Kavitha Raman and Others vs Navajeeva Ashram and Others

B. Sreenivas Gowda, J.—This appeal is by defendants 3A and 3B in the suit challenging the Judgment and decree of the Trial Court decreeing the suit of the plaintiff as prayed for.

For the sake of convenience parties are referred to as they are referred to in the original suit before the Trial Court.

The case of the plaintiff as could be gathered from the averments made in the amended plaint is stated as under-

a) The plaintiff is an Ashrama by name Navajeeva Ashrama represented by its President John Thannickal. It had purchased 2 Acres of land in survey number 50/12 of Kacharakanahalli Bengaluru North Taluk, in the name of John Samuel Thannickal for the purpose of Ashrama through the registered sale-deed dated 28.01.1969 from one Sri. Munireddy. The plaintiffs ashrama is one of the social service centers-public worships, educational institutions and charitable trusts established for general public etc., It has constructed sacred church and buildings for the benefit of its devotees and children and there are church, vocation center, medical center, staff quarters, boys hostel, library, destitute home etc. existing in the aforesaid land.

b) The first defendant had notified this land for allotment as evident from the award notice issued under section 12(2) of the Land Acquisition Act. The first defendant while forming an outer ring road and service road in HBR layout has utilized 1 Acre 10 guntas out of 2 Acres of land in survey number 50/12 of Kacharakanahalli belonging to the plaintiff and it has demolished the church and four buildings existed in the land. The Technical staff and AEE No. 2 north sub-division of the first defendant had inspected the spot and submitted a detailed correct dimension report recommending, grant of an alternative land in favour of the plaintiffs Ashrama. The plaintiff has wandered nook and corner of the first defendant BDA submitting the facts in detail and high-lighting that where the properties were utilized for formation of outer ring road and service road the authority has decided to allot an alternative land. The plaintiff has also approached the then Hon''ble Minister for Urban Development, who issued specific direction to the first defendant to place the matter before it''s Board Meeting and decide the same as per the ground norms adopted in the ring road matter. The same yard stick has been adopted by the first defendant to allot sites to the land losers. Accordingly, the matter was placed before the board meeting held on 20.06.2000 vide subject No. 79/2000, wherein it was unanimously decided to allot an alternative land measuring 1 Acre 10 guntas, of which 1 Acre 6 guntas in Sy. No. 50/12 and 0.4 guntas in Sy. No. 50/13 of Kacharakanahalli village that is 2nd block, 3rd cross, HBR layout Bengaluru, in favour of the plaintiffs Ashrama. Pursuant to the resolution it has allotted 1 Acre 10 guntas of land and has given physical possession of the same in favour of the Ashrama. The first defendant has executed the registered sale-deed in respect of 1 Acre 6 guntas of land in Sy. No. 50/12 by way of allotting 4 civic amenities sites in favour of the Ashrama. The site numbers and measurements are mentioned as under.

i) C.A. Site No. 2/A-1631.25 Sq. mtr.

ii) C.A. Site No. 2/C-292.41 Sq. mtr.

iii) C.A. Site No. 5/B-763.11 Sq.mtr.

iv) C.A. Site No. 5/D-2028.60 Sq.mtr.

c) As per the correct dimension report submitted by the technical staff and AEE No. 2 North Sub-division, the first defendant has to allot the remaining 4 guntas of land which is a triangular bit of land situated in Sy. No. 50/13 which is lesser in dimension i.e. the suit schedule site bearing No. 1024 of HBR layout in favour of the plaintiffs ashrama.

d) Though the first defendant has allotted an alternative land measuring 1 Acre 10 guntas including the suit schedule site in favour of the plaintiffs ashrama and has given physical possession, the defendants have illegally encroached, trespassed and demolished the existing building and interfered with the possession of the plaintiff over the suit schedule site during the holiday i.e. on Sunday 27.11.2005 and disturbed the prayer of the children staying in the Ashrama without due process of law at the instance of the third defendant. Thereby, the first defendant B.D.A. has willfully violated the ground norms adopted by them. They have encroached the boundaries of the Ashrama and illegally cut and removed the trees without obtaining prior permission from the department of forest.

