Bangalore Development Authority v. Venkata Ratnamma
2015-06-10
ANAND BYRAREDDY
body2015
DigiLaw.ai
JUDGMENT : These appeals are heard and disposed of together, as they are preferred against the same judgment. 2. The appellant in appeal no. RFA 1876/2014, namely, the Bangalore Development Authority, (Hereinafter referred to as the ‘BDA’, for brevity), a statutory body constituted under the Bangalore Development Authority Act, 1976, (Hereinafter referred to as the ‘BDA Act’, for brevity) was the plaintiff. The suit was filed for a declaratory relief that the property bearing survey no.10/17 of Jarakabandekaval, Yeshwanthpura hobli, Bangalore north taluk measuring 29 guntas, presently bearing Industrial site no.86/G formed by the BDA, which was more fully described in the Schedule to the plaint, was never withdrawn from the acquisition proceedings pursuant to the final notification dated 13.4.1964, issued under the provisions of Mysore Land Acquisition Act, 1884. And also to declare that a judgment and decree passed in civil suit bearing O.S.No.554/1981, by the court of the 17th Additional City Civil Judge, Bangalore, dated 25.9.1992, as not binding the plaintiff, BDA. And for injunctory reliefs restraining defendants no.1 to 7 from interfering with the said property. 3. It was the case of the plaintiff that before its constitution in the year 1976, its predecessorin –interest was the City Improvement Trust Board, (hereinafter referred to as ‘the CITB’, for brevity), also a statutory body which was engaged in the planned development of Bangalore City. It was stated that in order to form and establish an Industrial layout, known as Industrial Suburb, II Stage, it was proposed to acquire lands situated around Jharakabandekaval, Yelahanka, Bangalore North taluk, including the land bearing survey no.10/17. A notification dated 13.4.1964 was said to have been issued under the provisions of the Mysore Land Acquisition Act, 1988, ( Hereinafter referred to as ‘the MLA Act’, for brevity). According to the revenue records, the said land bearing survey no. 10/17 is said to have been found in the name of Chikkavenkatappa, son of Pillavenkatappa, as the Khatedar. It was stated that notices under Section 9 and 10 of the Land Acquisition Act, 1898, (Hereinafter referred to as ‘the LA Act, 1898’, for brevity) having been issued, it is stated that the widow of Chikkavenkatappa had entered appearance and is said to have petitioned seeking the notified land be reconveyed in her favour.
It was stated that notices under Section 9 and 10 of the Land Acquisition Act, 1898, (Hereinafter referred to as ‘the LA Act, 1898’, for brevity) having been issued, it is stated that the widow of Chikkavenkatappa had entered appearance and is said to have petitioned seeking the notified land be reconveyed in her favour. However, an award having been passed, vide award dated 14.7.1965, the award amount was said to have been kept in a revenue deposit for the benefit of the khatedars. It was also stated that after issuing award notices, physical possession is said to have been taken over by the CITB on 7.10.1965. It was stated that the above and other lands so acquired were said to have been substantially put to use and the Scheme, under which the acquisition proceedings had been initiated, was substantially implemented. In the year 1976, the plaintiff having been constituted, the powers and functions of the erstwhile CITB were said to have been exercised and performed by the BDA. It is stated that in the above background, the BDA is said to have allotted the suit schedule property on a Lease –cumSale basis in favour of one Narayana Raju. And a registered lease deed is said to have been executed as on 26.11.1977 in favour of the said allottee. The said allottee having died, he was represented in the suit by defendants 8 to 10, his legal representatives. It is said that one Muniyamma, claiming to be the widow of Chikkavenkatappa, as already stated, is said to have sought for reconveyance of the land in her favour. It is stated that in response to the same the plaintiff had issued an endorsement dated 27.10.1980, to the effect that the erstwhile CITB had, by a Resolution dated 16.1.1974, recommended the denotification of the suit schedule property. However, it was the plaintiff’s case that there were no further steps taken in that regard, to complete the formality. The property in question, however, was integrated into the industrial layout and was the subject matter of allotment in favour of late Narayana Raju, represented by defendants 8 to 10. The property hence stood vested in the plaintiff as absolute owner, subject to the lease agreement aforesaid.
