IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.11435 of 2019 AND WRIT PETITION NOS.11967-11968 OF 2019 (GM-CPC) Between:
Sri Sampath Raj Dead by his LR’s 1. Smt. Shantha Devi, W/o. late Sampath Raj, Aged about 54 years, 2. Sri Pawan Kumar, S/o. late Sampath Raj, Aged about 38 years, 3. Smt. Kiran Kumari, W/o. Vikas Kumar, Aged about 36 years, 4. Sri Amith Kumar, S/o. late Sampath Raj, Aged about 34 years, All are residing at:
No.303, 7th Main, Lakkasandra, Extension, Bengaluru – 560 030.
… Petitioners (By Sri Y.R. Sadashiva Reddy, Senior Counsel for Sri Ravishankar S., Adv.) And:
1. Sri Govinda Reddy, S/o. Narayana Reddy, Aged about 61 years, 2. Smt. Manjulamma, W/o. Govinda Reddy, Aged about 55 years, Both are R/a Kudlu Village, Sarjapura Hobli, Anekal Taluk, Bengaluru Rural District.
... Respondents (By Sri Chandrashekara Reddy M.V., Adv. for C/R-1 and R-2) *** These Writ Petitions are filed under Article 227 of the Constitution of India praying to set aside the order dated 02.03.2019 passed by the V Addl. City Civil and Session Judge, Bengaluru, CCH-13 in O.S.No.3505 of 2007 (Orders passed in O.S.No.3504 of 2007 only) vide Annexure-G rejecting the applications I.A.No.11, 12 and 14 filed by the petitioners under Section 94(b) and 94(e) respectively and allow the applications I.A.No.11, 12 and 14 by allowing these petitions.
These Writ Petitions coming on for Preliminary Hearing this day, the court made the following:
ORDER The plaintiffs filed the present writ petitions against the order dated 02.03.2019 made in O.S.No.3505/2007 (orders passed in O.S.No.3504/2007 since later suit is clubbed with and orders sheet are maintained in O.S.No.3504/2007 only) on the file of V Addl. City Civil and Sessions Judge, Bengaluru (CCH-13) on I.A.Nos. XI, XII and XIV filed under Section 94(b) and 94(e) r/w Section 151 of Code of Civil Procedure to direct the defendant No.2 to deposit a sum of Rs.73,05,762/- before the Court, to attach the property of the defendant No.2 as a security for Rs.73,05,762/- which she received as compensation in respect of the suit schedule property and to direct defendant No.2 to deposit a sum of Rs.83,74,000/- before the Court.
2. Plaintiffs filed O.S.No.3504/2007 and O.S.No.3505/2007 for declaration and possession in respect of Sy. No.1, Khatha No.728, measuring East to West 80 feet, North to South 50 feet and Sy.No.1A and Khatha No.1387, Assessment No.48 measuring East to West 40+41 and North to South 46+28.5 situated at Singasandra Village, Begur Hobli, Bengaluru South Taluk and both the properties are carved out of Sy.No.48 totally measuring 2 Acres 17 Guntas under the registered sale deed dated 29.07.2004. The defendants filed written statement denying the plaint averments and contended that the plaintiffs have not produced any document or material to prove that site Nos.1 and 1A and Khatha Nos.1386 and 1387 are formed out of Sy.No.48 and further contended that out of 2 acres 17 guntas of land, 6½ guntas of land was purchased by defendant No.2 under registered sale deed dated 10.09.2003 morefully described in the schedule to the written statement. Therefore, sought to dismiss both the suits.
3. When the matter was posted for cross- examination of P.W-2, at that stage, plaintiff filed three applications viz., I.A.Nos. XI, XII and XIV under Sections 94(b) and 94(e) r/w Section 151 of Code of Civil Procedure praying to attach the property of defendant No.2 as security for Rs.73,05,762/- and direct the defendant No.2 to deposit Rs.73,05,762/- and Rs.83,74,000/- before the Court and contended that the suit was filed by the father of the plaintiffs for declaration and possession of suit schedule property. During the pendency of the suit, the KIADB acquired portion of the land measuring 50 meters for Bengaluru Metro Project for the purpose of Via duct area and also acquired portion of the property measuring 48 metres situated on the eastern side of the suit schedule property which is now claimed by defendant No.2 as owner and further contended that defendant No.2 has taken the compensation awarded by the KIADB in respect of the schedule property measuring 50 metres etc.
