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2012 DIGILAW 619 (KAR)

Anjanappa v. State of Karnataka

2012-08-01

A.S.BOPANNA

body2012
JUDGMENT A.S. Bopanna , J.—The appellants herein are the plaintiffs in O.S. No. 4730/2003. The said suit was filed for a declaration that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property and for consequential injunction. Further a direction was also sought to rectify the entries in the revenue records. The Court below has dismissed the suit by its judgment and decree dated 15.02.2010. The plaintiffs are therefore before this Court in this appeal. The factual matrix in the instant case is that the plaintiffs contend that the property bearing Sy. No. 26/1, situate at Kothihosahalli village, Yelahanka Hobli, Bangalore North Taluk measures in all 1 acre 16 guntas including 2 guntas of phut kharab. The plaintiffs being brothers are members of joint Hindu family and are in possession and enjoyment of 36 guntas out of the land indicated above. The said extent is stated to have been purchased by their father late Thammanna under sale deed dated 04.11.1968. After his death, the mutation order was made indicating 18 guntas each in the name of the plaintiffs. The remaining extent of 20 guntas in the said survey number was owned by one Sri N. Bachegowda. It is the further case of the plaintiffs that by a notification dated 03.01.1985 issued under Section 4(1) of the Land Acquisition Act ('the LA Act' for short) an extent of 14 guntas and 2 guntas of phut kharab belonging to the said Sri N.Bachegowda was notified and the final notification was also issued in that regard. Section 16(2) notification under the LA Act dated 15.04.1991 is also in respect of the said extent of 14 guntas. The land measuring 36 guntas belonging to the plaintiffs has not been acquired as per the contentions of the plaintiffs. 2. In that regard, the plaintiffs contend that they had earlier preferred a writ petition in W.P. No. 5859/1996 challenging the preliminary notification dated 03.01.1985 and the final notification dated 25.09.1986. In that petition, the 5th defendant herein who was a party is stated to have conceded that only 14 guntas of land belonging to one Sri Bachegowda had been acquired and possession was taken. The plaintiffs therefore contend that they had continued in possession and enjoyment of the remaining extent of 36 guntas. In that petition, the 5th defendant herein who was a party is stated to have conceded that only 14 guntas of land belonging to one Sri Bachegowda had been acquired and possession was taken. The plaintiffs therefore contend that they had continued in possession and enjoyment of the remaining extent of 36 guntas. However, the revenue entries had been carried to the name of the 5th defendant and as such the plaintiffs had requested for reversal of the same. They have also referred to another writ petition which they had filed in W.P. No. 25436/1996 to direct the respondents therein not to dispossess them. However, the said petition was disposed of leaving it open to the plaintiffs to take appropriate steps to safeguard their title, possession and enjoyment by instituting a suit. It is in that context the plaintiffs have filed the instant suit alleging that there was interference once again during the second week of April 2003. The plaintiffs have therefore prayed for the relief as noticed above. 3. Though all the defendants entered appearance, the 5thdefendant being the beneficiary of the acquisition filed the written statement opposing the claim of the plaintiffs. The defendants contended that the plaintiffs have suppressed the material facts. In this regard it was contended that the plaintiff had earlier filed a suit in O.S. No. 8415/1995 and the said suit was dismissed on 14.08.1997 on the preliminary issue and as such the present suit is liable to be dismissed. It was contended that the said suit was for partition, separate possession and for permanent injunction against the defendants. The 5th defendant herein was impleaded as 4th defendant to the said suit. The property which is the subject matter of the instant suit was also the subject matter in the said suit. Since right for partition had been claimed in the suit notwithstanding the acquisition proceedings, an issue was framed therein to consider as to whether the acquisition proceedings could be called in question in a civil suit. By pronouncing on the said issue, the suit had been dismissed as not maintainable. Though the instant suit is filed by contending that leave had been granted in W.P. No. 25436/1996 disposed of on 24.02.1997, the plaintiffs had not taken any steps from early 1997 and the suit was filed at this belated stage and therefore was barred by limitation. By pronouncing on the said issue, the suit had been dismissed as not maintainable. Though the instant suit is filed by contending that leave had been granted