JUDGMENT
1. These appeals are directed against the common Judgment and Decree dated 30.11.2004 in O.S. No. 1703/03 to 1707/2003 paved by the City civil Judge, Bangalore City partly decreeing the auto granting decree of permanent injunction.
2. The Appellant in these appeals was the defendant and to respondents ware the plaintiffs before to Trial Court In this judgment to parties are referred to their status before the Trial Court
3. As we see the subject matter in these appeals if 3 Acres 36 guntas in Sy. No. 10/3 of Gangenahalli (hereinafter for to salts of convenience called as ‘schedule land’). As on 8.12.1977 to notified khatedars of to schedule land were Smt Byakka, Janakamma M.N. Ramasamy, S.V. Indiramma, K. Kamaraj, Honnamma and G.P. Padmavathamma On 16.3.1976 to defendants issued a notification under Section 17(1) and (3) of the Bangalore Development Authority Act, 1976 (for short called as ‘BDA Act’) for acquisition of certain lands including to schedule land for formation of layout called Matadahalli Layout
4. On 30.11.1977 a final notification under Section 19(1) of the BDA Act was issued, on 16.9.1971 an award came to he passed and the award amount was sent to the civil court due to rival claims made in respect of to schedule land. On 23.1.1980 to defendants took possession of to schedule land and on 8.3.1988 a notification under Section 16(2) was issued notifying to fact of taking over to possession of schedule land along with other lands.
5. When the matter Hood thus, the defendants by their resolution dated 30.7.1988 bearing No. 1101 admitted that Smt Laxmamma, D/o Byakka, one of the khatedars, continued to be in possession to an extent of 2 Acres 34 Gurtas out of 3 acres 36 guntas of schedule land and that the defendant could not take possession of this land in view of the tact that certain litigations relating to acquisition proceeding were pending in the high court Further in the said resection the defendants resolved to make bulk allotment of me schedule land in favour of M/a Kamal Builders and Developers under Group Housing Scheme for construction of apartment Subsequently ate defendants by their resolution dated 3.1.1919 hearing No. 1619 resettled in earlier resolution dated 30.7.1988 making bulk allotment on the ground that the High court of Karnataka in its order in W.P. No. 12119/98 held that defendant – BDA hat no power to make bulk allotment of acquired lands.
6. Thereafter the kathrdar, Smt. lakshmamms sold the lands in her possession in favour of first plaintiff M/s. Addi Housing Industries Ltd. under seven registered sale deeds on different dates during the period from 27.3.1992 to 18.6.1992. The first plaintiff on the strength of the sale deeds in its favour filed civil suits in O.S. No. 1235/1994, 1236/1994, 1238/1994, 1563/1994 and 4133/1994 against the defendants for degree of permanent possession restraining them from interfering with the first plaintiff’s possession and enjoyment of the sites formed in the schedule land. The suit filed by the plaintiff bearing O.S. No. 1238/1994 came to be dismissed for not prosecution, where as suits in O.S. No. 4135/1994, 1565/1994 and 1236/1994 came to he dismissed as withdrawn and further the suit in O.S. No. 1235/1994 came to be dismissed on contest by a considered contest judgment.
7. In the meantime, the first plaintiff under five agreements of sale, sold portions of the suit land in question In favour of plaintiff No. 2 in each of the suits in question. The plaintiff No. 2 in each of the suits filed separate writ petitions in W.P. 16712-13/2000 and W.P. No. 16473-45/2000 on the file of this Court against the defendant – BDA for a direction to regularise the sites in their possession under Section 38 of the BDA Act and the same came to be dismissed vide order dated 18.8.2000. Thereafter on 14.2.2003, BDA demolished the structures put up by plaintiff No. 2 in each of the suit sites. Consequently, the plaintiffs hive filed the present suits for declaration that they are in settled position as absolute owners of the schedule sites and for consequential injunction.