The property in question, however, was integrated into the industrial layout and was the subject matter of allotment in favour of late Narayana Raju, represented by defendants 8 to 10. The property hence stood vested in the plaintiff as absolute owner, subject to the lease agreement aforesaid. It was the plaintiff’s further case that the aforesaid Muniyamma and her two sons, namely (late) Mahadevan and Defendant no.7, are said to have filed a civil suit in O.S.554/1981 on the file of the 17th Additional City Civil Judge, Bangalore, seeking a declaratory relief, to the effect that they were the absolute owners of the very same suit property as was involved in the present suit, in view of the State having withdrawn from the acquisition proceedings, as claimed by the plaintiffs therein. Consequently, they had sought injunctory reliefs against Narayana Raju, who was admittedly in possession and had also put up construction over the suit property, as an allottee of an industrial site, claiming under the present plaintiff, the BDA. Significantly, the BDA was not a party to the said suit. However, the said suit was said to have been decreed in favour of Muniyamma and defendant no.7 herein, as on 25.9.1992. As against the above said judgment and decree, late Narayana Raju is said to have preferred an appeal before this court in RFA 73/1993. The same is said to have been dismissed as on 7.4.1999. Subsequently, defendants 8 to 10, as the legal representatives of late Narayana Raju, are said to have preferred a Review Petition in C.P.683/1999, which in turn was said to have been allowed and the earlier judgment by this very court had been recalled and the judgment and decree in the suit was said to have been reversed and the suit dismissed, by an order dated 8.3.2001. As against the order passed in the above Review petition, defendant no. 7 herein is said to have filed a Special Leave Petition in SLP 803031/2001, before the Supreme Court of India. It transpires that by an Order dated 13.2.2008, the said petition having been allowed, granting leave to appeal and the appeal is said to have been allowed, reversing the decision of this court dated 8.3.2001. In the result, the judgment and decree of the trial court in O.S.554/1981 stood revived.
It transpires that by an Order dated 13.2.2008, the said petition having been allowed, granting leave to appeal and the appeal is said to have been allowed, reversing the decision of this court dated 8.3.2001. In the result, the judgment and decree of the trial court in O.S.554/1981 stood revived. It was hence the plaintiff’s grievance that by virtue of the judgment and decree in O.S.No.554/1981, the plaintiff’s right, title and interest over the suit property was directly affected. The plaintiff claimed that it became aware of the repercussions of the above said proceedings, to which the BDA was not a party, only when routinely taking stock of disputed items of property which were subject matter of the earlier acquisition proceedings. And also when the lessee’s possession was sought to be disturbed. It is thereafter, that the plaintiff and its men are said to have taken steps to obtain the particulars of the earlier proceedings and had filed the suit. It was specifically urged that the suit filed by the legal representatives of the erstwhile owner of the land in question was not maintainable on more than one count. It was pointed out that it is on record that possession of the land had been taken over pursuant to the acquisition proceedings, as early as in the year 1965. Hence a suit for declaration that the plaintiff in O.S.554/1981, was the absolute owner of the suit property, filed in the year 1981 was not maintainable. Secondly, that the land in question being subject matter of acquisition proceedings, the civil court had no jurisdiction to entertain the suit. The defendants 7(a) to (c), the legal representatives of defendant no.7 who had died during the pendency of the suit, had filed their written statement contesting the suit. It was contended that the plaintiff was not entitled to any relief. It was disputed that the suit schedule property could now be identified as Industrial site no.86/G or that it was situated in land bearing survey no.10/17. On the other hand it was said that the site no.86/G was to be found located in land bearing survey no.10/4. It was pointed out that this very question had been addressed in the earlier suit in O.S.No.554/1981. And that this very court had held that site no.86/G was situated in land bearing Sy.no.
On the other hand it was said that the site no.86/G was to be found located in land bearing survey no.10/4. It was pointed out that this very question had been addressed in the earlier suit in O.S.No.554/1981. And that this very court had held that site no.86/G was situated in land bearing Sy.no. 10/4 and that this factum had also been confirmed by the Supreme Court of India. And it was asserted that the CITB had never acquired the land bearing survey no.10/17 and that the present suit was nothing but a ruse to lay claim over the same. It was contended that though the preliminary and final notifications for acquisition of the land in question had been issued, physical possession had never been taken, either by the erstwhile CITB or the plaintiff, from Smt. Muniyamma or Radhakrishna, who was said to be the son of Muniyamma. In other words, it was sought to be emphasized that neither Muniyamma nor her successorsin – interest, had been divested of the property. It was alleged that in the year 1981, Narayana Raju who was claiming to be an allottee of an industrial site bearing no.86/G, under the BDA, is said to have trespassed on land bearing survey no. 10/17 and having sought to lay claim to the same. It had entailed Muniyamma and her sons filing the civil suit in OS 554/1981, which had run its course and had now attained finality – in the matter having reached the apex court and the judgment and decree in favour of Muniyamma and her sons having been affirmed. It was also sought to be pointed out that during the pendency of the suit in OS 554/1981, the BDA had been notified through its Commissioner, that it was required to appear and produce records pertaining to the acquisition proceedings and accordingly one Byraiah, was said to be examined as PW2, as on 16.8.1986 and 20.7.1988. Further, one Mahadevaiah had been examined as DW2 on behalf of the BDA, to speak for the material produced, as on 27.6.1989. Therefore, it would have to be presumed that BDA was aware of the claims of both the parties in the suit, especially when one of them, the defendant therein, was claiming to be in possession of the suit property under the BDA.
