ORDER
C.R. Kumaraswamy, J.
1. This is an application filed under Order 41 Rule 5 of CPC praying to stay the order dated 16.2.2009 made on I.A. No. 1 filed under Order 39 Rules 1 and 2 of CPC by the Respondents 1 to 16 in O.S No. 8209/2005 on the file of the XIII Addl. City Civil Judge at Bangalore (CCH-22).
2. In support of the application, the appellant has sworn to an affidavit stating that originally the land bearing Sy. No. 18/3 measuring 8 acres 28 guntas of Kempapura village, Yelahanka Hobli, Bangalore North taluk, belongs to one Munivenkatappa, out of which, he has sold 1 acre 10 guntas under the registered sale deed dated 4.11.1955 in favour his father Prakashappa and he was in possession and enjoyment of the same by obtaining revenue entries in his favour during his life time. The said Prakashappa died leaving behind himself and 18th respondent as his legal heirs to succeed over the same. He became absolute owner of the land bearing Sy. No. 18/3 measuring 1 acre 10 guntas and he is peaceful possession and enjoyment of the said land. He further states that in the year 1989 the Special Land Acquisition Officer has issued notification to acquire the land for the purpose of Coffee Board Employees House Building Co-operative Society, Bangalore in respect of land bearing Sy. No. 18/3 measuring 5 acres 10 guntas out of 8 acres 28 guntas of Kempapura village, Yelahanka Hobli, Bangalore North taluk. His property has not been acquired in the said notification and his name has not been notified in the preliminary and final notifications.
3. He further states that in the month of February- 2005, the 17th respondent/society attempted to interfere with his possession and he has filed suit in O.S. No. 17515/2005 against the Society and obtained an order of injunction. Against the injunction order, the 17th respondent/Society has preferred MFA 7792/2005 before this Court and the same has been dismissed with a clear observation that his name has not been notified in 4(1) and 6(1) notifications and Award and as such 1 acre 10 guntas of land is nothing to do with 5 acres 10 guntas of (and acquired by Special Land Acquisition Officer, which belongs to other persons. His property is different than the property claimed by the 17th respondent/society in which the other respondents are also claiming a right. He has constructed 9 sheds and digged borewell in the 'A' schedule property and let out the same to the tenants and also fenced around the W schedule property. There are no property numbers and no identification of the alleged boundaries and measurements. Identification regarding existence of 'B' schedule properties is not forthcoming. XB' schedule properties are not concerned with appellant's property. The respondents are hand in glow made an attempt to knock of the property and have created a story based on the false and fabricated documents and filed the suit against him and Respondents 17 and 18.
4. The order passed by the Court below allowing the application of the respondents and dismissing the application filed by him in respect of the suit schedule property is contrary to law and it is against the material documents and it has beer, passed without appreciating the facts and circumstances of the case and as such allowing I.A. granting Temporary Injunction against the appellant is contrary to law.
5 Ha further states that the learned Judge has failed to appreciate the relevant facts and erred in allowing the application of the respondents and dismissing the application filed by him for grant of injunction and failed to appreciate that he has right, title and possession over the suit schedule property and he is possession since from long back.
6. He further states that the Court below has failed to consider his right and possession in respect of the aforesaid property since the said property is an ancestral property. The Court below failed to consider the documents produced by him at the initial stage and the fact that his property has not been acquired by the Special Land Acquisition Officer for the benefit of the 17th respondent/Society or any other purpose nor award has been passed in his name in respect of his property. That his name has not been notified in the preliminary and final notifications under Sections 4(1) and 6(1) of the Land Acquisition Act.
7. He further states that the Court below has failed to consider that the respondents themselves have no right, title and interest of the suit schedule property. If the injunction order in favour of the respondents is allowed to stand, he will be put to great loss and substantial injury by losing his valuable rights.
