The Bangalore Development Authority vs P. Subramanyam

Anand Byrareddy, J.—Heard the learned counsel for the appellant. The appellant is the Bangalore Development Authority (BDA). The respondent was the plaintiff before the trial court in a suit for permanent injunction.

It was the case of the plaintiff that his paternal grand father one Panthangi Krishnaiah had owned 9 acres and 24 guntas of arable land as also 15 guntas of kharab land appurtenant thereto, in land bearing Survey No. 113 of KG. Byadarahalli, Civil Station, Bangalore. That he also owned 2 acres and 1 gunta of land in Survey No. 95 and another extent of 14 guntas in Survey No. 11 and yet another extent of 5 guntas of land in Survey No. 111 of the same village. He is said to have purchased the said land from Kayamguttedar and another, under several sale deeds. That Kayamguttedar and another person, released their rights in respect of 9 acres and 24 guntas of land in Survey No. 113 and 2 acres 1 gunta of land in Survey No. 95, in favour of Pantangi Krishnaiah under a registered release deed dated 4.8.1945 and the revenue survey department had started survey operations in the year 1940 and completed it in the year 1944, followed by revenue survey fiscal patrika, with regard to 9 acres and 24 guntas of land in Survey No. 113, as a permanent tenant and that the jodidar of the village had issued a conversion receipt for the conversion of land in Survey No. 113 for non-agricultural purposes and the pattas in respect of the lands in question stood in the name of Pantangi Krishnaiah and after his death, the plaintiff, who was one of his sons, had claimed as the owner. In the year 1958, an extent of land measuring 36 guntas and 44 square yards in land bearing survey No. 113 was said to have been acquired by the State, to lay a pipeline under the Machalibetta Scheme and to form a road, which runs all along the pipeline across the land in Survey No. 113. Further, in the year 1965, 1 acre of land in the very survey number was occupied by the army, which led to a suit being filed in OS 478/1966 before the Court of the Munsiff, Bangalore.

It is further stated that during the year 1971, P. Sreeramulu, the notified khatedar had died and the present plaintiff was brought on record. The suit for injunction was decreed and an appeal against the decree was dismissed and that was carried in a second appeal, wherein the dismissal of the suit was confirmed. Even the Special Leave Petition before the apex court stood rejected in the year 1981. The plaintiff therefore claimed that the lands were then notified for acquisition under the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ''BDA Act'', for brevity), for the formation of a mini forest and the acquisition notifications included 6 acres 34 guntas of land in Survey No. 113 and 38 1/2 guntas of land in Survey No. 95. But it was the plaintiffs claim that he was never notified and there were errors committed by the defendant in the notifications with regard to the acquisition and the plaintiff therefore was constrained to file a writ petition seeking to question the acquisition notification. However, the writ petition was dismissed. The plaintiff had thereafter sought for a sketch from the defendant showing the extent of lands acquired for the mini forest. In the meanwhile, in the year 1976, the plaintiff, his brothers, sisters and his mother had partitioned 3 1/2 acres of land including 15 guntas of kharab land in Survey No. 113 and 14 guntas of land in Survey No. 112 and the land that fell to the share of the plaintiff was separately indicated and a khata certificate was issued. It is further claimed that the entire extent held by the plaintiff was fenced and there were certain sheds constructed on the land and was being used by the plaintiff, and his family and workmen. However, on 10.10.1994, the defendant sought to interfere with the plaintiffs possession, though the land was not notified for acquisition and therefore, the suit was filed.

The defendant had entered appearance and had filed written statement on two occasions, which was subsequently amended to contend that the suit was not maintainable for want of notice under Section 64 of the BDA Act and that the plaintiff was not in possession of any extent of land in Survey No. 113, and the entire extent of 15 acres and 17 guntas of land in survey No. 113 of K.G. Byadarahalli had been acquired under the preliminary notification and final notification dated 5.4.1977 and 7.2.1978, respectively, for the formation of a mini forest to the east of Jayamahal extension and that the land was unarable nor was it fit for residential purposes, as it consisted of huge rocks and thorny bushes. That the acquisition proceedings had been completed in all respects and the land has been taken over and had vested in the State and consequently, in the BDA as on 28.10.1986.

Though the plaintiff had filed a writ petition, the said writ petition having been dismissed and a writ appeal preferred before a division bench and a special leave petition preferred before the apex court, have resulted in rejection. It is after dismissal of the said writ proceedings that the defendant had put up a compound wall around the entire extent of land in Survey No. 113. It is thereafter that the present suit is filed and that the plaintiff has no right to claim the land in question. On the basis of those pleadings, the court below has framed the following issues:--

"1. Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property?

Whether the plaintiff proves interference?

Whether the suit schedule property has vested with B.D.A. and as such the suit is not maintainable?

Whether the plaintiff is entitled to the relief of injunction.?"

The court below has answered issues 1, 2 and 4 in the affirmative and decreed the suit. Issue No. 3 was answered in the negative.

