The Chief Secretary, Posts and Telegraphs Telecommuniations, Government of India and the Divisional Engineer, Bangalore Telephones Vs. Mohd. Musa Sait Wakf Represented by Its Mutavalli N. Muneer Sait S/O Mohd. Ismail Sait (Late) and Special Land Acquisition Officer, State of Karnataka - Court Judgment

Excerpt:
- transfer of property act,1882[c.a. no. 4/1882]. sections 111 & 116: [d.v. shylendra kumar, j] suit for recovery of possession plaintiffs claim that defendants are tenants-holding over defendants resisting suit on grounds that suit premises are acquired under land acquisition act invoking urgency clause and land has vested in state held, vesting of title in the state takes place only after possession of land is taken. defendants being in possession of land, suit can be decreed treating them as tenants-holding over. - 8. the issue relating to the entitlement of recovery of possession of the suit schedule properties was answered in favour of plaintiff and in the affirmative, the version of the defendants that they have acquired the properties, which was the second issue, was answered in the negative holding that the defendants had not made good their title through the acquisition, and the third issue relating to entitlement for damages was answered in favour of the plaintiff, while the fourth issue was answered against the defendant, holding that the suit is in time and on the other hand, on the fifth issue, the court having found that there was a slight deficiency in payment of court fee, the plaintiff was ordered to make good the court fee in terms of the valuation and accordingly decreed the suits. 12. it is inter alia urged in the appeals that the learned trial judge failed to appreciate the fact that the suit schedule properties have been leased in favour of one a b v gowda and as the defendants have continued as tenants under the said a b v gowda, the suit for recovery of possession from the defendants was not tenable, particularly for not impleading the said a b v gowda or his legal heirs as parties to the suit. 14. it is also contended that the suits being decreed for mesne profits is also contended to be bad in law, particularly as the acquisition proceedings having been initiated in the year 1996 and thereafter possession being referable to the acquisition proceedings also, while earlier possession even if as tenant, on and after initiation of acquisition proceedings, possession being attributable to the proceedings under the act, a suit for recovery of possession without reference to the acquisition under the act is not tenable. 19. learned counsel for the appellant also urged that the learned trial judge is clearly in error in decreeing the suits for mesne profits particularly as the possession being attributable to the provisions of the act, there is no liability on the part of the defendants to pay any rents on and after the proceedings under the act have been initiated, particularly when the plaintiff will be entitled for compensation for the value of the land from the date of acquisition and interest and solatium awarded on the amount from the date of notification under section 4(1) of the act itself. 22. be that as it may, the contention that the suit was bad for non-joinder of necessary parties cannot be accepted acting only on an argument without a plea or supporting material. the legal contention urged on behalf of the appellant having failed, the decree for mesne profits is inevitable, moreover the amount having not been determined in the pending final decree proceedings, the amount is yet to be decided by the court. but the judgment and decree for mesne profits is well supported in law and there is no scope for interference with this part of the judgment and decree passed by the court below.d.v. shylendra kumar, j.1. ia-iii for impleading is filed by a person claiming as legal heirs of one a b v gowda and which has been directed to be listed along with the appeals at the time of final hearing, is rejected as unnecessary.2. these two appeals are by the defendants in os 10886 of 1995 and 10887 of 1995, on the file of xxviii addl. city civil & sessions judge, bangalore, directed against the common judgment and decrees in the two suits, being aggrieved by the decrees for possession and damages in favour of the plaintiff in respect of suit schedule properties in the said suits.3. the common appellants-defendants in these appeals are the chief secretary posts & telegraphs, telecommunications, government of india, new delhi and the divisional engineer, bangalore telephones, bangalore.4. the suits for recovery of possession, for arrears of rent and future damages was on the premise that the plaintiff had determined the tenancy by notices dated 6-6-1995 [exp3 and 4] issued under section 106 of the transfer of property act and in spite of the demand, the defendants-tenants did not yield possession of the suit schedule properties and it has become necessary for the plaintiff to file the suits for recovery of possession and arrears of rent and also for future damages.5. the suits had been defended by the defendants contending, inter alia, that though the defendants were initially tenants of the suit schedule properties under the plaintiff, had later themselves become owner of the properties in view of certain acquisition proceedings and therefore are entitled to retain possession as the plaintiff being no more owners and cannot maintain the suits for ejectment. for the very reason, it was pleaded that the defendants are not liable to pay either any arrears of rent or future damages. principally, the defendants denied the title of the plaintiff to the suit schedule properties. it was also pleaded that the suits were barred by limitation, though the written statement in itself did not elaborate in what manner and for what reasons the suits for ejectment had been barred by limitation.6. in the light of such rival pleas, the learned trial judge had clubbed the two suits with the plaintiffs and the defendants being common, cause of action pleaded is also identical, but having in respect