Judgment:
® 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE30H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA R.F.A. NO.964/2006 (INJ) BETWEEN TELECOM EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LIMITED, NO.6/7, RAJ BHAVAN ROAD BANGALORE-560 001 REP.BY ITS AUTHORISED DIRECTOR SRI.C.V. MANJUNATHA ...APPELLANT (BY SRI N S SATISHCHANDRA AND SRI A.SAMPATH, ADVOCATES) AND1. D RAMDAS, SINCE DEAD BY LRS., 1(a) R. KUMAR SON OF LATE D RAMDAS AGED ABOUT53YEARS, 1(b) R. SURESH SON OF LATE D RAMDAS AGED ABOUT48YEARS, 1(c) J.
SUDHA DAUGHTER OF LATE D RAMDAS AGED ABOUT48YEARS, 2 1(d) J.
DEEPA DAUGHTER OF LATE D RAMDAS AGED ABOUT48YEARS ALL ARE RESIDING AT DOOR No.A-55, 4TH CROSS, MAGADI ROAD, BENGALURU560023. 2 . SHANTHA KUMAR MAJOR, S/O VENKATARAMANAPPA MAJOR, NO.38, 5TH CROSS MAGADI ROAD BANGALORE-560 023 3 . V GANGADHARA, MAJOR S/O VENKATARAMANAPPA MAJOR, NO.38, 5TH CROSS MAGADI ROAD BANGALORE-560 023 4 . B Y RAMAKRISHNA, MAJOR S/O YERAPPA, MAJOR NO.3, 7TH CROSS, A STREET MAGADI ROAD BANGALORE-23 5 . B GANGAIAH MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT NO.63, BEHIND SHIVAJI TALKIES KUMBAR GUNDI BANGALORE-560 002 6 . MUNILAKSHMAMMA MAJOR, W/O VENKATAPPA NO.697, 'C' BLOCK BINNYPET, BANGALORE-560 023 3 7 . D MUNIYAPPA MAJOR FATHERS NAME NOT KNOWN NO.967, C BLOCK, BINNYPET BANGALORE -560 023 8 . D DAMODAR, MAJOR S/O VENKATASWAMY NO.3512, 6TH CROSS MAGADI ROAD BANGALORE -560 023 9 . SMT KALYANI MAJOR, FATHER NAME NOT KNOWN NO.223, C BLOCK BINNYPET, BANGALORE -560 023 10 . SMT RAJAMMA MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT CORPN.NO223 'G' BLOCK, BINNYPET BANGALORE-23 11 . VENKATAMMA MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, NO.16, G G STREET, JAGJEEVANRAMNAGAR BANGALORE-18 12 . CHARIYAMMA, MAJOR W/O S N JOSEPH, MAJOR, NO.195, CAR POLICE QUARTERS MYSORE ROAD BANGALORE-26 13 . SMT SUSHEELA, MAJOR W/O ANDREWS NO.195, CAR POLICE QUARTERS MYSORE ROAD, BANGALORE-26 4 14 . SMT HASEEN BEGUM, MAJOR W/O A SAYEED NO.8, TCM ROYAN ROAD BANGALORE-53 15 . SUBHANA BEGUM W/O HASEENA BAIG MAJOR, NO.16, 2ND CROSS MYSORE ROAD BANGALORE-26 16 . SAHEENA BHANU W/O SHERIFF SAHEB MAJOR, NO.436, AVENUE ROAD BANGALORE-02 17 . V RAMANUJAMMA MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT NO.112, (18) HOME QUARTERS SILVER JUBILEE PARK ROAD NEAR DASAPPA MATERNITY HOME BANGALORE18. H RAJU, MAJOR FATHERS NAME NOT KNOW TO THE APPELLANT NO.2/1, 7TH CROSS MAGADI ROAD BANGALORE -560 023 19 . SMT MARAKKA MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT NO.91, 2ND CROSS CORPORATION QUARTERS JAGAJEEVANRAMANAGAR BANGALORE185 20 . A AUGUSTINE MAJOR, FATHER NAME NOT KNOW TO THE APPELLANT NO.U-42, 3RD BLOCK PADDARAYANAPURA BANGALORE -18 21 . B Y RAMAKRISHNA MAJOR, FATHER NAME NOT KNOW TO THE APPELLANT NO.M-3 SHIVA NILAYA A STREET, 7TH CROSS MAGADI ROAD BANGALORE-23. 22 . N VENKATESH S/O NARASAPPA, MAJOR NO.16, KUMBARGUNDI LAYOUT NEAR S.P.POLICE STATION BANGALORE223 . NAROTHIMAL JORARIA, MAJOR S/O INDRACHAND JORARIA101, JM STREET III FLOOR, BALEPET CROSS BANGALORE-29 24 . M VELU MAJOR S/O UTHAPPA NO.21, VISVESWARAPURAM JAIN TEMPLE CROSS BANGALORE -04 25 . NINGAMMA MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, NO58 N P LANE, NASYADA PILLANNA GALLI ARALEPET, BANGALORE-52 6 26 . SMT JAYAMMA , MAJOR W/O KEMPANNA161, PADARAYANAPURA I MAIN, 17TH CROSS BANGALORE-26 27 . SMT YELLAMMA, MAJOR W/O SUBBARAYULU NO55 BEHIND SHIVAJI TALKIES KUMBARGUNDI LAYOUT BANGALORE-52 28 . C NATARAJA, MAJOR FATHERS NAME NOT KNOW TO THE APPELLANT NO708 63RD CROSS RAJAJINAGAR5H BLOCK BANGALORE-79 29 . LYKE FUNNISA, MAJOR D/O ABDUL AZEEZ NO.53, MUNIREDDIPALYA MAIN ROAD BANGALORE-40 30 . GOVINDARAJU MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, RAJESWARINAGAR KENCHANAHALLI, NAYANDAHALI POST BANGALORE-39 31 . K M ASWATH MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT, NO.14/3, TALAKADU SUBBARAO LANE, AKKIPET, BANGALORE-43 7 32 . P R SULOCHANA MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT, D NO1733 3RD MAIN THIMMENAHALLI BANGALORE-52 33 . SAKINABI MAJOR, FATHERS NAME NOT KNOW TO THE APPELLANT, NO.73, 9TH MAIN, 17TH CROSS PADRAYANAPURA BANGALORE-64 34 . H G GOPINATH MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, D.NO.6, THULASITHOTA