1

IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 09 th DAY OF MARCH 2015

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.1351 of 2009

CONNECTED WITH

REGULAR FIRST APPEAL No.46 OF 2010

IN R.F.A.No.1351/2009

BETWEEN:

Ms. Mangala Gowri, Daughter of Boga Siddaiah, Major, residing in Premises No.44, 5 th Cross, Hanumanthanagar, , Represented by power of Attorney Holder Mr. Sundare Gowda, Son of Boraiah, Aged 53 years, No.4, 5 th Cross, Hanumanthanagar, Bangalore – 560 050. … APPELLANT

(By Shri. Shyam Prasad B.M., Senior Advocate)

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AND:

1. Vishwabharathi House Building Co-operative Society Limited, #35, Ratnavilas Road, , Bangalore Represented by its President/ Executive Director Mr. B. Krishna Bhat, Son of Late B. Narayana Bhat.

2. Mr. H.Lankappa, Son of Late Hanumanthappa, No.46, New Colony, Avalahalli, GEF Post, Mysore Road, Bangalore – 560 026, Presently residing at 2156, 3 rd B Main Road, RPC Layout, Hampe Nagar, Vijayanagar, Bangalore.

3. Mrs. Nanjamma, Wife of H. Lankappa, No.46, new Colony, Avalahalli, GEF Post Mysore Road, Bangalore 560 026, Presently residing at 2156, 3rd B Main Road, RPC Layout, Hampe Nagar, Vijayanagar, Bangalore.

4. The State of Karnataka, Represented by its Secretary, 3

Home Department, , Bangalore 560 001.

5. The Circle Inspector of Police, Girinagara Police Station, , Bangalore. …RESPONDENTS

(By Shri. B.L.Sanjeev, Advocate for Respondent No.1; Shri. V.B.Shivakumar, Advocate for Respondent Nos. 2 and 3; Shri. I. Tharanatha Poojary, Government Pleader for Respondent Nos. 4 and 5;)

Impleading Applicants:

1. Sachidanandanagar-Girinagar Residents Welfare Association, By its Secretary, No.365, 60 th Feet Road, Sachidanandanagar, Bangalore.

2. Smt. Shalini V Prabhu, Aged about 54 years, Wife of Sri Vivek R Prabhu, Residing at No.994, Service Road, RPC Layout, Vijayanagar, Bangalore – 560 104.

3. Sri. H.K.Anantharam, Aged about 69 years, Son of Late Krishnaswamy Iyengar, Residing at No.52, 4

4th Main Road, A.G’s Layout, RMV Extension –II, Bangalore – 560 054.

4. Sri. K. Subramanya Bhat, Aged about 50 years, Son of Late Mahalinga Bhat K, Residing at No.5, 1st Cross, Nagappa Reddy Layout, B. Narayanapura, Bangalore – 560 016.

5. Smt. Anuradha Guptha, Wife of Mr. Subaraya Guptha, 130/A, 3 rd Cross, Road ‘E’, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore – 560 098.

6. K. Ananth Bhat, Son of Late C. Keshav Bhat, 167, 13 th Main, 5 th Sector, HSR Layout, Bangalore – 560 102.

7. T. Vishwanatha Reddy, Son of Late T. Krishna Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore – 560 076.

8. Ratnakar Hegde, Son of Gangadareshwar Hegde, 343, ‘D’ Road,2 nd Cross, Ideal Home 2 nd Phase, 5

Rajarajeshwarinagar, Bangalore – 560 098.

9. Dr. Nirmala Talkal, Wife of Amaresh Gaddi, 114, 1 st Main, 1 st Stage, 3rd Phase, West of Chord Road, Manjunathnagar, , Bangalore – 560 010.

10. A. Shantharam, Son of Kapu Naik, 7/171, 2 nd Church Street, Kollegala 571440.

11. Smt. Ranjitha Bhaskar, Wife of Ananth Bhaskar, 757, Malathi, 1 st Main, 2nd Phase, 7 th Block, BSK 3 rd Stage, Bangalore – 560 085.

12. Smt. Bhagya M Rao, Wife of Madhav Rao, 201, 5 th Cross, GKW Layout, Vijayanagar, Bangalore – 560 040.

13. Smt. V.S.Radhika, Wife of Venkataramana Bhat, 65, 1 st Main, Happy Valley, Next to Poornapragna Layout, BSK 1 st Stage, Bangalore 560 061.

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14. S.M. Veerabhadrappa, Son of Murigappa, Manjunatha Nilaya, Opposite Sai Baba Mandira, 3rd Cross, Basavanagudi, Shimoga.

