IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.612/2010 C/W REGULAR SECOND APPEAL NO.609/2010 IN R.S.A.NO.612/2010 BETWEEN:
1. SRI K.SANJEEVAPPA SINCE DEAD BY HIS LRS 1(a). SMT.NARAYANAMMA W/O SANJEEVAPPA MAJOR 1(b). SRI BHAGAVAN S/O LATE SANJEEVAPPA MAJOR 2. SRI HONNEGIRIYAPPA S/O KRISHNAPPA SETTY MAJOR 3. SRI H.KRISHNAMURTHY S/O KRISHNAPPA SETTY SINCE DEAD BY HIS LRS (a). SMT.ANUSUYA W/O LATE KRISHNAMURTHY MAJOR (b). SRI DAYANADA KRISHNA KANTHA S/O LATE KRISHNAMURTHY MAJOR 4. SMT.RAMAKKA D/O KRISHNAPPA SETTY MAJOR 5. SMT.SUSHEELAMMA W/O LATE VENKATARAMU MAJOR 6. SRI ANANTHAMURTHY S/O LATE K.VENKATARAMU MAJOR 7. SRI SOMASUNDARAMURTHY S/O LATE K.VENKATARAMU MAJOR ALL ARE R/AT HEROHALLI VILLAGE YESHWANATHAPURA HOBLI BANGALORE NORTH TALUK … APPELLANTS (BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR SRI R.KUMAR, ADVOCATE) AND:
THE SECRETARY KARNATAKA GOVERNMENT CLASS “D” EMPLOYEES HOUSE BUILDING SOCIETY LTD., KURUBARASANGHA BUILDING GANDHINAGAR BANGALORE – 560 059 …RESPONDENT (BY SRI K.SUMAN, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:08.02.2010 PASSED IN R.A.NO.105/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK IV, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.07.2007 PASSED IN O.S.NO.663/1997 ON THE FILE OF THE PRINCIPLE II CIVIL JUDGE (JR.DN.) BANGALORE RURAL DISTRICT, BANGALORE.
IN R.S.A.NO.609/2010 BETWEEN:
1. SRI RAMACHANDRA S/O LATE LAKSHMIPATHI 2. SRI H.L.LAKSHMINARAYANA S/O LATE LAKSHMIPATHI 3. SRI H.L.ANNAYAPPA S/O LATE LAKSHMIPATHI 4. SRI SONNAPPA S/O LATE LAKSHMIPATHI 5. SRI KRISHNAMURTHY S/O LATE LAKSHMIPATHI 6. SRI H.KODANDARAMA S/O LATE LAKSHMIPATHI MAJOR ALL ARE R/AT HEROHALLI VILLAGE YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK – 560 022 … APPELLANTS (BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR SRI R.KUMAR, ADVOCATE) AND:
THE SECRETARY KARNATAKA GOVERNMENT CLASS “D” EMPLOYEES HOUSE BUILDING SOCIETY LTD., KURUBARASANGHA BUILDING GANDHINAGAR BANGALORE – 560 059 …RESPONDENT (BY SRI K.SUMAN, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:08.02.2010 PASSED IN R.A.NO.106/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK - IV, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.07.2007 PASSED IN O.S.NO.661/1997 ON THE FILE OF THE PRINCIPLE II CIVIL JUDGE (JR.DN.) BANGALORE RURAL DISTRICT, BANGALORE.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals of the plaintiffs arise out of the judgment and decree dated 08.02.2010 in Regular Appeal Nos.105/2007 and 106/2007 passed by the Fast Track Court-IV, Bangalore Rural District, Bangalore.
2. By the impugned judgment and decrees, the First Appellate Court dismissed the appeals of the plaintiffs/appellants and confirmed the judgment and decrees dated 28.07.2007 in O.S.Nos.663/1997 & 661/1997 passed by the Principal II Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore, dismissing the suits of the appellants for permanent injunction.
3. The appellants were the plaintiffs and the respondent was the defendant before the Trial Court.
For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial court.
4. The subject matter of O.S.No.661/1997 was the lands bearing Sy.Nos.143/1 and 143/2 measuring 3 acres and 3 acres 23 guntas respectively situated at Herohalli village, Yeshawanthapura Hobli, Bangalore North Taluk. The subject matter of O.S.No.663/1997 was the land bearing Sy.No.143/1 measuring 6 acres situated at Herohalli village, Yeshawanthapura Hobli, Bangalore North Tluk.
5. The case of the plaintiffs in brief was as follows:
They were the absolute owners of the lands in the respective suits. The Government notified the said lands for acquisition under the preliminary notification dated 05.05.1998. They submitted their objections and the Land Acquisition Officer over- ruled those objections. Though the awards were said to be passed, they were not served on them. Though they filed application under Section 18 of the Land Acquisition Act, 1894 (‘the Act’ for brevity) for reference of the matter, however, they challenged those land acquisition proceedings in W.P.No.4982/1994. Despite the order of the High Court dated 29.08.1994, the L.A.O. did not refer the matter under Section 18 of the Act for enhancement of the compensation. They were not paid any compensation. The possession of the land was not taken. The plaintiffs are still in possession and enjoyment of the property. The defendant’s officials are obstructing the plaintiffs’ peaceful possession and sought for permanent injunction.