Therefore, it would have to be presumed that BDA was aware of the claims of both the parties in the suit, especially when one of them, the defendant therein, was claiming to be in possession of the suit property under the BDA. Hence it is contended that the present suit is only an attempt to raise decided issues, to circumvent the judgment and decree that has attained finality in respect of the suit schedule property. It is further pointed out that the plaintiff had acknowledged that there was indeed a resolution passed by the CITB as on 16.1.1974 recommending that the suit property be dropped from the acquisition proceedings. And such a resolution could be passed only if possession of the land in question had not been taken. And as it is not the case of the BDA that it had taken possession of the land in question, after it came into existence in the year 1975, it is conclusive that the owners of the land have never been divested of physical possession of the land and hence, it could not be said that the same had vested with the BDA. This aspect of the matter has been found as a fact in the earlier proceedings and was conclusively decided. On the above and other incidental pleadings, it was sought that the suit be dismissed. 4. The trial court had framed the following issues on the basis of the above pleadings : “1. Whether the plaintiff proves that the suit property which was acquired under notification dated 13.4.1964 is not denotified and plaintiff is in possession? 2. Whether the plaintiff proves that the judgment and decree in O.S.No.554/1981 is not binding on the plaintiff? 3. Whether the plaintiff proves that there is interference to its possession by defendants 1 to 7? 4. Whether the plaintiff proves that it is entitled for the relief claimed in the suit? 5. To what decree or order? Additional Issues: 1. Whether suit filed by the plaintiff is hit by principles of constructive resjudicata? 2. Whether suit of the plaintiff is hit by principles of estoppels, acquiescence and waiver? 3. Whether suit is barred by law of limitation?” The trial court has answered Issue Nos.1 to 4 in the negative, Additional Issue Nos.1 to 3 in the affirmative and Issue No.5 as per the final order and has dismissed the suit.
2. Whether suit of the plaintiff is hit by principles of estoppels, acquiescence and waiver? 3. Whether suit is barred by law of limitation?” The trial court has answered Issue Nos.1 to 4 in the negative, Additional Issue Nos.1 to 3 in the affirmative and Issue No.5 as per the final order and has dismissed the suit. It is that which is under challenge in the present appeals. 5. The learned Senior Advocate Shri K.M.Nataraj, appearing for the counsel for the plaintiff – appellant, contends as follows : That the trial court had failed to notice that the suit in O.S.No.554/1981 was not maintainable. Firstly, it is pointed out that there was no denial of the fact that the suit schedule property was subject matter of acquisition proceedings. The validity or otherwise of the same having been concluded in accordance with law, could not have been tested, even incidentally, in the said suit. Whereas it was the sine qua non and the basic premise on which the suit relief had been claimed. Secondly, when the defendant in that suit was claiming as an allottee of an industrial site, having been put in possession of the suit property under a lease deed executed by the plaintiff herein, it was evident that the suit was bad for nonjoinder of a proper and necessary party and any decree against the lessee, would not bind the owner, BDA. The suit, in any event, ought to have been dismissed on a glaring circumstance that the plaintiff therein, having admitted that the suit property was subject matter of acquisition proceedings had further contended that the acquiring authority had recommended the withdrawal from the acquisition proceedings – in so far as the suit property was concerned. There was no indication of any further steps having been taken to implement that recommendation. This is an admitted position. However, the proposition that such a resolution being available on record was sufficient to conclude that the acquisition proceedings in respect of the suit property had been withdrawn and dropped – having been accepted by the court below, had resulted in the fallacious judgment. Further, the reasoning of the trial court that the earlier judgment was binding on the plaintiff – BDA, on the principle of constructive res judicata, even though it was not a party to the same, is opposed to a first principle, and patently erroneous, vitiating the judgment.
Further, the reasoning of the trial court that the earlier judgment was binding on the plaintiff – BDA, on the principle of constructive res judicata, even though it was not a party to the same, is opposed to a first principle, and patently erroneous, vitiating the judgment. Hence, it is contended that if the judgment and decree of the trial court are to be set at naught on legal principle, having regard to the several undeniable circumstances, it is wholly unnecessary to enter upon factual details alleged in order to set aside the judgment in the present suit or to negate the so called finality of the judgment in the earlier suit in O.S.No.554/1981, in so far as the plaintiff’s interest is concerned. 6. On the other hand, while seeking to justify the findings of the trial court, Shri R. Vijaya Kumar, counsel appearing for respondents 1 to 9, would contend that apart from the suit filed by the appellant being barred by constructive res judicata, the suit was not maintainable in the form in which it was brought. The plaintiff had not sought for a declaration of title to the suit property and hence a mere declaration as to the judgment and decree in favour of the respondents in O.S.554/1981 being declared as not binding the BDA, would hardly result in the BDA establishing title to the property. It is contended that even assuming that the land in question had been notified for acquisition under the MLA Act, there is material on record to indicate that the compensation amount has not been paid to the land owner and has possibly remained in a revenue deposit, or even withdrawn by the acquiring authority, going by certain exchange of correspondence on record. Further, with the coming in to force of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter referred to as ‘the 2013 Act’, for brevity) in terms of Section 24 thereof, the acquisition proceedings have lapsed and are no longer relevant.