e) The plaintiff by precautionary measures has lodged a complaint to the Police against the first defendant. The police authorities have registered the complaint against the first defendant on 27.11.2005, 28.11.2005 and 29.11.2005.

f) The plaintiff has issued the requisition dated 06.08.2003, legal notices dated 04.08.2004 and 05.08.2004 under section 64 of the BDA Act and the requisition dated 01.10.2005, requesting the first defendant to allot and register the suit schedule site in favour of its ashrama and requesting not to interfere with the possession of the plaintiff over the suit schedule site.

g) Even though the Superintendent of Police attached to the office of the first defendant has no power, has issued baseless Police notices dated 27.09.2005 and 18.10.2005 calling upon the plaintiff to produce documents during the course of investigation. The plaintiff has replied to the said notices on 01-10-2005 and 27.11.2005 respectively.

h) The first defendant has allotted the suit schedule site in favour of the plaintiffs Ashrama as well as to the third defendant thereby it has made dual allotment in respect of the suit site. The third defendant has obtained an absolute sale-deed from the first defendant in respect of the suit schedule site in a hurried manner and contrary to law by misusing official power of his brother who has been working as P.R.O. in the office of the BDA with an intention to harass the plaintiff and the children staying in the Ashrama and therefore the sale-deed is deserved to be set aside by the Hon''ble Court. The plaintiff has also issued another legal notice dated 28.11.2005 to the defendants 1, 2 and 3 opposing the sale-deed. The first defendant has no power to make dual allotment in favour of the third defendant in respect of the suit schedule site subsequent to allotment of the said site in favour of plaintiffs Ashrama. The first defendant has to answer on what authority of law or rule or regulations it has made a dual allotment of the schedule site to the third defendant. Consequently the sale-deed dated 08.09.2003 executed by first defendant in favour of the third defendant is wholly illegal and is liable to be set aside and entire process of allotment is to be cancelled by the first defendant.

i) The plaintiff has caused notice under Section 4 of the Right to Information Act Read with Section 64 of the BDA Act asking the first defendant to cancel the dual allotment and restore the allotment of the suit schedule site made in favour of the plaintiffs Ashrama and avoid multiplicity of proceedings in order to safeguard the interest of the children of the plaintiffs Ashrama.

j) As per the resolution dated 20.06.2000 passed vide subject No. 79/2000 by the first defendant, the plaintiff is entitled for allotment of the suit schedule site in its favour which the third defendant is trying to grab with the instigation of defendants No. 1 and 2 by using Police force.

k) The plaintiff has obtained an interim order of status quo on 15.12.2005 in respect of the suit site and it was continued from time to time upto 22.08.2006 and by oversight it was not continued thereafter, the application filed by the plaintiff for extension of interim order was rejected on 26.02.2007. By taking advantage of the same, the third defendant has trespassed into the suit schedule site on 09.06.2008 and has started construction illegally. In fact the plaintiff has lodged complaint to the Jurisdictional police to take necessary action against defendant No. 3 and prevent him from putting up of construction on the suit schedule site. The Police have failed to take action. Hence, the suit is for mandatory injunction directing the defendants to demolish the unauthorized construction made on the suit schedule site.

l) The defendants No. 1 and 2 have no manner of right, title or interest over the suit site and have no right to execute the sale deed in favour of the third defendant since the suit site has already been allotted in favour of the plaintiff by way of passing a resolution dt. 20-06-2000 in view of the land taken by them. The defendants No. 1 and 2 are also aware that the plaintiff is in possession of the suit schedule site and it is adjacent to the ashrama. In spite of that first defendant has illegally allotted the suit site in favour of the third defendant without any valid reason and beyond the back of the plaintiff. Hence, the alleged sale deed executed by the first defendant in favour of the third defendant is not valid and is not binding on the plaintiff and it is null and void. Hence, the suit is for declaring the said sale deed as null and void and the same is not binding on the plaintiff.

m) The defendants have failed to note the dereliction of duty on their part and have caused harassment and mental agony to the plaintiff and they are liable to pay Rs. 5 lakhs to the plaintiff as damages. Hence, the plaintiff has prayed the following reliefs.

i) Call for the original records from the first defendant and set-aside the dual allotment made in favour of the third defendant by the first defendant.