6. The defendant contested the suit denying the possession of the plaintiffs. Defendant contended that the Government has taken possession by issuing notification under Section 16(2) of the Act. The plaintiffs have received the award amount and still putting up claim over the property to make wrongful gain.
7. On the basis of such pleadings, the Trial Court framed the following issues:
IN O.S.No.661/1997:
1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule properties?
2. Whether plaintiffs prove the alleged interference by the defendant?
3. To what order or decree?
IN O.S.No.663/1997 1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property?
2. Whether the plaintiffs prove the alleged interference by the defendant?
3. To what order or decree?
8. The parties adduced evidence. The trial court by separate judgments in O.S.Nos.661 and 663/1997 dismissed the suits on the following grounds:
(1) Except Ex.P1-RTC of the year 2002-03, plaintiffs did not produce any evidence to prove their possession as on the date of the suit;
(2) Even Ex.P1 does not bear the names of the plaintiffs;
(3) Once the notification under Section 16(2) of the Act is issued, there is presumption that the possession of the property is taken and no contrary evidence is produced.
9. Plaintiffs challenged the said judgments and decrees before the first appellate court in R.A.Nos.105/2007 and 106/2007. The first appellate court by the impugned judgment and decrees concurred with the reasonings and findings of the trial court and dismissed the appeals.
10. This Court admitted the above appeals to consider the following substantial questions of law:
1. Whether the Courts below were justified in coming to the conclusion that the possession of the land in question was taken in accordance with law by the Society?
2. Whether the Courts below were justified in not considering the plaintiff’s actual possession as on the date of institution of the original suit while deciding the suit for permanent injunction?
11. Before this court, the appellants/plaintiffs have filed Misc.Cvl.Nos.3429/2011 and 3367/2011 respectively and I.A.No.1/2018 under Order XLI Rule 27 CPC for adducing additional evidence. The plaintiffs seek to produce the certified copies of the following documents:
(i) The order in W.P.No.11518/2008 (LA- RES) DD 10.11.2010;
(ii) The judgment in Writ Appeal Nos.4799-4813/2010 (LA-RES) DD 05.04.2016;
(iii) The order dated 25.11.2016 in Special Leave to Appeal (C) Nos.23431-23445/2016.
The above said documents are produced to show that in the said writ proceedings, the learned Single Judge accepted their contention that possession of the property was not taken and quashed the land acquisition proceedings, that was upheld by the Division Bench in the Writ Appeals and the Special Leave Petitions filed against the said order were dismissed.
12. The main question in these two appeals is, whether the plaintiffs were in actual possession of the suit schedule properties as on the date of the suits. The defendant also admitted that the plaintiffs were the owners of the properties and they were in possession as on the date of preliminary notification. But the contention of the defendant was that on 18.06.1998, the Government issued notification under Section 16(2) of the Act and that was published on 09.07.1998, thereby the possession was taken. Defendant’s further contention is that on such notification, the land stood vested in the Government and any rights of the plaintiffs were divested.
13. The plaintiffs contend that the notification, if any, was only make-believe transaction and no possession was taken and by the time the notification was issued, there was an order to maintain status quo. Therefore, the contention that possession was taken is totally unacceptable and that was endorsed by this court in the writ proceedings noted above.
14. The very fact of defendants contending that the possession was taken on 18.06.1998 itself implies that prior to that, plaintiffs were in possession. The suits were filed on 20.12.1997. The trial court on 20.12.1997 passed an order to maintain status quo. Thus it can safely be concluded that as on the date of the filing of the suits, the status was that the plaintiffs were in possession of the property.
15. Considering the aforesaid facts as well as the reports dated 27.09.2006 and the mahazar dated 1.8.2018 filed by the Revenue Authorities in Writ Petition No.11518/2008, this Court held that the actual possession of the property was not taken. Therefore, presumption, if any, attached to notification under Section 16(2) of the Act, stood rebutted.
16. The findings of this Court that the Government did not take possession of the property as per the notification under Section 16(2) of the Act and that plaintiffs are still in possession were confirmed by the Hon’ble Supreme Court in Special Leave Petitions and they attained finality. The proceedings and order in W.P.No.11518/2008, Writ Appeal Nos.4799-4813/2010 and Special Leave to Appeal (C) Nos.23431-23445/2016 are inter-partes.
The parties are bound by those judgments. Thereby said additional evidence is relevant and required for final adjudication of the matter. Accordingly, said evidence is received and the applications for adducing additional evidence are allowed.
17. The courts below thrown the case of the plaintiffs out of the board only on the ground of presumption attached to notification under Section 16(2) of the Act. Since in the writ proceedings it was concluded that under the said notification, actual possession of the properties was not taken, the conclusion of the courts below that the possession of land in question was taken in accordance with law by the defendant is erroneous. Similarly, the courts below were not justified in not considering the plaintiffs’ actual possession as on the date of the institution of the suit. Therefore, the substantial questions of law are answered accordingly. The appeals are allowed.
The impugned judgment and decrees of the courts below are hereby set aside.
The suits in O.S.Nos.661/1997 and 663/1997 on the file of Principal II Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore, are hereby decreed with costs.
The defendant or anybody claiming through it are hereby restrained from interfering with plaintiffs’ peaceful possession and enjoyment of the suit schedule properties.
Draw decree accordingly.
Pending I.As. and memo stood disposed of.
Sd/- JUDGE KNM/-