The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH MISCELLANEOUS FIRST APPEAL NO.6415/2024 (CPC) BETWEEN: 1 . MRS. GOWRAMMA M., W/O. M. PUTTASWAMY, AGED ABOUT 52 YEARS, RESIDING AT NO.47, VENKATAPPA LAYOUT, 10TH MAIN ROAD, KUVEMPU CIRCLE, BSK 3RD STAGE, HOSAKEREHALLI, BENGALURU-560 085. 2 . MS. SHUBHA M., D/O. LATE MALLESHAPPA P, AGED ABOUT 40 YEARS, RESIDING AT NO.63, 2ND MAIN, 1ST CROSS, PAVAN RESIDENCY, AVALAHALLI, BENGALURU-560 026. … APPELLANTS AND: (BY SRI AJIT P.B., ADVOCATE) 1 . MR. RAVINDRANATH S/O. LATE S.V.SHANKAR NARAYAN RAO, AGED ABOUT 50 YEARS. 2 2 . MR. JAYANTH S/O. RAVINDRANATH, AGED ABOUT 35 YEARS, RESPONDENTS NO.1 AND 2 ARE RESIDING AT NO.149, “NELE”, 13TH CROSS, GIRINAGAR, 3RD PHASE, BSK 3RD STAGE, BENGALURU-560 070. 3 . MR. GIRISH S. RAO S/O. LATE B.S.RAO, AGED ABOUT 43 YEARS, NO.14, 6TH MAIN, 9TH CROSS, PADMANABHANAGARA, BENGALURU-560 070. … RESPONDENTS (BY SRI. GANAPATHI BHAT, ADVOCATE FOR R1 AND R2; SRI. YESHU MISHRA & SRI. ANOOP HARANAHALLI, ADVOCATES FOR C/R3) THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 14.08.2024 PASSED ON I.A.NO.1 IN O.S.NO.7703/2022 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.44, DISMISSING THE I.A. FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH 3 CAV JUDGMENT This miscellaneous first appeal is filed challenging the order dated 14.08.2024 passed on I.A.No.1 in O.S.No.7703/2022 by the XLIII Additional city Civil and Sessions Judge, Bengaluru. 2.
Legal Reasoning
there is no dispute regarding seniority in the matter of allotment of sites. Having taken note of the judgment of this Court passed in W.P.No.18496/2007, it is very clear that if construction is made and if any sale deeds are executed, the same has to be confirmed by the Society. 11. The direction of this Court in the above referred judgment is clear that the process of bulk allotment of BAD shall 15 be completed within a time bound period and also execute the sale deed. But in the supplemental deed which have been placed before this Court which have been relied by both the parties particularly appellants’ counsel brought to notice of this Court the recitals made in the supplemental deed produced before the Court executed in favour of defendant Nos.1 and 2 wherein it is clear that the second party is not in immediate physical possession of the said property and though the First Party has expressed its inability to execute any documents in favour of the Second Party, the Second Party has insisted for execution of necessary documents to vest title in the Second Party in furtherance of the sale deed dated 03.04.2013 and as per Allotment Letter dated 04.04.2013 on as is where is basis so far as the possession is concerned. Further it is brought to notice of this Court that Second Party has represented that it shall be their/her/his sole responsibility and risk for recovery of possession from such unauthorised occupants as per the direction of the Hon’ble High Court passed in W.P.No.6946/2008 and further represents that Second Party shall not seek any further relief or make any further claim against the First Party 16 and further the Second Party undertakes not to make any fresh claim/s, against the First Party be it in respect of delivery of possession or otherwise and waives all claims and rights, if any, as against the First Party. 12. Having considered these averments and contention of the appellants’ counsel that the respondents are not in possession in terms of the categorical averments made in the document of supplemental deed itself and even if any documents are executed or gifted in favour of defendant No.3, same is without possession and no material is also placed before the Court to show that BDA also took back the possession as directed in the writ order. The counsel for the appellants also relied upon by the photographs which have been placed before the Court to show that already tenants have been in possession of the property. The very claim of the plaintiffs in the suit is that when an attempt was made to interfere with the possession by the respondents, the tenants have intimated the same to the appellants/plaintiffs. The appellants have produced the document of tax paid receipt and also produced all the sale 17 deeds of the year 2003 which was executed in favour of the mother as well as appellant No.1 and also the gift deeds executed in favour of appellant Nos.1 and 2 inter se between the members of the family and also produced water bill as well as electricity bill to show that they have been in possession of the property. When such material is placed including the document of allotment of site No.768/A vide letter dated 21.04.1996 and so also the tax paid receipt from 2016 onwards, the prima facie case discloses that the plaintiffs have been in possession of the property and even google map also discloses that Pooja Furniture shop is in suit schedule property. Though respondents’ counsel content that after allotment has been approved by the BDA, present sites have been allotted in their favour but no material is placed before the Court to show that either BDA has took back the possession and respondents also have taken the possession