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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF JUNE 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1876 OF 2014
CONNECTED WITH
REGULAR FIRST APPEAL No.124 OF 2015
IN R.F.A.No.1876/2014
BETWEEN: Bangalore Development Authority, Kumara Park West, Bengaluru, By its Secretary. … APPELLANT (By Shri. K.M. Nataraj, Senior Advocate for Shri. S.G.Hegde, Advocate) AND: 1. Smt. Venkata Ratnamma, Aged about 79 years, Wife of Late Mahadevan, 2. Sri. Gangadhara Murthy, Major, Son of C. Mahadevan, 3. Smt. Gaythri,
R
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Wife of Raghu, Major, 4. Smt. Gangalakshmi, Wife of Ramesh, 5. Smt. Bharati, Wife of Sri. Suresh, 6. Smt. Nandini, Daughter of Late C. Mahadevan, All are residing at No.13, Kallapalli, Bangalore – 560 042. 7. Smt. Nagaratnamma, Wife of Late C. Radhakrishna, Aged about 68 years, 8. Sri. C.R.Chandrashekar, Son of Late Radhakrishna, Aged about 45 years, 9. Sri. Raju, Son of Late Radhakrishna, Aged about 42 years, Respondents No.7 to 9 Residing at No.32, Kallahalli, Civil Station, Bangalore. 10. Sri. Bhaskar N Raju, Aged about 41 years,
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Son of Late Narayana Raju, 11. Smt. N. Shantha, Daughter of Late Narayana Raju, Aged about 58 years, 12. Smt. Roopa N Raju, Daughter of Late N. Narayana Raju, Age about 34 years, Respondents 10 to 12 Residing at No.32, 1st ‘A’ Cross, Rajmahal Vilas Extension, Sadashivanagar, Bangalore – 560 080. …RESPONDENTS (By Shri. R. Vijaya Kumar .R, Advocate for Respondent Nos. 7 to 9; Shri. P. Chandrashekar, Advocate for M/s. Ravi B Naik Associates for Respondent Nos. 10 to 12; Respondent Nos.1 to 6 served and unrepresented )
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This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 22.11.2014 passed in O.S.No.2129/2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for permanent injunction. IN R.F.A.No.124/2015 BETWEEN: 1. Sri. Bhaskar N Raju, Son of Late Narayana Raju,
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Aged about 42 years, 2. Smt. N. Shantha, Daughter of Late Narayana Raju, Aged about 62 years, 3. Smt. Roopa N Raju, Daughter of Late N. Narayana Raju, Aged about 39 years, All are residing at No.32, 1st A Cross, Rajmahal Vilas Extension, Sadashivanagar, Bangalore – 560 080. …APPELLANTS (By Shri P.Chandrashekar, Advocate for Smt. Vijetha R Naik, Advocate) AND: 1. Bangalore Development Authority, Kumara Park West, Sankey Tank Road, Bangalore 560 020 By its Secretary. 2. Smt. Venkata Ratnamma, Wife of Late Mahadevan, Aged about 79 years, 3. Gangadhara Murthy, Son of C. Mahadevan, Aged about 65 years,
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4. Smt. Gayathri, Wife of Raghu, Aged about 50 years,
5. Gangalakshmi, Wife of Ramesh, Aged about 45 years,
6. Bharati, Wife of Sri Suresh, Aged 43 years,
7. Smt. Nandhini, Daughter of Late C. Mahadevan, Age: 40 years, Respondents 2 to 7 are Residents of No.13, Kallapalli, Bangalore 560 042.
8. Smt. Nagaratnamma, Wife of Late C. Radhakrishna, Aged about 69 years,
9. C.R.Chandrashekar, Son of Late Radhakrishna, Aged about 45 years,
10. C.R.Raju, Son of Late Radhakrishna, Aged about 42 years, Respondent Nos. 7 to 10 are Residing at No.32, Kallahalli, Civil Station, Bangalore – 560 042. …RESPONDENTS (By Shri. R. Vijayakumar, Advocate for Respondent Nos. 8 to 10)
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This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 22.11.2014 passed in O.S.No.2129/2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for declaration and permanent injunction. These Regular First Appeals having been heard and reserved on 28.4.2015 and coming on for pronouncement of Judgment this day, the Court delivered the following:-
J U D G M E N T
These appeals are heard and disposed of together, as they are
preferred against the same judgment.
2. The appellant in appeal no. RFA 1876/2014, namely, the
Bangalore Development Authority, (Hereinafter referred to as the
‘BDA’, for brevity), a statutory body constituted under the Bangalore
Development Authority Act, 1976, (Hereinafter referred to as the
‘BDA Act’, for brevity) was the plaintiff. The suit was filed for a
declaratory relief that the property bearing survey no.10/17 of
Jarakabandekaval, Yeshwanthpura hobli, Bangalore north taluk
measuring 29 guntas, presently bearing Industrial site no.86/G
formed by the BDA, which was more fully described in the Schedule
to the plaint, was never withdrawn from the acquisition proceedings
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pursuant to the final notification dated 13.4.1964, issued under the
provisions of Mysore Land Acquisition Act, 1884.
And also to declare that a judgment and decree passed in civil
suit bearing O.S.No.554/1981, by the court of the 17th Additional
City Civil Judge, Bangalore, dated 25.9.1992, as not binding the
plaintiff, BDA.
And for injunctory reliefs restraining defendants no.1 to 7
from interfering with the said property.
