Smt Prema Rao vs The Bangalore Development Authority

Huluvadi G. Ramesh

This appeal is by the plaintiff challenging the judgment and decree passed by the XVI Addl City Civil Judge, Bangalore, in O.S.No. 2741/2000 dated 18.2.2010.

Suit was filed by the plaintiff against the defendant seeking for permanent injunction, declaration and possession claiming to be the purchaser of properties bearing Nos. 107, 108, 131 and 132 of Sy.No. 21/1 of Kacharakanahalli village, Bangalore North Taluk, totally measuring about 5812 sq. ft. It is stated that, there is a sale deed executed in her favour on 24.8.1983 by her vendor and she had been put in possession and she is in settled possession and also claiming that she had filed an application before the Screening Committee during February 1990 for regulation of sites and also writ petition was filed, but no order has been passed by BDA on the application tiled rather, during February 2000 defendant-BDA has started demolishing the compound wall, as such, apprehending demolition of the structure, appellant-plaintiff had sought for perpetual injunction initially. Matter was contested by the defendant stating that there was an acquisition proceeding initiated in respect of Sy.No. 21/1. Totally 3 acres 12 guntas of land, including the suit property, was acquired for formation of Hennur-Banaswadi Road layout and the acquisition proceedings had been concluded by issuing notice to the khatedars and award has been passed and possession has also been taken way back during July 1983 by paying compensation to the khatedars and plaintiff has purchased the property only after taking possession of the land. Accordingly, it has sought for dismissal of the suit. Based on the pleadings, five issues were raised. Ultimately, the trial Court after enquiry, has dismissed the suit filed by order dated 28.7.2007, against which, RFA No. 1954/2007 was filed by which mailer was remanded to the trial Court and after remand, once again, the trial Court on the amended pleadings, raised two more additional issues regarding the alleged unauthorised demolition and also regarding the additional prayer for declaration and possession and after further enquiry, has dismissed the suit of the plaintiff, as against which, the appellant-plaintiff is before this Court.

Heard.

According to the Learned Counsel for the appellant, the suit property does not fall within the area acquired by the respondent BDA to the extent of 1 acre 25 guntas. Plaintiff is in settled possession. The acquisition proceeding had not been concluded in a proper manner. The structure had been demolished illegally by the BDA. Further, relying upon the decision of the Division Bench of this Court reported in 2001 (1) KLJ 364 in the case of John B James and others Vs.

In the light of the arguments advanced, the points that would arise for consideration are,

(i) Whether the plaintiff has established the fact that she was in settled possession of the suit property and she is entitled for a declaration that demolition is illegal?

(ii) Whether the trial Court is justified in holding that plaintiff is not entitled for the relief of declaration and possession of the suit property?

(iii) Whether the trial Court is justified in holding that there was no such alleged act of interference or obstruction on the part of the defendant?

So far as the possession claimed by the plaintiff is concerned pointing out to the admission in the cross-examination, the Learned Counsel for the BDA has submitted that, there is an unequivocal admission on the part of the plaintiff regarding BDA taking over possession. Even as per the records available, the BDA is shown to have taken possession of the property of Sy.No. 21/1 to the extent of 1 acre 25 guntas.

The claim of the plaintiff is, the property which she is in possession does not form a part of the land acquired by BDA. On the other hand, it is contended that, she is in settled possession and BDA has not taken possession. To get the property identified - whether it forms a part of Sy.No. 21/l which is said to have been acquired by the BDA and possession has been taken, the plaintiff should nave made an effort to get the position clarified - whether the property purchased by her fells within 1 acre 25 guntas acquired by BDA or not. What is not in dispute is neither the vendor of the plaintiff nor the plaintiff has challenged the acquisition of the BDA. There is an admission on the part of the plaintiff that BDA took possession in the year 1983. However, she has taken a stand that she does not know about taking of possession.

The trial Court noting that there is an admission on the part of the plaintiff to the effect that she does not know whether her vendor was having any right to sell the suit property as she has only purchased since her vendor asked her to purchase and nowhere in the affidavit evidence plaintiff has stated that suit property does not come within the land acquired by the BDA, although plaintiff sought to produce certain of the documents about the existence of the building and compound wall, having noticed the photographs produced at Exs. P6 and Ex. P19, has opined that, they will not help the plaintiff to prove her stand and moreover, mere photographs would not be sufficient to contend that suit property is in possession of the plaintiff and is developed by her in the absence of any corroborating evidence.

So far as consideration of the representation of the plaintiff by the BDA is concerned, of course, it is for the BDA as a policy matter to take decision to consider such occupants. However it is clear that the purchase of sites by the plaintiff from the erstwhile owner is subsequent to the acquisition proceeding that had been acquired by the BDA in respect of the property in Sy.No. 21/1 to the extent of 1 acre 25 guntas and even the plaintiff has also admitted the said fact. Might be without being aware of the acquisition proceedings, the plaintiff would have purchased the property at her risk and she is also not able to establish that the suit property does not come within the land acquired. In the circumstances, the suit filed for possession much less to declare that demolition is illegal, has rightly been dismissed by the trial Court. However it is made clear that, in the process of identifying the extent of land i.e., 1 acre 25 guntas acquired by BDA, if BDA forms an opinion that the suit property does not fail within the acquired land, then it may consider the representation of the petitioner, in accordance with law and the land may be spared to the plaintiff.

Accordingly, appeal is dismissed. Parties to bear their own costs. Consequent to the dismissal of the appeal. Misc. Cvl. 4969/2010 filed for stay is also dismissed.