subsequent to the supplemental deed. 13. It is important that the law is settled that even trespasser also can be evicted under due process of law, but the 18 appellants /plaintiffs relies upon the document of 2003 and earlier to that the allotment letters were issued and gift deeds are also placed before the Court and the Trial Court ought to have taken note of the said fact into consideration and instead of that Trial Court comes to the conclusion that as a condition of bulk allotment, the BDA on its letter dated 14.09.2012 approved a new layout plan, substantially in terms of the layout formed by the first party and assigned different numbers resulting in change in the property numbers but not actual physical possession of the plaintiff. Inspite of this observation, fails to take note of the fact that the recital regarding that the respondents themselves have took the responsibilities to take the possession in terms of supplemental deed. The averment is also very clear from the recitals of the supplemental deed that layout formed by the society was subject matter of the acquisition of BDA and in the year 2009 only, bulk allotment has been made by the BDA in favour of said society. It is also an observation that layout plan is not approved by BDA and an observation is made that said society after bulk allotment and new approved layout plan has executed supplemental deed 19 confirming sale deed executed prior to that date but fails to take note of the recital found in the very supplemental deed regarding possession is concerned and only on the insistence of the respondents only the documents are executed as is where is basis and fails to take note of the said recitals regarding possession. 14. The counsel for the appellants also brought to notice of this Court the original plan i.e., earlier before executing the sale deed in respect of both site Nos.768/A and 826/A and the sites claimed by the respondents are in different places and mainly relies upon the allotment plan produced by the defendants is in existing in phase 4 of Girinagar and in paragraph 11 comes to the conclusion that on perusal of the registered sale deed executed by the society along with sale deed and gift deed, it is clear that the said Sri Sode Vadiraja Mutt is owner of the said site that is written statement schedule property. The Trial Court also comes to the conclusion that where the plaintiff claims that he is in possession, but his title to the property is in dispute, or under a cloud, or where the 20 defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiffs ought to have filed a suit for the relief of comprehensive relief. No doubt, the Apex Court in the case of Anathula Sudhakar vs P BUCHI REDDY (DEAD) BY LRS AND OTHERS reported in AIR 2008 SC 2033 held that if the title to the property is in dispute or under cloud, a comprehensive suit has to be filed. But in the case on hand, it is not in dispute that the very society has executed the sale deed long back in the year 2003 and subsequent sale deed in the year 2013 executed by the very same society in respect of different property. It is important to note that in the supplemental deeds which are produced by both the parties clearly discloses that bulk allotment was given and regarding unauthorised occupants also specifically stated that it is the duty cast upon the BDA to clear the same, but no such material is placed before the Court. But the Trial Court comes to the conclusion that when the identity of the property is in dispute, simple suit for injunction is not at all maintainable. The very approach of the Trial Court is erroneous because the property is identified. No dispute with regard to the identity of the property is concerned. The plaintiffs 21 also produced the documents to show that they have been in possession and constructed the building and let out the same to the tenants. No doubt, principles of Anathula Sudhar’s case referred supra is very clear with regard to that if any persons are claiming right in respect of the very same property, they have to file a comprehensive suit. But in the case on hand, when the sale deeds are in their favour and said sale deeds are executed by the said Society in favour of the appellant in respect of two sites and also they have put up the building long back since they claims that put up the building 20 years back and also tenants are in occupation of the said premises, very conclusion of the Trial Court that very identity of the property is in dispute is erroneous. The law is settled that even if any person is in unauthorised occupation or in occupation of the premises even against the true owner, they have to be evicted and possession has to be cleared under due process of law. This Court in writ petition referred supra made it clear that it is the duty of the BDA to take the possession but no such possession was taken. In order to prove the fact that possession was taken from the plaintiffs, no material is placed before the Court. Even though 22 the recitals of supplemental deed is referred by the Trial Court, failed to take note of the recital of the sale deed regarding possession is concerned. Regarding possession