SRI. CHANDRA @ CHANDRAPPA v. SMT. RATHNA BASAVARAJ

executed by defendant Nos.1, 2 and 4 in favour of defendant No.3 in respect of ‘C’ schedule property is illegal, void and not binding on the plaintiff and also sought for the relief of permanent injunction restraining - 4 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 the defendants from interfering with the possession over the ‘A’ schedule property.

4. It is contended that the plaintiff is the absolute owner in lawful possession of the house property bearing No.194, 195, 196, 197 formed out of Sy.No.1 based on the conversion order dated 04.08.1982 by the Deputy Commissioner, Bengaluru and also dated 13.09.1982 by the Tahsildar, Bengaluru North. The property situated morefully described in the schedule. It is contended that the said property was purchased under the sale deed dated 14.02.1985 from G S Gurusiddappa for valuable consideration of Rs.30,000/-. It is also contended that in view of purchasing of the property, the same is reflected in the encumbrance and also the khatha has been transferred in favour of the plaintiff. The plaintiff upon purchase of ‘A’ schedule property has put up small residential house, dug a bore-well and had obtained electricity connection. The documents evidencing the residence of the plaintiff as well as electricity connection - 5 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 telephone bills issued by the concerned department is produced. It is contended that the plaintiff is in possession of the suit schedule property. It is also the contention of the plaintiff that the property originally granted in favour of Munivenkatappa in the year 1967 and Saguvali Chit was issued the year 1970 and subsequently, he sold the property in the year 1976 in favour of G S Gurusiddappa. It is also the contention that the Gurusiddappa had obtained the conversion and subsequent to the conversion, private layout has been formed in the entire land measuring 2 acres 35 guntas along with other lands. Thus, the suit schedule properties are purchased by the plaintiff which is morefully described in the schedule.

5. It is also the contention of the plaintiff that upon the report of the Tahsildar, restoration proceedings was initiated before the Assistant Commissioner and the same was dropped vide order dated 25.02.1980. Thereafter also once again the defendants have initiated - 6 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 the proceedings against G S Gurusiddappa by filing an application before the Assistant Commissioner. The Assistant Commissioner by an order dated 23.02.2004 has ordered to restore the land in favour of the legal heirs of the grantee. Hence, the plaintiff has filed an appeal before the Deputy Commissioner against the order dated

23.02.2004 and the Deputy Commissioner by an order dated 30.06.2004 was pleased to dismiss the appeal filed by the plaintiff. Being aggrieved by the said order, the plaintiff has referred a writ petition in W.P.No.28016/2004 before this Court and this Court observed that the property was acquired by BDA vide notification dated

03.03.1978 and award came to be passed in favour of Munivenkatappa in LAC No.28/1987. Though, the land in question has been notified in view of the development, BDA has not taken the possession of the land in question, hence, the plaintiff continued to be in possession of the ‘A’ schedule property. - 7 - NC: 2024:KHC:49870 MFA No. 8285 of 2023

6. It is also contended that the plaintiff had approached the BDA for regularization of her occupation in respect of ‘A’ schedule property and the said proceedings are pending adjudication. It is also contended that the defendants being aggrieved by the order dated

24.02.2009 passed in W.P.No.28016/2004, defendants have filed writ appeal in W.A. Nos.1788 & 3211-15/2009 and the plaintiff also filed appeal in W.A. No.1769- 74/2009. This Court by an order dated 31.01.2011, disposed of the writ appeals confirming the order passed in the writ petition. Under these circumstances, though the restoration order was passed in favour of the defendants, the same was not given effect to because of the reason that the land was already converted, the purchasers are in possession, several buildings have been put up and hence, the order of restoration remains without giving effect to.

7. It is also contended that the defendants have filed a suit in O.S.No.295/2020 against the plaintiff - 8 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 wherein an order of status quo was passed and the said order has been challenged by the plaintiff and G S Gurusidadappa in M.F.A.Nos.5189/2020 and 5346/2020. This Court, after hearing the parties to the appeal, set

27.11.2020 passed O.S.No.295/2020 and permitted the plaintiff to put up construction in respect of ‘A’ schedule property by filing an affidavit of undertaking before this Court. Pursuant to the order dated 27.11.2020, the plaintiff has filed an undertaking before this Court. It is contended that inspite of the order passed in the MFA, the defendants did not tender themselves for evidence and hence, the Trial Court dismissed the suit filed in O.S.No.295/2020 for default. It is also contended that the defendants having kept quiet for sometime filed Misc. P.No.350/2021 and the same is pending for consideration.

