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Judgment
N. Ananda
MFA No. 9282/2011 is filed by defendants 1 & 2 (appellants herein) against the order made by the learned trial Judge on IA No. V in O.S. No. 25808/2009, wherein parties have been directed to maintain status quo and defendants 1 & 2 are restrained from proceeding with further construction on suit schedule property.
MFA No. 9283/2011 is filed by defendants 1 & 2 (appellants herein) against the order made by the learned trial Judge on IA No. IV in O.S. No. 25809/2009, wherein parties have been directed to maintain status quo and defendants 1 & 2 are restrained from proceeding with further construction on suit schedule property.
MFA No. 9284/2011 is filed by defendants 1 & 2 (appellants herein) against the order made by the learned trial Judge on IA No. III in O.S. No. 25810/2009, wherein parties have been directed to maintain status quo and defendants 1 & 2 are restrained from proceeding with further construction on suit schedule property.
MFA No. 9285/2011 is filed by defendants 1 & 2 (appellants herein) against the order made by the learned trial Judge on IA No. VI in O.S. No. 25811/2009, wherein parties have been directed to maintain status quo and defendants 1 & 2 are restrained from proceeding with further construction on suit schedule property.
MFA No. 9286/2011 is filed by defendants 1 & 2 (appellants herein) against the order made by the learned trial Judge on IA No. III in O.S. No. 25812/2009, wherein parties have been directed to maintain status quo and defendants 1 & 2 are restrained from proceeding with further construction on suit schedule property.
The appellants in all these appeals are common. They are arrayed as defendants 1 & 2 before the court below. The dispute between plaintiffs and defendants in the aforestated suits relate to various sites formed in Survey Nos. 161 & 162 of Begur Village.
The case of plaintiffs in O.S. No. 25808/2009 (giving rise to filing of MFA No. 9282/2011) is stated as follows:-
The suit schedule property is one of the sites formed in survey Nos. 161 & 162 of Begur Village and lay out has been approved by the Chairman of Begur Village Panchayat and plaintiff has purchased suit schedule property under registered sale deed dated 16.12.1993 from the previous owner namely Kaverappa. The plaintiff was in possession of suit schedule property from the date of purchase till he was dispossessed by defendants after institution of suit during third week of January 2010.
It is the case of defendants 1 & 2 that defendant No. 3 has purchased land bearing survey No. 161 measuring 1 acre under a registered sale deed dated 12.10.2006 from N. Ananda and others, who were the previous owners and Survey No. 161 of Begur Village has been converted for non-agricultural purpose vide order dated 25.05.2009 and it has been assessed to tax in the name of III-defendant. The III-defendant transferred katha to the name of II-defendant, who is the daughter of III-defendant. Another extent of 30 guntas of land in Survey No. 161 of Begur Village has been purchased by III-defendant under a registered sale deed from one Renukamma and it has been converted for non-agricultural purpose vide order dated 25.09.2008. The III-defendant executed a gift deed in favour of II-defendant in respect of said 30 guntas of land. The Bruhat Bangalore Mahanagara Palike (for short, ''BBMP'') has assigned katha No. 161/15 in the name of II-defendant. Defendants I & II had obtained sanctioned plan to construct building and they are constructing a building in Survey No. 161 of Begur Village. The defendants have denied the case of plaintiff that layout was formed in survey Nos. 161 & 162 of Begur Village and plaintiff was in possession of suit schedule property.
It is the case of plaintiff in O.S. No. 25809/2009 (giving rise to filing of MFA No. 9283/2011) that suit schedule property is one of the sites formed in Survey Nos. 161 & 162 of Begur Village, which was converted for non-agricultural purpose and layout plan was approved by the Chairman of Begur Village Panchayat and plaintiff has purchased suit schedule property under a registered sale deed dated 16.12.1993 from its previous owner namely Kaverappa. The plaintiff was in possession of suit schedule property from the date of purchase till he was dispossessed by defendants after institution of suit during third week of January 2010.