Further, with the coming in to force of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter referred to as ‘the 2013 Act’, for brevity) in terms of Section 24 thereof, the acquisition proceedings have lapsed and are no longer relevant. It is further contended that the acquisition proceedings even if could be presumed to be unassailable before a civil court, on the footing that the Land Acquisition Act, 1894 , was a self contained Code and hence the jurisdiction of the civil court was barred, such a bar however, would not have applied to land which was not the subject matter of acquisition – but was mistaken as being so, as was the case in respect of the suit property. Though the subject matter of acquisition was land bearing survey no.10/4, the allottee had been put in possession of Survey No.10/17 , which was given up from the acquisition proceedings . It is only under the 2013 Act, that there is a bar, under Section 63 to any suit relating to any dispute pertaining to land which is the subject matter of acquisition proceedings. It is vehemently urged that the suit was apparently a mischievous effort to rekindle a controversy that has been set to rest in O.S.No.554/1981. The judgment and decree in that suit having been affirmed by the apex court, it is final and binding on the plaintiffBDA and it would result in a gross irregularity to address the very controversy which was the subject matter of the said suit. It is contended that the principles of estoppel, acquiescence & waiver would apply to the appellant and hence was precluded from filing the suit and the present appeal. It is also pointed out that during the pendency of the suit in O.S.No.554/1981, an application in IA No. 3 was filed to bring the BDA on record, as a party to the suit, which was resisted with vehemence and it was declared by the BDA that it was not a proper or necessary party to the suit and hence the volteface in its stand, in the present appeal to contend that the said judgment and decree was not binding on it , since it had remained in the dark – as to the said suit is untenable.
This is apart from the circumstance that both the plaintiff and the defendant, in that suit, had summoned and examined officers of the BDA, to produce and testify in relation to the records pertaining to the acquisition of the suit property and hence such a contention is hardly available to the appellant. The learned counsel also seeks to draw sustenance from the tenor of Section 38C of the BDA Act, to contend that the Resolution passed by the CITB to withdraw from acquisition proceedings in so far as the suit schedule property is concerned and to denotify the same, is binding on the BDA and is deemed to have been given effect to. 7. Shri Nataraj would contend, by way of reply, that notwithstanding the findings of the trial court in the civil suit O.S.554/1981, that may have been, by implication, affirmed by the apex court, the legal issue as to whether a civil court was vested with jurisdiction to address the validity of the acquisition proceedings – had never arisen for consideration at any stage of that suit. Therefore, it is contended that the trial court had remained oblivious to the lack of jurisdiction in the earlier instance and so also has the trial court, in the present instance, failed to address the grievance of the plaintiff that the concluded acquisition proceedings, in respect of the suit schedule property, has been set at naught, by virtue of the judgment in O.S.554/1981 which was rendered by the trial court, wholly without jurisdiction. The contention that there was a serious discrepancy in the allottee having been put in possession of land bearing no. 10/17 when what was acquired was land bearing survey no. 10/4 is also not material. The lands bearing Survey nos. 10/4, 10/14 & 10/17 of Jharakabande Kaval had been acquired. Hence it was immaterial even if the allottee had been put in possession of one or the other portion of the land, after the said lands had been formed into an industrial layout. Further, sustenance sought to be drawn from Section 38 C of the BDA Act, is also misplaced as the said Section is also subject to the acquisition proceedings, which may have otherwise attained finality. In any event, these controversies can hardly be decided by the civil court.
Further, sustenance sought to be drawn from Section 38 C of the BDA Act, is also misplaced as the said Section is also subject to the acquisition proceedings, which may have otherwise attained finality. In any event, these controversies can hardly be decided by the civil court. This in fact would fortify the case of the appellant that a civil court was totally without jurisdiction in addressing the acquisition proceedings. The appellants in the appeal in RFA 124/2015 are the legal representatives of the defendant in OS 554/ 1981 and defendants 8 to 10 in the present suit. And would seek to support the case of the appellant as they claim under the BDA, as legal representatives of the allottee, who was put in possession of the suit property by the BDA. 8. In the light of the above circumstances, the points that arise for consideration in these appeals are : a) Whether the present suit by the BDA was barred on the doctrine of res judicata . b) Whether the BDA was bound by the judgment and decree in OS.No. 554 / 1981. c) Whether the judgment and decree in OS 554 / 1981 could not be challenged by the BDA , as not binding it. d) Whether the suit by the BDA was barred by limitation. e) Whether the want of jurisdiction in the civil court, to test the validity of compulsory acquisition proceedings, was ever present to the mind of the trial court or the appellate courts in the earlier proceedings and the trial court in the present suit.