8. He further states that the very same Court has granted injunction order in O.S. No. 17515/2004 in his favour by allowing the injunction application holding that he is in possession and enjoyment of the land bearing Sy. No. 18/3 measuring l acre 10 guntas of Kempapura village and the said order has been confirmed by this Court in MFA 7792/2005. The Respondents 1 to 16 are claiming rights from the 17thth respondent/society. But the 17th respondent/society itself is not the owner and has no right to execute sale deeds/allot sites/form lay-out and to issue possession certificate in their favour. That the vendor cannot convey better title than what he possess. Under Section 8 of the Transfer of Property Act, the 17th respondent/society cannot convey better title than what it possess.
9. He further states that the learned trial Judge has failed to exercise the jurisdiction vested in the Court. The impugned order is otherwise opposed to law, facts, probabilities and equities in the case. Thai on the basis of the injunction order, the respondents are trying to dispossess him and tenants and also making threats to the tenants who are residing in the sheds situated in the 'A' schedule property.
10. Respondents 1 to 16 have filed objections as Under:
11. The averment in paragraph-3 that originally the land bearing Sy. No. 18/3 measuring 6 acres 28 guntas of Kempapura village, Yelahanka Hobli, Bangalore North taluk was owned by one Shri Munivenkatappa, out of which he sold 1 acre 10 guntas under registered sale deed dated 4.11.1955 in favour of Shri Prakashappa, father of the appellant is correct. However, the further averment that Prakashappa was in possession and enjoyment of the same by obtaining revenue records/entries in his favour during his life time is denied.
12. In the year 1363, the entire extent of 8 acres 28 guntas of Kempapura village was brought to sale by the Government in default of payment of lands revenue and on 28.1.1963 the entire extent of land was bought in public auction by Shri Sanjeevappa. Thus Shri Prakashappa, father of appellant lost title in the year 1963 itself. As could be seen in RTC produced from 1965 to 1989, the name of Shri Prakashappa or his children i.e. appellant and Respondent 18 do not find entry in the RTC. This fact has been suppressed by the appellant. The appellant has suppressed this fact even when filing his suit for injunction in O.S. 17515/04 against the 16th respondent (Coffee Board).
13. The averment made by the appellant that in the year 1989 the Special Land Acquisition Officer had issued notification to acquire the land measuring 5 acres 10 guntas out of the said extent of 8 acres 28 guntas in Sy.No. 18/3 is correct. 5 acres 10 guntas of land also included the extent of 1 acre 10 guntas which is the subject matter of the claim made by the appellant as his land. The averment that the appellant's property has not been acquired in the said notification is false. The further averment that the appellant's name has not been notified in the preliminary and final notification is of no consequence since as on the date of preliminary and final notifications dated 28.8.1988 and 18.3.1989, the said extent of land was not standing in the name of the appellant nor he was the owner.
14. It is further stated that the purchaser of the land viz., Sri Sanjeevappa has filed O.S. No. 2721/83 against Shri Anthony Swamy S/o Prakashappa, the appellant herein and the said suit ended in a compromise on 9.2.1989 and based on the said compromise only, Shri Anthony Swamy was recognized as the owner for the first time in respect of land measuring 1 acre 10 guntas and mutation was effected in MR -2 of 1989 dated 25 8.1989. As the MR was effected only on 25.8.1989, the name of Shri Anthony Swamy S/o Prakashappa did not find a place in the preliminary and final notifications. The matter is squarely covered by the Judgment of the Supreme Court reported in ILR 2007 Kar. Page 1. The award was passed on 30.1.1990 by which time MR-2 of 1989 was reflected in the RTC and consequently in the Award, the name of Shri Anthony Swamy S/o Prakashappa, the appellant herein is reflected. Thus the land of the appellant has been duly acquired. Perusal of the award clearly indicates the said position.
15. The contention of the appellant that his property has not been acquired in the said notification is therefore an absolute false statement. Filing of the suit in O.S. No. 17515/2004 by the appellant against the Society and passing of the order by the trial Court and this Court is a matter of record. The land measuring i acre 10 guntas of the appellant has nothing to do with the land acquired by the Special Land Acquisition Officer is incorrect. It is relevant to submit that in the plaint, the appellant herein has categorically admitted the acquisition of land measuring 5 acres 10 guntas in the orders passed by the trial Court in O.S. No. 17515/04. In paragraph-9 of the order, the details of 5 acres 10 guntas acquired are clearly mentioned. This finding has not been challenged by the appellant. The Court also observed that the appellant had no claim whatsoever on the acquisition of land of 5 acres 10 guntas and the acquisition of 1 acre 10 guntas of the plaintiff had nothing to do with the alleged schedule property.