15. Smt. S. Eshwari, Wife of Subarayanna, 91/A, Society, Pipeline, W.O.C. Road, Kurubara Halli, Bangalore 560 086.

16. D. Ramanarayana Reddy, Son of Suryanarayana Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore – 560 076.

17. Smt. Kamala R Bhat, Wife of SR.Bhat, 7, 2 nd Cross, Kumar Cot Layout, Kumarakrupa Layout, Madhavnagar, Bangalore – 560 001.

18. Mr. Subraja Gupta, Son of Late M.S.R.Shetty, 130/A, 3 rd Cross, Road ‘E’, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore – 560 098.

19. Smt. Lakshmi .S, 7

Wife of Late Sampath Kumar, 801, 5 th Cross, 4 th Block, , Bangalore – 560 034.

20. Smt. Srividya, Wife of K. Venkatesh, 911, Sri Bharathi Teertha Prasad, 9th Cross, SBM Colony, BSK 1 st Stage, Bangalore – 560 050.

21. Smt. Champaka Lakshmamma .K, Wife of S. Krishnamachari, 576, 2 nd Main, Mico Layout, Bangalore – 560076.

22. Smt. N.K.Kamala, Wife of Late K.S.Viswanath, 691, 21 st Main, Padmanabanagar, Bangalore – 560 070.

23. Smt. Parimala V Prasad, Wife of Venkatesh Prasad, 325, 6 th Cross, Canara Bank Layout, , Bangalore – 560 072.

24. Smt. Bhagyalakshmamma, Wife of Bhaskarachar, 5/24, 2 nd Main, 3 rd Cross, Bytrayanapura, Mysore Road, Bangalore – 560 026. 8

25. R. Suresh, Son of K. Rachaiah, 51/B, 1 st Floor, 20 th Main, 1 st Cross, Vijayanagar, Bangalore – 560 040.

26. Smt. Mamatha Rao, Wife of Nagabhushan Rao, 31, Nagendra Block, BSK 1 st Stage, Bangalore – 560 050.

27. Smt. V. Sarojamma, Wife of Govindaraju, 28, 9 th Cross, N.R.Colony, Bangalore – 560 019.

28. Nagraj G Acharya, Son of Late G Acharya, 5, 3 rd Cross, Nehru Nagar, Bangalore – 560 020.

29. G. Prabu Shankar, Son of Gurunanjaya .M, 107, 2 nd Cross, Basaveshwara Layout, Behind BTS Depot, Vijayanagar, Bangalore – 560 040.

30. H.N.Keshav Murthy, Son of HK. Narayana Murthy, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram west Post Office, 9

Bangalore – 560 055.

31. Dr. Suma Prabhu Shnakar, Wife of Prabhu Shankar, 10, 32 Cross, 9 th Main, 4th Block, Jayanagar, Bangalore 560 011.

32. Smt. Lalitha Satish, Wife of Satish, 76, 7 th Cross, Nerellu Lagere, Bangalore 560 058.

33. M. Amarnath, Son of M.M.Sundaresh, 20, 4 th Main, 5 th ‘A’ Cross, Girinagar (1 st -phase), Bangalore 560 085.

34. K.M.Shankaraya, Son of Late Madegowda, 872, 5 th Main, Kempe Gowda Road, BHEL 2 nd Stage, Rajarajeshwarinagar, Bangalore 560 095.

35. Smt. Sharada, Wife of Devaraj, 850, BSK 1 st Stage, 1st Block, Srinagar, Bangalore 560 050.

36. J.M.Paramashivan, Son of Murigappa, 106, 1 st Floor, 37/76, SVT Sriganda, 15 th Cross, 10

A.K.Layout, Annapoorneshwari Nagar, Bangalore 560 091.

37. Smt. Savitha Nagesh, Wife of Nagesh, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram West Post Office, Bangalore 560 055.

38. C.V. Seshadri, Son of C.N.Vedantachar, 64, 2 nd H Main Road, 11 th Block, Nagarbhavi, Bangalore 560 072.

39. R. Mahesh Kumar, Son of K. Rangaswamaya, 6/56, Shree Rangaswamy Nilaya, 1st Main, Adarsha Nagar, 9th Cross, Chamarajpet, Bangalore 560 018.

40. K. Damodar Naidu, Son of Late Naidu, 240/A, Anugraha, 1st ‘D’ Cross, 1 st Phase, Girinagar, Bangalore 560 085.

41. V.A.Narayana Swamy, Son of Late Appaiah Naidu, 472, 19 th Main Road, 4th ‘T’ Block, Jayanagar, Bangalore 560 041.

42. R. Harsichandrabhat, Son of Sitaram Bhat, 11

20/5, Uthare Gowda Street, Akkithimana Halli, Bangalore 560 027.

43. Smt. M.N.Roopa, Wife of Manjunatha Srivatsa, 981, 5 th Block, 66 th Cross, 18 th Main, Rajajinagar, Bangalore 560 010.

44. Chitaranjan Das, Son of V. Das, 1164, 18 th ‘B’ Main Road, J.P.Nagar, 2 nd Phase, Bangalore 560 078.

45. M. Ramamurthy, Son of M. Ananthaiah, 115, Sethavinayaka Layout, Ullal Main Road, Jnanabharathi Post, Bangalore 560 056.

46. Smt. K. Nagaratnamma, Wife of H.S.Vishwanath, 72, Haridwara, R.K.Layout, 1st Stage, 5 th Main, 7 th Cross, BSK 2 nd Stage, Bangalroe.

47. Subash Kamat, Son of S.C.Kamat, 919, Ashirvad, 5 th Cross, Vijaya Bank Colony, Bangalore.

48. Smt. K. Jayashree, 12

Wife of Sridhar Murthy, 1780, ‘B’ Block, 7 th Main, Rajajingar, Bangalore 560 010.

49. N. Nagaraj, Son of N. Narayanamurthy, 46/1, 4 th Cross, Malleshwaram, Bangalore 560 003.

50. Smt. B. Kousalya, Wife of Late B. Srinivasa .C, 9th Main, R.K.Layout, 2 nd Stage, , Bangalore 560 070.

51. Smt. Shyla Raju, Wife of Cheluvaraju, 290/B, Ideal Home Township, 12 Cross, Rajarajeshwari Nagar, Bangalore 560 095.

52. Smt. Poornima Muniraj, Wife of Muniraj, 4, 2 nd Main, Dattatreyanagar, Hosakerehalli, BSK 3 rd Stage, Bangalore.

53. Smt. Vijayakumari, Wife of Krishna, 216, 10 th Cross, BEML Layout 3 rd Stage, 4th Block, Basaveshwarnagar, Bangalore.

54. Smt. Shivamma, Wife of Nagaraj, 13

216, 10 th Cross, BEML Layout 3 rd Stage, 4th Block, Basaveshwarnagar, Bangalore.

55. Smt. Thanaraj, Daughter of Ponnaswamy, 778, 17 th ‘F’, 3 rd Main, 6th Cross, Koramangala, Bangalroe.

56. Harish, Son of A.P.Sundara, 778, 17 th ‘F’, 3 rd Main, 6th Cross, Koramangala, Bangalore.

57. B. Cheluvayya, Son of Late Narswgowda, 5/A, 1 st Cross, 2 nd Main, Bytarayanapura, Mysore Road, Bangalore.

58. Smt. Sabitha Ranga, Wife of N.R.Rangaswamy, 63, Narayanapillai Street, Bangalore 560 001.

59. Dr. K. Somanath, Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore 560 040.

60. Dr. K. Ramnath, 14

Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore 560 040.

61. P. Dwarkanath, Son of Late R. Padmanabha Rao, 28/25, 4 th Cross, K.V.Layout, Jayanagar 4 th Block, Bangalore 560 011.

62. Padmanaba Rao M.N., Son of M.V.Nagaraj Rao, Lakeshore Homes Layout, Kasavana Halli Main Road, Bangalore 560 034.

63. Rama Rao M.K., Son of Krishna Murthy, 115/A1516, 4 th Cross, Ananthappa Layout, Doreswamy Palya, Banerghatta Layout, Bangalore 560 076.

64. Kumar .K, Son of B.V.Krishna Iyer, Prashanthanagar, Vijayanagar, Bangalore.

65. Smt. M. Davalashree, Wife of Nataraj, 156/802, 20 th Cross, , Banergatha Layout, 15

Bangalore 560 076.