d) Whether the suit by the BDA was barred by limitation. e) Whether the want of jurisdiction in the civil court, to test the validity of compulsory acquisition proceedings, was ever present to the mind of the trial court or the appellate courts in the earlier proceedings and the trial court in the present suit. Point (a): The trial court having framed an additional issue no.1 , as to whether the suit is hit by the doctrine of constructive res judicata , has after an elaborate discussion, spanning several issues which are sought to be considered together and thereby blurring the area of discussion on any particular issue, has concluded thus : “In this view of the matter findings on Issues 1 and 2 and Additional Issues 1 to 3 would be record without saying against plaintiff – BDA.” ( sic) The trial court has expressed that in view of the earlier opinion expressed in OS 554 / 1981 , that the BDA would suffer the decree passed against the defendant therein, as well, since the defendant therein who was an allottee claiming under the BDA had contested the suit, appears to have been accepted by the trial court in the present instance. The trial court has also proceeded on the premise that the several findings of fact arrived at in the earlier suit have attained finality and the trial court has refused to address the same notwithstanding the circumstance that the defendant therein was not at all competent to represent the BDA, though claiming under the BDA as a mere lessee in occupation of the land in question. The trial court has also proceeded on the presumption that the BDA was adequately represented in the earlier proceedings, as two its officials had appeared before the court to depose in respect of certain documents produced on behalf of the BDA, pursuant to witness summonses issued and hence any decree passed against the defendant therein was also binding against the BDA. The trial court, in the first instance, in OS 554 / 1981, and in the present case has proceeded on a misconception that the defendant allottee had been conferred the entire right, title and interest in the subject property by the BDA, in order that any decree passed against such allottee would also bind the BDA.
The trial court, in the first instance, in OS 554 / 1981, and in the present case has proceeded on a misconception that the defendant allottee had been conferred the entire right, title and interest in the subject property by the BDA, in order that any decree passed against such allottee would also bind the BDA. When it is sought to be alleged that the defendant in the earlier suit was a privy of the BDA and therefore any finding suffered by the privy would bind the principal, should also be read with the qualification that the test of res judicata is the identity of title in the two litigations and the identity of the actual property involved in the two cases. The defendant in the earlier proceedings was at best seeking to protect his possession, while claiming under a lease deed executed by the BDA. He was not competent to represent the lessor nor was in a position to remove any doubts created about the validity of the acquisition proceedings, whether the recommendation by the CITB was acted upon, withdrawn from the acquisition proceedings and whether the acquisition proceedings had been completed in all respects. The presumption on his part would naturally be that BDA had valid title in putting him in possession as a lessee. He was certainly not an agent of the BDA. It cannot hence be said that the present suit was between the same parties or anybody claiming under the earlier party. In so far as the BDA was concerned, the defendant in the earlier suit may have been claiming under it, the BDA was certainly not claiming under him. To place them on par as one having adequately represented the other, does not stand to reason or the law. The suit was not barred as being res judicata. Point (b) : In order to appreciate how far the BDA can be said to be bound by the judgment and decree in OS 554 / 1981 , it is necessary to have an overview of the frame of suit and the reliefs sought in the said case, the defence set up by the defendant, the issues that arose for consideration and the findings thereon. The plaintiffs in the said suit claimed that property bearing sy. no.10/17 of Jarakabandekaval, Yelahanka hobli, Bangalore North Taluk, was coparcenary property of Chikkavenkatappa and P. Narasimhappa.
The plaintiffs in the said suit claimed that property bearing sy. no.10/17 of Jarakabandekaval, Yelahanka hobli, Bangalore North Taluk, was coparcenary property of Chikkavenkatappa and P. Narasimhappa. That at a partition dated 10.8.1926, is said to have fallen to the share of Chikkavenkatappa, under whom the plaintiffs were claiming as his widow and sons, respectively. The pleading in so far as the acquisition proceedings and the manner in which the plaintiffs therein were claiming to have continued as owners thereof is best reproduced verbatim : “4. Under a Gazette notification dated 30.4.1964 (ThirtyFourNineteen Sixty Four) along with the other lands belonging to the plaintiffs the suit schedule lands were also the subject of acquisition by the B.D.A. but possession continued to remain with the plaintiffs as the said Board did not disposses the plaintiffs and as a matter of fact no compensation was paid and it is learnt by the plaintiffs that the said Board denotified as on 16.1.1974 (SixteenOneNineteen Seventy Four) as a result of which the title and possession of the lands continued to remain with the plaintiffs and the Board ceased to have jurisdiction and the schedule lands remain an agricultural lands “as it is and where it was”. The Photostat copy of Gazette notification is document No.6 (Six) and the endorsement of the said Board are document Nos. 7 and 8 (Seven and Eight).” It is further claimed that during the second week of October 1980, the plaintiffs had noticed structures having been put up by the defendant and that there was a poultry farm and that the defendant had occupied the land in question. That they had then learnt that he was said to be an allottee who had been put in possession under a Lease deed. According to the plaintiffs – this was not possible as the acquisition proceedings had not been completed and on the other hand, the land in question had been denotified. Hence the suit. The reliefs claimed were, for a declaration that the plaintiffs are the absolute owners of the suit property and for recovery of possession and other reliefs. The sole defendant had denied that the land in question was denotified or with drawn from the acquisition proceedings and contended as follows : “2.