8. The defendants entered appearance before the Trial Court and filed written statement interalia contending that the acquisition proceedings in respect of the schedule land attained finality and as such the suit for declaration of title is liable to be dismissed. It is further contended that the contraction put up by the plaintiffs on the schedules sites are unsuthorised and the defendants have rightly demolished the same. As on the date of filing of the suits the plaintiffs were not in possession of the schedule sites and as such they are not entitled for decree of permanent injunction. The defendant opened the claim of the plaintiffs.
9. The following are the identical issues framed by the trial Court in all the suits.
i) Whether plaintiffs prove, that they are the absolute owner of the suit schedule property with a given boundaries and measurement as on the date of the fifing of the suit?
ii) Whether plaintiffs further prove, that they are lawful and settled possession of the suit schedule property with a given boundaries and measurement as on the date of filing of the suit?
iii) Whether the plaintiffs prove, that the defendants without having any right, title or interest over the suit schedule property interfering in their peaceful enjoyment thus caused interference?
iv) If so, whether plaintiffs are entitled to haw a relief of perpetual injunction against the defendants as prayed?
v) To what order and decree?
10. Plaintiffs examined one witness as PW. 1 and got marked Ex.P1 to P88. The defendants examined two witnesses as DW. 1 and 2 and got marked Ex.D1 to D9. The Trial Court after hearing both the parties and on appreciation of pleadings, oral and documentary evidence held that the plaintiffs are in settled possession of the schedule sites and consequently granted the decree of permeate in junction. The Trial Court reserved liberty to the plaintiff to agitate the remedy far ownership before the proper forum. Hence these appeals by the defendant BDA.
11. Sri Nanjundareddy, learned senior Counsel for the defendant contend that the Trial Court committed an error in holding that the plaintiffs are in settled possession of the schedule sties though the material on record establishes that the have put up unsuthorised structures. The Trial Court committed an error in not considering Ex.D5, the Mahazar drawn by the defendants evidencing the fact that they have taken possession of the schedule sites and alto Ex.D6, the notification dated 8.3.1988 issued under Section 16(2) of the Land Acquisition Act evidencing the taking over possession of the schedule land. The Trial Court committed an error in not noticing the fact that the first plaintiff has not derived any right, title and interest in the schedule sites under the registered sale deeds executed by Smt. Laxmamma and consequently the plaintiff No. 2 in each of suit under the alleged agreement of sales. The plaintiffs are not in possession of the schedule land as on the date of filing the suit and as such the grant of decree of permanent injunction is bad in law. The plaintiff have failed to prow and establish the necessary ingredients to show that they are in settled possession of the schedule sites.
12. The reasoning of the Trial Court to hold that the plaintiffs are in possession of schedule sites is countrary to the law declared by the Apex court and this Court in several decisions. Reliance it placed on the following decision:
1. Poornaprajan House Building Co-operative Society v. Ballamms.
2. Tamilnadu Housing Board v. Viswam
3. Larsen and Toubro Limited v. State of Gujarat.
4. AIR 1968 SC 702 Munshi Ram v. Delhi Administration.
5. 1992 Supp (II) SCC 29 East India Hotels v. Syndicate Bank.
6. Rame Gowds v. M. Varadappa Nide.
7. B. James v. BDA.
8. AIR 1995 KAR 192 B.T. Sakku v. Commissioner BDA.
9. 2007 SAR (Civil) 403 (SC) P.T. Mundchikkmnna Reddy v. Revenue
10. Karnataka Board of Wakf v. Govt. of India.
11. S. Muninanjappa Karim v. Bibi Sakinal
12. 1969 (1) SCC 639 Mohan Lal v. Mirza Abdul Gaffar.
13. Alia Baksh v. Mohd. Hussain.
13. Sri Ashok Harnahalli, learned Counsel for the impleading applicants support the claim of the defendant He contends that the imploding applicants art she allotters of the sites formed by the defendants in the schedule land. The impleading applicants have credited the allotment charges to the defendant – BDA Mid they have secured the registered sale deeds. Because of the impugned Judgment and Decree the impleading applicants are prevented from developing me sites allotted to them.