in W.P. No. 25436/1996 disposed of on 24.02.1997, the plaintiffs had not taken any steps from early 1997 and the suit was filed at this belated stage and therefore was barred by limitation. It was also contended that the decision in the earlier suit bars the present suit in view of the provision contained in Section 11 of Civil Procedure Code. The maintainability of the suit was also raised as the plaintiffs had not complied with the requirement of Section 125 of the Karnataka Cooperative Societies Act, 1959. On merits, the claim put forth by the plaintiffs claiming right to the suit schedule property is disputed. The defendants have also contended with regard to the Preliminary and Final notifications dated 03.01.1985 and 22.09.1986 respectively whereunder the suit property was also acquired. The contention that only 14 guntas in the said survey number had been acquired has also been denied and it is pointed out that the possession of the said extents viz., the 14 guntas which was based on the consent award and the balance 36 guntas which was based on the general award was taken on different dates. Insofar as the suit schedule property, it is stated that the possession was taken on 17.12.1992. Since the challenge to the acquisition had been negatived in the earlier suit, the plaintiffs cannot claim right to the said property and further claim to be in possession of the same. It is in that context the statement is made in W.P. No. 5859/1996. When the documents indicate that the entire property in Sy. No. 26/1 had been acquired and possession is taken, the statement recorded in the said writ petition would not enure to the benefit of the plaintiffs. 4. The Court below on taking note of the rival contentions had initially framed as many as 9 issues on 30.06.2006 for its consideration. However, the said issues were recast on 14.07.2009. The recast issues are as hereunder: i) Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment of the schedule property ? ii) Whether the suit is barred by res-judicata ? iii) Whether the suit is barred by limitation ? However, the said issues were recast on 14.07.2009. The recast issues are as hereunder: i) Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment of the schedule property ? ii) Whether the suit is barred by res-judicata ? iii) Whether the suit is barred by limitation ? iv) Whether the plaintiffs are entitled to the declaration sought for ? v) Whether the plaintiffs are entitled to the mandatory injunction sought for ? vi) To what decree or order ? 5. In order to discharge the burden cast on the parties, one Sri A.Basavaraj, Power of Attorney holder of the plaintiffs was examined as PW.1 and the documents at Exhs.P1 to P19 were relied on. Sri R. Prakash, the secretary of the 5th defendant Society was examined as W.1 and the documents at Exhs.D1 to D10 were marked in support of their case. The Court below on noticing the pleadings and the evidence has by its judgment and decree dated 15.02.2010 dismissed the suit of the plaintiffs. 6. Sri Sanket M.Yenagi, learned counsel for the appellant while assailing the judgment of the Court below would contend that the Court below has not properly assessed the evidence available on record. The fact that the property in Sy. No. 26/1 measures 1 acre 16 guntas in all is the admitted position. From the said extent, the father of the plaintiff purchased an extent of 36 guntas under the sale deed dated 04.01.1968. The Preliminary notification though dated 03.01.1985 did not include the entire extent but only 14 guntas was notified. Though Final notification includes the total extent, it does not indicate the name of the father of the plaintiff and as such, the process of acquisition itself is contrary to law. Even otherwise, what was notified was only 14 guntas in the said survey number belonging to Sri Bachegowda and possession of that extent alone was taken. This aspect in fact has been conceded in the earlier proceedings in W.P. No. 5859/1996 by the counsel for the fifth defendant herein. Therefore, there is no material to indicate that either the property belonging to the plaintiffs has been acquired or that possession had been taken. Despite that since there was interference after the earlier writ petition was disposed of, the subsequent petition in W.P. No. 25436/1996 was filed. Therefore, there is no material to indicate that either the property belonging to the plaintiffs has been acquired or that possession had been taken. Despite that since there was interference after the earlier writ petition was disposed of, the subsequent petition in W.P. No. 25436/1996 was filed. Though that was disposed of on 24.02.1997, reserving liberty to file a civil suit, immediately thereafter there was no threat of dispossession. However, subsequently in the year 2003 when there was interference once again, there was cause of action and the plaintiffs have filed the present suit. Hence, there is no delay and the plaintiffs cannot be non-suited on that basis. In the absence of the fifth defendant relying on any Mahazar for taking physical possession, the plaintiffs have continued to remain in possession and are entitled to declaration that they are in possession and further to protect their possession. When the acquisition is not in accordance with law, they continue to be the owners of the property and the possession is lawful possession. The learned counsel also refers to the pleading and evidence tendered before the Court below. Hence, he prays that the appeal be allowed and suit be decreed. 