Hence the suit. The reliefs claimed were, for a declaration that the plaintiffs are the absolute owners of the suit property and for recovery of possession and other reliefs. The sole defendant had denied that the land in question was denotified or with drawn from the acquisition proceedings and contended as follows : “2. xxx xxx xxx It is material and very necessary to state that after preliminary notification, the matter was taken up on the file of the Land Acquisition Officer in LAC 75/1964-65 and a final notification was issued in No.PLM 20.MNJ 1964 dated 13.4.1964, declaring to acquire the suit Schedule property as required under Section 6 of the Land Acquisition Act. The Khatedar was one Sri Chikka Venkatappa who is no other than the husband of the first plaintiff. After observing all other formalities required under the provisions of the Land Acquisition Act, an award was passed on 7.7.1965 awarding an amount of Rs.4226.25 ps. For the extent of 29 guntas of land as compensation. Thereafter the possession of the land was taken by the acquiring authority on 13.8.1965. From these facts which form part of the record it is clear that there could be no denotification of the land acquired by the erstwhile City Improvement Trust Board, Bangalore who had taken possession of the property after passing an award and the property in question completely vested in the erstwhile City Improvement Trust Board, Bangalore free from all encumbrances. The question of denotification does not arise and even if there is one, it is illegal and ineffective. 3. After having passed the award and after having taken possession of the suit schedule property, the Land Acquisition Officer immediately handed over possession of the suit Schedule property to the Engineering Department and thereafter the City Improvement Trust Board, allotted the suit Schedule Property in favour of the defendant and after collecting the necessary allotment price has delivered possession of the suit Schedule property to the defendant as evidenced by the Possession certificate issued by the City Improvement Trust Board, Bangalore is No.PRNo.19/7778 dated 7.12.1977. Thus it makes it very clear that the plaintiffs have absolutely no manner of right over the suit Schedule property. The only right that they have got is for the compensation amount awarded by the erstwhile City Improvement Trust Board, Bangalore for having acquired the suit Schedule property.
Thus it makes it very clear that the plaintiffs have absolutely no manner of right over the suit Schedule property. The only right that they have got is for the compensation amount awarded by the erstwhile City Improvement Trust Board, Bangalore for having acquired the suit Schedule property. The compensation amount was kept in Revenue Deposit which the plaintiffs failed to receive. The allegations that the property continued to be in possession of the plaintiffs is a deliberate falsehood. As already stated above, the property was acquired by due process of law and possession was taken by the C.I.T.B., after passing the award. It could not be in continuous possession of the plaintiffs. This is invented for the purpose of this suit. 4. The defendant submits that in pursuance of the allotment made in his favour, he has been put in possession and has put up constructions on the property in question and he cannot be prevented from putting up further constructions. The plaintiffs have no right whatever to question the defendant to carry on any construction work. The plaintiffs have deliberately come forward with this suit making false and frivolous allegations and attempting to course the defendant to terms if possible. But their attempt having failed, still they are persisting in their attempts by filing an application/before this Hon’ble Court and praying for an order of injunction, stating that the defendant is in unlawful possession of the property. The defendant submit that the suit is not maintainable as the property has been acquired and taken possession of and the relief claimed for by the plaintiffs is not available to them. The suit is also not maintainable as the City Improvement Trust Board which acquired the property and which bad allotted the same in favour of the defendant is not made a party which is a necessary party to the suit and the suit is bad for nonjoinder of necessary party. The defendant submits that the plaintiffs are not entitled to any of the reliefs claimed by them in the plaint and the suit is liable to be dismissed with exemplary costs.” Of the Issues framed in the suit, Issue nos.1, 3 & 8 are significant. The same are reproduced hereunder : “1.
The defendant submits that the plaintiffs are not entitled to any of the reliefs claimed by them in the plaint and the suit is liable to be dismissed with exemplary costs.” Of the Issues framed in the suit, Issue nos.1, 3 & 8 are significant. The same are reproduced hereunder : “1. Whether the plaintiff proves that the CITB after denotification dt:16.1.74 lost its right and title in the suit property and has no jurisdiction to enter into leasecumsale with the defendant and put him in possession of the Schedule property? 3. Whether the defendant proves that in view of the final notification and the award passed that there could be no denotification? 8. Is the B.D.A. a necessary party to the suit? If so, is the suit not bad for non joinder of necessary party?” The trial court ultimately came to the conclusion that the defendant failed to prove that the land in question was not denotified. In other words, the trial court had accepted that the land had been dropped from the acquisition proceedings on the basis of the material produced, namely, a Resolution passed by the CITB recommending the withdrawal from acquisition proceedings of the said land and certain other incidental references made elsewhere. There was, however, no formal notification, duly published in the Gazette, forthcoming. Issue no.8 , was answered thus : “Issue No.8: Now, the question for consideration is whether the B.D.A is a necessary party to the suit. Admittedly, the property does not belong to the B.D.A. I have already held that CITB has not taken possession of this property and it was denotified and the property continued to be in possession of the plaintiff. When the ownership continued with the plaintiffs, it follows that B.D.A. is not a necessary party to this suit. Hence, this issue is answered accordingly.” The suit was accordingly decreed. In the appeal preferred against the said judgment, in RFA 73/1993 , this court held thus : “7. Heard the respective counsel. The only question to be decided in this appeal is whether the plaintiff is entitled to a declaration as prayed for?. 8. Exhibit P13 is corrected and revised lay out plan produced by the plaintiff which shows that plaintiff’s property. The question to be decided is whether the property has been acquired and subsequently there has been a denotification?.