of two properties, one bearing no. 6, cubbom road, bangalore and the other one is the adjacent premises bearing no. 7, cubbom road, bangalore and the only other distinguishing feature being that in the case of property bearing no. 6, the rent was rs. 375/- per month whereas in the case of property bearing no. 7, the rent was rs. 187.50 per month. the plaintiff had pleaded that the calendar month was the tenancy and the tenancy had been determined with the month ending 31-5-1995 in terms of the legal notices referred to above and on and after 1-6-1995, the defendants were no more tenants and are unauthorized occupants and therefore not only they should be evicted but the part of the rent that had not been paid upto 31-5-1995 while should be decreed for payment, in view of their possession on and after 1-6-1995 being as unauthorized occupants, defendants are also liable for future damages.7. it is in the light of these pleadings, the trial court proceeded to frame the following issues, which are identical in nature in both the suits:1. whether the plaintiff is entitled for the possession of the suit property from the defendants?2. whether the defendants prove that suit property is acquired in their favour?3. whether the plaintiff is entitled for the damages, if so at what rate?4. whether the suit is barred by time?5. whether the plaintiff valued the suit properly and court fee paid is sufficient?6. what order or decree?8. the issue relating to the entitlement of recovery of possession of the suit schedule properties was answered in favour of plaintiff and in the affirmative, the version of the defendants that they have acquired the properties, which was the second issue, was answered in the negative holding that the defendants had not made good their title through the acquisition, and the third issue relating to entitlement for damages was answered in favour of the plaintiff, while the fourth issue was answered against the defendant, holding that the suit is in time and on the other hand, on the fifth issue, the court having found that there was a slight deficiency in payment of court fee, the plaintiff was ordered to make good the court fee in terms of the valuation and accordingly decreed the suits.9. on behalf of the plaintiff, while one afsal pasha -manager of the plaintiff-wakf - was examined as pw1, one r. chandran, who was working as assistant engineer (telephones) at customer service centre, kammanahalli, had been examined as dw1. on behalf of the plaintiff, exp 1 to 17 have been marked, prominent amongst are documents relating to plaintiff's wakfnama, legal notices determining the tenancy, acknowledgement by the defendants for having received the legal notices, certain khata certificates in respect of the suit schedule properties, letters exchanged between the parties, copy of the legal notice dated 11-1-1990 issued not only to one a b.v. gowda in whose favour the properties had been intermittently leased for a period of 56 years from the year 1974, but also to the defendants, to the effect that the lease in favour of said a b v gowda has been put to an end as it has been determined and therefore the defendants were required to continue to pay the rent directly to the plaintiff.10. the defendants on their part got marked exd1 to d19, including exd2 - a comprehensive lease deed executed by the plaintiff in favour of said a b v gowda for a period of 56 years - exd5 - a copy of the gazette notification dated 29-6-1978, publishing the notification issued under section 4(1) of the land acquisition act, 1894, issued by the deputy commissioner, bangalore district on 15-6-1978, in respect of the suit schedule properties - exd7 - a copy of the order dated 24-66-1986 passed by this court in wp no. 19323 pf 1982 - exd8 - a copy of the order dated 28-9-1989 passed in wp no. 10491 of 1988 - exp9 - a copy of the order dated 23-7-1990 passed in wa no. 1353 of 1990, affirming the order passed in wp no. 10491 of 1988 - exd10 - certified copy of the common order dated 29-2-1996 passed in misc case no. 10052, 10062 and 10071 of 1995, on the file of iii additional city civil judge, bangalore - exd11 - copy of the public notice dated 18-3-1997 issued by the special land acquisition officer under sections 4(2) and 17(4) of the act - exd12 - copy of the interim order passed in wp no. 12201 of 1997, staying the acquisition proceedings initiated by the defendants - exd15 - copy of the order dated 15-2-2000 passed in wp nos. 21947 and 12201 of 1997, allowing the writ petitions in part and quashing the notification issued under the urgency clause under section 17(4) of the act, but permitting the acquisition proceedings to continue from 4(1) notification - exd16 -copy of the notice issued under section 5a of the act, inviting objections to the acquisition proceedings, from interested persons to be filed on or before 22-5-2000 before the special land acquisition officer and indicating consideration of such objections on 24-5-2000 at his office.11. it is on perusal of such pleadings, evidence placed before the court by the parties, the legal position and the statute governing the situation, the learned trial judge answered the issues as referred to above and decreed the suits by the common judgment. it is aggrieved by this judgment and decree, the present appeal.12. it is inter alia urged in the appeals that the learned trial judge failed to appreciate the fact that the suit schedule properties have been leased in favour of one a b v gowda and as the defendants have continued as tenants under the said a b v gowda, the suit for recovery of possession from the defendants was not tenable, particularly for not impleading the said a b v gowda or his legal heirs as parties to the suit. it is also urged in support of the appeals that the notification issued for acquisition of the properties under section 4 of the act having survived and thereafter under section 5a proceedings having taken place and section 6 declaration having been issued subsequently by publishing it in the gazette dated 3-5-2001, these stages having been