IN THE HIGH coma? OF KARNATAKA AT BANGALoR§
nawzn THIS THE 24*" nay 0? SEPTEMBER, 2003 , ,
BEFORE: L3
TRE HON'BLE MR. JUSTICE A.S. PACHflA§$REa:.A
REGULAR FIRST APPEAL N&.92 Q: ggg;f[1%*a'"a
BETWEEN:
S.Yakoob,
S/o. S.A.Samad,
Aged about m years, .; ~~«
H.L. No.1681/1481/2, _m-_-.'
Kacharakanahalli, «_ 1 V .;._ .a, .
Kasaba Hobli; 5 }uV .3'3_V A." ""
Bangalore North raxuk; , _v_' 'fi _f
Bangalore--560_O34; "*4 VjA "V } ... APPELLANT/S
[By Srif B:V;§ama%$6oftfi§, A$§; {absent}
AND:
1. The Bangalare_Défielapment Authority,
.-A sankey_Ro4¢. '*~ ..... ~-
VV "Bangal¢te,~_
*_»Rap,Vby'1tsVCha1rman.
2. Thé Assistant Executive Engineer,
Nogz, North¢Sub-Division,
_ B.D{A.;fR;?. Nagar,
u_4V_B.D.A; Shopping Complex,
'~ wVR9Qm Nb:57, I Floor,
»aBanga1ore-560 G32. ... RESPONBENT/S
°5f;_ fay sgi. U. Abdul Khader, Adv.)
iii
This REA is flied u/Sec. 96 of CPC against the
VsV;Judgment and Decree dated 30.10.2000 passed in O.S.
No.4929/95 on the file of the XVI Addl. City Civil
2 REA No.92f01
Judge, Bangalore, dismissing the suit for permanent
injunction. .'V
This REA coming on for Final Hearing, this déy
the Court delivered the following: 1 "»f;"l:"
JUDGEMENT
The appellant has challenged the Jfiegment ans}
Decree in o.s. No.4929/1995;_disnissing his suit for “a
grant of permanent injunctionkll
2. The facts reletant for the purpose of this
appeal are as under: ew~i”vV H l f
I will ‘be feferringJ thefloarties as per the
ranking hefore the Trial Conrt for the purpose of
convenience;L~
sfie Efilaintiff-minstituted the suit seeking a
decrees for “permanent injunction restraining the
V defenoants; their officials or anybody from acting
or perforfiing through or under them in any capacity
_f*whatsoever3 and from interfering, obstructing or
cemelishing the suit schedule property, which is a
toarcel of the land with construction standing
ffF “thereon in the portion of H.L. No.1681/1481/2
formerly the portion of Sy. Nos.210 and 224 of
Mr
3 RFA No.92/O1
Kacharakanahalli village 3J1 Bangalore North Taluk,
now called as H.B.R.Layout I Stage, Bangalore, with
the boundaries mentioned in the schedule “to “gas
plaint.
It is the case of the plaintiff that he 13 the?
absolute owner and in possession of the lsmo§§s1s”»
property described above and that he purchased the
said Property” under va»_re9ister¢ddz$aleilfieed dated
23.12.1992. The suiitfli was the
portion of Sy. Nos,21§ and 3?; Qfiifiacharakanahalli
village and ~5e_5$isim§w that ihe_»is the bonafide
purchaser of the suifi.§§pedu1e property for valuable
consideration without notice of any transaction. It
is his _claie” that =né.}ié in lawful possession and
Jenjoymeht¢of,the suit schedule property peacefully
aud.uninterrsptedly and surprisingly he noticed that
ii, _the defendants attempted to demolish the structure
lt_ over the. Suit schedule property on 22.07.1995 at
rlaheut’4,30Np.m. without any notice and he managed to
lki preueuti the illegal act of the defendants from
demolishing structure over the suit schedule
4i,3firoperty. He also claimed that the act of the
defendants is illegal and without any reason. He
wk
5 RFA No.92/01
which the suit schedule property is situated were
acquired by the defendants for formation of I{ee_n’t§t
Bellary Road Layout I Stage by issuing a
notification bearing No. HCPR/ALAO/’
dated 27.05.1978 and the sais”m§§t;f:catt§n_,Qe§l§
published in Karnataka Gazette on éa.o7.i978;’~ sfiel
Final Notification HUD/567/Hs§=.84″ wgswisseed’ on
09.01.1985 and was pablishea’ is Rghe tGa2ette on
14.03.1985. The plaintiff was net 59188 notified as
the kathedar an}:if:o’s_e iilevaru [Imam]
being notified as egg figthedet sits regard to Sy.
No.210 to an tgtéet_§: 5 sates 24 guntas and the
possession, of was taken on 19.06.1987
as per the ifiaha?.ai*._ the claim that the land
was heslétied. over-.._VV:to the Engineering Section on
t>.y.jthve Revenue Inspector and a mahazar to
that . re_s§5ect* .,i svv.i’Vdr’swn .