The only question to be decided in this appeal is whether the plaintiff is entitled to a declaration as prayed for?. 8. Exhibit P13 is corrected and revised lay out plan produced by the plaintiff which shows that plaintiff’s property. The question to be decided is whether the property has been acquired and subsequently there has been a denotification?. Under Ex.D.8, the register of lands notified and acquired for public purposes and compensation paid therefore, the entries as against Chikkavenkatappa in respect of Sy.No.10/17, there is an entry which reads as: “denotified : vide No.HMA/37/MNJ/69 dated : 2.3.1970.” Narasimhappa also in respect of the Sy.No.10/18, there is an endorsement of denotification having the same No.HMA/37/MNJ/69. dated 2.3.1970. The entire resistance of the defendants come on the ground that the land has been acquired and the acquired land has been handed over to him. It is the case of the plaintiff that denotification has taken place and in view of the denotification, the defendant cannot have any right over the same at all. 10. “The trial court gave a finding that no possession has been taken and therefore, the Court held that in as much as there is no proof that the authorities have taken possession of the land in question before the issuance of notification dated 13.4.1964 and withdrawn the acquisition on 2.3.1970, the plaintiff’s rights continues with him.” Relying upon the above decision, it is argued that the possession was never taken from the plaintiffs and the plaintiffs continues to be in possession and there is no proof forthcoming for having been taken possession from the plaintiff. Therefore, once the notification has been withdrawn, the plaintiff’s right cannot be questioned at all.” And the appeal was dismissed. However, in a Review Petition, this court had elaborately discussed the material on record, and also the absence of relevant material, in coming to a different conclusion in proceeding to recall the judgment of dismissal and reversing the judgment and decree of the trial court. A Special Leave petition having been preferred before the apex court, it was evident that the apex court, in granting leave to appeal and allowing the appeal, was primarily concerned with the propriety of the manner in which this court had proceeded in reversing the judgment of the trial court, and not so much on the merits of the case.
A Special Leave petition having been preferred before the apex court, it was evident that the apex court, in granting leave to appeal and allowing the appeal, was primarily concerned with the propriety of the manner in which this court had proceeded in reversing the judgment of the trial court, and not so much on the merits of the case. This is evident from the tenor of the order. The same is extracted hereunder for ready reference. “ORDER These appeals are preferred by the plaintiff against the judgment and order dated 8.3.2001 passed by the High Court of Karnataka in R.F.A.No.73 of 1993 and C.P.No.683 of 1999. The facts of this case illustrate a disquieting feature as to how the power under Order LXVII Rule 1 is being misused. The plaintiffs filed a suit in 1981 for declaration of possession. The suit was decreed by the trial court on 25.9.1992. Aggrieved thereby the defendants filed appeal before the High Court which was dismissed on merits after recording a finding by the same Judge on 7.4.1999. Plaintiffs’ Execution Petition was allowed by the Executing Court and warrant of delivery of possession was issued. After the warrant of delivery of possession was issued it appears that the defendants filed a review application under Order LXVII Rule 1 some time in August, 1999 and by the impugned order the High Court has allowed, not only the review application but allowed the appeal which was already dismissed by the Court on 7.4.1999. Order LXVII Rule 1 entitles a party who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, desires to obtain a review of the decree passed or order made against him, to apply for a review of judgment to the Court which passed the decree or made the order. Power of review, therefore, is limited and confined subject to the aforesaid conditions.
Power of review, therefore, is limited and confined subject to the aforesaid conditions. In the present case the learned Judge which dismissed the appeal of the defendants on merits on 7.4.1999 allowed the review application by appreciating the entire evidence on record as if the Judge was sitting as an appellate court, which is not permissible under the law. While disposing of the appeal the learned Judge also recorded that the land in question was throughout in the possession of the plaintiffs. However, in review application the same finding has been reversed which is not permissible in the review application. Suffice it to say that in the regular appeal the learned Judge has clearly recorded the admission of the defendants that the land allotted to the defendants was in Survey No.10/4. Having recorded the finding at the admission of the defendants, sitting in a review, the learned Judge has also alloted the Survey No.10/17, the same land which was alloted and was in the ownership of the plaintiffs. The learned Judge, in our view, committed a grave miscarriage of justice. In the result, the appeals are allowed. The judgment and order of the High Court under challenge is set aside. There will be no order as to costs.” It is significant that the trial court had arrived at a categorical finding that the BDA was not a necessary party to the suit. When it was BDA that could claim as the owner of the property and the defendant in the said suit was only a lessee in occupation with a limited right. The lessee was hardly competent to represent the BDA or the CITB, against whom the trial court was in effect granting relief in favour of the plaintiffs. Any such finding which had the effect of effacing the right, title and interest of the BDA , to the property in question, without the BDA being made a party to the suit, would not bind the BDA. The fact that two witnesses had appeared on behalf of the BDA to produce certain records pertaining to the suit schedule property, in the course of the suit, cannot be construed as being akin to the BDA having been privy to the proceedings and having been in a position to plead its case or contest the claim of the plaintiffs.