14. Sri Stantaraj, learned senior Counsel for the plaintiffs support the impugned Judgment and Decree of the Trial Court He contend that the defendants in their resolution dated 30.7.1911 admitted that plaintiff vendor Smt Laxmamma who it the daughter of one of khatedars of schedule lands by name Byakha continued to be in possession and that the defendant – BDA is not able to recover me possession. There is no other evidence to show dint subsequent to 30.7.1998, the defendants have recovered the possession in accordance with law either from the plaintiffs or from their vendor. In the absence of any evidence on record, the Trial Court in justified fat holding that the plaintiff are in settled possession of the schedule land. Therefore be pressed to dismiss the appeal.
15. Heard arguments on both the side and pressed the entire appeal papers and Trial Court records.
16. The only question that arise for oar consideration in these appeals is whether the trial court if justified in holding that the plaintiffs are in settled possession of the schedule land.
17. It is necessary at this stage to notice the law laid down by the Supreme court on the question of settled procession. The Supreme Court in Thailand Housing Board v. Viswam held in part 9 and 12 as under:
9. it is settled law by aeries of judgments of this Court that one of the accepted model of taking possession of the acquired land is recording of a memoranduim of panchanams by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.
12. Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the Court to issue the same.
In Munshi Ram v. Delhi Administration AIR 1968 SC 702 the Supreme Court held as under:
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in nettled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent act of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner moat be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never boon lost The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.
18. In East India Hotels v. Syndicate Bank 1992 Supp (II) SCC 29 the Supreme Court held as under:
In Puran Singh v. State of Punjab, while following the ratio in Munshi Ram case, this Court held that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. There is no special charm or magic in The words “settled possession” nor is it a ritualistic formula which can be confined in a strait-jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. It would be reiterated that the possession must be within the knowledge either express or implied, of me owner or without any attempt at concealment and which contains an clement of animus possidendi. In that case possession for 14 days was held to be settled possession since they raised the crops in the land. This view was reiterated again in Ram Rattan v. State of U.P. laying therein that the true owner has every right to dispossess or throw out a trespasser while he is in the sot or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession the possession to the knowledge of the true owner. In such circumstances the law requires much the true owner should dispossess the trespasser by taking recourse to the remedies under the law.
19. A Division Bench of this Court in Johe B. James and Ors. v. Bangalore Development Authority and Anr. held as under:
71. Having regard to the principles laid down in the said decisions, we may conveniently cull out the legal position in regard to a true owner vis-a-vis a trespasser as under:
i) A true owner [even if it is the State or a statutory body] has no right to forcibly dispossess an unauthorised occupant [including a trespasser] in settled possession, Otherwise than in accordance with law.
ii) A trespasser or unsuthorised occupant in settled possession, can be dispossessed, only in accordance with an order/decree of a competent court/tribunal/authority or by exercise of any statutory power of dispossession/demolition entrusted to the state or statutory Authority.
iii) A person in unauthorised possession shall be deemed to be in settled possession, if the entry into the property was lawful or authorised.
iv) A person in unauthorised possession, whose entry into the property is illegal or unauthorised, can claim to be in unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner.
v) A surreptitious and unauthorised entry kilo another’s land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such act will lead to settled possession only when the true owner having knowledge of it acquiesces in it.
vi) Where the trespasser if not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorised construction put up by the trespasser by using the minimum force. Such action by the tone owner will be considered as defending his possession and resisting on intrusion with his property and not forcible dispassion of on unauthorized occupant
vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 yean, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question.