3. It was the case of the plaintiff that before its constitution in
the year 1976, its predecessor-in –interest was the City Improvement
Trust Board, (hereinafter referred to as ‘the CITB’, for brevity), also
a statutory body which was engaged in the planned development of
Bangalore City. It was stated that in order to form and establish an
Industrial layout, known as Industrial Suburb, II Stage, it was
proposed to acquire lands situated around Jharakabandekaval,
Yelahanka, Bangalore North taluk, including the land bearing survey
no.10/17. A notification dated 13.4.1964 was said to have been
issued under the provisions of the Mysore Land Acquisition Act,
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1988, ( Hereinafter referred to as ‘the MLA Act’, for brevity).
According to the revenue records, the said land bearing survey no.
10/17 is said to have been found in the name of Chikkavenkatappa,
son of Pillavenkatappa, as the Khatedar. It was stated that notices
under Section 9 and 10 of the Land Acquisition Act, 1898,
(Hereinafter referred to as ‘the LA Act, 1898’, for brevity) having
been issued, it is stated that the widow of Chikkavenkatappa had
entered appearance and is said to have petitioned seeking the
notified land be reconveyed in her favour.
However, an award having been passed, vide award dated
14.7.1965, the award amount was said to have been kept in a revenue
deposit for the benefit of the khatedars. It was also stated that after
issuing award notices, physical possession is said to have been taken
over by the CITB on 7.10.1965.
It was stated that the above and other lands so acquired were
said to have been substantially put to use and the Scheme, under
which the acquisition proceedings had been initiated, was
substantially implemented.
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In the year 1976, the plaintiff having been constituted, the
powers and functions of the erstwhile CITB were said to have been
exercised and performed by the BDA. It is stated that in the above
background, the BDA is said to have allotted the suit schedule
property on a Lease –cum-Sale basis in favour of one Narayana Raju.
And a registered lease deed is said to have been executed as on
26.11.1977 in favour of the said allottee. The said allottee having
died, he was represented in the suit by defendants 8 to 10, his legal
representatives.
It is said that one Muniyamma, claiming to be the widow of
Chikkavenkatappa, as already stated, is said to have sought for
reconveyance of the land in her favour. It is stated that in response
to the same the plaintiff had issued an endorsement dated
27.10.1980, to the effect that the erstwhile CITB had, by a
Resolution dated 16.1.1974, recommended the de-notification of the
suit schedule property. However, it was the plaintiff’s case that there
were no further steps taken in that regard, to complete the formality.
The property in question, however, was integrated into the industrial
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layout and was the subject matter of allotment in favour of late
Narayana Raju, represented by defendants 8 to 10. The property
hence stood vested in the plaintiff as absolute owner, subject to the
lease agreement aforesaid.
It was the plaintiff’s further case that the aforesaid
Muniyamma and her two sons, namely (late) Mahadevan and
Defendant no.7, are said to have filed a civil suit in O.S.554/1981 on
the file of the 17th Additional City Civil Judge, Bangalore, seeking a
declaratory relief, to the effect that they were the absolute owners of
the very same suit property as was involved in the present suit, in
view of the State having withdrawn from the acquisition
proceedings, as claimed by the plaintiffs therein. Consequently, they
had sought injunctory reliefs against Narayana Raju, who was
admittedly in possession and had also put up construction over the
suit property, as an allottee of an industrial site, claiming under the
present plaintiff, the BDA. Significantly, the BDA was not a party
to the said suit. However, the said suit was said to have been
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decreed in favour of Muniyamma and defendant no.7 herein, as on
25.9.1992.
As against the above said judgment and decree, late Narayana
Raju is said to have preferred an appeal before this court in
RFA 73/1993. The same is said to have been dismissed as on
7.4.1999. Subsequently, defendants 8 to 10, as the legal
representatives of late Narayana Raju, are said to have preferred a
Review Petition in C.P.683/1999, which in turn was said to have
been allowed and the earlier judgment by this very court had been
recalled and the judgment and decree in the suit was said to have
been reversed and the suit dismissed, by an order dated 8.3.2001.
As against the order passed in the above Review petition,
defendant no. 7 herein is said to have filed a Special Leave Petition
in SLP 8030-31/2001, before the Supreme Court of India. It
transpires that by an Order dated 13.2.2008, the said petition having
been allowed, granting leave to appeal and the appeal is said to have
been allowed, reversing the decision of this court dated 8.3.2001. In
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the result, the judgment and decree of the trial court in
O.S.554/1981 stood revived.
It was hence the plaintiff’s grievance that by virtue of the
judgment and decree in O.S.No.554/1981, the plaintiff’s right, title
and interest over the suit property was directly affected. The
plaintiff claimed that it became aware of the repercussions of the
above said proceedings, to which the BDA was not a party, only
when routinely taking stock of disputed items of property which
were subject matter of the earlier acquisition proceedings. And also
when the lessee’s possession was sought to be disturbed. It is
thereafter, that the plaintiff and its men are said to have taken steps
to obtain the particulars of the earlier proceedings and had filed the
suit.
It was specifically urged that the suit filed by the legal
representatives of the erstwhile owner of the land in question was
not maintainable on more than one count. It was pointed out that it
is on record that possession of the land had been taken over
pursuant to the acquisition proceedings, as early as in the year 1965.
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Hence a suit for declaration that the plaintiff in O.S.554/1981, was
the absolute owner of the suit property, filed in the year 1981 was
not maintainable. Secondly, that the land in question being subject
matter of acquisition proceedings, the civil court had no jurisdiction
to entertain the suit.
The defendants 7(a) to (c), the legal representatives of
defendant no.7 who had died during the pendency of the suit, had
filed their written statement contesting the suit. It was contended
that the plaintiff was not entitled to any relief. It was disputed that
the suit schedule property could now be identified as Industrial site
no.86/G or that it was situated in land bearing survey no.10/17. On
the other hand it was said that the site no.86/G was to be found
located in land bearing survey no.10/4. It was pointed out that this
very question had been addressed in the earlier suit in
O.S.No.554/1981. And that this very court had held that site
no.86/G was situated in land bearing Sy.no. 10/4 and that this
factum had also been confirmed by the Supreme Court of India.
And it was asserted that the CITB had never acquired the land
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bearing survey no.10/17 and that the present suit was nothing but a
ruse to lay claim over the same.
It was contended that though the preliminary and final
notifications for acquisition of the land in question had been issued,
physical possession had never been taken, either by the erstwhile
CITB or the plaintiff, from Smt. Muniyamma or Radhakrishna, who
was said to be the son of Muniyamma. In other words, it was
sought to be emphasized that neither Muniyamma nor her
successors-in – interest, had been divested of the property.
It was alleged that in the year 1981, Narayana Raju who was
claiming to be an allottee of an industrial site bearing no.86/G,
under the BDA, is said to have trespassed on land bearing survey no.
10/17 and having sought to lay claim to the same. It had entailed
Muniyamma and her sons filing the civil suit in OS 554/1981, which
had run its course and had now attained finality – in the matter
having reached the apex court and the judgment and decree in
favour of Muniyamma and her sons having been affirmed.
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It was also sought to be pointed out that during the pendency
of the suit in OS 554/1981, the BDA had been notified through its
Commissioner, that it was required to appear and produce records
pertaining to the acquisition proceedings and accordingly one
Byraiah, was said to be examined as PW-2, as on 16.8.1986 and
20.7.1988. Further, one Mahadevaiah had been examined as DW-2
on behalf of the BDA, to speak for the material produced, as on
27.6.1989. Therefore, it would have to be presumed that BDA was
aware of the claims of both the parties in the suit, especially when
one of them, the defendant therein, was claiming to be in possession
of the suit property under the BDA. Hence it is contended that the
present suit is only an attempt to raise decided issues, to circumvent
the judgment and decree that has attained finality in respect of the
suit schedule property.
It is further pointed out that the plaintiff had acknowledged
that there was indeed a resolution passed by the CITB as on
16.1.1974 recommending that the suit property be dropped from the
acquisition proceedings. And such a resolution could be passed only
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if possession of the land in question had not been taken. And as it
is not the case of the BDA that it had taken possession of the land in
question, after it came into existence in the year 1975, it is conclusive
that the owners of the land have never been divested of physical
possession of the land and hence, it could not be said that the same
had vested with the BDA. This aspect of the matter has been found
as a fact in the earlier proceedings and was conclusively decided. On
the above and other incidental pleadings, it was sought that the suit
be dismissed.
4. The trial court had framed the following issues on the basis
of the above pleadings :
“1. Whether the plaintiff proves that the suit
property which was acquired under notification dated
13.4.1964 is not denotified and plaintiff is in possession?
2. Whether the plaintiff proves that the
judgment and decree in O.S.No.554/1981 is not
binding on the plaintiff?
3. Whether the plaintiff proves that there is
interference to its possession by defendants 1 to 7?
4. Whether the plaintiff proves that it is
entitled for the relief claimed in the suit?
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5. To what decree or order?
Additional Issues:
1. Whether suit filed by the plaintiff is hit
by principles of constructive res-judicata?
2. Whether suit of the plaintiff is hit by
principles of estoppels, acquiescence and waiver?
3. Whether suit is barred by law of
limitation?”
The trial court has answered Issue Nos.1 to 4 in the negative,
Additional Issue Nos.1 to 3 in the affirmative and Issue No.5 as per
the final order and has dismissed the suit. It is that which is under
challenge in the present appeals.
5. The learned Senior Advocate Shri K.M.Nataraj, appearing
for the counsel for the plaintiff – appellant, contends as follows :
That the trial court had failed to notice that the suit in
O.S.No.554/1981 was not maintainable. Firstly, it is pointed out
that there was no denial of the fact that the suit schedule property
was subject matter of acquisition proceedings. The validity or
otherwise of the same having been concluded in accordance with
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law, could not have been tested, even incidentally, in the said suit.
Whereas it was the sine qua non and the basic premise on which the
suit relief had been claimed. Secondly, when the defendant in that
suit was claiming as an allottee of an industrial site, having been put
in possession of the suit property under a lease deed executed by the
plaintiff herein, it was evident that the suit was bad for non-joinder
of a proper and necessary party and any decree against the lessee,
would not bind the owner, BDA.
The suit, in any event, ought to have been dismissed on a
glaring circumstance that the plaintiff therein, having admitted that
the suit property was subject matter of acquisition proceedings had
further contended that the acquiring authority had recommended the
withdrawal from the acquisition proceedings – in so far as the suit
property was concerned. There was no indication of any further
steps having been taken to implement that recommendation. This is
an admitted position. However, the proposition that such a
resolution being available on record was sufficient to conclude that
the acquisition proceedings in respect of the suit property had been
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withdrawn and dropped – having been accepted by the court below,
had resulted in the fallacious judgment.
Further, the reasoning of the trial court that the earlier
judgment was binding on the plaintiff – BDA, on the principle of
constructive res judicata, even though it was not a party to the same,
is opposed to a first principle, and patently erroneous, vitiating the
judgment.
Hence, it is contended that if the judgment and decree of the
trial court are to be set at naught on legal principle, having regard to
the several undeniable circumstances, it is wholly unnecessary to
enter upon factual details alleged in order to set aside the judgment
in the present suit or to negate the so called finality of the judgment
in the earlier suit in O.S.No.554/1981, in so far as the plaintiff’s
interest is concerned.