It is the case of defendants 1 & 2 that defendant No. 3 has purchased land bearing survey No. 161 measuring 1 acre under a registered sale deed dated 12.10.2006 from N. Ananda and others, who were the previous owners and Survey No. 161 of Begur Village has been converted for non-agricultural purpose vide order dated 25.05.2009 and it has been assessed to tax in the name of III-defendant. The III-defendant transferred katha to the name of II-defendant, who is the daughter of III-defendant. Another extent of 30 guntas of land in Survey No. 161 of Begur Village has been purchased by III-defendant under a registered sale deed from one Renukamma and it has been converted for non-agricultural purpose vide order dated 25.09.2008. The III-defendant executed a gift deed in favour of II-defendant in respect of said 30 guntas of land. The BBMP has assigned katha No. 161/15 in the name of II-defendant. Defendants I & II had obtained sanctioned plan to construct building and they are constructing a building in Survey No. 161 of Begur Village. The defendants have denied the case of plaintiff that layout was formed in survey Nos. 161 & 162 of Begur Village and plaintiff was in possession of suit schedule property.
It is the case of original plaintiff in O.S. No. 25810/2009 (giving rise to filing of MFA No. 9284/2011) that suit schedule property is one of the sites in the layout formed in Survey Nos. 161 & 162 of Begur Village, which was converted for non-agricultural purpose and layout plan was approved by the Chairman of Begur Village Panchayat and plaintiff has purchased suit schedule property under a registered sale deed dated 29.08.1991 from its previous owner namely Eranna. The plaintiff was in possession of suit schedule property from the date of purchase till he was dispossessed by defendants after institution of suit during third week of January 2010.
It is the case of defendants 1 & 2 that defendant No. 3 has purchased land bearing survey No. 161 measuring 1 acre under a registered sale deed dated 12.10.2006 from N. Ananda and others, who were the previous owners and Survey No. 161 of Begur Village has been converted for non-agricultural purpose vide order dated 25.05.2009 and it has been assessed to tax in the name of III-defendant. The III-defendant transferred katha in the name of II-defendant, who is the daughter of III-defendant. Another extent of 30 guntas of land in Survey No. 161 of Begur Village has been purchased by III-defendant under a registered sale deed from Renukamma and it has been converted for non-agricultural purpose vide order dated 25.09.2008. The III-defendant executed a gift deed in favour of II-defendant in respect of said 30 guntas of land. The BBMP has assigned katha No. 161/15 in the name of II-defendant. Defendants I & II had obtained sanctioned plan to construct building and they are constructing a building in Survey No. 161 of Begur Village. The defendants have denied the case of original plaintiff that layout was formed in survey Nos. 161 & 162 of Begur Village and original plaintiff was in possession of suit schedule property.
It is the case of original plaintiff in O.S. No. 25811/2009 (giving rise to filing of MFA No. 9285/2011) that suit schedule property is one of the sites in the layout formed in Survey Nos. 161 & 162 of Begur Village, which was converted for non-agricultural purpose and layout plan was approved by the Chairman of Begur Village Panchayat and plaintiff has purchased suit schedule property under a registered sale deed dated 06.07.1994 from its previous owner namely Kaverappa. The plaintiff was in possession of suit schedule property from the date of purchase till she was dispossessed by defendants after institution of suit during third week of January 2010.
It is the case of defendants 1 & 2 that defendant No. 3 has purchased land bearing survey No. 161 measuring 1 acre under a registered sale deed dated 12.10.2006 from N. Ananda and others, who were the previous owners and Survey No. 161 of Begur Village has been converted for non-agricultural purpose vide order dated 25.05.2009 and it has been assessed to tax in the name of III-defendant. The III-defendant transferred katha in the name of II-defendant, who is the daughter of III-defendant. Another extent of 30 guntas of land in Survey No. 161 of Begur Village has been purchased by III-defendant under a registered sale deed from one Renukamma and it has been converted for non-agricultural purpose vide order dated 25.09.2008. The III-defendant executed a gift deed in favour of II-defendant in respect of said 30 guntas of land. The BBMP has assigned katha No. 161/15 in the name of II-defendant. Defendants I & II had obtained sanctioned plan to construct building and they are constructing a building in Survey No. 161 of Begur Village. The defendants have denied the case of plaintiff that layout or site was formed in survey Nos. 161 & 162 of Begur Village and plaintiff was in possession of suit schedule property.