completed and during the pendency of the finalization of the acquisition proceedings, the trial court could not have ordered for possession of the suit schedule properties in favour of the plaintiff, as the defendants were entitled to retain the possession in view of the pending acquisition proceedings, and therefore the judgment and decree passed by the trial court is not sustainable.13. it is also urged that this court having specifically reserved liberty in favour of the defendants to go ahead with the acquisition proceedings and for issue of final notification etc., and such developments having come into play, subsequent to the filing of the suit, in the absence of suitable amendment to the pleadings, the plaintiff could not have sought for recovery of possession merely based on the determination of the lease in terms of the quit notice. it is also urged that the defendants-departments are in possession of the land for the past more than five decades and the place being used for a public purpose and in view of the pending acquisition proceedings, the suit for recovery of possession should have been rejected, as it will cause considerable public inconvenience and hardship.14. it is also contended that the suits being decreed for mesne profits is also contended to be bad in law, particularly as the acquisition proceedings having been initiated in the year 1996 and thereafter possession being referable to the acquisition proceedings also, while earlier possession even if as tenant, on and after initiation of acquisition proceedings, possession being attributable to the proceedings under the act, a suit for recovery of possession without reference to the acquisition under the act is not tenable.15. i have heard sri sandeep pail and sri subramanyam, learned counsel for the appellants and sri s.a. mujeeb, learned counsel for the respondent-plaintiff.16. sri subramanyam, learned counsel for the appellants has vehemently urged that the trial court could not have entertained the suit in the absence of necessary parties having been added to the suit; that admittedly the plaintiff has leased the very property in favour of one a b v gowda for a period of 56 years in terms of exd2; that n terms of the lease deed, the defendants were paying rent to the said a b v gowda and after his demise to his legal heirs who succeeded to his interest and if so the trial court could not have entertained the suits without impleading the said a b v gowda as party to the proceeding. it is also urged in this regard that the plaintiff could not have maintained the suits against the defendants alone for recovery of possession as on and after 1974 the possession of the defendants was under the said a b v gowda and if at all the defendants have to hand over possession, it is only in favour of said a b v gowda and through whom the plaintiff could have recovered possession and not directly from the defendants.17. one another contention urged on behalf of the appellants is that when once a notification had been issued under section 4 read with section 17(4) of the act, invoking urgency clause, the defendants, who are already in possession will continue in possession under the provisions of section 4 read with section 17(4) of the act and that on and after issue of notification dated 16-9-1997 and the public notice in terms of exd11, the possession is not merely as a tenant or tenant-holding-over, but under the provisions of the act and notwithstanding the quashing of the notification under section 17(4) of the act, such legal possession under the provisions of the act does not come to an end as the acquisition proceedings are still in progress and in view of these developments the learned trial judge could not have decreed the suits for recovery of possession treating the defendants as mere tenants-holding-over with the determination of the lease in their favour in terms of the quit notices.18. it is accordingly prayed that the appeals should be allowed and the judgment and decree of the court below set aside and the suits dismissed.19. learned counsel for the appellant also urged that the learned trial judge is clearly in error in decreeing the suits for mesne profits particularly as the possession being attributable to the provisions of the act, there is no liability on the part of the defendants to pay any rents on and after the proceedings under the act have been initiated, particularly when the plaintiff will be entitled for compensation for the value of the land from the date of acquisition and interest and solatium awarded on the amount from the date of notification under section 4(1) of the act itself.20. the learned trial judge has rejected the first contention in terms of his finding on issue no. 1 being answered in the affirmative and in favour of the plaintiff. the argument that the defendants were lessees under one a b v gowda and for recovery of possession [of the suit schedule properties] the said a b v gowda was a necessary party was negatived for the reason that this was not a plea in the written statement; that the defendants have not set up this express plea and therefore it is not open to so contend particularly when the said aspect has not become an issue and the reasoning is unexceptionable. it is a fact that the defendants could not put forth this plea, but on the other hand it was expressly admitted in terms of para-4 of the written statement that the defendants were initially tenants in the suit schedule properties and the present position was pleaded that the defendants having acquired tittle to the property through acquisition proceedings, the defendants have become owners and therefore plaintiff having lost the ownership cannot maintain a suit for ejectment if such is the defence, it is never pleaded that the suits were not tenable for not impleading the said a b v gowda as a party to the suits.21. this apart, as noticed by the learned trial judge that the plaintiff had determined the lease in favour of said a b v gowda in terms of exp17 legal notice dated 11-1-1990, which was also addressed to the defendants