7. Sri R.V. Jayaprakash, learned counsel appearing for the fifth defendant would seek to sustain the judgment of the Court below except for assailing the finding by the Court below insofar as holding that the decision in O.S. No. 8415/1995 would not act as res-judicata. The learned counsel on referring to the documents relied by the defendants would contend that the Preliminary notification dated 03.01.1985 in fact includes the entire extent of 1 acre 14 guntas. He contends that in the document at Ex.P14, a correction has been made which is also admitted by PW.1. In that context, Ex.D1 would clearly disclose that what is notified is the entire extent of 1 acre 14 guntas. The possession of the entire extent has also been taken. However, insofar as the extent of 14 guntas belonging to Sri Bachegowda, a consent award was passed and possession was taken earlier on 27.03.1991. But, in the case of the remaining extent of land measuring 36 guntas claimed by the plaintiffs, a general award was passed and possession was thereafter taken on 03.11.1992. However, insofar as the extent of 14 guntas belonging to Sri Bachegowda, a consent award was passed and possession was taken earlier on 27.03.1991. But, in the case of the remaining extent of land measuring 36 guntas claimed by the plaintiffs, a general award was passed and possession was thereafter taken on 03.11.1992. Since the possession of the property had been taken on two different dates, there is some confusion in the manner in which it was understood as reference was to possession. That in itself will not take away the effect of the documentary evidence which is available on record in the instant suit which is also noticed in the earlier suit. Further, the earlier suit in O.S. No. 8415/1995 was filed seeking partition, but in the said suit the 5th defendant herein was also impleaded as a party and the acquisition of the property was an issue which was considered therein. The preliminary issue regarding maintainability was raised therein with regard to the competence to question the acquisition in the civil suit. The suit was therefore dismissed on the issue being held against the plaintiffs. When that has attained finality, the acquisition proceedings would remain unchallenged. Therefore, when possession has been taken by the acquiring authority pursuant to acquisition and has been handed over to the fifth defendant based on which the revenue entries have also been made, the relief as prayed cannot be granted and the Court below was therefore justified in dismissing the suit. 8. In the light of the contentions raised herein, the points that would arise for consideration in this appeal are as to: i) Whether the Court below has properly appreciated the documentary evidence available on record ? ii) Whether the plaintiffs have made out a case to indicate that the extent of property measuring 36 guntas in Sy. No. 26/1 Kothihosahalli was not a part of the acquisition proceedings ? iii) Whether the plaintiffs are entitled to seek for the declaration that they are the owners in possession of the property when the acquisition proceeding itself is not successfully assailed? 9. The fact that the father of the plaintiffs had purchased an extent measuring 36 guntas in Sy. No. 26/1, Kothihosahalli village from one Smt.Muniyamma cannot be in dispute inasmuch as the sale deed is produced at Ex.P8. Further, the fact that the property bearing Sy. 9. The fact that the father of the plaintiffs had purchased an extent measuring 36 guntas in Sy. No. 26/1, Kothihosahalli village from one Smt.Muniyamma cannot be in dispute inasmuch as the sale deed is produced at Ex.P8. Further, the fact that the property bearing Sy. No. 26/1 was also one of the items of property which was included in the process of acquisition vide the preliminary notification dated 03.01.1985 is not in dispute. However, what is disputed by the plaintiff is that entire extent in the said survey number is not notified for acquisition, but only 14 guntas has been included. In an attempt to establish this contention, the plaintiff has relied on the preliminary notification which is at Ex.P14 and has also got marked another copy at Ex.P19. By relying on the 16 said documents, it is contended that the extent indicated therein is only 14 guntas and 2 guntas of phut kharab. In the subsequent notification at Ex.P15 also the entire extent is not indicated though notified in a different name. Hence, it is contended that only 14 guntas have been acquired and this was admitted by the learned counsel for the 5th respondent herein in W.P. No. 5859/1996. The order dated 18.04.1996 in the said writ petition has not been marked but is available on record. However, the same being a judicial proceedings, the copy available can be considered. A perusal of the same would no doubt indicate that this Court had recorded the submission that possession of 14 guntas only had been taken though entire extent had been notified. 