73. The Supreme Court has repeatedly pointed out that to claim settled possession, a trespasser’s possession must be effective, undisturbed and to the knowledge of the true owner and for a sufficiently long period to show acquiescence by the true owner. ‘What is sufficiently long period’ depends on the facts of each case. It has been held that in the case of a cultivable land, if a trespasser centers possession tad grows any crop with the knowledge of the true owner, then it if possible to say that he completes and accomplishes the act of settled possession; In the case of BDA land, the position is completely different. The land is urban land and not cultivable land, BDA being a statutory authority owning large tracts of land, cannot be expected to take action for demolition or effect resistance immediately after it comes to know about the unauthorized construction Firstly the unauthorised occupation and construction should come to the notice of BDA secondly, BDA has to verify whether the occupant has obtained order of stay or injunction. Thirdly, the matter should be brought to the concerned section and appropriate orders should be obtained to obstruct or demolish the construction. Having regard to the verification process involved and hierarchal system in vague, the administrative machinery moves slowly and by the time a demolition squad visits the site, three to four months might elapse from the date of knowledge. Therefore a trespasser cannot, merely by putting up a shed clandestinely in BDA land or by staying in such shed for a few months claim that he is in settled possession and that BDA can not demolish his structure or that BDA can dispossess him only by initiating legal action in a Court or law or under the public promises Act Unless and until the possession of a trespasser or unauthorized occupant becomes settled possession BDA continues in possession and can therefore demolish the unauthorized structures put up in its land and forcibly evict the unauthorized occupant or trespass by using the minimum force.
77.2. Where the vacant urban land has vetted for BDA in a consequence of acquisition followed by taking over of possession, BDA becomes the absolute owner of such land in possession freed from all claims and encumbrances consequently, the original owner ceases to have any right, title or interest in such vacant land. Therefore, the question of such ex-owner contemning in possession of such vacant land or transferring title or delivering possession of such land or any part there of to any one else either by executing a sale deed or an agreement of sale or a power of attorney, does not arise. Consequently, neither the original owner nor any alleged transferee agreed holder or attorney holder can claim to be in possession of such vacant land, belonging to BDA. Therefore the claim of possession of all petitioners in regard to BDA land, which continues to be vacant, is liable to be rejected.
78. As stated above, any trespasser or other person can be said to be a person in possession of a land belonging to another. Only if he has actual physical possession or effective possession. While there can be an absentee landlord or absentee owner, there cannot be an absentee trespasser or absentee unauthorized occupant, in regard to the vacant land. A person who does not have title can claim a right over a property only on the basis of possession and not otherwise. It will be absurd for a person who admittedly does not have title. To my or contended that he is in possession of a vacant land belonging to another person, unless ho has actual physical possession. Supreme court has repeatedly held that to claim settled possession, a trespasser or unauthorized occupant should be in actual physical possession of the property continuously for a sufficiently long period demonstrating the accomplishment of possession. Supreme Court hat hold that a stray or casual act of possession can not give raise possession.
78.1. Therefore, a person cannot, merely by entering BDA land and putting up a compound wall or a foundation contend that he is in possession. Such act or act would at boat amount to casual or stray act of possession. If such a person who puts merely a compound wall or foundation does not continue in actual possession, he will not be entitled to contend that he is in settled possession. Therefore, petitioners who haw merely put up a foundation or compound wall in BDA land, cannot claim to be in possession of such land and BDA continues in possession of such land and any act done by BDA to demolish such foundation or compound wall, will be well within its right to protect its possession against trespass/encroachment
20. From the decisions referred to above the following principles will emerge:
i) Once the land stood divested from the owner and vested with the acquiring authority, no one can lay any claim to the acquired land.
ii) A person who purchases the land subsequent to the issuance of notification will not got any title to the land.
iii) A trespasser is not entitled for injunction against true owner.
iv) A trespasser in settled possession of the acquired land is entitled to defend his possession even against true owner unless be is evicted by due process of law.
v) Settled possession means, a trespasser’s possession mutt be effective, undisturbed and to the knowledge of the true owner and for a sufficiently long period to show acquiescence by the true owner.
vi) What it sufficient long period depends upon the facts of each case.