It is the case of original plaintiff in O.S. No. 25812/2009 (giving rise to filing of MFA No. 9286/2011) that suit schedule property is one of the sites in the layout formed in Survey Nos. 161 & 162 of Begur Village, which was converted for non-agricultural purpose and layout plan was approved by the Chairman of Begur Village Panchayat and plaintiff has purchased suit schedule property under a registered sale deed dated 06.11.1995 from its previous owner namely Eranna. The original plaintiff was in possession of suit schedule property from the date of purchase till he was dispossessed by defendants after institution of suit during third week of January 2010.
It is the case of defendants 1 & 2 that defendant No. 3 has purchased land bearing survey No. 161 measuring 1 acre under a registered sale deed dated 12.10.2006 from N. Ananda and others, who were the previous owners and Survey No. 161 of Begur Village has been converted for non-agricultural purpose vide order dated 25.05.2009 and it has been assessed to tax in the name of III-defendant. The III-defendant transferred katha in the name of II-defendant, who is the daughter of III-defendant. Another extent of 30 guntas of land in Survey No. 161 of Begur Village has been purchased by III-defendant under a registered sale deed from Renukamma and it has been converted for non-agricultural purpose vide order dated 25.09.2008. The III-defendant executed a gift deed in favour of II-defendant in respect of said 30 guntas of land. The BBMP has assigned katha No. 161/15 in the name of II-defendant. Defendants I & II had obtained sanctioned plan to construct building and they are constructing a building in Survey No. 161 of Begur Village. The defendants have denied the case of original plaintiff that layout or site was formed in survey Nos. 161 & 162 of Begur Village and original plaintiff was in possession of suit schedule property.
The learned trial Judge on consideration of documents filed by parties has held that defendants are constructing a building on suit schedule properties.
The plaintiffs in aforestated suits have not produced any documents to prove that they were in possession of suit schedule properties as on the date of institution of suits or before institution of suits. Therefore, plaintiffs have not made out prima facie cases.
The learned trial Judge has held that plaintiffs have contended that suit schedule properties in the aforestated sites have been carved out of Survey Nos. 161 & 162 of Begur Village. The plaintiffs have produced xerox copies of lay out plans of survey Nos. 161 & 162 of Begur Village, which would disclose that lay out plan has been approved by the Chairman of Begur Village Panchayat on 13.09.1979. The learned trial Judge has held that there is serious controversy between parties as to whether plaintiffs have derived title to suit schedule properties or defendants have derived title to suit schedule properties. The learned trial Judge has held that there appears to be dispute between parties regarding identification of properties.
The learned trial Judge relying on an unreported judgment of this Court in MFA No. 247/2007 (in the case of Narasim Vs. K. Basavaraj) dated 01.08.2007 has held that as question of identity of property was involved, defendant has to be directed not to put up construction till the disposal of the case and to maintain status quo with regard to possession.
In the circumstances, the learned trial Judge has directed the parties to maintain status quo and restrained defendants I & II from proceeding with further construction on suit schedule properties.
The Learned Counsel for appellants-defendants I & II would submit that registered sale deeds relied upon by plaintiffs do not reveal that suit schedule properties are sites formed in Survey Nos. 161 & 162 of Begur Village.
The Learned Counsel for appellants taking me through the averments of plaints would submit that in the description of suit schedule properties, it is shown that plaintiffs have purchased properties bearing khata numbers and gramatana house list numbers, situate at Begur Village.
The Learned Counsel for appellants would submit that the President of Begur Village Panchayat has no jurisdiction or power to approve lay out plan.
The Learned Counsel for appellants relying on a decision reported in Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, would submit when an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed?
The Learned Counsel for appellants, relying on a decision of the Supreme Court, reported in M. Gurudas and Others Vs. Rasaranjan and Others, would contend that though valuable property is involved, it would be improper to issue an order of injunction to deny the parties of enjoyment of properties lawfully acquired.