4. Defendant No.2 filed objections and contended that the applications filed are not maintainable. Suit was filed in the year 2007 and the Special Land Acquisition Officer has acquired 50 metres and 48 sq. metres in the land bearing Sy.No.48 of Singasandra Village for the purpose of Bengaluru Metro Rail Project, which absolutely belongs to defendants. But either the name of the plaintiff or his LR’s does not appear in the preliminary and final notifications. No documents have been produced by the plaintiff disclosing the identity, location and existence of the alleged suit schedule properties in Sy.No.48 of Singasandra Village. Therefore, the plaintiffs are not entitled for the relief sought for. Hence, sought for dismissal of the applications filed by the plaintiffs. The trial Court considering the application and objections, by the common impugned order dated 02.03.2019 made in O.S.No.3504/2007 rejected all the three applications. Hence, the present writ petitions are filed.
5. I have heard the learned counsel for the parties to lis.
6. Sri. Y. R. Sadashiva Reddy, learned Senior Counsel for Sri. Ravishankar S., learned counsel for petitioners contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiffs to direct defendant No.2 to deposit and attachment of property of defendant No.2 is erroneous and contrary to the material on record. He further contended that the suit was filed in the year 2007 and the acquisition proceedings were initiated in the year 2017. Therefore, question of attachment does not arise now. He further contended that the trial Court proceeded to record wrong findings that no material is produced by the plaintiffs to show that the KIADB has acquired land for the purpose of Metro Rail Project. Though suit was filed in the year 2007 in respect of suit schedule property, out of the suit schedule properties an extent of 50 and 48 sq. metres was acquired by KIADB in the year 2017. The same has not been considered by the trial Court. Therefore, seeks to direct the trial Court to attach the property of defendant No.2 as security, in case he succeeds in the suit in respect of the suit properties morefully described in the schedule to the plaints. Learned Senior Counsel has also pointed out from the deed of confirmation executed by Smt. Manjulamma in favour Sri. Suvalal Jain on 23.11.2015 wherein, para 3 reads as under;
“Whereas, the party of the first part has made his claim in respect of the land measuring East to West 80+82/2 and North to South 45+13/2 bearing Site No.1-A, Katha No.1387, Assessment No.48 situated at Singasandra Village on the ground that he has acquired the same under the registered sale deed dated 29.07.2004 from one G. Pushpa, W/o. late K. Venkatesh, who in turn stated to be acquired the said property under the Sale Deed No.5394/2002-03, C.D.No.82, Book-1 dated 13.09.2002 registered in the office of the Sub-Registrar, Bengaluru South Taluk.”
Therefore, he sought to allow the writ petitions.
7. Per contra Sri.M.V.Chandrashekara Reddy, learned counsel for caveators/respondents No.1 and 2 contended that no where in the plaint, the plaintiffs have averred that the property acquired by the KIADB is part and parcel of the suit schedule properties. In the absence of any pleadings and in the absence of any notification for acquisition in respect of suit schedule property morefully described in both the suits, the plaintiffs are not entitled for the relief sought for in the applications either for attachment or for depositing the amount. He further contended that PW.1 in his cross-examination has admitted as under;
“£Á£ÀÄ SÁvÁ £ÀA§gï 728, ºË¸ï °¸ïÖ £ÀA§gï 1PÉÌ ZÉPï§A¢ ºÉüÀÄvÉÛãÉ. ¥ÀƪÀðPÉÌ ¸ÀĪÁ¯Á¯ï eÉÊ£ï D¹Û, ¥À²ÑªÀÄPÉÌ gÀ¸ÛÉ, GvÛÀgÀPÉÌ ¸ÉÊmï £ÀA§gï 1J ªÀÄvÀÄÛ zÀQëtPÉÌ SÁ¸ÀV ªÀåQÛUÀ¼À PÀlÖqÀ, ZÉPï§A¢ UÀÄgÀÄvÀÄ ¥Àr¹gÀĪÀÅzÀPÉÌ £À£Àß°è zÁR¯É EzÉ. DzÀgÉ CzÀÄ eÉgÁPïì DVgÀÄvÀÛzÉ. 1974 gÀ°è ªÀiÁ½UÉ ¥Á¥ÀtÚ¤UÉ ªÀÄAdÆgÁVgÀ§ºÀÄzÀÄ. DzÉñÀzÀ ¸ÀASÉå UÉÆwÛgÀĪÀÅ¢®è. ªÀiÁ½UÉ ¥Á¥ÀtÚ£ÀªÀjUÉ SÁvÁ £ÀA§gï 728, ºË¸ï °¸ïÖ £ÀA§gï 1 JAzÀÄ AiÀiÁªÀÅzÉà D¹Û EgÀ°®è J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ªÀiÁ½UÉ ¥Á¥ÀtÚ FUÀ wÃjPÉÆAqÀzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. CªÀgÀ ¸ÀvÛÀ dÕ¥ÀPÀ E®è”.