ii) Permanently restrain the defendant Nos. 1 to 4 either to sanction plan or putting up of any illegal construction and restrain them by alienating the suit schedule property to any of the third parties and set-aside the dual allotment made in favour of the third defendant

iii) To grant mandatory injunction directing the defendant No. 3 to remove or demolish the unauthorized illegal construction on the suit schedule property at the cost of the defendants, failure to do so, this Hon''ble Court be pleased to remove or demolish the unauthorized illegal construction put up by the defendant No. 3 on the suit schedule property through the agency of this Hon''ble Court at the cost of the defendants and

iv) To declare that the illegal sale-deed dated 13.06.2003 executed by the defendant Nos. 1 and 2 in favour of the third defendant as null and void and the same is not binding on the plaintiff in the interest of justice and equity.

Defendants 1 and 2 after entering appearance in the suit have filed their written statement as under:

a) The suit is not maintainable. The valuation made by the plaintiff is patently wrong and Court fee paid on the plaint is insufficient.

b) They have contended that the land measuring 1 acre 10 guntas in Sy. No. 50/12 of Hennur village belonging to the plaintiff has been acquired by them for the purpose of formation of an outer ring road and service road in HBR layout. The compensation has been duly awarded to the plaintiff. Though the plaintiff is not entitled for an alternative land, the request for the alternative land has been placed before the Board Meeting and after due consideration, the request came to be rejected vide resolution No. 93/98 dt. 03-06-1998 since there is no such law to grant an alternative land. However, owing to the continuous request and persuasion of the plaintiff the matter was again placed before the Board Meeting held on 20-06-2000 vide Subject No. 79/2000, wherein, it was resolved to grant an alternative land in favour of the plaintiffs ashram by treating it as a special case, but the particular extent of land to be allotted in favour of the plaintiff has not been mentioned in the resolution. That in pursuance of the resolution, these defendants have allotted four C.A. sites to the plaintiff, of the following dimensions:

i) C.A. Site No. 2 : A of H.B.R. 1st Stage, 4th Block Extension measuring 1631.25 Square Meters.

ii) C.A. Site No. 5 : D of H.B.R. 1st Stage, 2nd Block Extension measuring 2028.60 Square Meters.

iii) C.A. Site No. 2 : C of H.B.R. 1st Stage, 2nd Block Extension measuring 292.41 Square Meters.

iv) C.A. Site No. 5 : B of H.B.R. 1st Stage, 2nd Block Extension measuring 763.11 Square Meters.

In all, land measuring 1 acre 6 guntas has been allotted to the plaintiff on free of cost and registered sale deeds have been executed in its favour on 19.10.2002.

c) They further submitted that the third defendant was an allottee in respect of site No. 885 of HBR, I stage, 4th block extension vide resolution dt. 03-07-1987. However, he has made a representation to these defendants to allot an alternative site on the ground that site No. 885 is not in existence. Based on the representation, a detailed inspection was carried out and finding non-existence of the said site, in view of non-formation of layout as per the original plan, it was decided to allot an alternative site to the third defendant. Since the suit schedule site was a vacant site available for allotment, the same came to be allotted to the third defendant on 13.03.2002. Even the registered sale deed came to be executed in his favour on 13-6-2003. The third defendant once again approached these defendants and complained that when he went to the suit schedule site to put up a compound wall, the plaintiff has obstructed him from carrying out the construction. In the light of the same, spot inspection was conducted on 08-09-05 and noticed an illegal AC sheet construction of the plaintiff. Hence, these defendants along with the task force deployed by BBMP and with the aid of jurisdictional Police, removed the illegal occupation of the plaintiff on 27-9-05. In the light of the above submissions, they traversed the other averments made in the plaint as imaginary and they do not call for any explanation and denied the other averments made in the plaint.

d) These defendants have contended that the plaintiff is not entitled for the relief as he has suppressed the material fact and as the relief claimed is beyond the jurisdiction of the Court and prayed for dismissal of the suit.

e) These defendants have also filed an additional written statement in view of amendment of the plaint by the plaintiff, denying the averments made in para 31 (a) to (d) of the plaint as false and incorrect. It is contended that first defendant has acquired the suit schedule site under the acquisition proceedings and it was the owner in possession of the same and later it was legally allotted to the third defendant and third defendant is in possession of the suit schedule property. As such, plaintiff has no right, title or interest over the suit property to seek mandatory injunction to remove or demolish unauthorized construction and to declare the sale deed dt. 13-6-2003 executed by the first defendant in favour of the third defendant as null and void and the relief for permanent injunction is not maintainable.

f) They further contended that the first defendant has put the third defendant in possession of the suit schedule site. As such the third defendant trespassing the suit site on 09-06-08 does not arise and they prayed for dismissal of the suit.

The third defendant has filed separate written statement contending as under:

a) The suit as brought by the plaintiff for the relief of specific performance of contract is not maintainable both in law and on facts and hence the same is liable to be dismissed with exemplary costs.

b) This defendant has denied the averments that plaintiff has got a right in the schedule site and it was in possession of the same and that this defendant has no right to be in possession as false.

c) This defendant is the registered applicant for allotment of site in the BDA way back on 14-05-1986 and after several attempts, he was informed by an allotment letter dt. 20-07-1987 that he was allotted with a site measuring 50 feet x 80 feet and thereafter, the BDA has required him to execute a lease-cum-sale agreement and accordingly, it was executed on 25-04-1990 and it was registered on 26-4-1990, pursuant to which, possession certificate was issued by the BDA and it has put this defendant in actual possession of the site bearing No. 885, Hennur cross, Bellary layout. Thereafter, vide khata certificate dt. 15-02-1992, khata has also been registered in favour of this defendant and this defendant has been paying tax. Thereafter, it was noticed that some litigation was going on in respect of the immovable property and therefore, vide letter dt. 29-11-2001, this defendant had approached the BDA with a request for alternative site, pursuant to which by a letter dt. 13-03-2002 this defendant was intimated that he was allotted with the suit schedule site. Thereafter, by a cancellation deed dt. 10-06-2003, the earlier lease-cum-sale agreement dt. 25-04-1990 was cancelled and an absolute sale deed dt. 13-06-2003 has been executed by the BDA in favour of this defendant and possession certificate dt. 13-06-2003 was issued and this defendant was put in actual physical possession of the suit site and the Byatrayanpura City Municipal Council has registered the khata of the suit site in favour of this defendant. Since there was an encroachment by putting up a temporary hollow bricks shed by some unknown persons, this defendant has represented to the BDA and pursuant to the said representation, the BDA and the Bangalore Mahanagara Palike by deploying their task force have got the encroachment cleared and this defendant is in possession and enjoyment of the schedule site. Under the said circumstances, this defendant categorically states that he has not committed any illegal act.

d) It is contended that there was no allotment of the schedule site in favour of the plaintiff at any point of time and plaintiff was not in possession of the schedule site and it was for the first time, schedule site was allotted in favour of this defendant and this defendant was put in possession of the schedule site. Therefore question of cancelling the allotment made in favour of this defendant and the execution of the sale deed dt. 13-06-03 registered on 08-09-03 by the BDA in favour of this defendant does not arise. So also, the question of restraining the defendant Nos. 1 to 4 from sanctioning the plan and also restraining this defendant from putting up any illegal construction does not arise. Hence, he prayed for dismissal of the suit.

The trial Court based on the rival contentions of the parties has framed the following issues for its consideration:

Whether the plaintiff proves that the plaintiff is entitled for setting aside the dual allotment made in favour of the third defendant by the first defendant?

Whether the plaint is not properly valued and not paid the sufficient Court fee?

Whether the plaintiff is entitled for the relief of declaration, mandatory and permanent injunctions as sought for?

What Order or Decree?

The plaintiff in support of its case has examined one Mrs. Mary John Thannickal, the power of attorney holder of the plaintiff as P.W. 1 and has produced 32 documents which were marked as Exs. P. 1 to P. 32. Whereas, defendants in support of their case have examined one P.N. Murthy, working as Deputy Secretary No. 4 in the office of the first defendant BDA as DW 1 and defendant 3(B) as D.W. 2 and they have produced 31 documents which were marked as Ex. D1 to D31.

The Trial court after considering the oral and documentary evidence on record and after hearing learned counsel for parties has held the plaintiff has proved that it is entitled for setting aside the dual allotment of the suit schedule site made in favour of the third defendant by the first defendant and the plaintiff is entitled for the relief of declaration, mandatory and permanent injunction as sought for.