The Learned Counsel for respondents-plaintiffs, relying on an unreported judgment of this Court in MFA No. 247/2007, disposed off on 01.08.2007 would submit that if there is dispute regarding identification of properties, parties shall be directed to maintain status quo and they shall not be allowed to change the nature of properties.
It is the contention of respondents-plaintiffs that suit schedule sites are carved out of survey Nos. 161 & 162 of Begur Village. The previous owners of said survey numbers had formed layouts, which was approved by the Chairman of Begur Village Panchayat.
At this juncture, it is necessary to state that the President of Village Panchayat had no jurisdiction or power to approve layout plan and documents relied upon by plaintiffs do not disclose that sites are carved out of survey Nos. 161 & 162 of Begur Village. The plaintiffs have not produced any documents to show that agricultural lands in survey Nos. 161 & 162 of Begur Village were permitted to be used for non-agricultural purposes by the competent authorities.
On the other hand, defendants have produced documents to show that the Deputy Commissioner of Bangalore District, vide Notice No. ALN SR (S) 277/2007-08 dated 08.07.2008 has directed defendant No. III to pay conversion charges and obtain approved plan from competent authorities, within prescribed time to use 30 guntas of land in survey No. 161 of Begur Village for non-agricultural purpose. The III-defendant has paid conversion charges and obtained approved plan to put up construction. Therefore, the Deputy Commissioner of Bangalore District vide Official Memorandum No. ALN SR(S) 277/2007-08 dated 25.09.2008 had permitted III-defendant namely Sri. K.O. Jossi to use 30 guntas of land in survey No. 161 of Begur Village for non-agricultural purpose. The III-defendant has put up construction and construction is halfway through.
The plaintiffs have miserably failed to prove that they were in possession of suit schedule properties either on the date of institution of suits or prior to institution of suits. The plaintiffs have falsely contended that they were dispossessed from suit schedule properties by defendants I & II.
Thus, documents relied upon by plaintiffs are hardly sufficient to hold that plaintiffs are prima facie in possession of suit schedule properties or plaintiffs are prima facie title holders of suit schedule properties. On the other hand, documents relied upon by defendants I & II would establish that defendants I & II are in prima facie possession of suit schedule properties and they had obtained conversion order for using agricultural land for non-agricultural purpose. Defendants I & II had obtained sanctioned plan from Bangalore Development Authority to put up construction in survey No. 161 of Begur Village.
The plaintiffs have not produced any documents to prima facie establish that suit schedule properties are part of survey Nos. 161 & 162 of Begur Village. The documents relied upon by plaintiffs do not make out a prima facie case. The President of Begur Village Panchayat had no jurisdiction or power to approve the plan for formation of layout in respect of agricultural land. Therefore, it is prima facie established that defendants are in possession of suit schedule properties and they are putting up construction after obtaining conversion order and approved plan from Bangalore Development Authority.
In a decision reported in Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, , the Supreme Court has held:-
When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pinpointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision...
In the case on hand, defendants are prima facie in possession of suit schedule properties in land bearing survey Nos. 161 & 162 of Begur Village and they have taken up construction. In the circumstances, if plaintiffs were to establish that suit schedule properties/sites are carved out of survey Nos. 161 & 162 of Begur Village and defendants have constructed buildings on suit schedule properties, defendants shall deliver suit ''schedule properties to plaintiffs, without claiming any equities.
Therefore, I pass the following:-
ORDER
The appeals are accepted. The orders made on IA No. V in O.S. No. 25808/2009, IA No. IV in O.S. No. 25809/2009, IA No. III in O.S. No. 25810/2009, IA No. VI in O.S. No. 25811/2009 and IA No. III in O.S. No. 25812/2009 are set aside. On merits, if plaintiffs were to establish that suit schedule properties/sites are carved out of survey Nos. 161 & 162 of Begur Village and defendants have put up construction on suit schedule properties described in aforestated suits, defendants shall deliver possession of suit schedule properties with construction or after demolition of construction, without claiming any equities or compensation from plaintiffs. The learned trial Judge shall decide the case on merits, within a period of six months from today, for which both parties shall extend their co-operation.