BALEPET CROSS, BALEPET BANGALORE-53 35 . SMT VIJAYALAKSMI MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, 4TH CROSS, K P AGRAHARA, MARIANNAPALYA BANGALORE-79 36 . SRI KRISHNAIAH MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, NO7 III MAIN PALACE GUTTAHALLI BANGALORE37. SRI C NATARAJAN MAJOR, FATHERS NAME NOT KNOWN TO THE APPELLANT, 106, 8TH MAIN, BANGALORE-18 8 38 . SMT BHOODEVI, MAJOR W/O VASANTHA RAO NO.53, HAL COLONY OLD TOWNSHIP VIMANAPURA BANGALORE-17 ...RESPONDENTS (BY SRI V.K.NAIK AND SRI UMESH CHANDRA GOWDA.B.R, ADVOCATES FOR R1; SRI ABHINAV.R, ADVOCATE FOR R11 AND R31; SRI AMEER JAN, ADVOCATE FOR R11; SRI N.T.PREMANATH, ADVOCATE FOR R13; SRI M.ERAPPA REDDY, ADVOCATE FOR R5, R18, R22, R27 AND R38; SRI B.G.THAMAIAH, ADVOCATE FOR R8, R24, R25, R26, R29, R30; SRI MAHESH KIRAN SHETTY, ADVOCATE FOR R31; R12 DELETED; NOTICE OF R2, R3, R16, R28, R29 AND R34 SERVED AND UNREPRESENTED; NOTICE TO R4, R6, R7, R9 TO R11, R14, R15, R17, R19 TO R21, R23, R32, R33, R35 TO R37 HELD SUFFICIENT.) THIS RFA IS FILED U/S96OF CPC AGAINST THE JUDGEMENT AND DECREE DT.15.4.2006 PASSED IN O.S.NO.4938/1995 ON THE FILE OF V ADDL. CITY CIVIL JUDGE, AT BANGALORE CITY, DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON2408.2022, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT'; THIS DAY THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT1 The present appeal is preferred by the un- successful plaintiff whose suit for bare injunction came to be dismissed by judgment dated 15.04.2006. 9
2. Parties are referred to in this appeal as per their original rankings before the Trial Court for the sake of convenience.
3. Brief facts of the case are as under: Plaintiff filed a suit seeking judgment and decree of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the landed property comprising of old Survey No.130 of Kempapura Agrahara village, Bengaluru North Taluk, wherein sites are formed partly bounded on: East - Land bearing Survey No.131 and railway lane; West - Drainage and Survey Nos.53, 54 and 55; North - Survey No.129 and South - Land in Survey Nos.25 and 26 measuring in all 2 acres 2 guntas with a katcha approach road. The said property hereinafter referred to as suit property for the sake of convenience.
4. Plaintiff claim that it is a House Building Co- operative Society registered under the provisions of Section 7 of the Karnataka Co-operative Societies Act, 10 1959, with an intention to cater to the needs of its members, who are employees of Telecom Department of the Central Government. Plaintiff applied to Bengaluru Development Authority [hereinafter referred to as the "BDA" for short]. for allotment of sites to its employees. Out of the acquired land, the Plaintiff Society is entitled to form a lay out and allot the individual sites to its members under the prevailing Twenty Point program of the Union Government in the year 1980.
5. On receipt of such application, BDA considered the same in accordance with law and passed a resolution and allotted 25 Acres of land to the Plaintiff Society, which is the suit property. BDA fixed the consideration in a sum of Rs.31,25,000/- and accordingly, plaintiff paid the entire amount on 23.07.1984 in respect of the land in Survey Nos.15 to 19 with sub numbers and also land in Survey Nos.22, 23, 26, 27, 28, 31, 53, 54, 55 and 130 of Kempapura Agrahara Village. 11
6. On receipt of the said amount, BDA executed absolute sale deed on 02.06.1986 in favour of the Society in respect of the entire extent of the land in all the survey numbers. The said sale deed was also registered with the Sub-Registrar on 04.06.1986. Physical possession of the land to the entire extent as referred to supra in all the Survey Numbers, was handed over to plaintiff by issuing necessary certificate on 07.08.1986. Thereafter, Plaintiff Society prepared a layout plan and the same was furnished to the BDA for approval. BDA approved the same and issued work order on 15.08.1998. Scrutiny charges in respect of the same in a sum of Rs.2,650/- was also remitted by the plaintiff to the Bengaluru Development Authority. Plaintiff permitted Bengaluru Development Authority to remove the shrubs and weeds as indicated in the layout plan.