The fact that two witnesses had appeared on behalf of the BDA to produce certain records pertaining to the suit schedule property, in the course of the suit, cannot be construed as being akin to the BDA having been privy to the proceedings and having been in a position to plead its case or contest the claim of the plaintiffs. Those witnesses were representing BDA for the limited purpose of producing records, pursuant to a witness summons. They were not even shown to be the authors of any of the documents so produced and marked. The further contention and finding that during the course of the suit, an application in I.A. No. 3 having been contested on behalf of the BDA and a declaration made in the pleadings thereto that BDA was not a necessary party, did not make it any less so. It was ultimately for the trial court to have decided whether it was so. And a final finding in that regard having been categorically expressed, in deciding Issue no.8, it cannot be said that the said judgment is binding on the BDA. It is also significant that CITB had ceased to exist even as on the date of filing of the suit. Any declaration in respect of land that was acquired in furtherance of any scheme formulated by the CITB , could only affect the BDA, which was the direct successorininterest of the CITB and hence findings against the CITB, without the BDA being made a party , can hardly bind it. It is of much significance that the above aspects have never arisen at any time in the proceedings before the trial court, this court or the apex court. Point (c ) : The suit in OS 554/1981 has attained finality with the matter reaching the apex court and on disposal of the appeals in Civil Appeal No.89018902/2001 by order dated 15.02.2008. The present suit having been filed immediately thereafter, was certainly maintainable. It may be that in a proceeding, as between parties who were before the apex court, even if erroneous findings have been arrived at and affirmed, such parties would not be in a position to reopen the matter on other and more relevant material, albeit neither considered or brought to the attention of the court.
It may be that in a proceeding, as between parties who were before the apex court, even if erroneous findings have been arrived at and affirmed, such parties would not be in a position to reopen the matter on other and more relevant material, albeit neither considered or brought to the attention of the court. But that embargo would not apply to one who was not a party to the earlier proceeding and is in a position to demonstrate that there were legal impediments to the very maintainability of the suit, apart from demonstrating that he is the party actually affected. As is the BDA , in the present circumstances. Point ( d ) : The finding against the BDA, that the suit was barred by limitation is not tenable. The cause of action it may be said has arisen only when the judgment and decree in OS 554 / 1981 attained finality before the apex court , as aforesaid, and hence the suit filed immediately thereafter was in time. A contention that a cause of action arose to the BDA immediately on the BDA becoming aware of the controversy and claim raised by the plaintiffs in OS 554 / 1981, may not be an acceptable reason for the court below in having come to a conclusion that the BDA did have such knowledge and hence ought to have filed a suit immediately and that the suit filed in the year 2008 being barred by limitation is not tenable. A cause of action arose only when the judgment and decree became final and the possibility of the BDA being deprived of the property loomed large. Point (e) : It is seen that the trial court , in OS 554 / 1981 proceeded on the basic premise that the suit property was denotified. And secondly that the plaintiffs had never been divested of the same. It is these very findings that were seemingly affirmed and are said to have attained finality. The question whether the suit was maintainable if the suit property was admittedly subject matter of compulsory acquisition proceedings was never present to the mind of the trial court or the appellate courts at any point of time.
It is these very findings that were seemingly affirmed and are said to have attained finality. The question whether the suit was maintainable if the suit property was admittedly subject matter of compulsory acquisition proceedings was never present to the mind of the trial court or the appellate courts at any point of time. And in spite of this want of jurisdiction having been emphasized in the present suit, the trial court has placed heavy reliance on the findings in the earlier proceedings and has held that the BDA is bound by the same in dismissing the suit. It may therefore be said that the question of want of jurisdiction had passed subsilentio, in the first instance and has deliberately been brushed aside by the trial court in the present proceedings. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edition, explains the concept of sub silentio at page 153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. In Gerard v. Worth of Paris Ltd. (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs. Bremith Ltd. (1941) 1 KB 675, the court held itself not bound by its previous decision.
When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. vs. Bremith Ltd. (1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. (See Municipal Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101 ). The question whether the principle of ‘incuriam’ would extend and apply to a conclusion of law, was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of subsilentio. “A decision passes subsilentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675, the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101 .
It was approved by this Court in Municipal Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101 . The bench held that, ‘precedents subsilentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao vs. Union Territory of Pondicherry ( AIR 1967 SC 1480 ) it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” (See State of U.P. and another vs. Synthetics and Chemicals Ltd. and Another (1991) 4 SCC 139 ). The trial court as may be seen from the tenor of the judgment and by the extensive reference to case law, has proceeded to place reliance on the same in affirming the findings arrived at earlier, as if it was a court exercising writ jurisdiction, in addressing the infirmities, if they could be so construed, in so far as the acquisition proceedings are concerned. The trial court has hence erred in placing reliance on the findings arrived at earlier and in not addressing the suit by the BDA in its proper perspective. Consequently, these appeals are allowed . The judgment and decree of the trial court is set aside and the suit is decreed as prayed for.