6. On the other hand, while seeking to justify the findings of
the trial court, Shri R. Vijaya Kumar, counsel appearing for
respondents 1 to 9, would contend that apart from the suit filed by
the appellant being barred by constructive res judicata, the suit was
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not maintainable in the form in which it was brought. The plaintiff
had not sought for a declaration of title to the suit property and
hence a mere declaration as to the judgment and decree in favour of
the respondents in O.S.554/1981 being declared as not binding the
BDA, would hardly result in the BDA establishing title to the
property.
It is contended that even assuming that the land in question
had been notified for acquisition under the MLA Act, there is
material on record to indicate that the compensation amount has not
been paid to the land owner and has possibly remained in a revenue
deposit, or even withdrawn by the acquiring authority, going by
certain exchange of correspondence on record. Further, with the
coming in to force of The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013, (hereinafter referred to as ‘the 2013 Act’, for brevity) in
terms of Section 24 thereof, the acquisition proceedings have lapsed
and are no longer relevant.
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It is further contended that the acquisition proceedings even
if could be presumed to be unassailable before a civil court, on the
footing that the Land Acquisition Act, 1894 , was a self contained
Code and hence the jurisdiction of the civil court was barred, such a
bar however, would not have applied to land which was not the
subject matter of acquisition – but was mistaken as being so, as was
the case in respect of the suit property. Though the subject matter
of acquisition was land bearing survey no.10/4, the allottee had been
put in possession of Survey No.10/17 , which was given up from the
acquisition proceedings . It is only under the 2013 Act, that there is
a bar, under Section 63 to any suit relating to any dispute pertaining
to land which is the subject matter of acquisition proceedings.
It is vehemently urged that the suit was apparently a
mischievous effort to re-kindle a controversy that has been set to
rest in O.S.No.554/1981. The judgment and decree in that suit
having been affirmed by the apex court, it is final and binding on the
plaintiff- BDA and it would result in a gross irregularity to address
the very controversy which was the subject matter of the said suit.
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It is contended that the principles of estoppel, acquiescence &
waiver would apply to the appellant and hence was precluded from
filing the suit and the present appeal. It is also pointed out that
during the pendency of the suit in O.S.No.554/1981, an application
in IA No. 3 was filed to bring the BDA on record, as a party to the
suit, which was resisted with vehemence and it was declared by the
BDA that it was not a proper or necessary party to the suit and
hence the volte-face in its stand, in the present appeal to contend
that the said judgment and decree was not binding on it , since it had
remained in the dark – as to the said suit is untenable. This is apart
from the circumstance that both the plaintiff and the defendant, in
that suit, had summoned and examined officers of the BDA, to
produce and testify in relation to the records pertaining to the
acquisition of the suit property and hence such a contention is hardly
available to the appellant.
The learned counsel also seeks to draw sustenance from the
tenor of Section 38C of the BDA Act, to contend that the
Resolution passed by the CITB to withdraw from acquisition
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proceedings in so far as the suit schedule property is concerned and
to denotify the same, is binding on the BDA and is deemed to have
been given effect to.
7. Shri Nataraj would contend, by way of reply, that
notwithstanding the findings of the trial court in the civil suit
O.S.554/1981, that may have been, by implication, affirmed by the
apex court, the legal issue as to whether a civil court was vested with
jurisdiction to address the validity of the acquisition proceedings –
had never arisen for consideration at any stage of that suit.
Therefore, it is contended that the trial court had remained oblivious
to the lack of jurisdiction in the earlier instance and so also has the
trial court, in the present instance, failed to address the grievance of
the plaintiff that the concluded acquisition proceedings, in respect of
the suit schedule property, has been set at naught, by virtue of the
judgment in O.S.554/1981 which was rendered by the trial court,
wholly without jurisdiction.
The contention that there was a serious discrepancy in the
allottee having been put in possession of land bearing no. 10/17
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when what was acquired was land bearing survey no. 10/4 is also
not material. The lands bearing Survey nos. 10/4, 10/14 & 10/17
of Jharakabande Kaval had been acquired. Hence it was immaterial
even if the allottee had been put in possession of one or the other
portion of the land, after the said lands had been formed into an
industrial layout.
Further, sustenance sought to be drawn from Section 38 C of
the BDA Act, is also misplaced as the said Section is also subject to
the acquisition proceedings, which may have otherwise attained
finality. In any event, these controversies can hardly be decided by
the civil court. This in fact would fortify the case of the appellant
that a civil court was totally without jurisdiction in addressing the
acquisition proceedings.
The appellants in the appeal in RFA 124/2015 are the legal
representatives of the defendant in OS 554/ 1981 and defendants 8
to 10 in the present suit. And would seek to support the case of the
appellant as they claim under the BDA, as legal representatives of
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the allottee, who was put in possession of the suit property by the
BDA.
8. In the light of the above circumstances, the points that arise
for consideration in these appeals are :
a) Whether the present suit by the BDA was barred on the
doctrine of res judicata .
b) Whether the BDA was bound by the judgment and decree
in OS.No. 554 / 1981.
c) Whether the judgment and decree in OS 554 / 1981 could
not be challenged by the BDA , as not binding it.
d) Whether the suit by the BDA was barred by limitation.
e) Whether the want of jurisdiction in the civil court, to test
the validity of compulsory acquisition proceedings, was ever present
to the mind of the trial court or the appellate courts in the earlier
proceedings and the trial court in the present suit.