66. Ramesh, Son of Narayanappa, 54, 6 th Main, 3 rd Cross, Srinivasanagar, BSK 1 st Stage, Bangalore 560 050.

67. C.R.Manjunath, Son of Ramaiah, Cheenya, Nagamangala Taluk, Mandya District.

68. Smt. Bharati .B, Wife of Dr. Sanjay Patil, 165, West of Chord Road, 2nd Main, 11 th Cross, Rajajinagar, Bangalore.

69. H.S.Shivaram, Son of Srikantaiah, 1370, 2 nd Main, Krishna Murthy Puram, Mysore 560 004.

70. Smt. Vanajasatyanarayan, Wife of Satyanarayan, 605/39, Jain Temple Road, V.V.Puram, Bangalore 560 004.

71. Smt. S. Meenakshi, Wife of S.Sridharan, 39, F3, Navneeth Apartment, 7th ‘B’ Cross, NHCS Layout Plan II, 16

Govindaraja Nagar, Bangalore 560 079.

72. R.S. Ramachandran, Son of Subramaniam, 602, Maple, Godrej Woodsman Estate, Hebbal, Bangalore 560 024.

73. V. Ramachandran, Son of R. Venkataraman, 150, 6 th Block, III Stage, 3rd Phase, Bangalore 560 085.

74. Smt. V. Padvathamma, Wife of Late Jaganath, 21/D, 17 th ‘A’ Cross, 7 th Main, Malleshwaram, Bangalore 560 055.

75. M.C.Ramesh, Son of Chiksidhegowda, 45/1, 15 th Main, Muneshwara Block, Bangalore 560 026.

76. H.S.Nagaraja, Son of Srinivasa Iyer, 55, 6 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, Bangalore 560 078.

77. C.N.Krishnaswamy, Son of Narayanaiah, 1, 8 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, 17

Bangalore 560 078.

78. R. Pushpa, Daughter of Ramakrishnaiah, 34, 18 th Cross, 2 nd Main, Jainagar, Mysore.

79. Ravi, Son of M. Gowda, 813, BHEL 2 nd Phase, Rajarajeshwarinagar, Bangalore 560 095.

80. Smt. Sakku Bai, Wife of K.S.Karinika, 1st ‘H’ Main, Girinagar, 2nd Stage BSK, Bangalore 560 085.

81. S. Ramamurthy, Son of Late K.N.Shivarama Iyer, 12, 18 th Main, Malleshwaram, Bangalore 560 055.

82. Smt. Jaya S Rao, Wife of B.S.Rao, 959, 1 st ‘E’ Main, Shubamangala Apartments, Girinagar (2 nd phase), Bangalore 560 085.

[all are majors] … APPLICANTS

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Shri. Puttige R Ramesh, Advocate for impleading Applicants 1, 5 to 82 Shri. Y.K.Narayana Sharma, Advocate for impleading Applicants 2 to 4

***** This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the order dated 30.11.2009 passed in O.S.No.834/1996 on the file of the V Additional City Civil and Sessions Judge, Bangalore, decreeing the suit for permanent injunction.

IN R.F.A.No.46/2010

BETWEEN:

1. Sri. H. Lankappa, Son of Late Hanumanthappa, Aged about 74 years, Resident of No.46, New Colony, Avalahalli GEF Post, Mysore Road, Bangalore – 560 026, Presently residing at No.2156/3B, Main Road, RPC Layout, Hampinagar, Vijayanagar, Bangalore – 560 040.

2. Smt. Nanjamma, Wife of H. Lankappa, Aged about 68 years, Resident of No.46, New Colony, Avlahalli, GEF Post, Mysore Road, 19

Bangalore – 560 026. Presently residing at No.2156/3B, Main Road, RPC Layout, Hampinagar, Vijayanagar, Bangalore – 560 040. …APPELLANTS

(By Shri. V.B.Shivakumar, Advocate)

AND:

1. Vishwabharathi House Building Co-operative Society Limited, No.35, Rathnavilas Road, Basavanagudi, Bangalore – 560 004, By its Executive Director, Sri. B.Krishna Bhat, Son of Late B. Narayana Bhat.

2. The State of Karnataka, Represented by its Secretary, Home Department, Vidhana Soudha, Bangalore.

3. Smt. Mangala Gowri, Daughter of Boga Siddaiah, Major, resident of No.44, V Cross, Hanumanthanagar, Bangalore – 560 019.

4. The Circle Inspector of Police, Girinagar Police Station, Girinagar, 20

Bangalore. …RESPONDENTS

(By Shri. B.L.Sanjeev, Advocate for Respondent No.1; Shri. I. Tharanath Poojary, Government Pleader for Respondent Nos. 2 and 4 Shri. B.M.Shyam Prasad, Senior Advocate for Respondent No.3)

Impleading Applicants:

1. Sachidanandanagar-Girinagar, Residents Welfare Association, By its Secretary, No.365, 60 th Feet Road, Sachidanandanagar, Bangalroe.