8. It is also contended that the defendants also filed the W.P.No.25461-462/2016 and 34362-65/2016 against the State Government and BDA invoking the - 9 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘the Act of 2013’) in respect of the entire land as mentioned in the schedule in O.S.No.295/2020. When the plaintiff came to know about the said fact, has filed an application for impleading herself in the said writ petition and this Court having considered the claim of the plaintiff, dismissed the writ petition on

22.07.2022. It is also contended by the plaintiff that the defendants having unsuccessful in their attempt to secure the favourable order in the proceedings initiated by them, have created fraudulent release deeds dated

21.06.2023 in favour of defendant Nos.2 and 3 since the defendants are not having any right over the suit schedule property as well as they have no right to create those documents. Hence, without other alternative, filed the suit seeking the relief that the documents executed by the other defendants in favour of defendant Nos.2 and 3 is not binding on the plaintiff and inter alia also sought for an - 10 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 order of temporary injunction as stated in the application setting out the grounds as stated in the plaint.

9. Defendant No.3 appeared and filed the written statement contending that the property was originally belongs to Munivenkatappa and he had sold the said property in favour of G S Gurusiddappa in violation of the grant order. The counsel reiterated the averments with regard to the proceedings which have been filed before the Assistant Commissioner and Deputy Commissioner and also before the High Court. The counsel also contended that the plaintiff is not in possession of the suit schedule property as on the date of filing of the suit and also contend that the plaintiff is not entitled for any relief.

10. The Trial Court after considering the pleadings of the parties, framed the following points:

1. Whether the plaintiff has made out a prima facie case in his favour at this stage?

2. Whether the plaintiff further proves that balance of convenience is in his favour? - 11 - NC: 2024:KHC:49870 MFA No. 8285 of 2023

3. Whether the plaintiff further proves if the order of T.I is not granted, he will be put to great irreparable injury and loss?

4. What order?

11. The Trial Court after considering the grounds urged by the counsel for the respective parties and also considering both oral and documentary evidence placed on record answered the above points as affirmative discussing the fact that how the land was granted in favour of Munivenkatappa thereafter considered proceedings which were initiated before the Assistant Commissioner, Deputy Commissioner and also before High Court and also filing of O.S.No.295/2020 and against the order passed in O.S.No.295/2020, filing of MFA and disposal of MFA with direction and permitting the plaintiff to put up construction. In paragraph 19 of the order of the Trial Court, considered all these materials and comes to the conclusion that if really, the possession was given to the plaintiff, this Court in M.F.A.No.5189/2020 clubbed - 12 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 with M.F.A.No.5346/2020 would not have allowed the plaintiff herein and G S Gurusiddappa to put a construction over the suit schedule property and property of the Gurusiddappa. This particular circumstances clearly demonstrates that the plaintiff is in possession of the suit schedule property by constructing temporary shed and also taken note of the katha extract produced by the plaintiff, granted the relief of temporary injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.

12. The counsel for the appellants in his arguments would vehemently contend that the Trial Court ought not to have granted the relief of temporary injunction. Not disputed the fact that the originally the property was granted in favour of Munivenkatappa and consequently Saguvali chit was issued in the year 1970. It is also not in dispute that the said Munivenkatappa sold the property on

09.07.1976 to Gurusiddappa and he converted the land on - 13 - NC: 2024:KHC:49870 MFA No. 8285 of 2023