Point (a): The trial court having framed an additional issue
no.1 , as to whether the suit is hit by the doctrine of constructive res
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judicata , has after an elaborate discussion, spanning several issues
which are sought to be considered together and thereby blurring the
area of discussion on any particular issue, has concluded thus :
“In this view of the matter findings on Issues 1 and 2 and
Additional Issues 1 to 3 would be record without saying against
plaintiff – BDA.” ( sic)
The trial court has expressed that in view of the earlier
opinion expressed in OS 554 / 1981 , that the BDA would suffer the
decree passed against the defendant therein, as well, since the
defendant therein who was an allottee claiming under the BDA had
contested the suit, appears to have been accepted by the trial court in
the present instance. The trial court has also proceeded on the
premise that the several findings of fact arrived at in the earlier suit
have attained finality and the trial court has refused to address the
same notwithstanding the circumstance that the defendant therein
was not at all competent to represent the BDA, though claiming
under the BDA as a mere lessee in occupation of the land in
question. The trial court has also proceeded on the presumption
27
that the BDA was adequately represented in the earlier proceedings,
as two its officials had appeared before the court to depose in
respect of certain documents produced on behalf of the BDA,
pursuant to witness summonses issued and hence any decree passed
against the defendant therein was also binding against the BDA.
The trial court, in the first instance, in OS 554 / 1981, and in
the present case has proceeded on a misconception that the
defendant allottee had been conferred the entire right, title and
interest in the subject property by the BDA, in order that any decree
passed against such allottee would also bind the BDA. When it is
sought to be alleged that the defendant in the earlier suit was a privy
of the BDA and therefore any finding suffered by the privy would
bind the principal, should also be read with the qualification that the
test of res judicata is the identity of title in the two litigations and the
identity of the actual property involved in the two cases. The
defendant in the earlier proceedings was at best seeking to protect
his possession, while claiming under a lease deed executed by the
BDA. He was not competent to represent the lessor nor was in a
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position to remove any doubts created about the validity of the
acquisition proceedings, whether the recommendation by the CITB
was acted upon, withdrawn from the acquisition proceedings and
whether the acquisition proceedings had been completed in all
respects. The presumption on his part would naturally be that BDA
had valid title in putting him in possession as a lessee. He was
certainly not an agent of the BDA. It cannot hence be said that the
present suit was between the same parties or anybody claiming under
the earlier party. In so far as the BDA was concerned, the defendant
in the earlier suit may have been claiming under it, the BDA was
certainly not claiming under him. To place them on par as one
having adequately represented the other, does not stand to reason or
the law. The suit was not barred as being res judicata.
Point (b) : In order to appreciate how far the BDA can be
said to be bound by the judgment and decree in OS 554 / 1981 , it is
necessary to have an overview of the frame of suit and the reliefs
sought in the said case, the defence set up by the defendant, the
issues that arose for consideration and the findings thereon.
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The plaintiffs in the said suit claimed that property bearing sy.
no.10/17 of Jarakabandekaval, Yelahanka hobli, Bangalore North
Taluk, was coparcenary property of Chikkavenkatappa and P.
Narasimhappa. That at a partition dated 10.8.1926, is said to have
fallen to the share of Chikkavenkatappa, under whom the plaintiffs
were claiming as his widow and sons, respectively.
The pleading in so far as the acquisition proceedings and the
manner in which the plaintiffs therein were claiming to have
continued as owners thereof is best reproduced verbatim :
“4. Under a Gazette notification dated 30.4.1964
(Thirty-Four-Nineteen Sixty Four) along with the
other lands belonging to the plaintiffs the suit schedule
lands were also the subject of acquisition by the
B.D.A. but possession continued to remain with the
plaintiffs as the said Board did not disposses the
plaintiffs and as a matter of fact no compensation was
paid and it is learnt by the plaintiffs that the said Board
de-notified as on 16.1.1974 (Sixteen-One-Nineteen
Seventy Four) as a result of which the title and
possession of the lands continued to remain with the
plaintiffs and the Board ceased to have jurisdiction and
the schedule lands remain an agricultural lands “as it is
and where it was”. The Photostat copy of Gazette
30
notification is document No.6 (Six) and the
endorsement of the said Board are document Nos. 7
and 8 (Seven and Eight).”
It is further claimed that during the second week of October
1980, the plaintiffs had noticed structures having been put up by the
defendant and that there was a poultry farm and that the defendant
had occupied the land in question. That they had then learnt that he
was said to be an allottee who had been put in possession under a
Lease deed. According to the plaintiffs – this was not possible as the
acquisition proceedings had not been completed and on the other
hand, the land in question had been denotified. Hence the suit.
The reliefs claimed were, for a declaration that the plaintiffs
are the absolute owners of the suit property and for recovery of
possession and other reliefs.
The sole defendant had denied that the land in question was
de-notified or with drawn from the acquisition proceedings and
contended as follows :
“2. xxx xxx xxx It is material and very
necessary to state that after preliminary
31
notification, the matter was taken up on the
file of the Land Acquisition Officer in LAC
75/1964-65 and a final notification was issued
in No.PLM 20.MNJ 1964 dated 13.4.1964,
declaring to acquire the suit Schedule property
as required under Section 6 of the Land
Acquisition Act. The Khatedar was one
Sri Chikka Venkatappa who is no other than
the husband of the first plaintiff. After
observing all other formalities required under
the provisions of the Land Acquisition Act, an
award was passed on 7.7.1965 awarding an
amount of Rs.4226.25 ps. For the extent of 29
guntas of land as compensation. There-after
the possession of the land was taken by the
acquiring authority on 13.8.1965. From these
facts which form part of the record it is clear
that there could be no denotification of the
land acquired by the erstwhile City
Improvement Trust Board, Bangalore who had
taken possession of the property after passing
an award and the property in question
completely vested in the erstwhile City
Improvement Trust Board, Bangalore free
32
from all encumbrances. The question of
denotification does not arise and even if there
is one, it is illegal and ineffective.