2. Smt. Anuradha Guptha, Wife of Mr. Subaraya Guptha, 130/A, 3 rd Cross, Road ‘E’, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore – 560 098.

3. K. Ananth Bhat, Son of Late C. Keshav Bhat, 167, 13 th Main, 5 th Sector, HSR Layout, Bangalore – 560 102.

4. T. Vishwanatha Reddy, Son of Late T. Krishna Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, 21

Bangalore – 560 076.

5. Ratnakar Hegde, Son of Gangadareshwar Hegde, 343, ‘D’ Road,2 nd Cross, Ideal Home 2 nd Phase, Rajarajeshwarinagar, Bangalore – 560 098.

6. Dr. Nirmala Talkal, Wife of Amaresh Gaddi, 114, 1 st Main, 1 st Stage, 3rd Phase, West of Chord Road, Manjunathnagar, Rajajinagar, Bangalore – 560 010.

7. A. Shantharam, Son of Kapu Naik, 7/171, 2 nd Church Street, Kollegala 571440.

8. Smt. Ranjitha Bhaskar, Wife of Ananth Bhaskar, 757, Malathi, 1 st Main, 2nd Phase, 7 th Block, BSK 3 rd Stage, Bangalore – 560 085.

9. Smt. Bhagya M Rao, Wife of Madhav Rao, 201, 5 th Cross, GKW Layout, Vijayanagar, Bangalore – 560 040.

10. Smt. V.S.Radhika, 22

Wife of Venkataramana Bhat, 65, 1 st Main, Happy Valley, Next to Poornapragna Layout, BSK 1 st Stage, Bangalore 560 061.

11. S.M. Veerabhadrappa, Son of Murigappa, Manjunatha Nilaya, Opposite Sai Baba Mandira, 3rd Cross, Basavanagudi, Shimoga.

12. Smt. S. Eshwari, Wife of Subarayanna, 91/A, Vyalikaval Society, Pipeline, W.O.C. Road, Kurubara Halli, Bangalore 560 086.

13. D. Ramanarayana Reddy, Son of Suryanarayana Reddy, 301, Multishree Apartments, 29 th Main, 2 nd Stage, BTM Layout, Bangalore – 560 076.

14. Smt. Kamala R Bhat, Wife of SR.Bhat, 7, 2 nd Cross, Kumar Cot Layout, Kumarakrupa Layout, Madhavnagar, Bangalore – 560 001.

15. Mr. Subraja Gupta, Son of Late M.S.R.Shetty, 23

130/A, 3 rd Cross, Road ‘E’, Ideal Home 2 nd Stage, Rajarajeshwarinagar, Bangalore – 560 098.

16. Smt. Lakshmi .S, Wife of Late Sampath Kumar, 801, 5 th Cross, 4 th Block, Koramangala, Bangalore – 560 034.

17. Smt. Srividya, Wife of K. Venkatesh, 911, Sri Bharathi Teertha Prasad, 9th Cross, SBM Colony, BSK 1 st Stage, Bangalore – 560 050.

18. Smt. Champaka Lakshmamma .K, Wife of S. Krishnamachari, 576, 2 nd Main, Mico Layout, Bangalore – 560076.

19. Smt. N.K.Kamala, Wife of Late K.S.Viswanath, 691, 21 st Main, Padmanabanagar, Bangalore – 560 070.

20. Smt. Parimala V Prasad, Wife of Venkatesh Prasad, 325, 6 th Cross, Canara Bank Layout, Nagarbhavi, Bangalore – 560 072.

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21. Smt. Bhagyalakshmamma, Wife of Bhaskarachar, 5/24, 2 nd Main, 3 rd Cross, Bytrayanapura, Mysore Road, Bangalore – 560 026.

22. R. Suresh, Son of K. Rachaiah, 51/B, 1 st Floor, 20 th Main, 1 st Cross, Vijayanagar, Bangalore – 560 040.

23. Smt. Mamatha Rao, Wife of Nagabhushan Rao, 31, Nagendra Block, BSK 1 st Stage, Bangalore – 560 050.

24. Smt. V. Sarojamma, Wife of Govindaraju, 28, 9 th Cross, N.R.Colony, Bangalore – 560 019.

25. Nagraj G Acharya, Son of Late G Acharya, 5, 3 rd Cross, Nehru Nagar, Bangalore – 560 020.

26. G. Prabu Shankar, Son of Gurunanjaya .M, 107, 2 nd Cross, Basaveshwara Layout, Behind BTS Depot, Vijayanagar, Bangalore – 560 040. 25

27. H.N.Keshav Murthy, Son of HK. Narayana Murthy, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram west Post Office, Bangalore – 560 055.