is concerned, the Trial Court committed an error in coming to such a conclusion that the plaintiffs are not entitled for the relief when the plaintiffs established the possession by placing the documents including the title, gift deed, khatha extract, tax paid receipt. The photographs also placed before this Court to evidence the fact that structure is already in the schedule property and even google map also discloses the very Pooja Furniture shop in the suit schedule property. All these materials disclose that appellants/plaintiffs are in possession of the suit schedule property and the Trial Court committed an error in rejecting the application and failed to take note of the material available on record particularly the supplemental deed. But the Trial Court comes to the conclusion that no supplemental deed is executed in favour of the plaintiffs after bulk allotment by BDA. But the fact that already plaintiffs have been in put in possession and already construction was made is not in dispute. Under such circumstances, it requires interference of this Court. Even after 23 such bulk allotment is not made in respect of the property of the plaintiffs and no supplemental deed is executed, but the fact is that plaintiffs are in possession of the property and possession has been established by them and no material is placed regarding the fact that they have been dispossessed from the property and allotment is made in favour of the respondents. The Trial Court fails to take note of the recitals of supplemental deed on which respondents are claiming that the said deed is very specific with regard to possession is concerned that respondents are not in possession. However, the said document is executed at the instance of the respondents and without delivery of possession, possession of the respondents has not been established with regard to the suit schedule property is concerned. Hence, it requires interference. Accordingly, I answer the above point as affirmative. Point No.2: 15. In view of the discussions made above, I pass the following: 24
Arguments
Heard the learned counsel appearing for the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that appellant No.1 acquired the schedule ‘B’ property vide sale deed dated 12.08.2003 executed by Vishwabharathi Housing Co-operative Society Limited (for short ‘the Society’) in her favour and she has put up RCC building and rented it out to a tenant. The appellants being sisters, appellant No.1 gifted the southern portion of the schedule ‘B’ property to appellant No.2. The mother of the appellants’ one Mrs. Jayalakshmamma acquired the schedule ‘A’ property vide sale deed dated 12.08.2003 executed by the said Society in her favour and she also put up building and rented it out a tenant. Later, Mrs. Jayalakshmamma gifted the northern portion of the 4 schedule ‘A’ property to appellant No.1 and the southern portion of the schedule ‘A’ property to appellant No.2. Hence, appellants contend that both of them are the owners of ‘A’ and ‘B’ schedule property in terms of the sale deeds as well as in terms of the gift deeds. It is also contended that the appellants’ ancestor/family members were the owners of the land bearing survey number adjacent and around the schedule property which were acquired by way of grant made by the Land Tribunal. The Society being interested in developing the lands and forming residential layout approached the appellants family members. Consequently, the Society entered into an agreement and took in possession of the lands and assured the land owners that the Society shall allot sites to the family members of the land owners. Accordingly, the Society allotted schedule ‘A’ property in favour of the mother of the appellants and schedule ‘B’ property in favour of appellant No.1. Neither the appellants nor their family members were compensated according to the terms of the agreement. Neither the appellants though being senior members of the Society nor their family members have asserted any rights in the above mentioned lands with the Bangalore Development Authority 5 (BDA) or with the Society or with the Government. It is also contended that the BDA issued notification acquiring lands bearing Sy.No.101, 103, 104, 105 and 106 of Hosakerehalli village. The Society not being able to handle the acquisition sought bulk allotment of the above lands. The allotment of the lands to other persons were subject to writ petitions before the Hon’ble High Court of Karnataka which were disposed vide order dated 16.11.2010 in W.P.No.18496/2007 and connected matters directing the Society to determine Seniority and genuine list of its members as condition for confirmation of allotment by the Society. It is also contended that neither the Society nor any other person can interfere with the peaceful possession of the schedule properties by the appellants unless necessary proceedings are initiated for cancellation of the sale deed and recovery of possession. 