16. In the suit filed by the respondent herein, the appellant has taken altogether a contrary stand stating that the award is passed only in respect of 3 acres 39 guntas and not 5 acres 10 guntas and the learned Judge has found that even in the earlier suit, the order was not operative in respect of 5 acres 10 guntas acquired by the Special Land Acquisition Officer, which was delivered to the society for forming a lay-out, wherein the sites are purchased by the Respondents 1 to 16 and others. The respondents have produced respective sale deeds. The Court has observed that the names of defendants 1 and 2 are not shown in the RTC as on the date of 4(1) and 6(1) notifications. The Court also observed that the certified copies of award indicates that the total extent of 5 acres 10 guntas was acquired. The appellant has failed to aver in the appeal memo that the injunction order in O.S. No. 17515/2004 had categorically protected the acquired extent of 5 acres 10 guntas and this finding is not disturbed by this Court vide order made in MFA 7792/2005. The respondents submit that the appellant misusing the order had interfered with the sites of the allottees and the subsequent purchasers of sites from the allottees, nave filed the present suit and obtained an order of injunction after contesting. This order has been challenged herein. The trial Judge has passed valid order with cogent reasons. The passing of the Award in respect of 5 acres 10 guntas has not been disputed by the appellant in his plaint in O.S. No. 17515/2004 and now appellant cannot take a contrary stand.
17. It is the case of the appellant that they own only 1 acre 10 guntas and not an inch more. The award contains the details of the entire extent of land and reading of the award makes it clear that the extent of 1 acre 10 guntas of the appellant has been acquired and possession has been handed over to the Society on 12.1.993, The contention that the appellant did not execute Power of Attorney nor he has received compensation is a matter of trial. However all the relevant certified copies of the documents have been submitted by the respondents in the trial Court. The appellant's property is different from the property claimed by the Society or by the respondents is incorrect. The further averment that the respondents have no right, title and interest is incorrect. The layout has been formed by the BDA and the Respondents 1 to 16 are in physical possession of sites. The absolute sale deeds are executed in their favour. They have put up compound walls and sheds and one of the respondents (Respondent No. 6) has also constructed a house and residing therein for the past four years. That there are no sites, roads in the 'B' schedule property. The order passed by the learned Civil Judge is a well reasoned order. The learned Judge has found that the appellants have categorically admitted that they have nothing to do with the 5 acres 10 guntas of land acquired in Sy. No. 18/3 for the formation of lay out in favour of the Coffee Board Housing Society, of which the appellants are the allottees/purchasers of the sites carved thereunder.
18. The learned Judge has also found that the appellants in the suit filed by him in O.S. No. 17515/2004 has categorically admitted that the defendant therein i.e. Coffee Board House Building Society is in occupation of an extent of 5 acres 10 guntas. The lay-out is already formed and to the west of the acquired land is the alleged suit schedule property. The appellants have also categorically stated that they have no claim on the acquired land to an extent of 5 acres 10 guntas. Temporary Injunction is granted in favour of the plaintiff and against the defendant society. Defendant society pending disposal of the suit is hereby restrained from forming a layout on the western side of acquired land measuring 5 acres 10 guntas and restrained from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff. The learned trial Judge has also observed that the order passed in O.S. 17515/04 which has been confirmed by the High. Court of Karnataka nelps the plaintiff in the present suit. Admittedly respondents have acquired their respective Schedule-B sites from the defendant No. 3. The Court has also found that the sale deeds executed in favour of the plaintiff by defendant No. 3 - Society are not challenged. The appellant having admitted in the suit that the land measuring to an extent of 5 acres 10 guntas is acquired cannot now turn around and contend the land is not acquired. The Court has already found that the appellant in the written statement filed in the present suit in O.S. No. 8209/2005 have pleaded a different version from the averments made by them in their plaint in O.S. No. 17515/04. Certified copy of the award produced goes to show that 1 acre 11 guntas was. acquired and consent award was passed to that extent and ganeral award was passed in respect of 3 acres 39 guntas, totally 5 acres 10 guntas was acquired for the purpose of forming the layout by defendant No. 3 by the Special Land Acquisition Officer. It is relevant to note that the consent award of 1 acre 11 guntas is of Arogyaswamy S/c Sandyagappa and out of remaining 3 acres 39 guntas general award is for the following:
1A - 10G - Anthony Swamy S/o Prakashappa (appellant)
0A - 25G - K Vasudevaraju S/o Varadaraju
0A - 25G - K. Nanjaraju s/- Varadaraju
0A - 19G - Arogyaswamy S/o Sandyagappa
1A - 00G - Anthonyswamy S/o Arogyaswamy
The reasoning of the trial Judge is based on the pleadings and on a proper appreciation of the documents. The trial Court has found that the Respondents 1 to 16 have established prima facie case and therefore impugned order passed by the trial Judge is a well merited and reasoned order and requires to be upheld.