04.08.1982. It is also not in dispute that the restoration proceeding was initiated and the same was dropped at the first instance and again initiated the proceedings before Assistant Commissioner Assistant Commissioner restored the same and the same is challenged in the writ petition and the writ petition also disposed of with a conclusion that the property already acquired been by BDA and the same was also confirmed in the writ appellate Court. The counsel would vehemently contend that when the suit itself is not maintainable, the Trial Court ought not to have granted the relief of temporary injunction when the property was already acquired. Apart from that the counsel also brought to notice of this Court on the observation made by this Court in the writ petition while disposing of the same wherein it is held that when the property was already acquired long back in the year 1979, the property cannot be conveyed in favour of respondent/plaintiff by executing a document of the year 1985. The counsel also would vehemently contend that this Court has observed that the very title - 14 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 claiming by the respondent is non est. The counsel also brought to notice of this Court preliminary notification dated 16.11.1977 and final notification dated 30.08.1979. The counsel would vehemently contend that in view of acquisition, title is vested with BDA and there is no prima facie case in favour of the plaintiff. Under such circumstances, the Trial Court ought not to have granted the relief of temporary injunction.

13. The counsel also brought to notice of this Court the principles laid down in the judgment reported in (2021) 1 SCR 953 in the case of ASHA JOHN DIVIANATHAN vs VIKRAM MALHOTRA AND OTHERS and discussion made with regard to void and voidable and brought to notice of this Court paragraphs 19 and 20 wherein discussed the meaning of void and voidable and also distinction made with regard to invalidity and also nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not - 15 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 make the list void altogether, but only voidable. The counsel also brought to notice of this Court discussion made in paragraph 22 wherein also discussion made in detail and even extracted paragraphs 18 and 19 of the judgment reported in (1977) 2 SCC 424 in the case of MANNALAL KHETAN AND OTHERS vs KEDAR NATH KHETHAN AND OTHERS. The counsel also relied upon the very same judgment wherein also discussion was made with regard to meaning of void and voidable and particularly brought to notice of this Court wherein discussion was made with regard to where a contract, express or implied, is expressly or by implication forbidden by statute, no Court will lend its assistance to give it effect. A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The counsel also relied upon the judgment reported in (2001) 3 SCR 1129 in the case of DHURANDHAR PRASAD SINGH vs JAI PRAKASH UNIVERSITY AND OTHERS decided on 24.07.2001 - 16 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 and also brought to notice of this Court the discussion made in a similar set of facts with regard to the document of void and a challenge to the validity of an act may be direct action or by way of collateral or indirect challenge and also discussion was made with regard to the expressions void and voidable have been subject matter of consideration on innumerable occasions by Courts. The counsel referring these judgments would vehemently contend that when the very title claimed by the plaintiff/respondent is defective and it does not convey any right in favour of the plaintiff, the Trial Court fails to take note of these facts into consideration and erroneously granted an order of temporary injunction restraining the appellants/defendants. Hence, it requires interference.

14. Per contra, the learned counsel appearing for the respondent/plaintiff also not dispute the fact with regard to grant of property in favour of Munivenkatappa and thereafter, the Munivenkatappa sold the property in favour of Gurusiddappa and Gurusiddappa in turn sold the - 17 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 property in favour of the plaintiff in the year 1985. It is also not disputes the fact that restoration proceedings was initiated at the first instance and later it was dropped and thereafter again proceedings were initiated and order was passed by the Assistant Commissioner and the same was challenged before the Deputy Commissioner and the same was dismissed and then writ petition was filed. The counsel also brought to notice of this Court the order passed in the writ petition particularly paragraphs 8 to 12 wherein discussion was made with regard to the grant of land and also acquisition of proceeding and the order passed by the Assistant Commissioner for restoration and challenge was made and also contention of the respondent in the writ petition and comes to the conclusion that when the property was acquired by the BDA and the property vested with the State in view of the notification dated

30.08.1979, the lands stood vested with the State Government irrespective of the grant made to the original grantee or irrespective of any proceedings for restoration. Therefore, as on the date of application seeking - 18 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 restoration of the lands made by the original grantee in terms of the Karnataka SC &ST Act, the lands stood vested with the State. Hence, even though principles of res- judicata would stand attracted to proceedings under the SC & ST Act, no relief can be granted on that score. It is also held that the authorities like BDA etc., may be directed to consider the case of the petitioners either for regularization, reconveyance or otherwise. The counsel pleads that the petitioners are bonafide purchasers and have been living in the said properties since more than two decades and observation is made that in view of the submission, I find no impediment for the petitioners to approach the said authorities as found appropriate in order to seeks such relief's as necessary either for regularization or re-conveyance etc., in terms of law. The concerned authorities may consider such request of the petitioners and pass appropriate orders in accordance with law.