3. After having passed the award
and after having taken possession of the suit
schedule property, the Land Acquisition
Officer immediately handed over possession of
the suit Schedule property to the Engineering
Department and thereafter the City
Improvement Trust Board, allotted the suit
Schedule Property in favour of the defendant
and after collecting the necessary allotment
price has delivered possession of the suit
Schedule property to the defendant as
evidenced by the Possession certificate issued
by the City Improvement Trust Board,
Bangalore is No.PRNo.19/77-78 dated
7.12.1977. Thus it makes it very clear that the
plaintiffs have absolutely no manner of right
over the suit Schedule property. The only
right that they have got is for the
compensation amount awarded by the
erstwhile City Improvement Trust Board,
Bangalore for having acquired the suit
33
Schedule property. The compensation amount
was kept in Revenue Deposit which the
plaintiffs failed to receive. The allegations that
the property continued to be in possession of
the plaintiffs is a deliberate falsehood. As
already stated above, the property was acquired
by due process of law and possession was
taken by the C.I.T.B., after passing the award.
It could not be in continuous possession of the
plaintiffs. This is invented for the purpose of
this suit.
4. The defendant submits that in
pursuance of the allotment made in his favour,
he has been put in possession and has put up
constructions on the property in question and
he cannot be prevented from putting up
further constructions. The plaintiffs have no
right whatever to question the defendant to
carry on any construction work. The plaintiffs
have deliberately come forward with this suit
making false and frivolous allegations and
attempting to course the defendant to terms if
possible. But their attempt having failed, still
they are persisting in their attempts by filing an
34
application/before this Hon’ble Court and
praying for an order of injunction, stating that
the defendant is in unlawful possession of the
property. The defendant submit that the suit is
not maintainable as the property has been
acquired and taken possession of and the relief
claimed for by the plaintiffs is not available to
them. The suit is also not maintainable as the
City Improvement Trust Board which acquired
the property and which bad allotted the same
in favour of the defendant is not made a party
which is a necessary party to the suit and the
suit is bad for non-joinder of necessary party.
The defendant submits that the plaintiffs are
not entitled to any of the reliefs claimed by
them in the plaint and the suit is liable to be
dismissed with exemplary costs.”
Of the Issues framed in the suit, Issue nos.1, 3 & 8 are
significant. The same are reproduced hereunder :
“1. Whether the plaintiff proves that
the CITB after denotification dt:16.1.74 lost
its right and title in the suit property and has
35
no jurisdiction to enter into lease-cum-sale
with the defendant and put him in possession
of the Schedule property?
3. Whether the defendant proves
that in view of the final notification and the
award passed that there could be no
denotification?
8. Is the B.D.A. a necessary party
to the suit? If so, is the suit not bad for non
joinder of necessary party?”
The trial court ultimately came to the conclusion that the
defendant failed to prove that the land in question was not
denotified. In other words, the trial court had accepted that the land
had been dropped from the acquisition proceedings on the basis of
the material produced, namely, a Resolution passed by the CITB
recommending the withdrawal from acquisition proceedings of the
said land and certain other incidental references made elsewhere.
There was, however, no formal notification, duly published in the
Gazette, forthcoming.
36
Issue no.8 , was answered thus :
“Issue No.8: Now, the question for
consideration is whether the B.D.A is a necessary
party to the suit. Admittedly, the property does
not belong to the B.D.A. I have already held that
CITB has not taken possession of this property
and it was de-notified and the property continued
to be in possession of the plaintiff. When the
ownership continued with the plaintiffs, it follows
that B.D.A. is not a necessary party to this suit.
Hence, this issue is answered accordingly.”
The suit was accordingly decreed.
In the appeal preferred against the said judgment, in RFA
73/1993 , this court held thus :
“7. Heard the respective counsel.
The only question to be decided in this appeal
is whether the plaintiff is entitled to a
declaration as prayed for?.
8. Exhibit P-13 is corrected and
revised lay out plan produced by the plaintiff
which shows that plaintiff’s property. The
question to be decided is whether the property
has been acquired and subsequently there has
37
been a de-notification?. Under Ex.D.8, the
register of lands notified and acquired for
public purposes and compensation paid
therefore, the entries as against
Chikkavenkatappa in respect of Sy.No.10/17,
there is an entry which reads as
“denotified vide
No.HMA/37/MNJ/69 dated
2.3.1970.”
Narasimhappa also in respect of the
Sy.No.10/18, there is an endorsement of
denotification having the same
No.HMA/37/MNJ/69. dated 2.3.1970.
The entire resistance of the defendants come
on the ground that the land has been acquired
and the acquired land has been handed over to
him. It is the case of the plaintiff that de-
notification has taken place and in view of the
de-notification, the defendant cannot have any
right over the same at all.
10. “The trial court gave a finding
that no possession has been taken and
therefore, the Court held that in as much as
38
there is no proof that the authorities have
taken possession of the land in question before
the issuance of notification dated 13.4.1964
and withdrawn the acquisition on 2.3.1970, the
plaintiff’s rights continues with him.” Relying
upon the above decision, it is argued that the
possession was never taken from the plaintiffs
and the plaintiffs continues to be in possession
and there is no proof forthcoming for having
been taken possession from the plaintiff.
Therefore, once the notification has been
withdrawn, the plaintiff’s right cannot be
questioned at all.”
And the appeal was dismissed.