19. I have heard the learned Counsel for the appellant and the respondents on the Misc. CVL 5001/2009.
20. The short question that arises for my consideration is whether the impugned order deserves to be stayed or not at this stage?
21. My answer to the above question is as under for the following reasons:
It is the contention of the learned Counsel for the appellant that the suit schedule property lies outside the acquired property. It is the contention of the learned Counsel for Respondents 1 to 16 (allottees) that suit schedule property lies within the acquired land. It is undisputed fact that 5 acres 10 guntas out of 8 acres 28 guntas of land in Sy. No. 18/3 of Kempapura village, Yelahanka Hobli, Bangalore North taluk has been acquired for the purpose of formation of lay-out to the 3rd defendant -Society, The appellant - Anthony Swamy has filed O.S. No. 17515/2004 seeking for an order of injunction in respect of part and parcel of Sy.No.18/3 of Kempapura village, Yelahanka Hobli, Bangalore North taluk. In that case, Temporary Injunction is granted in favour of the plaintiff -Anthony Swamy and as against the defendant - Society. In that suit it is also ordered that pending disposal of the suit, defendant - Society is restrained from forming a layout on the western side of the acquired land and also restrained from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff -Anthony Swamy. It is also made clear that injunctive relief granted is not applicable to any of the portions of 5 acres 10 guntas acquired under 4(1) notification dated 22.8.1988. The learned trial Judge while disposing of I.A. No. 1 for Temporary Injunction in O.S. No. 17515/2004 has observed that prima facie it appears that there is a question as to where exactly the western boundary of 5 acres 10 guntas ends and where exactly the eastern boundary of 1 acre 20 guntas would begin. It is for the defendant -Society to show that the schedule land is a part of acquisition or it has purchased the schedule land for forming a jay-out. The learned trial Judge has also observed that revenue records are in the name of the plaintiff - Anthony Swamy concerning the disputed land.
22. It is the contention of the learned Counsel for the appellant that the map prepared by the Special Land Acquisition Officer is contrary to the Document No. 2 Notification. The common order passed on I.A. Nos. 1 and 2 in O.S. No. 8209/2005 indicates that plaintiffs and defendant No. 1 in the said suit, who has filed O.S. No. 17515/2004 have taken different stands in the said suit. In the said order it. is also indicated that O.S. No. 17515/2004 is pending before the Court below and O.S. No. 8209/2005 has been clubbed with O.S. No. 17515/2004 as per the orders passed in Misc. No. 343/2006 dated 3.8.2006 by the Court of Prl. City Civil & Sessions Judge, Bangalore and O.S. No. 17515/2004 is treated as main suit.
23. Both sides claim that they are in possession of the suit schedule property. Whether the plaintiff is in possession of the suit schedule property or respondents are in possession of the suit schedule property can be ascertained only after full fledged trial. Therefore taking into account of all aspects of the case, in my view, this is one of the exceptional case where interference would serve the interest of the parties. Therefore I direct the parties to maintain status quo till the disposal of the suit.
24. In the result, I pass the following: