AI Structured Summary
Not yet generated for this judgment
Judgment
Huluvadi G. Ramesh
RFA 580/2011 is by defendants 1, 26, 4 & 5 in OS 8209/2005 and RFA 581/2011 is by the plaintiffs in OS 17515/2004 challenging the judgment and decree passed by the trial court dismissing the suit of the plaintiffs in OS 17515/2004 and decreeing the suit of the plaintiffs in OS 8209/2005 against defendants 1 and 2.
Heard the counsel representing the parties.
According to the appellants, they are owners of the land in Sy.No. 18/3 to an extent of 1.10 acres. It is also stated, land to an extent of 5.10 acres in the said survey number has been acquired and the remaining land was not acquired. Appellants claim that their names nor the names of their predecessors were shown in S.4(1) or S.6(1) notifications or in the award passed and the respondents have proceeded with the acquisition and that way back in the year 1.984 itself and even much prior to that, their names are found in the RTC. The appellants also do not dispute that the land in Sy.No. 18/3 was acquired to an extent of 5.10 acres and the remaining land is available to them. Without considering this aspect, trial court went to answering the issues in favour of the defendants stating that there is a power of attorney executed by these appellants and the power of attorney holder had entered into a compromise. It is also stated, observing that the plaintiffs/appellant are not in possession, the trial court has dismissed the ease of the plaintiffs.
Soon alter the Bangalore Development Authority was brought on record, it is found to an extent of 54 acres or so, approval has been granted to the Coffee Board House Building Society to form a layout and for the remaining property, the Society has submitted a plan and other necessary records and was awaiting approval by the BDA. Meanwhile, it appears, the Society has also taken step:-; to allot sites in the area although no approval has been granted either for allotment of sites or for development. The dispute raised by the appellants is, they are in possession and the property has not been notified for acquisition.
According to the respondents, as per the sketch, this property to an extent of 1.10 acres forms part of the acquired land. As a matter of fact, since no name/s is mentioned in the acquisition notifications, it is contended by the appellants that their land has not been acquired. This aspect is disputed by the respondents contending, there was a tenancy proceeding pending and the katha was not standing in the name of the appellants and the name of the appellants came to be entered subsequently. Ultimately, based on the power of attorney executed by the plaintiff, on the basis of the consent of the power of attorney holder, amount has been withdrawn on behalf of the appellants and they have no right as such to claim the property and more over, they are not in possession.
On going through the order of the trial court, it is seen, on the presumption that the land has been acquired and there is no illegality, rather the plaintiffs/appellan has executed a power of attorney, the trial judge has opined that the plaintiff is not in possession. What is noticed is, the author of the power of attorney or the person in whose favour it was executed has not been examined before the trial court. There is a dilemma as to whether the plaintiff has executed the power of attorney or not. Might be this is a suit for injunction. Ultimately the trial court has to look into several records produced by the plaintiffs as well as the defendants. More over, during pendency of the matter before this Court, BDA has also come out with a statement that it has not authorised the Society nor approved the plan submitted by the Society for further allotment. In this context, the finding of the trial court requires reconsideration.
Accordingly, appeals are allowed. Impugned order is set aside. Matter is remitted to the trial court for disposal of the same, according to law after hearing the parties and on looking into the relevant records that is produced by the BDA as well. The BDA would be a necessary party to contest the matter in this regard All contentions are left open to be urged. Parties to bearing their own costs.