Challenging the correctness of the said Judgment and Decree, the defendant 3A and 3B. have preferred this appeal.

Learned counsel for the defendants No. 3A and 3B-the appellants herein submits:

a) the documents produced by the plaintiff do not show that the suit schedule property was allotted in favour of the plaintiff and on the contrary evidence adduced by defendant No. 3 would clearly establish that the suit schedule site was acquired by defendants 1 and 2, layout was formed and suit site came to be allotted in favour of the third defendant and he was put in possession of the suit site.

b) Learned counsel submits, the finding of the Trial Court that the suit is not barred by time is not correct and is not sustainable in law and therefore, it is liable to be set aside.

c) He submits, the trial Court has committed an error in directing the defendants 1 and 2 to execute the registered sale deed in respect of suit property in favour of the plaintiff, though the said relief was not sought for in the plaint, nor plaintiff has made out any case for grant of such relief.

d) He submits, the trial Court has grossly erred in granting the relief directing the defendants 1 and 2 not to alienate the suit property and not to issue sanctioned plan or licence to anybody to put up construction in the suit property, other than the plaintiff, though the said relief does not survive, as this defendant has already been sanctioned with the building plan and the licence on 26-04-2008 itself, pursuant to which he has already entered into a joint development agreement on 15-05-2008.

e) He submits, the trial Court has failed to consider that this defendant has been put in possession of the suit property pursuant to the allotment of the suit site in his favour and pursuant to the execution of the registered sale deed dt. 13-06-03 and issuance of possession certificate and the plaintiff was never in possession of the suit property, and it has committed an error in granting the relief of permanent injunction against defendants 1 to 3 restraining them from interfering with the alleged possession of the plaintiff over the suit property.

f) He submits, the averments made in the plaint that defendants 1 and 2 have demolished the building in the suit property on 27-11-05 at the instance of defendant No. 3, clearly establish that plaintiff was not in possession of the suit property as on the date of institution of suit. In spite of that, he has not sought for recovery of possession and in the absence of the prayer for possession, the relief of mandatory injunction granted by the trial Court is not sustainable.

g) He submits, the observation of the trial Court that, allotment of suit site in favour of this defendant amounts to dual allotment and liable to be cancelled is not based on proper appreciation of oral and documentary evidence on record.

h) He submits, the observation of the trial Court that BDA had decided to allot the suit site in favour of the plaintiff and plaintiff is in possession of the suit property as per Ex. P. 5 is not based on proper appreciation of the evidence on record.

i) He submits, the learned trial Judge has grossly erred in inferring that an adverse inference is to be drawn against the defendants as there was a resolution passed by the defendants 1 and 2 on the basis of technical report and CD that they have decided to allot the suit site in favour of the plaintiff.

j) He submits, the trial Court has erred in relying upon the judgment cited by the learned Counsel for the plaintiff reported in 1999 KCCR short note 331.

With the above grounds he prays for allowing the appeal by setting aside the judgment and decree of the trial Court.

The learned Counsel for the defendants 1 and 2/respondents 2 and 3 who are the BDA and its official, supported the argument advanced by the learned Counsel appearing for defendant No. 3.

The learned Counsel appearing for the plaintiff-the first respondent submits, the trial Court after appreciating the oral and documentary evidence adduced by the parties has passed a well considered judgment in accordance with law, as such, it does not call for interference of this Court and he prays for dismissal of the appeal.

That after hearing the learned Counsel appearing for the parties and perusing the judgment and decree of the trial Court, including its records, the points that arise for our consideration are as under:

a) Whether the plaintiff proves that the first defendant BDA in its resolution dated 20.06.2000 passed vide subject No. 79/2000 has decided to allot the suit schedule site in favour of the plaintiffs ashrama?

b) Whether the allotment of the suit schedule site by the first defendant in favour of defendant No. 3 is subsequent to the allotment of the said site in favour of the plaintiff and it amounts to dual allotment and consequently the execution and registration of the sale deed dt. 13-06-2003 by the first defendant in favour of defendant No. 3 is liable to be set aside and declared as null and void and not binding on the plaintiff?

c) Whether the reliefs of mandatory and permanent injunction as granted by the trial Court are sustainable in law?

d) What order or decree?

Point No. (a) and (b):

a) It is not in dispute that the first defendant-BDA had utilized only an extent of 1 acre 10 guntas out of 2 acres of land in Sy. No. 50/12 of Kacharakanahalli, hamlet village of Hennur belonging to the plaintiff for formation of an outer ring road at HBR layout. Further PW 1-the GPA holder of the plaintiff during her cross examination has admitted in unequivocal terms that "still the plaintiff ashram is situated in the remaining land" of Sy. No. 50/12. It is also not in dispute that the first defendant in its Board Meeting held on 20-06-2000 vide subject No. 79/2000, a copy of which was produced and marked as Ex. P. 5, has resolved to allot an alternative land in favour of the plaintiffs ashram in view of utilizing 1 acre 10 guntas of land in Sy. No. 50/12, Hennur village, belonging to the ashram for formation of an outer ring road by treating their request as special case though the request for grant of alternative land was rejected earlier vide resolution No. 93/98 dt. 13-06-1998. It is admitted by the plaintiff that pursuant to the said resolution-Ex. P. 5, the first defendant has allotted 4 C.A. sites in all measuring 1 acre 6 guntas in favour of the plaintiffs Ashram and has executed the registered sale deeds in its favour.

b) The grievance of the plaintiff is that, as per the resolution-Ex. P. 5 the first defendant has not executed the registered sale deed in respect of the remaining 4 guntas of land which is a bit of land in triangular shape situated in Sy. No. 50/13 which is the suit schedule site in spite of the repeated requests, representations and notices issued by the plaintiff. The further grievance of the plaintiff is that the first defendant having allotted the suit schedule site in favour of the plaintiff could not have allotted the same in favour of defendant No. 3 which amounts to dual allotment and consequently allotment of the schedule site and execution of sale deed by the first defendant in favour of defendant No. 3 are liable to be cancelled and to be declared as null and void.

(c) The plaintiff in order to substantiate its contention that the first defendant-BDA in view of utilizing lacre 10 guntas out of 2 acres of land in Sy. No. 50/12 of Kacharakanahalli belonging to the ashram for formation of outer ring road and service road at HBR layout in its Board Meeting held on 20.06.2000 vide subject No. 79/2000 has decided to allot an alternative land measuring 1 acre 10 guntas, of which 1 acre 6 guntas in Sy. No. 50/12 and 4 guntas in Sy. No. 50/13 of Kacharakanahalli village, has examined its GPA holder as P.W. 1 and has produced Exs. P. 1 to P. 32. P.W. 1 in her examination-in-chief, adduced by way of filing an affidavit evidence, has reiterated the entire averments made in the plaint. Except the resolution-Ex. P. 5 dt. 20-06-2000, other documents produced at Ex. P. 1 to P. 4 and P. 6 to P. 32 do not help the case of the plaintiff in any manner. A careful perusal of the resolution-Ex. P. 5 would reveal, the BDA vide resolution No. 79/2000 dated 20-06-2000 has resolved to give an alternative land in favour of the plaintiff-ashram in view of utilizing 1 acre 10 guntas of land in Sy. No. 50/12 of Hennur Village belonging to the ashram for formation of outer ring road and has also decided not to give any compensation to the plaintiff. It is to be noted that under Ex. P. 5, extent of land and particulars of land agreed to be given in favour of the plaintiff is not mentioned. In other words, what the resolution says is, in view of acquisition and utilization of 1 acre 10 guntas of land in Sy. No. 50/12 of Kacharakanahalli village belonging to plaintiff for formation of outer ring road they would give an alternative land and not compensation to the plaintiff. The said resolution do not say what is the extent of alternative land to be given to the plaintiff. However, in terms of the said resolution, 4 corner sites were allotted to the plaintiff free of cost all of them put together measure in all 1 acre 6 guntas. In fact, the BDA has also executed sale deeds in respect of the said 4 sale deeds on 19.10.2002. The grievance of the plaintiff is, they should have been allotted 1 acre 10 guntas i.e. the plaintiff is entitled to another 4 guntas. There is no agreement between the plaintiff and the defendant for allotment of 4 guntas as aforesaid. The resolution do not speak about allotment of an alternative land measuring 1 acre 10 guntas. The plaintiff is claiming the schedule property which is now allotted and sold to the third defendant as belonging to them representing that remaining 4 guntas of land. The said claim has no basis. The plaintiff has no right, title and interest over the suit schedule property. On the contrary, third defendant is the absolute owner in possession of the said 4 guntas of land. In the absence of any right over the schedule property by the plaintiff, the question of granting a declaration that plaintiff is the owner of the said schedule site or the sale deed executed in terms of the allotment in favour of third defendant being held to be illegal, void would not arise.