28. Dr. Suma Prabhu Shnakar, Wife of Prabhu Shankar, 10, 32 Cross, 9 th Main, 4th Block, Jayanagar, Bangalore 560 011.

29. Smt. Lalitha Satish, Wife of Satish, 76, 7 th Cross, Nerellu Lagere, Bangalore 560 058.

30. M. Amarnath, Son of M.M.Sundaresh, 20, 4 th Main, 5 th ‘A’ Cross, Girinagar (1 st -phase), Bangalore 560 085.

31. K.M.Shankaraya, Son of Late Madegowda, 872, 5 th Main, Kempe Gowda Road, BHEL 2 nd Stage, Rajarajeshwarinagar, Bangalore 560 095.

32. Smt. Sharada, Wife of Devaraj, 850, BSK 1 st Stage, 1st Block, Srinagar, 26

Bangalore 560 050.

33. J.M.Paramashivan, Son of Murigappa, 106, 1 st Floor, 37/76, SVT Sriganda, 15 th Cross, A.K.Layout, Annapoorneshwari Nagar, Bangalore 560 091.

34. Smt. Savitha Nagesh, Wife of Nagesh, 430, 6 th Main, 2 nd Stage, Rajajinagar, Malleshwaram West Post Office, Bangalore 560 055.

35. C.V. Seshadri, Son of C.N.Vedantachar, 64, 2 nd H Main Road, 11 th Block, Nagarbhavi, Bangalore 560 072.

36. R. Mahesh Kumar, Son of K. Rangaswamaya, 6/56, Shree Rangaswamy Nilaya, 1st Main, Adarsha Nagar, 9th Cross, Chamarajpet, Bangalore 560 018.

37. K. Damodar Naidu, Son of Late Naidu, 240/A, Anugraha, 1st ‘D’ Cross, 1 st Phase, Girinagar, Bangalore 560 085.

38. V.A.Narayana Swamy, Son of Late Appaiah Naidu, 27

472, 19 th Main Road, 4th ‘T’ Block, Jayanagar, Bangalore 560 041.

39. R. Harsichandrabhat, Son of Sitaram Bhat, 20/5, Uthare Gowda Street, Akkithimana Halli, Bangalore 560 027.

40. Smt. M.N.Roopa, Wife of Manjunatha Srivatsa, 981, 5 th Block, 66 th Cross, 18 th Main, Rajajinagar, Bangalore 560 010.

41. Chitaranjan Das, Son of V. Das, 1164, 18 th ‘B’ Main Road, J.P.Nagar, 2 nd Phase, Bangalore 560 078.

42. M. Ramamurthy, Son of M. Ananthaiah, 115, Sethavinayaka Layout, Ullal Main Road, Jnanabharathi Post, Bangalore 560 056.

43. Smt. K. Nagaratnamma, Wife of H.S.Vishwanath, 72, Haridwara, R.K.Layout, 1st Stage, 5 th Main, 7 th Cross, BSK 2 nd Stage, Bangalroe.

44. Subash Kamat, 28

Son of S.C.Kamat, 919, Ashirvad, 5 th Cross, Vijaya Bank Colony, Bangalore.

45. Smt. K. Jayashree, Wife of Sridhar Murthy, 1780, ‘B’ Block, 7 th Main, Rajajingar, Bangalore 560 010.

46. N. Nagaraj, Son of N. Narayanamurthy, 46/1, 4 th Cross, Malleshwaram, Bangalore 560 003.

47. Smt. B. Kousalya, Wife of Late B. Srinivasa .C, 9th Main, R.K.Layout, 2 nd Stage, Padmanabhanagar, Bangalore 560 070.

48. Smt. Shyla Raju, Wife of Cheluvaraju, 290/B, Ideal Home Township, 12 Cross, Rajarajeshwari Nagar, Bangalore 560 095.

49. Smt. Poornima Muniraj, Wife of Muniraj, 4, 2 nd Main, Dattatreyanagar, Hosakerehalli, BSK 3 rd Stage, Bangalore.

50. Smt. Vijayakumari, Wife of Krishna, 216, 29

10 th Cross, BEML Layout 3 rd Stage, 4th Block, Basaveshwarnagar, Bangalore.