7. Plaintiff developed the lands that was allotted to them and sites were formed. When the plaintiff was in the process of developing the land in Survey No.130 of 12 Kempapura Agrahara village, there was an obstruction and interference by the defendants. Though plaintiff was in possession and enjoyment of the suit property, first defendant - D.Ramdas and other politicians and villagers started interfering with the peaceful possession of the property on the ground that they have purchased the land from the erstwhile owners. Therefore, plaintiff was constrained to file OS No.4938/1995 seeking an order of permanent injunction restraining the defendants or their agents from interfering with their peaceful possession of the property.
8. On receipt of the suit summons, few of the defendants appeared and filed written statement and some of them remained exparte. During the pendency of the suit, defendant Nos.11, 24, 27 and 29 died and their legal representatives were not brought on record. According to plaintiff, it did not cause any serious dent to the plaintiff inasmuch as the suit is one for permanent injunction. 13
9. In the written statement filed by the defendant Nos.1, 5, 8, 15 and 37, who have filed a common written statement and defendant Nos.9, 10 and 13 also filed different written statement which is practically in verbatim with the other above referred defendant Nos.11, 12 and 20, filed a common written statement. So also, defendant Nos.19, 26, 29, 30 and 35 have filed a common written statement denying the identity of the schedule property. They also contended that the plaintiff have suppressed the material facts and therefore, the Plaintiff Society has not approached the court with clean hands and sought for dismissal of the suit. It was also contended on behalf of the defendants that the land acquired by the BDA cannot be granted to a society and bulk allotment is incorrect and placed reliance on the principles of law enunciated in a case reported in (1) ILR1995KAR1962and (2) ILR1991KAR2248 Defendant Nos.2 to 42 claim that they are the purchasers of the individual sites from B.R. Prabhakar, B.R. Chandrashekhar, B.R. Sudhakar and B.R. Madhukar through their General Power of Attorney holder P.Ramdas 14 i.e., defendant No.1 and therefore, the plaintiffs have no right over the suit property and sought for dismissal of the suit.
10. Based on the rival contentions, Trial Court raised the following issues: (1) Whether the plaintiff proves its lawful possession of the suit schedule property?. (2) Does the plaintiff prove the alleged interference by the defendants?. (3) What decree/order?.
11. In order to discharge the burden cast on the plaintiff, Authorised Director of the Plaintiff Society by name C.V. Manjunath, filed affidavit in lieu of examination in chief. He relied on 14 documents which were exhibited and marked as Exs.P-1 to P-14 comprising of Ex.P1 - Gazette Notification dated 25.5.1978; Ex.P2 - Certified copy of the BDA resolution; Exs.P3-7 - challans for having paid amount to BDA; Ex.P8 - Copy of BDA Resolution dated 13.10.1987; Ex.P9 - Layout estimate; Ex.P10 - Copy 15 of BDA resolution dated 14.10.1988; Ex.P11 - BDA letter dated 14.12.1988; Ex.P12 - Certified copy of the Gazette Notification; Ex.P13 - Certified copy of the sale deed and Ex.P14 - Certified copy of he possession certificate; and he has been thoroughly cross examined by the defendant.
12. To counter the evidence placed by the plaintiff, on behalf of the defendants, 20 witnesses were examined as DWs.1 to 20 and in all they have relied on 100 documents which were exhibited and marked as Exs.D-1 to D-100. Among them, Exs.D-1 to D4 are the certified copy of the Partition deed, certified copy of the GPA dated 7.5.1984 and 28.6.1984 and certified copy of the plan. Exs.D-5 to D-23, D-69 to D-74, D-76, 78, D-80 to D-85, D-88, 89, 91, 93, 96 and 99 are the certified copy of the sale deed executed on different dates. Exs.D-24 to D-51 are the photographs and D52 is the negatives. D-53 and 54 are the certified copy of the applications to BDA and D- 55 to 57 are the acknowledgements from BDA. D-58 is the Commissioner's report; D-59 is the sale deed of 16 Venkatamma; D-60 is the Special Power of Attorney; D- 61 is the sale deed; D-62 is the Acknowledgement issued by the Corporation; D-63 is the notice issued by the Corporation; D-66 and D-67 are the Endorsement issued by the Bengaluru Mahanagara Palike. Ex.D-68 is the Sale deed dated 18.5.1984; Ex.D-75 is the GPA; Exs.D-77 and 87 is the Special Power of Attorney; Exs.D-79 and D-92 are the GPA; Ex.D-86 and D-90 are the death certificates; Ex.D-94 is the certified copy of the Commissioner's report in RFA No.576, 577 and 578 of 1998. Ex.D-95 is the certified copy of the sketch; Ex.D-97 is the partition deed, D-98 is the Sale deed and D-100 is the copy of the order in RFA Nos.576, 577 and 578 of 1998.