15. The counsel also would vehemently contend that this order was challenged in the writ appeal and writ - 19 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 appeal also dismissed. Hence, the counsel brought to notice of this Court Section 38(d) amendment was introduced in the year 2020 and brought to notice of this Court insertion of new Section 38 and based on this provision, already an application is given to the BDA and the same is pending for consideration. The counsel also brought to notice of this Court that even the appellant have also filed a suit in O.S.No.295/2020 and an order has been passed to maintain status quo and the same has been challenged before this Court and this Court has disposed of the same permitting the plaintiff to put up construction. The counsel also brought to notice of this Court the appellants have filed writ petition before this Court invoking Section 24(2) the Act of 2013 and same was also dismissed and after dismissal of this writ petition, created the document of release deeds and hence, in view creation release deeds only, the plaintiff was forced to file a suit for the relief of declaration to declare that release deeds are created only to invade the right of the plaintiff. The counsel also would vehemently contend that that - 20 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 inspite of written statement is filed, no documents are placed before the Court and the documents which have been placed by the plaintiff are placed before this Court.

16. Having heard the learned counsel appearing for the respective parties and also taking note of the principles laid down in the judgments referred supra with regard to consideration of void and voidable document is concerned more relied upon by the counsel for the appellants and also the grounds urged in the appeal by the respective parties, the points that would arise for the consideration of this Court are:

1. Whether the Trial Court committed an error in allowing I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC restraining the appellants interfering with plaintiff’s peaceful possession enjoyment of the suit schedule property?

2. What order? - 21 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 Point No.1

17. Having heard the learned counsel appearing for the respective parties and also considering the material available on record, it is not in dispute that the property originally was granted in favour of Munivenkatappa in the year 1967 and consequent upon the grant, Saguvali Chit was issued in the year 1970. It is not in dispute that the said Munivenkatappa sold the property in favour of Gurusiddappa in the year 1976. It is also not in dispute that based on the report of the Tahsildar, at the first instance, the proceedings were initiated for restoration of the property and the same was dropped. It is also not in dispute that thereafter, again the legal heirs have approached the Assistant Commissioner and the Assistant Commissioner restored the property. The order of the Assistant Commissioner was challenged before the Deputy Commissioner and the Deputy Commissioner dismissed the same. It is also not in dispute that writ petition was filed and in the writ petition, no doubt, the observation is made that when the property was already acquired in the - 22 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 year 1979, the question of executing the sale deed in the year 1985 in favour of the plaintiff does not arise and the same is non est.

18. It is also important to note that when the Court dismissed the writ petition taking into note of the fact that the property was acquired by the BDA, no need to consider the application for restoration of the property and the property vests with the State. The submission made by the plaintiff’s counsel is with regard to reconsideration on the ground that the plaintiff is in possession of the property from decade and an observation is made that if any such application is given to BDA, the same may be considered in accordance with law. The counsel for the respondent would vehemently contend that an application is filed before the BDA and the same is pending for consideration. It is also not in dispute that when the appellants have filed a suit in O.S.No.295/2020, an order of status quo was granted. It is also important to note that when such order was challenged before this Court in - 23 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 M.F.A.No.5189/2020 connected with M.F.A.No.5346/2020, this Court considering the material available on record while disposing the appeal set aside the order of status quo in view of undertaking given by the respondent and also made an observation that appellants in both the appeals are permitted to put up construction and also complete on going construction in their respective properties subject to both of them filing of an affidavit of undertaking that they are not claiming any equity in this regard and construction would be subject to final result of suit. The aforesaid affidavits of undertaking are directed to be filed by the appellants before the Trial Court within a period of four weeks from the date of receipt of copy of this order. It is also made it clear that this order be restricted only to the parties to the present suit and same cannot be extended or made applicable to any other person other than the person in the suit. Also direction was given to dispose of the suit on merits expeditiously as possible and preferably within a period of six months. Ultimately, the suit filed by the appellants herein was - 24 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 dismissed for default. It is not in dispute that thereafter a writ petition was also filed by the appellants before this Court in W.P.No.25461/2016 challenging the acquisition notification under Section 24(2) of the Act of 2013 wherein the plaintiff is not parties to the said petition but she filed an application to come on record and the petition was also dismissed in coming to conclusion that nothing survives for consideration and Section 24(2) the Act of 2013 is inapplicable to the land acquisition under BDA Act.