51. Smt. Shivamma, Wife of Nagaraj, 216, 10 th Cross, BEML Layout 3 rd Stage, 4th Block, Basaveshwarnagar, Bangalore.

52. Smt. Thanaraj, Daughter of Ponnaswamy, 778, 17 th ‘F’, 3 rd Main, 6th Cross, Koramangala, Bangalroe.

53. Harish, Son of A.P.Sundara, 778, 17 th ‘F’, 3 rd Main, 6th Cross, Koramangala, Bangalore.

54. B. Cheluvayya, Son of Late Narswgowda, 5/A, 1 st Cross, 2 nd Main, Bytarayanapura, Mysore Road, Bangalore.

55. Smt. Sabitha Ranga, Wife of N.R.Rangaswamy, 63, Narayanapillai Street, Bangalore 560 001.

56. Dr. K. Somanath, 30

Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore 560 040.

57. Dr. K. Ramnath, Son of K. Iyer, 232, 14 th Cross, M.C.Layout, Vijayanagar, Bangalore 560 040.

58. P. Dwarkanath, Son of Late R. Padmanabha Rao, 28/25, 4 th Cross, K.V.Layout, Jayanagar 4 th Block, Bangalore 560 011.

59. Padmanaba Rao M.N., Son of M.V.Nagaraj Rao, Lakeshore Homes Layout, Kasavana Halli Main Road, Bangalore 560 034.

60. Rama Rao M.K., Son of Krishna Murthy, 115/A1516, 4 th Cross, Ananthappa Layout, Doreswamy Palya, Banerghatta Layout, Bangalore 560 076.

61. Kumar .K, Son of B.V.Krishna Iyer, Prashanthanagar, Vijayanagar, Bangalore. 31

62. Smt. M. Davalashree, Wife of Nataraj, 156/802, 20 th Cross, Hulimavu, Banergatha Layout, Bangalore 560 076.

63. Ramesh, Son of Narayanappa, 54, 6 th Main, 3 rd Cross, Srinivasanagar, BSK 1 st Stage, Bangalore 560 050.

64. C.R.Manjunath, Son of Ramaiah, Cheenya, Nagamangala Taluk, Mandya District.

65. Smt. Bharati .B, Wife of Dr. Sanjay Patil, 165, West of Chord Road, 2nd Main, 11 th Cross, Rajajinagar, Bangalore.

66. H.S.Shivaram, Son of Srikantaiah, 1370, 2 nd Main, Krishna Murthy Puram, Mysore 560 004.

67. Smt. Vanajasatyanarayan, Wife of Satyanarayan, 605/39, Jain Temple Road, 32

V.V.Puram, Bangalore 560 004.

68. Smt. S. Meenakshi, Wife of S.Sridharan, 39, F3, Navneeth Apartment, 7th ‘B’ Cross, NHCS Layout Plan II, Govindaraja Nagar, Bangalore 560 079.

69. R.S. Ramachandran, Son of Subramaniam, 602, Maple, Godrej Woodsman Estate, Hebbal, Bangalore 560 024.

70. V. Ramachandran, Son of R. Venkataraman, 150, 6 th Block, Banashankari III Stage, 3rd Phase, Bangalore 560 085.

71. Smt. V. Padvathamma, Wife of Late Jaganath, 21/D, 17 th ‘A’ Cross, 7 th Main, Malleshwaram, Bangalore 560 055.

72. M.C.Ramesh, Son of Chiksidhegowda, 45/1, 15 th Main, Muneshwara Block, Bangalore 560 026.

73. H.S.Nagaraja, Son of Srinivasa Iyer, 55, 6 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, 33

Bangalore 560 078.

74. C.N.Krishnaswamy, Son of Narayanaiah, 1, 8 th Main, Gaurava Nagar, J.P.Nagar 7 th Phase, Bangalore 560 078.

75. R. Pushpa, Daughter of Ramakrishnaiah, 34, 18 th Cross, 2 nd Main, Jainagar, Mysore.

76. Ravi, Son of M. Gowda, 813, BHEL 2 nd Phase, Rajarajeshwarinagar, Bangalore 560 095.

77. Smt. Sakku Bai, Wife of K.S.Karinika, 1st ‘H’ Main, Girinagar, 2nd Stage BSK, Bangalore 560 085.

78. S. Ramamurthy, Son of Late K.N.Shivarama Iyer, 12, 18 th Main, Malleshwaram, Bangalore 560 055.

79. Smt. Jaya S Rao, Wife of B.S.Rao, 959, 1 st ‘E’ Main, Shubamangala Apartments, Girinagar (2 nd phase), 34

Bangalore 560 085.

[all are majors]

80. Smt. Shalini V Prabhu, Aged about 54 years, Wife of Sri .Vivek R Prabhu, Residing at No.994, Service Road, RPC Layout, Vijayanagar, Bangalore 560 104.