The primary defence set up by the learned counsel for the appellant - defendant was that no land remained in Survey No. 113 for the appellant to occupy on the ground that 9 acres 24 guntas of land belonged to the plaintiff out of the 6 acres and 34 guntas acquired by the BDA. Therefore, what remained with the plaintiff was 2 acres 30 guntas plus 15 guntas of kharab land, out of which 36 guntas had been utilized by the State Government for the formation of the road and hence there remained no land in Survey No. 113 for the plaintiff to occupy, apart from 2 acres 9 guntas. Hence there was a serious dispute about the extent and identity of the land, which the plaintiff was occupying and hence, the suit for permanent injunction was not maintainable, as there was a cloud raised on the claim of the plaintiff and the parties ought to have been relegated to a comprehensive suit and this is the position as laid down in a decision of the apex court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 . But however, the court having proceeded to adjudicate the matter in the wake of such a serious dispute, has resulted in a miscarriage of justice.

The learned Counsel would point out that the issues framed were as regards the lawful possession of the plaintiff in respect of the suit property. The question whether the land is vested in the BDA after the acquisition, was not a question that arose for consideration at all and the only question was whether the plaintiff was in lawful possession of the suit property. Since the plaintiff was apparently occupying a larger extent than 2.90 guntas, the court was bound to investigate by appointing a surveyor, to ascertain the exact extent occupied by the plaintiff, as it was certainly unlawful for the plaintiff to occupy the land, which he was claiming as being 2.90 guntas whereas the extent under his occupation is much more and it was including the land which was the subject matter of acquisition proceedings. Hence, the possession is clearly unlawful and the plaintiff was not entitled to the relief of injunction.

On the other hand, the learned counsel for the respondent - plaintiff would insist that the suit was only for bare injunction and there is no dispute that the plaintiff did hold 3 acres 5 guntas. But however, the learned Counsel for the plaintiff respondent would point out that the primary contention of the appellant is that the acquired portion of the plaintiffs property does not include the road. However, the witness for the appellant, D.W. 1, in his evidence has clearly stated that the extent of 6 acres 34 guntas acquired by the BDA included the road as well. Therefore, it is incorrect to contend that what was left with the plaintiff was only 2.9 guntas and on the other hand, what remained with the plaintiff was 3 acres 5 guntas. This is not only affirmed by the witness for the appellant, but it is also disclosed in the sketch provided at Exhibit P-12 and the letter by the BDA Ex. P-30. In that, Ex. P-12 would disclose the area marked in blue as being the area acquired and the sketch also indicates as to the property in the possession of the plaintiff Ex. P-12 read with Exhibit P-30 would indicate that the land to the south of the portion marked in blue and shown as the plaintiffs property, is not the subject matter of acquisition. And therefore, the lower court would contend that if the BDA is aggrieved and seeks to assert that the plaintiff is in occupation of much more than the land that was left out, it is for the BDA to establish the same in a comprehensive suit and the plaintiff need not be driven to file a comprehensive suit as sought to be urged.

Insofar as the contention that if there is a cloud on the title of the plaintiff that he should be relegated to a comprehensive suit, it is contended that in the very same judgment in Anathula Sudhakais case, it has been held that however, it is totally not impermissible for the Trial Court to address the title of the parties if there are necessary pleadings regarding tide and an appropriate issue with reference to title on which the parties lead evidence with the matter involved and the court may decide the issue regarding title even in a suit for injunction.

In the present case on hand, as there is no dispute about the acquisition and the extent of land that was acquired, the question of conducting a spot inspection did not arise. It is in that vein that the learned counsel for the respondent would seek to justify the judgment of the court below.

In the above facts and circumstances, though generally, it is the rule that if there is a serious doubt raised as to the claim of the plaintiff in a suit for permanent injunction, it is appropriate that the plaintiff is relegated to a comprehensive suit, it cannot be a rule in all cases. As for instance, in the present case on hand, the BDA seeking to contend that what remained with the plaintiff was 2 acres 9 guntas and not more, is not supported by the witness for the appellant itself and there are other material, as pointed out by the learned Counsel for the respondent, such as Exhibits P-12 and P-30, which does indicate that the plaintiff continued to be in possession of the property which was outside the acquired area and that the road which is said to be not included in the acquired portion is also shown to be acquired and hence the contention that if the road is excluded from the acquired area, the plaintiff would not be in a position to claim any extent greater than 2 acres 9 guntas, is not supported by the material evidence on record.

Accordingly, the court below having granted the relief of injunction, cannot be faulted. This would not foreclose the BDA from raising the question as to the plaintiff being in occupation of larger extent than what remained after the acquisition proceedings. It can be done in the usual course by the BDA in appropriate proceedings. There was no warrant to enlarge the scope of the present suit on the contention of the BDA in the face the material evidence that was already on record. Therefore, there is no error made out in the impugned judgment.

The appeal is dismissed. However, the remedy, if any available to the BDA in accordance with law, is left open, if the law so permits.