10. The defendant however has relied on the same preliminary notification at Ex.D1 to indicate that the Sy. No. 26/1 which is at Sl.No. 108 is to the extent of 1 acre 14 guntas. The final notification dated 22.09.1986 is at Ex.D2. In the said notification, the extent of 1 acre 14 guntas is indicated. The document at Ex.D4 is the notification issued under Section 16(2) of the Land Acquisition Act to notify the fact of the possession having been taken. The said document at Sl.No. 45 would refer to the extent of 14 guntas and the possession of that extent having been taken on 27.03.1991. Though the possession of 14 guntas only is indicated therein, it is due to the fact that in respect of the different properties indicated therein including 14 guntas in Sy. The said document at Sl.No. 45 would refer to the extent of 14 guntas and the possession of that extent having been taken on 27.03.1991. Though the possession of 14 guntas only is indicated therein, it is due to the fact that in respect of the different properties indicated therein including 14 guntas in Sy. No. 26/1, a consent award had been passed and the properties being available for taking possession, the possession was taken immediately. However, in respect of the other extent of the property in Sy. No. 26/1, a general award was to be passed which was thereafter done and the notification under Section 16(2) of the LA Act was issued on 4/5.11.1992 wherein the taking over of the possession of the property is indicated as on 03.11.1992. The extent indicated therein is 34 guntas and in addition two guntas of phut kharab. That would indicate the entire extent, less 06 guntas which was denotified in favour of Sri. Bachegowda has been taken over. The said document is at Ex.D5. The acquiring authority on taking possession of all the properties has handed over possession of the same to the fifth defendant under the official memorandum dated 05.11.1992 as per Ex.D6. In the said document, the said Sy. No. 26/1 is indicated at Sl. No. 43 measuring the extent of 14 guntas and the remaining 36 guntas is mentioned at Sl. No. 94. Pursuant to the same, the fifth defendant has secured the change of revenue entries as indicated in Exhs.D7 and D8. The documents relied on by the defendants would indicate that the entire property in Sy. No. 26/1 was the subject matter of acquisition. However, it is also seen that there are certain discrepancies with regard to the name being notified and the extent being indicated in different manner. 11. Though having noticed the two sets of documents, the aspect relating to the validity of the acquisition in any event cannot be gone into in a civil suit as that is the well established position of law. Keeping this in perspective, the relevance of the statement made in the earlier proceedings in W.P. No. 5859/1996 and the consideration in O.S. No. 8415/1996 also needs to be kept in view. Keeping this in perspective, the relevance of the statement made in the earlier proceedings in W.P. No. 5859/1996 and the consideration in O.S. No. 8415/1996 also needs to be kept in view. In that background and the documents available, it has to be considered as to whether the claim of the plaintiffs to be the owners in possession can be accepted even without pronouncing upon the validity of the acquisition. 12. In fact the suit in O.S. No. 8415/1995 which was instituted on 14.12.1995 is the earliest of the proceedings, Issue No. 5 framed therein was as follows: (5) Whether the defendant No. 4 proves that the acquisition proceedings cannot be called in question in civil Court as there is bar under Section 9 of the Code of civil procedure ? 