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8. He further contended that in the absence of any document to show that the suit schedule properties were acquired by the KIADB for Metro Project during the pendency of the suit, the plaintiffs are not entitled for the relief sought for. Therefore, he sought to dismiss the present writ petitions.
9. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs in O.S.No.3504/2007 and 3505/2007 filed suits for declaration and possession in respect of properties bearing Sy.No.1 and 1A formed in Sy.No.48 of Singasandra Village, Begur Hobli, Bengaluru South Taluk, morefully described in the schedule to the plaints and contended that they are the owners of the said properties under the registered sale deed dated 29.07.2004 and their vendor purchased the same from her previous vendor under the sale deed dated 03.09.2002. The defendants filed written statement denying the plaint averments and contended that the suits filed by the plaintiffs are not maintainable and therefore, sought to dismiss the suits.
10. When the matter was posted for cross- examination of P.W.-1, plaintiffs filed three applications namely I.A.Nos.XI, XII and XIV under Sections 94(b) and 94(e) R/w Section 151 of the Code of Civil Procedure to attach the property of defendant No.2 morefully described in the application as security for Rs.73,05,762/- and another application to direct defendant No.2 to deposit Rs.83,74,000/- alleging that the property of the plaintiffs was acquired by the KIADB. Though several contentions have been urged by the learned counsel for plaintiffs by relying upon the confirmation deed dated 23.11.2015 and learned counsel for the defendants/petitioners by relying upon the admission made by P.W.-1 in his cross-examination, this Court resisted to record any finding on the contentions on merits of the suits pending adjudication between the parties.
11. In view of the rival contentions stated supra, there is no clarity whether the suit schedule properties were acquired by the KIADB during the pendency of the suits and whether the property of defendant No.2 alone was acquired by the KIADB in Sy.No.48. The fact remains that during pendency of the suits, the KIADB acquired certain extent of property. Whether the acquired property is part and parcel of the suit properties as claimed by the plaintiffs and whether that property belongs to defendant No.2, who has already received compensation from the KIADB has to be adjudicated only at the time of trial. Ultimately, it is for the plaintiffs who came before the Court to prove their case based on the oral and documentary evidence on record. Ultimately, if the plaintiffs succeed in the suit and establishes that the part of the suit schedule properties are acquired by the KIADB, then they are entitled for the compensation.
12. In the interest of justice, the defendants shall furnish security for the amount that they have received by way of compensation from the KIADB in respect of the property acquired. Ultimately, if the plaintiffs are able to succeed, they are entitled for the compensation amount received by the defendants.
13. Sri M.V. Chandrashekar Reddy, learned counsel for the respondents No.2 fairly submits that after acquisition of a portion of land by KIADB, still the defendants are having remaining land in same Sy.No.48 as per Annexure-G dated 02.03.2019. The said submission is placed on record.
14. In view of the above, the defendant No.2 is directed to furnish the security to an extent of the compensation amount received by him (property acquired by the KIADB) in the remaining property of defendant No.2 in Sy.No.48 as stated in the written statement before the trial Court on the next date of hearing and he shall not alienate the same till the disposal of the suits.
Accordingly, the writ petitions are disposed of and the impugned order is modified to that extent and the applications filed are disposed of.
Ordered accordingly.
Sd/- JUDGE PN/-