Subhash B. Adi, J.@mdashThough this matter is listed for orders on application for early hearing, however, the same is heard on merit. This appeal is by the defendant-BDA against the judgment and decree in O.S. No. 1078 of 2000, dated 23-1-2008 on the file of the 27th Additional City Civil and Sessions Judge, Bangalore.
2. The suit is one for permanent injunction restraining the defendant and its officials from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
3. The case of the plaintiff was that, the property measuring 1 acre 37 guntas bearing Sy. No. 29/1 of Devarachikkanahalli, Begur Hobli, Bangalore South Taluk bounded on the East by old gramatana land, West by the property of Sri Rajagopalaiah in Sy. No. 33/1 and that of Sri Srinivasaiah, North by the garden land of Sri Srinivasaiah and South by the remaining land in Sy. No. 29/1, is in possession and enjoyment of the plaintiff. The plaintiff has acquired the suit schedule property in partition amongst the members of his family. The remaining portion measuring 6 acres 12 guntas has gone to the other members of the family. Since the neighbouring lands were developed and sites were formed by converting the lands from agricultural to non-agricultural, the plaintiffs have also put up construction in the portion of the suit schedule property and has been living in the said property. Likewise, the owners of the adjoining lands have also put up construction and are also living there. When the officials tried to interfere with the possession in 1993 on the basis of the land acquisition, application was filed for de-notifying the lands. However, in 2000, the defendant tried to interfere with the suit schedule property, as such, the plaintiff was constrained to file the suit.
4. The suit was contested by the BDA inter alia stating that 6 acres 12 guntas in Sy. No. 29/1 of Devarachikkanahalli was acquired vide notification dated 6-8-1988 and 3-11-1990. Notices under Sections 9, 10, 11 and 12 of the Land Acquisition Act, 1894 were also issued to the khatedars. Accordingly, award was passed and thereafter notification u/s 16(2) was issued. Consequently, possession was also taken. As such, the plaintiff has no right, title and interest with the suit schedule property.
5. On the basis of the pleadings, the Trial Court framed the following issues:
(1) Whether the suit is not maintainable for want of notice u/s 64 of the Bangalore Development Authority Act, 1976?
(2) Whether the plaintiff proves that he was in lawful possession of the suit property as on the date of the suit?
(3) Whether the plaintiff proves the alleged interference by the defendant?
(4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
(5) What decree or order?
6. Before the Trial Court, the plaintiff got himself examined as P.W. 1 and examined one witness as P.W. 2 and got marked Exs. P. 1 to P. 28. Whereas, on the defendant''s side, two witnesses were examined as D.Ws. 1 and 2 and Exs. D. 1 to D. 19 were produced.
7. The Trial Court, relying on Ex. P. 28-sketch, Ex. D. 9-possession mahazar of BDA and also Ex. D. 3 -- Section 16(2) notification, held that BDA has acquired only 3 acres 32 guntas out of 6 acres 12 guntas and the remaining land has remained with the plaintiff and others. The suit land was not part of 3 acres 32 guntas. Against the said finding and decree of the Trial Court, the defendant is in appeal before this Court.
8. Sri Gurudev Gachchinamath, learned Counsel for the defendant contended that the entire land was notified for acquisition. Even though possession of 3 acres 32 guntas was taken, however, the acquisition proceedings in respect of the remaining extent of land has not been completed. He also submitted that there is a mistake in the mahazar. The area of 1 acre 37 guntas is also part of 3 acres 32 guntas and submitted that subsequent to the award, another survey was made and in the said survey, it is noticed that this land is also part of the acquisition. Further, he did not dispute the notification issued u/s 16(2) as per Ex. D. 3, wherein possession of only 3 acres 32 guntas is taken. He also did not dispute Ex. D. 9-possession mahazar, which also shows the possession of 3 acres 32 guntas and boundaries mentioned therein. He also tried to clarify the same by stating that the suit property is also included in the said area. However, none of the documents produced by the BDA show that the suit property was part of 3 acres 32 guntas.
9. On the other hand, learned Counsel for the plaintiff submitted that the plaintiff is not making any claim in respect of 3 acres 32 guntas, for which the possession is taken by the BDA in terms of Ex. D. 9-possession mahazar u/s 16(2) and also submitted that this suit schedule property falls outside 3 acres 32 guntas.
10. The Trial Court has relied on Ex. P. 28-survey sketch, notification u/s 16(2) and Ex. D. 9-possession certificate and has found that the suit property is not part of 3 acres 32 guntas. Today also, the learned Counsel for the plaintiff submitted that the suit property is outside the land shown in Ex. D. 9. Ex. D. 9 is the mahazar drawn by BDA for taking possession of the acquired land. If that is so, there is no impediment to decree the suit. Hence, the findings of the Trial Court holding that the suit schedule property is not acquired, is just and proper and based on the documents produced by the defendant themselves. However, it is made clear that it does not prevent the defendant to develop the acquired land as per the possession notification produced at Ex. D. 9.
11. Accordingly, I pass the following.--
ORDER
Appeal is disposed of with a clarification that BDA has acquired 3 acres 32 guntas in Sy. No. 29/1 as per the boundaries shown in Ex. D. 9. The plaintiff is entitled for injunction in respect of any land outside the land measuring 3 acres 32 guntas in Sy. No. 29/1 (i.e. 1 acre 37 guntas). Further, this judgment and decree will not have any effect on the BDA to develop the land measuring 3 acres 32 guntas as per Ex. D. 9.
In view of the disposal of the appeal, I.A. No. 1 of 2013 does not survive for consideration and is disposed of accordingly.