4. It is also contended that the respondents claiming to have obtained supplementary deeds from the Society tried to interfere with the appellants’ peaceful possession and a criminal case has been lodged against respondent No.3 in 6 Cr.No.325/2022. The appellants further filed a suit in O.S.No.7703/2022 seeking permanent injunction against the respondents along with I.A.No.1/2022 seeking exparte interim order against the respondents. The Trial Court was pleased to grant exparte interim order vide order dated 03.12.2022. Upon service of summons, the respondent filed a memo stating that written statement may be treated as objection to the IA and contend that the plaintiffs are claiming the property which belongs to the Udupi Sodhe Vadhiraja Mutt and the suit schedule properties are not in existence. Further, the Society executed supplementary deeds dated 05.04.2013 conveying the possession. The Trial Court committed an error in dismissing the application filed by the plaintiffs accepting the contention of the defendants. 5. The learned counsel appearing for the appellants would vehemently contend that the very approach of the Trial Court is erroneous and the fact that one of the appellant purchased the property is not in dispute and also both southern and northern portion are gifted in favour of appellant Nos.1 and 7 2 is also not in dispute. The Trial Court committed an error in considering the documents of the defendant and also contends that building has been constructed long back in respect of both the properties. 6. The counsel also in support of his arguments, placed the documents which have been placed before the Trial Court i.e., sale deed dated 12.08.2003 in favour of the mother as well as plaintiff No.1; gift deed dated 02.06.2020 executed by the respective parties and also brought to notice of this Court tax paid receipts, water supply receipt, electricity bills and so also produced the allotment of provisional sites and also sale deed executed by the Society and also the gift deed executed by the mother in respect of the appellants and also produced the photographs to show that they have let out the premises after constructing the building by both the appellants and also produced the map and also relies upon the supplemental deeds. The counsel brought to notice of this Court the averments made in the supplemental deeds itself specifically mentioned that the defendants are not in possession of the property and 8 supplemental deed is executed only on instance of the respondent and very clearly mentioned that 2nd party cannot seek any further relief or make any further claim against the first party and second party undertakes not to make any fresh claim against the first party and it is the sole responsibility and risk for recovery of possession from such unauthorized occupants as per the direction of the Hon’ble High Court passed in the W.P.No.6946/2008. The counsel also would vehemently contend that without they are not in possession of the property, Trial Court fails to take note of this material available on record. 7. Per contra, the learned counsel appearing for the respondents in his arguments would vehemently contend that in total 124 acres was acquired and property was also belongs to the defendant and long back, sale deeds were executed on 03.04.1993 and gift deed also executed in favour of Sri Sodhe Vadiraja Mutt by both respondent Nos.1 and 2. The counsel also would vehemently contend that the documents which have been placed before the Court clearly discloses site No.768 and 826 which they are claiming and also produced the earlier layout plan 9 and also sale deed and GPA and also the absolute sale deed dated 03.04.2013 and the very same day, GPA was executed and also produced the supplemental sale deed so also the katha endorsement, possession certificate, deed of gift executed in favour of Sri Sodhe Vadiraja Mutt on 19.06.2014 by both respondent Nos.1 and 2 and also relied upon the supplemental deed and contend that the said Mutt is in possession of the property and not the plaintiffs. Hence, the Trial Court also rightly comes to the conclusion that when the plaintiff has not produced the document with regard to the identity of the property, question of granting temporary injunction does not arise and it does not requires any interference of this Court. 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, the points that would arise for consideration of this Court are: 1. Whether the Trial Court committed an error in rejecting the application filed under Order 39 Rule 1 and 2 of CPC and whether it requires interference of this Court? 2. What order? 