21. Keeping in mind the above principles of law, it is necessary to examine the fact situation in the present case. On 16.3.1976 under Section 17(1) and (3) of the BDA Act, the defendants notified flat schedule land for acquisition. on 30.11.1977 a final notification wader Section 19(1) of the BDA Act was issued. On 16.9.1978 an award came to be passed. On 25.1.1980 the defendants took possession of schedule lands under a Mahazar. On 18.3.1988 a notification was issued tinder Section 16(2) of the Land Acquisition Act notifying the fact of taking possession. Thai undisputed material on record establishes the fact shit schedule lands are divested from the owner Khatedar Smt. Byakks and vested with the defendant BDA. The registered salt deeds in favour of first plaintiff between 27.5.1992 and 18.6.1992 as found at Ex. P3, P6, P22, P49, P65, P81 and P82 are subsequent to the vetting of schedule lands in favour of defendants and as such they are illegal and the first plaintiff has not derived any title and interest in the schedule lands. The possession of first plaintiff under these illegal sale deeds is not lawful. consequently the sale of sites fanned in the schedule land in favour of second plaintiff under different agreement of tales as found at Ex.P17, P30, P45, P75 and P160 are all illegal and unlawful.
22. The state filed by the first plaintiff in O.S. No. 1235/1994, 1234/94, 1238/1994, 1563/1994 and 4135/1994 for grant of decree of permanent injunction are all dismissed. The writ petitions filed by the second plaintiff in writ petition No. 16712-13/2000 and Writ Petition 16743-43/2000 for regularisation of schedule sites came to be dismissed vide order dated 18.8.2000. Further the plaintiffs in their plaintiffs admit that on 14.2.2003 the defendant BDA demolished the structures put up by then on the schedule sites. These admitted facts on record clearly establishes the fact that plaintiffs are not in settled possession of schedule sites and at best the same may be litigious possession.
23. The defendants admit in their resolution dated 30.07.1988 that they could not take physical possession from the original (sic) Smt. Dyalka and after her demise from her daughter Smt. Lakahmamma But Smt. Lakahmamma who was said to be in possession of the schedules lands ceased to be in possession when she executed registered sale deeds between 27.5.1992 and 18.6,1992 in favour of first plaintiff Partner in plaintiff admits that under five agreement of sales dated 30.1.1994, they delivered the possession of the schedule sites in favour of second plaintiff In each of the suit this chronology of events manifestly establishes the fact that no one continued in possession of schedule sites for redeemably long of time to constitute is an ingredient to the settled possession.
24. It is not in dispute that Smt. Lakshmama ceases to be in possession of Schedule land subsequent execution of registered sale deeds in favour of first plaintiff between 27.5.1992 and 18.6.1992. Further first plaintiff ceases to be in possession of Schedule land subsequent to execution of agreement of sate in favour of second plaintiff on 30.1.1994. Therefore transfer of possession of schedule land from one person to another person will not amount to settled possession. The concept of settled possession is not transferable for consideration by one person to another. Therefore the plaintiffs are not in settled possession of Schedule land.
25. The plaintiffs in their pleading and also in the evidence admit that the defendants demolished the structures put up on the Schedule land on 14.2.2003. In the circumstances it cannot be said that the plaintiffs were in settled possession as on the date of filling the suit and consequently not entitled for a decree of permanent injunction. The trial Court without considering the evidence on record and the law on the question involved committed an error in granting decree of permanent injunction. The judgment and decree of the trial Court is liable to be set aside.
26. For the reasons stated above, the following:
ORDER
I. The appeals are hereby allowed.
II. The judgment and decree in O.S. Nos. 1703/2003 to 1707/2003 passed by the trial Court are hereby set aside.
III. The suit of the plaintiff in O.S. Nos. 1703/2003 to 1707/2003 are hereby dismissed.
IV. Parties to bear their own costs.