13. On considering the oral and documentary evidence on record, learned Trial Judge recorded the issue No.1 in the Negative and consequently, he was of the opinion that the second issue did not arise for consideration and dismissed the suit of the plaintiff. 17
14. Being aggrieved by the dismissal of the suit by the Trial Court, Plaintiff Society preferred this appeal on the following grounds: (cid:1) "The judgement and decree of the lower court are arbitrary in nature, erroneous and opposed to the facts and probabilities in the case. (cid:1) The lower court erred in interpretation and application of the provisions of the BDA Act and its amendment in respect of prescription of power relating to bulk allotment. It has occasioned failure of justice to the appellant, correctable in this appeal. (cid:1) It is humbly submitted that the approach, interpretation and the conclusion arrived at by the lower court as to the amendment of the BDA Act is contrary to the principles laid down as to the interpretation of amendments, enactments as laid down by the Supreme Court and other High Courts in that behalf and the provisions of Transfer of Property Act. (cid:1) It is humbly submitted that the lower court erred in treating amendment of 38B as an insertion 18 rather than as a substitution and it has thus occasioned failure of justice. In this context, it is humbly submitted that since the power having been substituted with retrospective effect, the question of any rectification or modification of registered document or resolution in that context by the BDA does not arise much less has arisen in this case. It is therefore submitted that any further action by the BDA in relation to the allotment to the appellant or about the layout plan and modified plan and sale deed as also the plaintiff having been put in possession by the BDA require any further action by the BDA to effectively legalise possession in favour of the plaintiff/appellant. (cid:1) It is submitted that possession follows title and in the face of Exhibit P.14 possession having been given to the plaintiff by the BDA had not been disturbed or reversed by any action of the BDA as per the order in Writ Petition by the High Court of Karnataka relating to bulk allotments and after the amendment of the BDA Act relating to the bulk allotment, this aspect was specifically brought to the notice of the lower court and emphasized in the course of arguments before it. 19 This aspect has been lost sight of by the lower court. Hence the judgement and decree of the lower court in that behalf is completely one sided and it is required to be corrected in appeal in favour of the appellant. (cid:1) It is further submitted that in this context the Lower Court failed to consider the layout plan sanctioned referred to by PW1 as also the sale deed and BDA letter of 1988 namely Exhibit P1 to P13and especially P14 the possession certificate. These exhibits PI to P14 were not challenged in any manner whatsoever or shown to be not acceptable pieces of evidence of proof of plaintiff's possession of the suit property both on the date of the suit as also continued by virtue of temporary injunction granted in the very same suit by the lower court continued to the date of Judgement and Decree that too viz-a viz for long years. In the case of the above said situation, it is humbly submitted as laid down by the precedents of the Apex Court brought to the notice of the lower court that there was neither title in the first defendant to convey much less in his principal owner after acquisition any existence of title or possession of the suit property capable of being 20 conveyed to either defendant No.1 D. Ramdas or to persons to whom he claims to have transferred under various sale deeds. (cid:1) The lower court wrongly considered the amended act 17 of 1994 as act 70 of 1994 and has further erred in construing that the act came into effect from 20.12.1994. While actually amendment act come into effect from 20.12.1975. Hence this error is correctable in this appeal by this Hon'ble court. (cid:1) The trail court further erred in not allowing the application filed by the plaintiff appellant society for amendment of the plaint in adding other relief. The trail court ought to have allowed the application filed by the plaintiff / appellant society in as much as the allowing the application did not change the nature of the suit or the cause of action. Not allowing of the application for amendment has accessioned a failure of justice. (cid:1) The lower court failed to consider that under the provisions of the Transfer of Property Act, under Section 42, 43 and 44 and under Section 6 and provisions of Section 54 and 55 of the Transfer of 21 Property Act the plea advanced by the defendant No.1 and others that they are in possession was in a vaccum and could not hold water in legal field and more particularly in view of their withdrawal of their suits and permission granted by the Hon High Court to withdraw the same. It is concluded that the present plaintiff/appellant was in possession of the suit property. (cid:1) The lower court erred in considering and coming to the conclusion that the plaintiff/appellant was not in possession of the suit property as on the date of the suit is erroneous, unjust and is opposed to the facts and probabilities of the case and against the evidence and against the legal presumptions applicable in the facts and circumstances of the case. (cid:1) It is humbly submitted that DW1, D.Ramdas in his evidence had clearly stated that the plaintiff was in possession and enjoyment of the suit schedule property as also its adjacent property towards south of it. The lower court has not treated it as a straight answer to the question put in evidence and made it a point against the plaintiff / defendant to dismiss the suit. 22 (cid:1) The lower court failed to consider the importance of the acquisition proceedings and the conclusiveness of the same in respect of the lands acquired under the Land Acquisition Act and taking possession of the same by the BDA as proved by the Exhibits PI to P14 In this context it is humbly submitted that the power or the right of the plaintiff/appellant in relation to the said land namely the area that has been the subject matter of Exhibit P14 The possession was handed over to the plaintiff/appellant and therefore the defendants plea is hollow, unreal and under Section 55 of the Transfer of Property Act, it was fraudulent one. The court below has erroneously approached this suit and thus has prejudiced the plaintiff's case, occasioning failure of justice and requires to be corrected in this appeal by this Hon'ble Court in its appellate jurisdiction.20. The lower court erred in considering that on withdrawal of the suits by the first defendant in O.S. No.10419, 10752 and 