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CRP No. 483 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 483 OF 2016
BETWEEN:
BETHANY EDUCATION BOARD,
A SOCIETY REGISTERED UNDER
THE KARNATAKA SOCIETIES,
REGISTRATION ACT, 1960,
HAVING OFFICE AT NO.12,
20 TH MAIN ROAD, 6TH BLOCK,
KORAMANGALA, BANGALORE - 560 034,
REPRESENTED BY ITS SECRETARY,
MR. AKASH RYALL.
…PETITIONER
(BY SRI. T. SURYANARAYANA, SENIOR COUNSEL FOR
SRI. NITIN PRASAD., ADVOCATE)
AND:
1. VICTORIA SWAMY,
W/O AGT SWAMY,
MAJOR, RESIDING AT NO. 154,
6TH BLOCK, KORAMANGALA,
BANGALORE - 560 095.
Digitally signed by
2. THE COMMISSIONER,
R HEMALATHA BANGALORE DEVELOPMENT AUTHORITY,
Location: HIGH
COURT OF HAVING ITS OFFICE AT
KARNATAKA
KUMARA PARK WEST,
CHOWDAIAH ROAD,
BANGALORE - 560 020.
3. THE COMMISSIONER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
HAVING OFFICE AT
N.R.SQUARE CIRCLE,
BANGALORE - 560 001.
…RESPONDENTS
(BY SRI. PARASHURAM R. HATTARAKIHAL, ADVOCATE FOR R1;
SMT. LATHA S.S., ADVOCATE FOR
SRI. MURUGESH V. CHARATI, ADVOCATE FOR R2;
SRI. B.V. MURALIDHAR, ADVOCATE FOR R3)
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CRP No. 483 of 2016
THIS CRP IS FILED UNDER SEC.115 OF CPC., 1908 AGAINST
THE ORDER DATED: 21.10.2016 PASSED IN OS.NO.7959/2012 ON
THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, DISMISSING THE I.A.NO.V FILED UNDER
ORDER 7 RULE 11 OF CPC., BY DEFENDANT NO.3 PRAYING TO
REJECT THE PLAINT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Revision petition under Section 115 of Cr.P.C. is filed
by defendant No.3 challenging the order dated 21.10.2016
passed by the XXXIX Additional City Civil and Sessions Judge,
Bengaluru on I.A.V filed under Order VII Rule 11(a) and (d) of
CPC in O.S.No.7959/2012 rejecting the application.
2. Learned Senior Counsel for the petitioner's counsel
would submit that the claim of the plaintiff that he acquired
title over the subject property was negated by this Court on
17.11.2004 in WP.No.6443/2004. Hence, there was no cause of
action to file suit and also it is barred by limitation.
3. He further submits that acquisition proceedings having
attained finality, the present suit filed by the plaintiff is not
maintainable and the Civil Court has no jurisdiction to go into
question of validity or legality of the notification under Sections
4 and 6 of the Land Acquisition Act and also the subsequent
proceedings. In support he places reliance on the decision of
the Hon'ble Supreme Court in the case of COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER VS.
BRIJESH REDDY AND ANOTHER reported in (2013) 3 SCC 66.
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CRP No. 483 of 2016
4. Learned counsel for respondent No.1 submits that
the plaintiff is in settled possession of the suit schedule
property and the suit for declaration and consequential relief for
mandatory injunction directing the defendant Nos.1 and 2 to
handover the vacant possession of the suit schedule property is
maintainable, in light of the liberty granted by this Court in
W.P.No.6443/2004. Hence, he submits that the trial Court has
rightly passed the impugned order rejecting the application
filed by defendant No.3 for rejection of the plaint.
5. Considered the submissions made by the learned
counsels for the parties.
6. The plaintiff had filed W.P.No.6443/2004
challenging the auction notice dated 12.02.2004 issued by the
Bangalore Development Authority for auction of the site
No.606B. This Court by order dated 17.11.2004 held that the
site which the plaintiff was claiming forms part and parcel of
the Sy.No.116/6, and it was also held that, Sy.No.116/6 was
acquired by the BDA by issuing preliminary notification which
culminated in passing of an award dated 28.12.1983, and the
possession of the land was taken on 23.01.1984. This Court
further held that the subject property purchased by the plaintiff
herein was subsequent to the acquisition of the land, and as
such, the plaintiff has not acquired any right, title or interest in
the said land and consequently, the sale deed executed in
favour of the petitioner is void against the State and the BDA.
However, this Court held that the question of facts as to
whether the plaintiff is in settled possession of the subject
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CRP No. 483 of 2016
property or not cannot be gone into in this petition and the
same requires evidence for being decided. It is open for the
plaintiff to approach the competent Civil Court, if he so desires.
To put it simply, this Court granted liberty to protect the
alleged possession and had not granted any liberty to seek for
declaration of the title.
7. The plaintiff is not entitled to seek declaration that
he is the owner of the subject property, since this Court has
already negated the said claim. Liberty was granted to protect
the alleged possession. The suit is one for declaration of title
and mandatory injunction restraining the defendants from
interfering with the peaceful possession. Admittedly, the suit
property is vacant plot. The first principle of law in respect of
vacant land is that, possession follows title. The claim of the
plaintiff that, he has acquired title over the suit property by
virtue of the registered sale deed executed in his favour by his
vendor having been negated by this Court, his claim that, he is
in settled possession of the suit property under the sale deed
cannot be established.
8. In view of the preceding analysis, I am of the view
that the suit filed by the first respondent-plaintiff is not
maintainable in law and is barred under Order VII Rule 11(a)
and (d) of CPC. Hence, the impugned order passed by the Trial
Court is not sustainable in law. Accordingly, I pass the
following:
ORDER
i. Petition is allowed.
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CRP No. 483 of 2016
ii. The impugned order dated 21.10.2016 passed in
O.S.No.7989/2012 by the XXXIX Additional City Civil Judge,
Bengaluru in I.A.5 is hereby set aside and consequently I.A
No.5 is allowed and the plaint stands rejected.
Sd/-
JUDGE
RKA
List No.: 1 Sl No.: 26
