The Bangalore Development Authority and Another vs B.B. Ramaswamy Gowda

K. Sreedhar Rao, J.—The Respondent/Plaintiff filed a suit for declaration of title by adverse possession to the suit property and seek consequential relief of permanent injunction against the Defendants/Appellants not to interfere with the peaceful possession and enjoyment of the suit property; further seek the relief mandatory injunction against the Defendant to legally consider the application dated 31.1.2000 filed u/s 38(c)(2) of the B.D.A. Act and until disposal of the said application seek direction against the Defendants/Appellants not to demolish the structure and dispossess the Plaintiff from the suit property.

The suit property is a land measuring 2 acres 2 guntas in Sy. No. 329/3, Kempapura Agrahara, Bangalore North Taluk. The Plaintiff submits that he initially took the suit land on lease in the year 1980 from one Narayana Prasad to put up the temporary Cinema Theatre. Subsequently there to on 14.11.1986 Plaintiff enters into an agreement to purchase the suit land for Rs. 2,50,000/-. The vendor executes the power of attorney in favour of the Plaintiff and continued in possession of the land by virtue of the agreement for sale. An application was made to the District Magistrate for granting No Objection for construction of a touring Cinema.

The Defendant tried to interfere with the Plaintiff''s possession. Therefore a suit in OS No. 10891 of 1986 was filed seeking permanent and temporary injunction against the Defendant, not to dispossess and demolish but before an interim order could be granted on the very next date i.e., 6.11.1986, the Defendants demolished the structures. The Plaintiff filed writ petition in WP 19885 of 1986 before this Court seeking injunction against the Defendant not to interfere with the reconstruction activity inter alia sought an interim order in that behalf. This Court granted the interim order dated 14.11.1986 directing the Defendants not to interfere with the construction of the cinema theatre and also made an observation that the constructions put up by the Plaintiff is at his risk and subject to the result of the writ petition.

The Plaintiff had made an application before the District Magistrate for grant of No Objection Certificate for the construction of the cinema theatre. The Defendant BDA objected the application on the ground that the land in question is acquired by them and possession was taken on 28.11.1980. The District Magistrate overruled the objections and granted No Objection Certificate. The Divisional Commissioner in appeal upheld the order of the District Magistrate. The writ petition of the Plaintiff was disposed of 20.9.1994 directing the parties to work out their remedies in an appropriately instituted suit or other proceedings admissible in law.

The Plaintiff by amended pleadings contends that the Plaintiff is in uninterrupted possession since the year 1980, there was no impediment for B.D.A. to take lawful action for recovery of possession in accordance with law. The BDA has failed to take necessary steps in time, therefore the possession of the Defendant from the year 1980 till the date of suit is by way of adverse possession. The Plaintiff further contends that u/s 38(c) the Plaintiff has made an application for reconveyance of the suit property. Until disposal of the application it is impermissible for the BDA to act in haste. Hence the suit is filed for the aforesaid reliefs.

The Defendant in the written statement contend that 4(1) notification is issued for acquisition on 30.7.1977. The 6(1) notification is issued on 10.5.1978. The award is passed on 20.8.1980 and possession is taken over by the BDA. The constructions put up by Plaintiff being illegal, it is said that BDA took necessary action to demolish the structures as stated in the plaint. The claim for relief u/s 38(c) is untenable and pray for dismissal of the suit.

The trial Court decreed the suit declaring the title of the Plaintiff on the basis of the adverse possession granted permanent injunction. Aggrieved by the judgment and decree, this appeal is filed.

The narration of facts in the plaint ipso facto do not admit the plea of adverse possession. Admittedly on 6.11.1986 the Defendant demolished the structures. The Plaintiff filed the writ petition and obtained the interim order preventing the Defendant from interfering with the reconstruction of the cinema theatre. The interim order in the writ petition (not marked as a document but admitted by the parties) would show the nature of interim order passed. The Counsel for the Respondent does not dispute the correctness and authenticity of the document. The contents of the interim order are extracted.