10273/1995 they became nonest. It is humbly submitted that it is incorrect in law. It ought to have been viewed in favour of the plaintiff as having proved the possession during and in the 23 course of those suits and as held by the lower court in granting temporary injunction in this case and not holding that defendant was estopped from contending other wise. Section 11 of the CPC applies to the facts of the case. (cid:1) The lower court failed to consider that it is not the case of either of the parties that the entire survey No.130 consisting of 4 Acres 2 Guntas was allotted to the plaintiff nor was the subject matter of the sale deed to the plaintiff by the BDA. It is very clearly mentioned that it was only 2 Acres 2 Guntas out of Survey No.130 which was allotted to the plaintiff and possession given and in the event of the very same property being the schedule property in the first defendant's suits would show that the defendant was clear about the location as also the extent and situation of the portion of Survey No.130 which the plaintiff clamed in the other suits as portion of Survey No.130, possession of which was given by the BDA. Thus the lower court could not in any manner whatsoever make a point against the plaintiff in that behalf. Thus the order is one sided and is required to be corrected in appeal. 24 (cid:1) It is humbly submitted with utmost respect that the plaintiff has through out shown its bonafides in acting for its members under the Co-operative Societies Act and the bye laws governing it and for the benefit of its members. While in contrast the acts of the first defendant D. Ramdas even as per the GPAs. contained in D2 and D3 wherein he was not allowed either to develop much less have layout and further having to transfer, he has created bogus deeds in favour of the third parties for purpose of political aggrandizement on behalf of persons not entitled to it, in view of the fact of acquisition proceedings. It is therefore just and necessary that these aspects which are lost sight of by the lower court in spite of the emphasis laid out in the course of arguments on behalf of the plaintiff, the lower court coming to the conclusion that the plaintiff has not brought the suit property in respect of 2 Acres 2 Guntas in survey No.130 on the basis that the boundaries mentioned in the plaint and the suit schedule property is referable to the boundaries of entire Survey No.130 is palpably wrong. The judgment in that behalf and the observations made there in are erroneous and unjust and opposed to the probabilities in the case. More particularly none of the defendants 25 have stated in their evidence any thing in respect of the same. no right at all (cid:1) The lower court failed to consider the evidence of several of the witnesses on behalf of the defendants and all the defendants themselves wherein there was absolute inconsistency and want of definiteness as to availability of any building or a hut or other construction in respect of any of the areas covered by the sale deeds produced by them or otherwise and claimed by them. There was no acceptable evidence by any court of law in that behalf placed by the defendants. The lower court not having considered this aspect has prejudiced the case of the plaintiff / appellant and is thus one sided and is erroneous and unjust. The lower court coming to the conclusion that the decisions cited on behalf of the plaintiff / appellant were not applicable to the facts of the case is not correct. In the facts of the case, it ought to have followed the same and principle as laid there being absolutely applicable in this case on hand. Thus the judgement and decree of the lower court are absolutely vitiated calling for interference by this Hon'ble Court in appeal. The observations 26 contained in para 24 are absolutely erroneous, unjust and opposed to the facts and circumstances of the case. (cid:1) It is respectfully submitted that the approach of the lower court without considering the effect of the exhibits PI to P14placed by the plaintiff / appellant and the evidence of PW1 as to the possession as on the date of the suit is contrary to the provisions of Order XX of the CPC as to the plaintiff being in possession of the suit property and in the same breath not considering the dismissal or the withdrawal of the suits and dismissal of the appeals of the defendants in that context, it has occasioned failure of justice. (cid:1) It is humbly submitted that any view taken by the lower court as to the proceedings prior to the present suit without considering the effect of Exhibit P9 P10 P11 P13and P14 would be erroneous and against law.
15. Reiterating the grounds urged in the appeal memorandum, learned Senior counsel Sri K.G. Raghavan, vehemently contended that the Trial Court practically 27 agreed with the case of the plaintiff to a major extent and failed to grant the prayer of the plaintiff on the ground that bulk allotment of the land by the Bengaluru Development Authority for the Co-operative Society is incorrect and illegal. He further argued that the legislature noticing the fact that Bengaluru Development Authority has allotted the land to good number of societies by bulk allotment found it utmost necessary to regularise the bulk allotment. Therefore, amended Section 38(B) of the Bengaluru Development Authority Act, whereby the bulk allotment made by the Bengaluru Development Authority to the good number of societies, including the plaintiff became valid in view of the fact that the said section had the retrospective effect.
16. Sri K.G. Raghavan, learned Senior counsel, further contended that when the legislature has deemed it necessary to amend by incorporating Section 38(B) of the Bengaluru Development Authority Act with retrospective effect. In view of the Amendment to the Act, the action of 28 the Bengaluru Development Authority in allotting the suit land to the plaintiffs deemed to have been valid and therefore, sought for allowing the appeal.
17. First defendant died during the pendency of the appeal. A memo came to be filed before the court on 22.08.2022 which reads as under:
"The undersigned submits that the Respondent No.1 (D Ramdas) passed away on 27.04.2021 due to Covid-19 leaving behind his two sons and two daughters. A copy of the death Certificate is herewith annexed along with this memo. Hence, this memo may be taken on record in the interests of justice and equity. The following are the legal representatives of the deceased Respondent No.1 (D Ramdas) :
1. a) R. KUMAR Son of late D Ramdas Aged about 53 years, 1(b) R. SURESH Son of late D Ramdas Aged about 48 years, 1(c) J.
SUDHA Daughter of late D Ramdas Aged about 48 years, 29 1(d) J.
DEEPA Daughter of late D Ramdas Aged about 48 years All residing at Door No.A-55, 4th Cross, Magadi Road, BENGALURU560023.