10 Point No.1: 9. Having heard the learned counsel appearing for the respective parties and also taking into note of the material available on record, it discloses that both the plaintiffs and defendants claim that the vendors are the same and sites are allotted. It is the contention of the plaintiff that the suit schedule ‘A’ property bearing site No.768/A was acquired by the mother of the plaintiffs’ Jayalakshmamma through registered sale deed dated 12.08.2003 and site No.826/A is abutting to suit schedule ‘A’ property-site No.768/A which is purchased by plaintiff No.1 through registered sale deed dated 12.08.2003. That means both the sale deeds are executed on 12.08.2003. It is also contended that there are gift deeds executed in favour of the appellants/plaintiffs on 02.06.2020 and the appellants are in possession of the property and also their contention that they have constructed the building 20 years ago and let out the same to the tenants. It is also their claim that on 19.11.2020 at about 12.00 a.m., the defendants with an intention to dispossess the plaintiffs, came near the suit schedule property and the same has been informed by the tenants and the plaintiffs visited the 11 suit schedule property and the defendants have threatened and assaulted plaintiff No.2 and hence, a criminal case has been filed against respondent No.3. It is the claim of defendant No.3 that he is the follower of Udupi Sri Sodhe Vadiraja Mutt and he is very influential person and a false complaint was given in Girinagar police station which is also pending. Both of them claims that the said Society is the owner and sites are formed in Sy.Nos.16, 17, 18, 19 of Gerahalli village and Sy.No.101 to 106 of Hosakerehalli village. It is important to note that the plaintiffs claim that their ancestors are the owners of the property and sale deeds are executed in their favour and they have been in possession from the date of execution of the sale deed and they have also constructed the building and let out the same to the tenants. In support of their claim, they have produced the layout plan before this Court. The said layout plan discloses that site Nos.768 and 826 are in the same line. The claim of the defendants that site No.826 is in different place. The counsel also relied upon the earlier document of sale deed executed in favour of the mother and also the sister and the gift deed executed inter se between them. It is the contention that the 12 defendants are claiming to be the owners of the sites formed in the very same survey number and they have purchased the same from the said Society in phase 4 of Girinagar. 10. It is the main contention of the plaintiffs that the mother of the plaintiffs had acquired the title to the site No.768/A and appellant No.1 also acquired the title to the site No.826/A and both the sale deeds are executed by the said Society. The main contention of the counsel for the appellants before this Court is that in the very document relied upon by the defendants i.e., the supplemental deed consequent upon the order passed by this Court in the earlier W.P.No.18496/2007 wherein a direction was given with regard to the unauthorised occupants is concerned and also taken note of the fact that the litigation is for more than four decades and various interim orders were passed. Taking advantage of these orders if persons who are not entitled to site, persons who have no right to the site, person who have encroached upon the property, entered upon schedule lands, put up construction on the schedule lands, certainly they would not be entitled to the 13 allotment of sites either by virtue of the Government Order or by virtue of this order. Therefore, possession of such sites have to be taken over by the BDA in accordance with law and after clearing such encroachers, the said land is to be handed over to the Society for being distributed to the genuine senior members. It is also held that the responsibility of the BDA to initiate appropriate action against such persons and in terms of the bulk allotment order to be made in favour of the Society to make available the said lands as that would be a part of the subject matter of bulk allotment. It is clear that in the writ petition specific direction was given that bulk allotment to be made and also made an observation that bulk allotment not to be made on the ground that the matter is pending before the Apex Court and also direction was given to BDA to calculate the total amount payable by the Society for bulk allotment in terms of the Government Order dated 04.10.2007 passed by the Government and thereafter inform the society in writing calling upon them to pay the said amount within 90 days. Though the land in question is in possession of the Society and some of its members and others, the BDA shall formally handover possession of the 14 land in question on receipt of payment and also further direction was given that the Society shall prepare the list of genuine members and list of members who are eligible for allotment of site and also direction was given that the Society shall prepare a layout plan and submit the same to BDA for its approval and also list out number of sites for allotment to its members according to the seniority list and also an observation is made that already a private layout is formed in the said land and number of persons have put up constructions and living there. If those persons are eligible for allotment of site according to seniority list and the allotment and sale deeds had already been executed in their favour, such sale deeds shall be confirmed by the society, if
Decision
ORDER The miscellaneous first appeal is allowed. The impugned order dated 14.08.2024 passed on I.A.No.1 in O.S.No.7703/2022 is set aside. Consequently, the interim order sought before the Trial Court in terms of the I.A.No.1 is granted. SN Sd/- (H.P. SANDESH) JUDGE