However, in a Review Petition, this court had elaborately
discussed the material on record, and also the absence of relevant
material, in coming to a different conclusion in proceeding to recall
the judgment of dismissal and reversing the judgment and decree of
the trial court.
A Special Leave petition having been preferred before the
apex court, it was evident that the apex court, in granting leave to
39
appeal and allowing the appeal, was primarily concerned with the
propriety of the manner in which this court had proceeded in
reversing the judgment of the trial court, and not so much on the
merits of the case. This is evident from the tenor of the order. The
same is extracted hereunder for ready reference.
“O R D E R
These appeals are preferred by the plaintiff
against the judgment and order dated 8.3.2001
passed by the High Court of Karnataka in
R.F.A.No.73 of 1993 and C.P.No.683 of 1999.
The facts of this case illustrate a disquieting
feature as to how the power under Order LXVII
Rule 1 is being misused.
The plaintiffs filed a suit in 1981 for
declaration of possession. The suit was decreed by
the trial court on 25.9.1992. Aggrieved thereby the
defendants filed appeal before the High Court which
was dismissed on merits after recording a finding by
the same Judge on 7.4.1999. Plaintiffs’ Execution
Petition was allowed by the Executing Court and
warrant of delivery of possession was issued. After
the warrant of delivery of possession was issued it
appears that the defendants filed a review
application under Order LXVII Rule 1 some time
40
in August, 1999 and by the impugned order the
High Court has allowed, not only the review
application but allowed the appeal which was
already dismissed by the Court on 7.4.1999.
Order LXVII Rule 1 entitles a party who,
from the discovery of new and important matter or
evidence which, after the exercise of due diligence was
not within his knowledge or could not be produced
by him at the time when the decree was passed or
order made, or on account of some mistake or error
apparent on the face of the record, desires to obtain a
review of the decree passed or order made against
him, to apply for a review of judgment to the Court
which passed the decree or made the order.
Power of review, therefore, is limited and
confined subject to the aforesaid conditions.
In the present case the learned Judge which
dismissed the appeal of the defendants on merits on
7.4.1999 allowed the review application by
appreciating the entire evidence on record as if the
Judge was sitting as an appellate court, which is not
permissible under the law. While disposing of the
appeal the learned Judge also recorded that the land
in question was throughout in the possession of the
plaintiffs. However, in review application the same
41
finding has been reversed which is not permissible in
the review application.
Suffice it to say that in the regular appeal
the learned Judge has clearly recorded the admission
of the defendants that the land allotted to the
defendants was in Survey No.10/4. Having
recorded the finding at the admission of the
defendants, sitting in a review, the learned Judge has
also alloted the Survey No.10/17, the same land
which was alloted and was in the ownership of the
plaintiffs. The learned Judge, in our view,
committed a grave miscarriage of justice.
In the result, the appeals are allowed. The
judgment and order of the High Court under
challenge is set aside. There will be no order as to
costs.”
It is significant that the trial court had arrived at a categorical
finding that the BDA was not a necessary party to the suit. When it
was BDA that could claim as the owner of the property and the
defendant in the said suit was only a lessee in occupation with a
limited right. The lessee was hardly competent to represent the
BDA or the CITB, against whom the trial court was in effect
granting relief in favour of the plaintiffs. Any such finding which
42
had the effect of effacing the right, title and interest of the BDA , to
the property in question, without the BDA being made a party to the
suit, would not bind the BDA.
The fact that two witnesses had appeared on behalf of the
BDA to produce certain records pertaining to the suit schedule
property, in the course of the suit, cannot be construed as being akin
to the BDA having been privy to the proceedings and having been in
a position to plead its case or contest the claim of the plaintiffs.
Those witnesses were representing BDA for the limited purpose of
producing records, pursuant to a witness summons. They were not
even shown to be the authors of any of the documents so produced
and marked.
The further contention and finding that during the course of
the suit, an application in I.A. No. 3 having been contested on behalf
of the BDA and a declaration made in the pleadings thereto that
BDA was not a necessary party, did not make it any less so. It was
ultimately for the trial court to have decided whether it was so. And
a final finding in that regard having been categorically expressed, in
43
deciding Issue no.8, it cannot be said that the said judgment is
binding on the BDA.
It is also significant that CITB had ceased to exist even as on
the date of filing of the suit. Any declaration in respect of land that
was acquired in furtherance of any scheme formulated by the CITB ,
could only affect the BDA, which was the direct successor-in-
interest of the CITB and hence findings against the CITB, without
the BDA being made a party , can hardly bind it.
It is of much significance that the above aspects have never
arisen at any time in the proceedings before the trial court, this court
or the apex court.
Point (c ) : The suit in OS 554/1981 has attained finality
with the matter reaching the apex court and on disposal of the
appeals in Civil Appeal No.8901-8902/2001 by order dated
15.02.2008. The present suit having been filed immediately
thereafter, was certainly maintainable. It may be that in a
proceeding, as between parties who were before the apex court, even
if erroneous findings have been arrived at and affirmed, such parties
44
would not be in a position to re-open the matter on other and more
relevant material, albeit neither considered or brought to the
attention of the court. But that embargo would not apply to one
who was not a party to the earlier proceeding and is in a position to
demonstrate that there were legal impediments to the very
maintainability of the suit, apart from demonstrating that he is the
party actually affected. As is the BDA , in the present circumstances.
Point ( d ) : The finding against the BDA, that the suit was
barred by limitation is not tenable. The cause of action it may be
said has arisen only when the judgment and decree in OS 554 /
1981 attained finality before the apex court , as aforesaid, and hence
the suit filed immediately thereafter was in time .