18. In view of the memo filed, this court ordered that the appeal against the first respondent stands dismissed. Learned counsel for respondent Nos.11 to 31 remained absent and did not choose to argue the matter. So also, learned counsel for respondent Nos.5, 18, 22, 27 and 38 though engaged, remained absent. Despite granting time to address the arguments, they did not choose to address arguments. As such, their arguments are taken as nil. In other words, none of the respondents choose to address the arguments on the merits of the appeal.
19. This Court perused materials on record. On such perusal, following points would arise for consideration:
30. (i) Whether the plaintiff society has made out a case that they are in lawful possession of the suit property?. (ii) Whether the plaintiff makes out a case that there was an illegal interference by the respondents who are defendants in the court below?. (iii) Whether the impugned judgment suffers from legal infirmity and thus calls for interference?. (iv) What order?.
20. In the case on hand, on perusal of the material evidence on record, the following admitted points would emerge: (cid:1) Plaintiff is a registered Co-operative Society under the provisions of the Karnataka Co- operative Societies Act, 1959. (cid:1) Under the Twenty Point scheme prevailing in the year 1980, Plaintiff Society in order to cater to the needs of having a housing site for its members, the approach of the BDA for allotment of the land which is acquired for 31 the purpose of forming a Layout for housing sites. (cid:1) Application was considered by the Bengaluru Development Authority and land in Survey No.130 of Kempapura Agrahara has been allotted by the BDA by accepting consideration in a sum of Rs.31,25,000/-. The possession of the land was also handed over to the plaintiff society and a regular sale deed has been executed by the BDA in favour of the Plaintiff Society on 2.6.1986. The plaintiff deposited necessary fees with the BDA for scrutiny of the intended layout. (cid:1) Officials of the BDA visited the land that was allotted to the Plaintiff Society and removed the shrubs and layout was approved. The plaintiff developed the land and only in respect of the land in Survey No.130, there was an interference and therefore, plaintiff was constrained to file the suit against the defendants. (cid:1) Defendants contended that they are the purchasers of the individual sites through 32 their Power of Attorney Sri P.Ramdas. Admittedly, they are all revenue sites.
21. Following points are in dispute: (cid:1) Defendants disputed the identity of the land allotted to the plaintiff by the BDA in respect of Survey No.130 [suit property].. (cid:1) Defendants contended that suit of the plaintiff is not maintainable as the BDA has no power to order for bulk allotment of the land to the Plaintiff Societies as enunciated in: (1) ILR1995KAR1962 and (2) ILR1991KAR2248(cid:1) Plaintiff Society did not approach the court with clean hands which is a sine qua non for granting the relief of injunction.
22. In the light of the above admitted and disputed facts, this court now has to consider at the first instance that - "Whether the bulk allotment of the suit land by the Bengaluru Development Authority in favour of the Plaintiff Society is valid?."
3. 23. In this regard, it is just and necessary for this court to consider the legislature amendment to the BDA Act inserting Section 38(B) to said Act. The same is extracted hereunder for ready reference:
"38B. Power of authority to make bulk allotment.- Notwithstanding anything contained in this Act or development scheme sanctioned underthis Act, the Authority may, subject to any restriction, condition and limitation as may be prescribed, make bulk allotment by way of sale, lease or otherwise of any land which belongs to it or is vested in it or acquired by it for the purpose of any development scheme,- 1. Section 38B inserted by Act 17 of 1994 w.e.f. 20-12-1975. (i) to the State Government ; or (ii) to the Central Government ; or (iii) to any corporation, body or orginsation owned or controlled by the Central Government or the State Government ;or (iv) to any housing co-operative society registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) ; or 34 (v) to any society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960) ; or (vi) to a trust created wholly for charitable, educational or religious purpose : Provided that prior approval of the Government shall be obtained for allotment of land to any category listed above.
24. On bare perusal of the above provision, it is crystal clear that the Act came to be amended with retrospective operation from 20.12.1975.
25. Therefore, the ground on which the Trial Court doubted the possession of plaintiff about the society by virtue of the sale deed executed by the BDA, in pursuance of its resolution dated 3.7.1987 is to be held as incorrect. In other words, the sale deed executed by the BDA in favour of the Society is to be held as valid.
26. There is no dispute that BDA acquired the land in Survey No.130 of Kempapura Agrahara by virtue of the preliminary notification dated 30.12.1977 and final notification dated 27.12.1980 pertaining to suit property 35 which is marked as Ex.P-12. Ex.P-11 is the letter with which plaintiff society sought for allotment of 25 acres of land in Kempapura Agrahara. Ex.P2 was properly processed by the BDA and there was a demand notice cum challan issued by the BDA to Plaintiff Society vide Exs.P-3 to P-7. Ex.P-8 is the copy of the Bengaluru Development Authority resolution dated marked before the Trial Court dated 13.10.1987 whereby the BDA addressed letter to the Plaintiff Society approving the private layout in Survey No.130 and other Survey Numbers of Kempapura Agrahara to the extent of 25 acres as per the letter written by the Plaintiff Society. Further, by subject matter No.705 dated 23.09.1997 BDA resolved to modify the earlier resolution vide subject matter No.360 and thereby the entire piece of land in Survey No.130 was ordered to be allotted to the society in super session of letter dated 5.8.1987. Further, the BDA addressed a letter on 7.5.1998 regarding the approval of the private layout and sanctioned the order approving the plan would be issued subsequently. The said letter is marked before the Trial court as Ex.P-11 is 36 the document by which BDA approved the layout in the entire 25 acres. Ex.P-13 is the certified copy of the sale deed executed by the BDA in favour of the Plaintiff Society whereby BDA sold land in Survey Nos.15-29, 31, 53-55 and 130 of Kempapura Agrahara to the extent of 25 acres. Plaintiff was also put in possession of the entire property by virtue of the possession certificate dated 7.8.1986 marked at Ex.P-14.