19. It is also not in dispute that after dismissal of the writ petition vide order dated 22.07.2022, the appellants herein have executed the document of release deeds in favour of defendant Nos.2 and 3. Hence, the suit is filed seeking the relief of declaration declaring that the said release deeds are is not binding on the plaintiff. It is also important to note that when the suit is filed seeking the relief of declaration declaring documents are not binding on the plaintiff, while granting the relief of temporary injunction, the Court has to take - 25 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 note of the fact that whether the plaintiff is in possession of the suit schedule property or not, may be there are several proceedings were taken place between the parties. It is not in dispute that originally property was allotted in favour of Munivenkatappa and proceedings also initiated for restoration and ultimately, the property was acquired by BDA. It is also not in dispute that both the parties are not disputing the fact that properties were acquired by BDA. The main contention of the appellants’ counsel that when the property was acquired, the very suit itself is not maintainable. It is also settled law that when the property was acquired, the same cannot be questioned in a civil Court regarding acquisition is concerned. But both counsels are not disputing the fact that the property was acquired by BDA, BDA was not able to take possession of the property inspite of preliminary notification which was issued long back i.e. in the year 1977 and final notification in the year 1979. - 26 - NC: 2024:KHC:49870 MFA No. 8285 of 2023

20. It is also important to note that the temporary injunction was granted by the Trial Court O.S.No.295/2020 and the same was challenged and interim order granting to maintain status quo was set aside and giving an undertaking, permitted plaintiff/respondent to put up the construction and directed not to claim any equity and same is also taken note of by the Trial Court that respondent/plaintiff is in possession of the property. and the Court has to grant the relief of temporary injunction not to interfere with the possession. When such observation is made by this Court in a similar set of facts which has been raised in the earlier suit in O.S.No.295/2020 and the same is challenged before this Court and taking note of the possession of the plaintiff/respondent, the Trial Court passed such an order. It is also important to note that in view of the observation made by this Court in the writ petition that when the challenge was made with regard to the restoration of the property, an observation is made to claim the right before the BDA by the respective parties for rehabilitation or for - 27 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 re-conveyance and also in the writ appeal made an observation to making claim for compensation. When such observation is made and also when the application is also filed by the respondent/plaintiff and appellants also made an attempt before this Court by filing writ petition to invoke the new resettlement Act and the same was dismissed and it is open to the appellants to seek appropriate relief before the BDA in view of the observations made by this Court in the writ petition as well as writ appeals. With regard to the possession is concerned, it is established and the same has been observed by this Court also with the same is with the respondent/plaintiff, I do not find any error committed by the Trial Court in passing such an order to restraining the appellants/defendants in interfering with the possession of the plaintiff since the Court has to take note of the possession as on the date of filing of the suit while granting the relief of temporary injunction. No doubt, the counsel for the appellants particularly relied upon the document of void and voidable and the same is also clearly - 28 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 discloses that the respondent who is claiming right in respect of very property and sale deed is of the year 1985, before that already application was made by the BDA but possession was not taken and hence, the possession is vests with the plaintiff/respondent. Hence, I do not find force in the contention of the appellants’ counsel and this Court has to examine the void and voidable document not at this juncture while considering the relief of temporary injunction and the same can be considered at the time of considering the matter on merits. Thus, I do not find any force in the contention of the appellants’ counsel to set aside the order of the Trial Court. Accordingly, the above point is answered as negative. Point No.2:

21. In view of the discussions made above, I pass the following: ORDER The miscellaneous first appeal is dismissed. - 29 - NC: 2024:KHC:49870 MFA No. 8285 of 2023 The Trial Court is directed to dispose of the matter expeditiously. The learned counsel appearing for the respective parties are directed to assist the Trial Court in disposal of the matter at the earliest. The observation made by this Court while disposal of this appeal shall not influence the Trial Court while considering the matter on merits. Sd/- (H.P.SANDESH) JUDGE SN