and the defendants had been asked to pay the rent in respect of the suit schedule properties on and after that date directly to the plaintiff. in fact the plaintiff has acted so in terms of the court order passed in the writ appeal where the plaintiff and the defendants were parties. it was not much in dispute that the defendants were in arrears of rent from that date.22. be that as it may, the contention that the suit was bad for non-joinder of necessary parties cannot be accepted acting only on an argument without a plea or supporting material. but on the other hand, the plaintiff had placed materials to bring on record that subsequent to 1990 the defendants had continued as tenants under the plaintiff itself. therefore, the first contention urged on behalf of the appellants-defendants is rejected.23. so far as the second contention that acquisition proceedings are in progress and that the defendants having invoked urgency clause in terms of sections 4 and 17(4) of the act, the moment the possession was taken the land vested in the acquiring authority - state - and therefore the title had passed on to the state and the plaintiff was no more the owner of the properties even in terms of the notifications under sections 4 and 17(4) of the act and therefore the suits for recovery of possession were not maintainable is concerned, i notice that this position in law had never been achieved. i say so because even in terms of the provisions of section 17(4) of the act, such vesting of title is provided under section 17(1) of the act, which reads thus:17. special powers in cases of urgency:(1) in cases of urgency, whenever the appropriate government so directed, the collector though no such award has been made may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed far public purpose. such land shall thereupon vest absolutely in the government free from all encumbrances.therefore the vesting is only taking possession of any land and this happens after expiry of fifteen days from the date of publication of the notice mentioned in section 9 of the act.24. though it is contended that in the present case, as the possession was already with the defendants, section 9 stage is reached the moment section 4 read with section 17(4) notification was published, section 9 stage is not reached unless the earlier stages as contemplated under sections 5a, 6, 7 and 8 of the act are crossed. though the consideration of objections under section 5a was said to be dispensed with, unfortunately, for the defendants this position did not lost long, as this court in terms of the order dated 15-2-200 passed in wp 12201 of 1997, quashed the portion of the notification invoking the urgency clause and had permitted acquisition proceedings to continue only in the normal course. if so, the advancement of the taking up of possession as per the provisions of the act is not achieved, and though taking possession in the present situation could be contended as only symbolic even that is only after the proceedings up to section 9 stage is reached, even when the urgency clause is invoked. otherwise, possession can be taken only when the proceedings have reached the section 16 stage after passing of the award and publication of the award under section 11 of the act. it is only thereafter the land vests absolute in the state free from all encumbrances.25. whether it is under section 16 or 17(1), vesting is only after taking possession and therefore whether actual taking of possession or of symbolic possession, it should have actually taken place, for the purpose of the owner of the land being divested with his title and the title vesting it in the state. if the urgency clause is removed, vesting can take place only in the normal course and after possession is taken under section 16. even if urgency clause is operating, possession can be taken only after section 9 stage is reached and on expiry of 15 days. in either view of the matter, the possession in terms of the proceedings under the act, whether actual or symbolic, not having been taken, it cannot be said that the land has vested in the state and the state has acquired the ownership. if that is the position in law, the suits based on the title by the plaintiff for recovery of possession on the premise that the defendants are tenants-holding-over cannot be resisted on the defence of having acquired title to the property itself.26. the legal position is that possession of the defendants in law cannot be attributed to the proceedings under the act but only in the earlier status as tenants or tenants-holding-over. in fact that will be the position once this court quashed the 4(1) notification with urgency clause. if the possession of the defendants in law is only as that of tenants or tenants-holding-over and in the light of the quit notices under exp3 and 4, which are valid notices as found by the learned trial judge and which has not been disputed or dispelled before this court, the possession of the defendants on and after 1-6-1995 is only unauthorized possession in law and therefore decreeing the suits for ejectment is justified.27. when once the possession becomes unauthorized, on and after 1-6-1995, it is inevitable that the defendants have to compensate the true owners for use and occupation. the legal contention urged on behalf of the appellant having failed, the decree for mesne profits is inevitable, moreover the amount having not been determined in the pending final decree proceedings, the amount is yet to be decided by the court. but the judgment and decree for mesne profits is well supported in law and there is no scope for interference with this part of the judgment and decree passed by the court below.28. appeals are accordingly dismissed affirming the impugned judgment and decrees passed by the trial court parties to bear their respective costs.29. it is made clear that dismissal of these appeals is not any pronouncement on the validity of the acquisition proceedings and if the defendants are entitled to continue the acquisition proceedings in law, it is open to them to do so.