27. Contrary to the above oral and documentary evidence on record, DW-1 in his evidence contended that he purchased the land in question and formed revenue sites as per the layout plan marked at Ex.D-4.
28. It is the specific case that he has sold the individual sites to defendant Nos. 2 to 42 and purchasers have constructed shops and the same are in their possession which is not even disputed by the plaintiff in the cross examination of DW-1. Documents in this regard were relied on and marked as Exs.D-1 to D-57. In order to ascertain as to the identity of the property, the Trial 37 Court appointed a Court Commissioner. It is on record that Court commissioner visited the spot and prepared the report by physical verification of the existing structures which were marked as Exs.D-58 to D-95 among other documents relied on by the first defendant. Ex.D-1 is the certified copy of the partition deed dated 09.11.1966 among the members of the Plaintiff Society. Item No.3 of the B Schedule property in Survey No.130 measuring 3 guntas have been allotted to the share of Sri P.Ramdas. Ex.D-2 is the certified copy of the registered Power of Attorney executed on 07.05.1984 authorising first defendant to sell, mortgage or gift 3 guntas of land in Survey No.130 of Kempapura Agrahara. Ex.D-3 is the certified copy of the registered GPA2906.1984 in respect of the remaining 2 acres of land in Survey No.130. Ex.D-4 is the certified copy of the layout plan formed by first defendant in respect of 4 acres 3 guntas. Exs.D-5 to D-23 are the certified copies of the sale deed executed by the first defendant in favour of other defendants. Exs.D-24 to 51 are the photographs of the suit property showing 38 structures in the suit property. Exs.D-53 and 54 are the applications given by first defendant to BDA seeking Certified copy of the layout plan. Exs.D-55 to D-57 are the acknowledgements issued by the BDA. Ex.D-58 is the CC of the Court commissioner in RFA Nos.576-578/1998. Exs.D-95 is the sketch prepared by the Court Commissioner.
29. On cumulative analysis of the documentary evidence produced by the parties, the first defendant claims right over the suit property on the ground that he is the registered GPA holder of the children of the first defendant, who had full authority to form layout in Survey No 130 to the entire extent.
30. Admittedly land in Sy.No.100 was notified by the BDA for acquisition and issued preliminary and final notification referred to supra. BDA acquired the entire property in Survey No.130. Acquisition was challenged and challenge ended in dismissal. It is needless to emphasize that when a statutory body acquires the land in 39 accordance with law, all the rights, title and interest in the suit property vests with the acquiring authority. In the case on hand, BDA having issued preliminary notification and final notification and took possession of the entire land in Survey No.130, which on challenge came to be confirmed in favour of the BDA, neither the first defendant nor anybody claiming under him the right, title and interest over the suit property cannot be countenanced in law. Therefore, the right, title and interest that has been transferred under the sale deeds executed by the first defendant in favour of the other defendants merged in acquisition proceedings and BDA became the owner of the entire extent of land in Survey No.130.
31. Therefore, the argument put forth on behalf of the defendants that they are the owners of the individual sites in Survey No.130 carved out in Survey No.130 of Kempapura Agrahara cannot be countenanced in law.
32. Commissioner's report clarifies that the suit property and the property which are in occupation of the 40 other defendants by virtue of the sale deed executed by the first defendant is one and the same and therefore, there is no dispute about the identity of the property.
33. When the BDA having become the owner of the entire extent of the land in Survey No.130 which is the subject matter of the suit, had the power to make a bulk allotment in favour of the Plaintiff Society. In view of the specific amendment made to the legislature of the BDA Act as referred to supra and the said amendment having been given effect to and from 20.12.1975, the argument put forth on behalf of the defendant that bulk allotment by BDA in favour of the society being bad in law, plaintiff's possession is illegal and cannot be countenanced in law.
34. There cannot be any dispute as to the Principles of law as to the aforesaid decision before amendment to the BDA Act as referred to supra. However, in view of amended Section 38 of the BDA Act, the principles of law enunciated and relied on by the learned 41 counsel for the respondents cannot be countenanced in law.
35. In view of the above discussion, this court is of the considered opinion that the plaintiffs having become the owner of the land by virtue of the sale deed executed by the BDA and put in possession of the suit property. Therefore, their possession will have to be considered as lawful possession. Therefore, the order passed by the learned Trial Judge holding that possession of the property by the plaintiff cannot be held as lawful possession, thus requires interference by this court in this appeal.
36. Further, whether bulk allotment to be made by the Bengaluru Development Authority in favour of the Housing Co-operative Society is valid or not is also no longer res-integra.