So’ fax; es Sy. No.224, measuring 4 acres 38
..g8ntas.;cguire8 under the Preliminary Notificatien
°.%N5.8e98}ALA0/11/808/78-79. dated 27.06.1978
psblished in the Karnataka Gazette on 28.07.1978 and
“w.the Final Notification No.HUD 557 MNX 84, dated
09.01.1985 was published in the Karnataka Gazette on
94,
_snit..«fl ”
6 RFA No.92/01
14.03.1985. Even in respect of this property, the
plaintiff _was not notified as the kathedar_ and
therefore, it is claimed by the defendants that the
Plaintiff has no right, title or interest_whateoeverqW
over the suit schedule property’ mihe pbsségsian of ‘
Sy. No.224 was taken by the §defendentshhfrdme
18.03.1986 under the mahazar end fies handed eye: to ih
the Engineering Section. on i6{03,19é6-piteelf. In
the circumstances, the defendenteuoieimed that the
plaintiff has no persoVnel.__i.n’tebre’st'”»$3;f1§i” during the
course of acquisition proceedin§e,_A$erd was passed
on 09.0e.,;’1’9e’?1t’gin’:iigresgect ‘ ‘ofw-“isy. No.210 and on
11.03.1985 psy. No.22-4. on these
grounds, the defendents nought for dismissal of the
~ #03 the besis of the pleadings, the Trial Court
framed as mnny’ee 5 issues casting the burden on the
Vplaintiff7: to prove his lawful possession,
Hfhinterference, as to the maintainability of the suit
finder -dection 64 of the B.D.A. Act and the
fljuriediction of the Civil Courts in addition to
iftf”relief for which the plaintiff is entitled to. The
Trial Court heard on issue Nos.3 and 4 and under the
3/\
8 REA No. 92/01
6. As could be seen from the contentions
raised by the appellant in the appeal meme; gthe
appellant contends that Section 64 of the E:D.ng Act .
has no bar for institution ofm the.”sui£e’endfiVah'”
application came to be filed di$3pene’e..’
notice and in the circumstances, he aubmite that at_i;
the most the Trial Court oueht to have returned the
plaint for preeentationt aftefiigafiplyineiieith the
statutory notice as prouiaee under éeetion 64(1) of
the B.D.A. Act;” further; it ie hie eentention that
there is no 9 of C.P.C’.
and that ‘t§#fi}fitiai*:c§§ftfi cdnitted an error in
dismissing the efiit selely on the ground that the
suit was forainjunctioni7 It is also his contention
,that vthe iTriali Court. ought to have permitted the
parties to lead evidence and in the absence of the
said permiaeion; the Judgment and Dcree is illegal.
vihe appellant; has put up the ground that he has
uihhpurchaeed’*the property under the Registered Sale
‘Deed executed by the vendor in the year 1992 and
flthat the suit for injunction is maintainable in law.
iA”ln the circumstances, he has sought for setting
aside the Judgment and Decree. E¢i:
10 REA No.92/01
by virtue of sale made in his favour viz., right,
title and interest of the predecessor had but; he
cannot be said to be the owner since the right ofibs
ownership would be determined with referenoe to thed
date on sdhich. Notification under’ Sections 4(:;»_Qégdf
published. Relying upon rathisfidodecision}: ‘the’
contention of the learnedih counsel*t7fo§ W the
respondents is that vthef suit ditself his not
maintainable.
8. I hate sorutiniaed the oleadings and also
the documents_ stgafieea 35% “the; oarties. It is
relevant to note thatin ears 5 of the plaint, it is
the speciiio” éongéstisnofsf” the plaintiff that he
purchased. the _suit* orofierty through a registered
fsale Reed dated 23.i2J1992 and as could be seen from
the “contentions *raised by the respondents in the
“t~,_written” statement filed, the property in question
v°~..__situate’ Sy. No.21O was acquired by Preliminary
‘v Notification dated 27.06.1978 and the Final
rsatigiaation was issued on 09.01.1985, so also in
‘resfiect of Sy. No.224, the preliminary notification
fies issued on 2?.06.1978 and the Final Notification
was issued on 09.01.1985. Both these notifications
gr)’
12 REA No.92/01
the plaint the grounds for grant of urgent relief by
dispensing with the notice under Section 64 of the
said Act. In the absence of the said gst1¢§;;¢Eef~
suit itself is not maintainabie.__ It his tfurtheruh
relevant to note that the land:fin’ question? was:
acquired by the Government hbf V issuing_Vithe.i*
Notification and an Award has else heen passed and
the possession was taheni in the circumstances, the
suit for injunction alone is not mainteinable. So,
taking into consideratieneialiw these grounds, the
Trial Court hn§§= §}epe§1§é appreciated the material
placed before it and has’cone to a right conclusion
in dismissing the snit es the appellant. I do not
find any greund to warrant the interference. In the
,circumstances, E -enswer point Nos.1 and 2 in
Vnegative.and*proceed to pass the following:
ORDER
hififli The appeal is dismissed. No Order as to costs.
sa/-ea
Judge
hx Ksm*