to BDA.

Therefore, it is very clear from the above facts and circumstances of the case that the plaintiffs are not in settled possession for more than 12 years in the suit schedule property. The finding of the Trial Court that the plaintiffs are in settled possession of the suit schedule property is contrary to the materials available on record. - 12 - NC: 2024:KHC:3774 RFA No. 1748 of 2016 Hence, the said finding of the Trial Court, is unsustainable and the same is set aside. Even the finding of the Trial Court that the BDA has not taken the possession of the suit schedule property in accordance with law, is incorrect and the same is contrary to the materials available on record and documents produced and marked by the BDA. Hence, the judgment and decree passed by the Trial Court is modified to the said extent.