37. This Court had an occasion to deal with the power of the Bengaluru Development Authority making bulk allotment in the case of Smt. Sharadamma and 42 Others Vs. State of Karnataka and others reported in 2007(5) KLJ200, wherein, it has been held as under:
"Section 38-B As amended by Bangalore Development Authority (Third Amendment) Act, 1993, with retrospective effect from 20-12-1975 Bangalore Development Authority (Third Amendment) Act, 1993, Section 5 -Bulk allotment of land to Housing Co-operative Society - Introduction of new section into Act with retrospective effect from 20-12-1975, conferring power on Authority to make - Since amending Act by giving retrospective effect to amendment has validated all bulk allotments made by authority from beginning of its existence, writ petition challenging validity of bulk allotment of land made in favour of society in 1983 by Authority is not maintainable. Section 38-B was inserted by Act No.17 of 1994. Prior to the insertion of Sections 38-B and 38- C, there was no provision under the Bangalore Development Authority Act for allotting the land in bulk to the applicants Bulk allotment could be made in favour of a Housing Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959. Indeed, the proviso to Section 38-B would indicate that prior approval of the Government is a prerequisite condition before any bulk allotment is made in any of the categories listed 43 when Section 38-B was inserted by Act No.17 of 1994. Section 38-B has been given retrospective effect inasmuch as it is deemed to have been on the statute from 20th December, 1975. The lease-cum- sale to the extent of 30 and odd acres was executed in favour of respondent 3 by respondent 2 on 13-1- 1983. The possession of the land in question was handed over to the third respondent on 22-1-1983. The claim of the petitioners that they continue to be still in possession of the lands in question cannot be accepted. Even before Section 38-B of the Act was put on statute book, an extent of 30 acres was granted in favour of respondent 3. Section 5 of the Amending Act would clearly disclose that it is with retrospective effect, which would necessarily mean that the said provision is on statute from 20-12- 1975. In the circumstances, the allotment in favour of respondent 3 is deemed to have been validated.
38. Again, in the case of Commissioner, Bengaluru Development Authority Vs. Vasudeva and others, reported in 2000(7) KLJ1 (SC), it has been held as bulk allotment of land, permissibility, permissible only to Housing Co-operative Society for further allotment by it to its members. The relevant portion of the said judgment reads as under:
44. "Bulk allotment of land permissible only to Housing Co-operative Society. Section 38-B - Bulk allotment of land- Permissibility - Permissible only to Housing Co- operative Society for further allotment by it to its members. Section 38-B was inserted in the principal Act with effect from 20th December, 1975. A plain reading of this section shows that bulk allotment of land by way of sale, lease or otherwise can be made, inter alia, to any Housing Co-operative Society. This being so, the allotment of land made in favour of the respondent-Legislators Housing Co-operative Society between 1981 and 1987 would come within the ambit of Section 38-B. There is no material on record to indicate that there was any Society or organisation or anybody else who had been registered with the BDA prior to the date of registration of the respondent-Society and who had not been allotted land. In the absence of any averment in this behalf or any specific finding in regard thereto, the allotment of land which consisted of 604 sites in favour of the respondent-Society cannot be held to be invalid. It is not in dispute that the respondents whose allotment was challenged were members of the respondent-Society and if this being so they would be entitled to allotment of sites 45 from out of the land which had been allotted to the said Society.
39. No doubt, prior approval of the State Government is mandatory for making bulk allotment. In the case on hand, the said requirement is fulfilled and thereafter, bulk allotment is held to be valid. Now, the next question for consideration is - "Whether the legislature can be passed with retrospective effect inasmuch as the amendment to a statute, in general is prospective in nature.
40. The dictionary meaning of the word prospective with reference to statutes reveals that the amendment sought to be made to a statute would make its application in future or atleast from the date of commencement of the statute. Based on Coke maxim, "A new law ought to be prospective, not retrospective in its operation". Ordinarily, a legislature has power to make prospective laws. However, there is no bar for the legislature to amend a legislation giving retrospective 46 effect. Whereas, the word retrospective, when used with an enactment, it may mean effect of existing contract or re-opening of the past transactions are affecting accrued rights and remedies or effecting procedures.
41. In the case on hand, since the Bengaluru Development Authority Act has been amended by inserting Section 38(B) of the Act making it applicable on and from 20.12.1975, the intention of the legislature is clear that the amendment came to be enacted only with an intention to regularise the bulk allotment of the land to the Housing Society. The Section commences with non-obstante clause makes the intention of the legislature clear in giving effect to the resolutions passed by the Bengaluru Development Authority in making a bulk allotment of the land in favour of the Co-operative Society for the purpose of catering to the needs of its members.
42. Therefore, the bulk allotment of land made by the Bengaluru Development Authority to the extent of 25 acres in favour of the Plaintiff Society and plaintiff formed 47 layout therein after making payment of necessary fees in favour of the Plaintiff Society is thus valid and cannot be found fault with.
43. In view of the foregoing discussion as to the effect of enacting Section 38(B) of the Bengaluru Development Authority Act referred to supra, the finding recorded by the Trial Court that plaintiff is not in lawful possession of the property cannot be countenanced in law and therefore, needs to be set aside. Consequently, the Plaintiff Society is held to be in lawful possession of the suit property. The rights if any possessed by the individual site owners who have purchased the land from the Power of Attorney of the original holder namely Ramdas have all merged into the acquisition and therefore, their possession if any cannot be held as lawful possession. Interference to suit property is established by plaintiff by placing necessary material evidence on record. Therefore, suit of the Plaintiff Society needs to be decreed. 48
44. In view of the foregoing discussion, the point raised is answered in the affirmative and pass the following:
ORDERThe appeal is allowed. The impugned judgment and decree dated 15.04.2006 passed in OS No.4938/1995 on the file of the V Addl. City Civil Judge, Bengaluru City, is hereby set aside and the suit is decreed. No order as to costs. Sd/- JUDGE PL*