Therefore the conclusion reached by the trial Court that the suit site was proposed to have been allotted by the first defendant in favour of the plaintiff vide it''s resolution No. 79/2000 dated 20.06.2000 is contrary to the evidence on record.

d) Material evidence on record discloses, the third defendant was earlier allotted site No. 885 in HBR layout, 1st stage, 5th block, and after noticing that the said site was not in existence as layout was not formed as per the original plan, the first defendant has cancelled the earlier lease-cum-sale agreement dt. 26-04-1990 and allotted the suit site in favour of the third defendant as per Ex. D. 8. It also has executed the absolute sale deed and has issued the possession certificate in favour of the third respondent in respect of the suit schedule site as per Ex. D. 7 and D. 9 respectively. Evidence on record further discloses, subsequent to the allotment of suit site by the first defendant in favour of the third defendant, the defendant No. 3 has obtained katha, licence and the sanctioned plan from Byatrayanapura City Municipal Council, as per Exs. D. 10, 12 and 13 respectively. Therefore, the finding of the trial Court that the suit schedule site was allotted in favour of the plaintiff and subsequently it was allotted in favour of the third defendant and therefore it amounts to dual allotment and consequently the registration of sale deed dt. 13-06-2003 by the first defendant in favour of defendant No. 3 is liable to be cancelled is contrary to evidence on record and are liable to be set aside.

(e) The plaintiff taking advantage of the fact that the suit site is situated adjacent to the plaintiffs ashram as admitted by the plaintiff tried to encroach upon and made an attempt to trespass into the suit site though it was not allotted in its favour. It was at that stage, the third defendant approached the BDA and requested to remove the obstruction, pursuant to which, the BDA through the task force of BBMP removed the obstruction. The third defendant ever since the date of allotment has been in possession of the suit site, as evident from the allotment letter, the absolute sale deed, possession certificate, katha certificate, licence and the sanctioned plan obtained from the BDA and from Byatrayanapura Municipal Council as per exhibits D. 8, 7, 9, 10, 12 and 13 respectively. Therefore, the finding of the trial Court that the defendant No. 3 has made an unauthorized construction in the suit schedule site and defendants 1 to 3 made an illegal attempt to interfere with the possession of the plaintiff in the suit schedule site and plaintiff is entitled for the relief of mandatory injunction directing the defendant No. 3 to demolish the unauthorized construction and plaintiff is to be granted permanent injunction restraining defendants 1 to 4 from interfering with the possession of the plaintiff over the suit schedule site and to be restrained from alienating the suit schedule site in favour of any third parties and they are to be restrained from alienating and issuing the sanctioned plan in favour of any third party is not only contrary to evidence on record, it is nothing but perverse and liable to be set aside.

The trial Court misdirected by the case put forth by the plaintiff and by wrongly placing reliance on the judgment cited by the learned Counsel for the plaintiff in the case of Ganapathyraja Enterprises, Bangalore v. Bangalore Development Authority and another, reported in 1999(4) KCCR SN 331, which has no application to the facts of the case and without considering the material aspect of the matter in a proper perspective manner, has committed a grave error in decreeing the suit of the plaintiff as prayed for.

The finding of the trial Court holding that the suit is not barred by prescribed period of limitation without framing an issue in that regard and without giving an opportunity to the parties to lead evidence on that issue, cannot be sustained in law and therefore it is liable to be set aside.

For the reasons stated above, we pass the following order.

Appeal is allowed.

Consequently, the judgment and decree dt. 29-09-2012 passed in O.S. No. 9676/2005 by the XVI Addl. City Civil and Sessions Judge (CCH-12) at Bangalore city, is set aside and the suit of the plaintiff is dismissed with costs.