13. The said issue has been answered in the affirmative and the suit was dismissed as not maintainable by the judgment dated 14.08.1997 (Ex.D9). In this context, it is to be noticed that the writ petition in W.P. No. 5859/1996 was obviously filed later in the year 1996 and the same was also disposed of on 18.04.1996. Though the submission of the learned counsel recorded therein indicates that the counsel for the fifth defendant-society herein had submitted that the possession of only 14 guntas was taken, the said submission was made by stating that even though the notification shows 1 acre 14 guntas, the possession taken under 1');">16(2) is only 14 guntas. Therefore, the submission is not that the acquisition proceeding was also limited to that extent or that the remaining extent had been given up. 14. The learned counsel for the fifth defendant herein contended that such submission is in view of the possession being taken on different dates i.e., in respect of the properties under the consent award and the general award being on different dates. But, it is to be seen that as on 18.04.1996 when the said statement was made and recorded even the possession in respect of the properties under the General Award (Ex.D5) had been taken on 03.11.1992. But, it is to be seen that as on 18.04.1996 when the said statement was made and recorded even the possession in respect of the properties under the General Award (Ex.D5) had been taken on 03.11.1992. Hence, the said explanation though may not reflect the true state of affairs, this aspect should be looked at from the view point that as on such day, the suit in O.S. No. 8415/1995 was pending and the fifth defendant herein had thereafter taken the contention in the suit to sustain the acquisition which was to the entire extent in Sy. No. 26/1 and an issue was also framed regarding maintainability of the suit. Further, in W.P. No. 5859/1996 the petitioners had questioned the preliminary as well as the final notifications. Therefore, it was incumbent on them to press the petition further when what was conceded therein was only that the possession of 14 guntas having been taken but it was asserted that the final notification was for the entire extent of 1 acre 14 guntas. If the understanding of all concerned was that it meant only an extent of 14 guntas was acquired, then obviously the notifications ought to have been quashed, instead the writ petitions have been dismissed. That apart, the suit in O.S. No. 8415/1995 was dismissed as not maintainable on 14.08.1997 since the acquisition cannot be assailed in civil proceedings. That would indicate the fact of the suit schedule property also being a part of the acquisition was accepted by the Court and the Civil Court having no jurisdiction to consider the correctness or otherwise of the acquisition for want of jurisdiction only was pronounced upon. In such circumstance, the fact that the 5th defendant herein was laying claim to the entire extent in Sy. No. 26/1 including that of the plaintiffs was known to the plaintiffs on 14.08.1997 and if they were aggrieved by the acquisition, it should have thereafter been assailed in the appropriate forum in view of the finding in O.S.8415/1995. Even that would not have been open for the plaintiffs since in the Writ Petition No. 25436/96 filed at a stage when the suit was pending, the award passed in LAC No. 108/86-87 was assailed. The order dated 24.02.1997 passed in the said writ petition is at Ex.P.16. Even that would not have been open for the plaintiffs since in the Writ Petition No. 25436/96 filed at a stage when the suit was pending, the award passed in LAC No. 108/86-87 was assailed. The order dated 24.02.1997 passed in the said writ petition is at Ex.P.16. In fact paragraph-4 of the said order would indicate that the challenge to the acquisition is negatived inasmuch as the challenge to the award has been refused to be entertained. The plaintiffs therefore cannot merely take shelter under the observations in W.P. No. 5859/1996. 15. When the acquisition has not been assailed in an appropriate forum, it would not have been possible for the Civil Court in the instant suit to pronounce one way or the other with regard to the validity of the acquisition though it is contended that the final notification including the entire extent would not be sustainable when the entire extent is not included in the preliminary notification. When that contention is not open, the reliance on Exhs.P14, P19 and D1 with reference to the actual extent indicated therein becomes academic. Further the contention that the name of father is not indicated also cannot be considered in the instant suit. The fact that the entire extent is notified in the final notification (Ex.D2) and the award is also passed in respect of the suit schedule property, therefore becomes relevant insofar as considering the limited aspect which arises for consideration in the instant suit i.e., as to whether pursuant to the said notification, the possession has been taken over by the acquiring authority or on the other hand whether the case of the plaintiff that they have continued to be in possession as owners could be accepted in the light of the declaration which has been sought in the instant suit. 16. The plaintiffs have relied on the RTC at Exhs.P9 and P10 from the year 1988-89 to indicate that their name is indicated in column 12(2) as persons in occupation. The name is indicated only in Ex.P9 but does not show the name in