A contention that a cause of action arose to the BDA
immediately on the BDA becoming aware of the controversy and
claim raised by the plaintiffs in OS 554 / 1981, may not be an
acceptable reason for the court below in having come to a
conclusion that the BDA did have such knowledge and hence ought
to have filed a suit immediately and that the suit filed in the year
45
2008 being barred by limitation is not tenable. A cause of action
arose only when the judgment and decree became final and the
possibility of the BDA being deprived of the property loomed large.
Point (e) : It is seen that the trial court , in OS 554 / 1981
proceeded on the basic premise that the suit property was denotified.
And secondly that the plaintiffs had never been divested of the
same. It is these very findings that were seemingly affirmed and are
said to have attained finality. The question whether the suit was
maintainable if the suit property was admittedly subject matter of
compulsory acquisition proceedings was never present to the mind
of the trial court or the appellate courts at any point of time.
And in spite of this want of jurisdiction having been
emphasized in the present suit, the trial court has placed heavy
reliance on the findings in the earlier proceedings and has held that
the BDA is bound by the same in dismissing the suit.
It may therefore be said that the question of want of
jurisdiction had passed sub-silentio, in the first instance and has
46
deliberately been brushed aside by the trial court in the present
proceedings.
Professor P.J. Fitzgerald, editor of the Salmond on
Jurisprudence, 12th edition, explains the concept of sub silentio at page
153 in these words:
A decision passes sub silentio, in the technical sense that has
come to be attached to that phrase, when the particular point of law
involved in the decision is not perceived by the court or present to
its mind. The court may consciously decide in favour of one party
because of point A, which it considers and pronounces upon. It
may be shown, however, that logically the court should not have
decided in favour of the particular party unless it also decided point
B in his favour; but point B was not argued or considered by the
court. In such circumstances, although point B was logically
involved in the facts and although the case had a specific outcome,
the decision is not an authority on point B. Point B is said to pass
sub silentio.
47
In Gerard v. Worth of Paris Ltd. (1936) 2 All ER 905 (CA), the
only point argued was on the question of priority of the claimant’s
debt, and, on this argument being heard, the court granted the order.
No consideration was given to the question whether a garnishee
order could properly be made on an account standing in the name of
the liquidator. When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in Lancaster Motor Co.
(London) Ltd. vs. Bremith Ltd. (1941) 1 KB 675, the court held itself not
bound by its previous decision. Sir Wilfrid Greene, M.R., said that
he could not help thinking that the point now raised had been
deliberately passed sub silentio by counsel in order that the point of
substance might be decided. He went on to say that the point had to
be decided by the earlier court before it could make the order which
it did; nevertheless, since it was decided “without argument, without
reference to the crucial words of the rule, and without any citation of
authority”, it was not binding and would not be followed.
Precedents sub silentio and without argument are of no moment. This
rule has ever since been followed. One of the chief reasons for the
48
doctrine of precedent is that a matter that has once been fully argued
and decided should not be allowed to be reopened. The weight
accorded to dicta varies with the type of dictum. Mere casual
expressions carry no weight at all. Not every passing expression of a
judge, however eminent, can be treated as an ex cathedra statement,
having the weight of authority. (See Municipal Corporation of Delhi vs.
Gurnam Kaur (1989) 1 SCC 101).
The question whether the principle of ‘incuriam’ would extend
and apply to a conclusion of law, was neither raised nor preceded by
any consideration. In other words can such conclusions be
considered as declaration of law? Here again the English courts and
jurists have carved out an exception to the rule of precedents. It has
been explained as rule of sub-silentio. “A decision passes sub-silentio, in
the technical sense that has come to be attached to that phrase,
when the particular point of law involved in the decision is not
perceived by the court or present to its mind.” (Salmond on
Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London)
Ltd. v. Bremith Ltd. (1941) 1 KB 675, the Court did not feel bound by
49
earlier decision as it was rendered ‘without any argument, without
reference to the crucial words of the rule and without any citation of
the authority’. It was approved by this Court in Municipal
Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101. The bench
held that, ‘precedents sub-silentio and without argument are of no
moment’. The courts thus have taken recourse to this principle for
relieving from injustice perpetrated by unjust precedents. A decision
which is not express and is not founded on reasons nor it proceeds
on consideration of issue cannot be deemed to be a law declared to
have a binding effect as is contemplated by Article 141. Uniformity
and consistency are core of judicial discipline. But that which
escapes in the judgment without any occasion is not ratio decidendi. In
B. Shama Rao vs. Union Territory of Pondicherry (AIR 1967 SC 1480) it
was observed, ‘it is trite to say that a decision is binding not because
of its conclusions but in regard to its ratio and the principles, laid
down therein’. Any declaration or conclusion arrived without
application of mind or preceded without any reason cannot be
deemed to be declaration of law or authority of a general nature
50
binding as a precedent. Restraint in dissenting or overruling is for
sake of stability and uniformity but rigidity beyond reasonable limits
is inimical to the growth of law.” (See State of U.P. and another vs.
Synthetics and Chemicals Ltd. and Another (1991) 4 SCC 139).
The trial court as may be seen from the tenor of the judgment
and by the extensive reference to case law, has proceeded to place
reliance on the same in affirming the findings arrived at earlier, as if
it was a court exercising writ jurisdiction, in addressing the
infirmities, if they could be so construed, in so far as the acquisition
proceedings are concerned.
The trial court has hence erred in placing reliance on the
findings arrived at earlier and in not addressing the suit by the BDA
in its proper perspective.
Consequently, these appeals are allowed . The judgment and
decree of the trial court is set aside and the suit is decreed as prayed
for.
Sd/- JUDGE
KS*
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