The Respondents No. 1 and 2 their men, agents, staff etc., be and are hereby restrained from interfering with the construction of the touring cinema building by the Petitioners on the land in Sy. No. 158/3 (New Sy. No. 329/3 and 259/2) of Kempapura Agrahara, Bangalore North Taluk. Further the Petitioner is permitted to continue the construction at his own risk.

The interim order granted operated till the disposal of the writ petition i.e. 20th September, 1994 whereunder this Court directed the parties to approach the competent Civil Court for necessary relief. The Plaintiff had reconstructed the theatre and continued possession with the aid of the interim order granted by this Court. Therefore the possession of the property by the Plaintiff with the aid of the injunction order of the Court cannot be termed as an adverse possession and lacks necessary ingredients of adverse possession. The effect of the interim order of this Court in writ petition not only protected the reconstruction activity but it also protected the continued possession thereafter till the disposal of writ petition.

The Plaintiff categorically contends that an application is made u/s 38(c)(2) of the BDA for reconveyance and for deletion of the suit land in favour of the Plaintiff. The Supreme Court in Konda Lakshmana Bapuji v. Government of Andhra Pradesh and Ors. 2002 AIR SCW 730 at paras 60 and 61 has made the following observations:

Regarding the animus of the Appellant admittedly he claimed as a lessee under the Inamdar. Indeed in his written statement filed in Rasheed Shahpurji Chenoy'' suit (O.S. No. 13 of 1958 on the file of Additional Chief Judge, City Civil Court, Hyderabad) he claimed to be a lessee under the Inamdar. He, however, did not assert title to the land in dispute in himself nor did he lay any claim on the ground of adverse possession. Even otherwise there is no material to show that between November 28, 1954 (unregistered perpetual lease agreement, assuming it to be free from interpolation and admissible as agreement for lease and (Ex. B-40) registered lease deed dated December 11, 1957 (assuming that the secondary evidence is admissible) and the date of filing of the written statement on January 28, 1987 the Appellant claimed title to the land in dispute otherwise than under Ex. B-40 much less by way of asserting adverse title. It is only in the written statement filed in the present suit that he pleaded adverse possession for the first time. The possession of the said land from the date of Ex. B-39, 1954, till the date of the filing of the written statement in 1987 cannot, therefore, be treated as adverse because there was no animus possidendi during the said period. Before the date of filing the written statement he never claimed title to the land in dispute adverse to the State. On the other hand, he paid siwai jamabandi and applied for occupation of rights, indeed in his deposition as R.W.1 in chief examination before the Special Court he stated.

There can be no doubt hat passing of adverse order against the Appellant would not cause any interruption in his possession (See; Balkrishan v. Satyaprakash (supra). So also filing of application before statutory authority under Inams Abolition Act for occupancy rights, in our view causes no interruption in the continuity of possession of the Appellant but it does abrogate his animus to hold the land in derogation of the title of the State and breaks the chain of continuity of the animus.

In this case also the plea of adverse possession is raised by way of amendment one year after the filing of the suit. Besides as observed by the Supreme Court in para 61 of the judgment as extracted above the filing of an application u/s 38(c) would belie the contention of hostile animus. Therefore as on the date of suit, it could be said by the pleadings that the Plaintiff never had hostile animus to hold the land in adverse possession in view of his application u/s 38(c) therefore the finding of the trial Court that the Plaintiff has proved adverse possession is bad in law and contrary to evidence on record. Accordingly set aside.

The BDA has not taken possession validly as required u/s 6. This contention is dehorses the pleadings. There is no plea raised in the plaint contending that the acquisition proceedings are inconclusive. Therefore it is impermissible to raise this point in this appeal. However in order to take possession BDA has to resort to procedure known to law cannot dispossess the Plaintiff by unlawful means.

Regarding the application u/s 38(c) it is obligatory on the part of BDA to consider the application in accordance with law and dispose of the same and until disposal of the application u/s 38(c) the BDA is injuncted from dispossessing the Plaintiff and further the BDA is at liberty to dispossess the Plaintiff only in accordance with and in the manner known to law.

Accordingly the appeal is partly allowed. The judgment and decree granting continuation of title by adverse possession is set aside. The reliefs (a) and (c) in the plaint partly granted as indicated.