Ex.P10. Ex.P11 produced by them indicates the name of the fifth defendant in the said column but has been struck off. In any case, the fact that it has been subsequently changed to the name of the fifth defendant is not in dispute since the relief prayed is for reversal of the entry. Ex.P11 produced by them indicates the name of the fifth defendant in the said column but has been struck off. In any case, the fact that it has been subsequently changed to the name of the fifth defendant is not in dispute since the relief prayed is for reversal of the entry. The defendants have claimed to have taken possession of the property in question on 03.11.1992. Hence, the said documents relied on in any case would not indicate the possession of the plaintiffs subsequent to the said date. 17. On the other hand the documents relied on by the defendants in support of their contention that possession has been taken, the document at Ex.D5 is relied upon. The said document is a notification issued under Section 16(2) of the LA Act on 4/5.11.1992 and the said document indicates that the possession of the property in question has been taken on 03.11.1992 by the acquiring authority. The document at Ex.D6 viz., the official memorandum dated 05.11.1992 would disclose that the possession of the property which was acquired has been handed over to the fifth defendant. Pursuant thereto they have secured change of revenue entries and the entire extent of 1 acre 14 guntas is indicated in the name of the 5th defendant-society as at Exhs.D7 and D8. Hence the said documents establish that the possession has been taken pursuant to the acquisition proceedings. 18. The learned counsel for the plaintiffs no doubt contended that the mahazar for taking possession as contemplated under Section 16(1) of the LA Act is not produced and marked. The procedure contemplated is that the possession would be taken pursuant to a mahazar and the fact of the possession having been taken would be notified and published under Section 16(2) of the LA Act. In the instant case, the notification under Section 16(2) as noticed is on record. The plaintiffs are before the Court contending that they are in actual possession of the property notwithstanding the said notification. The initial burden therefore is that of the plaintiffs to establish that they are in possession. When it was contended by the defendants that the possession had been taken on 03.11.1992, the plaintiffs should have placed on record reliable evidence to indicate that even as on that date and as on the date of the suit, they had continued in possession. When it was contended by the defendants that the possession had been taken on 03.11.1992, the plaintiffs should have placed on record reliable evidence to indicate that even as on that date and as on the date of the suit, they had continued in possession. Only then the non-production of mahazar by the fifth defendant would have been fatal. As noticed, Ex.P9 i.e., the RTC which was earlier to the said date i.e., 03.11.1992 is the only document available. The contention of the plaintiffs is that the said property was agricultural property and they were in possession. If in fact they were cultivating the property, certainly they would have had documents to establish the fact that even after 03.11.1992 and on the date of suit, they were in possession and cultivation of the property. When the initial burden in that regard has not been discharged and in that context, when the official documents at Exhs.D5 and D6 are relied on by the fifth defendant, the same would establish that the plaintiffs were not in possession of the property. Incidentally what is also noticed from Ex.P.17 i.e., the order sheet in O.S. No. 8415/95 is that the ad-interim injunction obtained therein was to restrain the fifth defendant herein from changing or altering the nature of the property in forming layout which is a pointer to the fact that the fifth defendant was in possession. Therefore, keeping in view the scope of the instant proceedings, notwithstanding the correctness or otherwise of the acquisition being raised, the same cannot be considered in this proceedings. The evidence noticed would disclose that it has attained finality. To the extent of the proceedings lying within the competence of the Court in this suit, the fact that plaintiffs have continued to be in possession despite the acquisition is not brought home. That being the position and having arrived at the above conclusion on reappreciation of the evidence available on record, the point No. 1 raised herein is answered in the affirmative. The point Nos. 2 and 3 are therefore answered against the plaintiff. In that view, I see no reason to interfere with the judgment passed by the Court below which is impugned in this appeal. 19. In the result, the appeal is dismissed. In the facts and circumstances of the case, the parties to bear their own costs.