81. Sri. H.K.Anantharam, Aged about 69 years, Son of Late Krishnaswamy Iyengar, Residing at No.52, 4th Main Road, A.G’s Layout, RMV Extension – II, Bangalore 560 054.

82. Sri. K. Subramanya Bhat, Aged about 50 years, Son of Late Mahalinga Bhat .K, Residing at No.5, 1 st Cross, Nagappa Reddy Layout, B. Narayanapura, Bangalore 560 016.

… APPLICANTS

(By Shri. Puttige R Ramesh, Advocate for impleading Applicants 1 to 79 Shri.Y.K.Narayana Sharma, Advocate for impleading Applicants 80 to 82)

***** 35

This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the order dated 30.11.2009 passed in O.S.No.834/1996 on the file of the V Additional City Civil and Sessions Judge, Bangalore, decreeing the suit against the defendant nos.2 to 4 therein for permanent injunction and dismissing the suit against the defendant nos.1 and 5 therein.

These Regular First Appeals having been heard and reserved on 05.02.2015 and coming on for pronouncement of Judgment this day, the Court delivered the following:-

J U D G M E N T

The first of these appeals is by the fourth defendant and the second of these appeals is by the second and third defendants.

2. The parties are referred to by their rank before the trial court for the sake of convenience. These appeals are heard and disposed of by this common judgment.

3. The suit was filed by the Vishwabharathi House Building

Co-operative Society Ltd., a Society registered under the Karnataka

Co-operative Societies Act, 1959. The prayer was for a permanent injunction restraining the defendants from interfering with the possession of the Society in respect of lands bearing survey no.212 36

measuring 5 acres and 16 guntas and survey no. 213 measuring 5 acres and 30 guntas, of Halagevaderahalli, hobli, Bangalore

South Taluk. It was asserted by the plaintiff that the owners of the said lands, Sarasamma and Chikkathayamma had executed an agreements of sale dated 12.1.1984, along with other documents, such as affidavits dated 21.3.1984 and 30.1.1984 and a General

Power of Attorney, dated 21.3.1984 and had delivered possession of the above properties to the plaintiff.

It was alleged that one Lankappa, defendant no.2 and one

Nanjamma, Defendant no. 3, started asserting title over the same.

In the meanwhile as the State of Karnataka, defendant no.1 had initiated acquisition proceedings in respect of the lands in question, for the benefit of the plaintiff, it was claimed that the plaintiff had paid certain amounts of money to defendants 2 and 3, who according to the plaintiff, had consented to the acquisition proceedings.

The plaintiff is said to have prepared a layout plan and is said to have submitted the same to the Bangalore Development 37

Authority (BDA), for approval. Since the same had not been processed by the BDA, the plaintiff claimed that there was a deemed approval of the plan, in terms of Section 32(8) of the Bangalore

Development Authority Act, 1976 (Hereinafter referred to as the

‘BDA Act’, for brevity). The plaintiff is then said to have commenced formation of the layout. The BDA is said to have taken exception and is said to have filed a suit in O.S.1373/1982, before the City Civil Court, Bangalore. Though there was said to be an order of temporary injunction granted in the first instance – it was said to have been stayed by this court in an appeal in MFA

809/1995. This, according to the plaintiff, paved the way for formation of roads and sites and other infrastructure pertaining to the V Phase of the layout formed by the plaintiff, including on the suit schedule properties. The plaintiff claimed to have invested more than Rs.5 crore in that regard, by the time the suit was filed.

It was the case of the plaintiff that it was at this juncture, one

Mangala Gowri, defendant no.4, the appellant in the first of these 38

appeals, sought to interfere with the lands in question. And hence the suit.

The said defendant no.4 is said to have resisted the suit contending that Sarasamma, was the owner of land bearing survey no.212, suit Schedule ‘A’ property and Chikkathayamma was the owner of land bearing survey no. 213, suit Schedule ‘B’ property and that they had transferred the properties to defendant nos.2 and 3, under sale deeds dated 10.10.1984, respectively. That those defendants had in turn entered into sale agreements with her and had put her in possession of the properties in part performance of the agreements and she was even compelled to file suits for specific performance against the said defendants, in O.S.Nos.10086 and

10087 of 1996 before the City Civil Court, Bangalore, which had been decreed in her favour. On the other hand, the documents relied upon by the plaintiff never conferred title on the plaintiff and were executory in nature. On a plain examination of the documents, it would indicate that the same were executed in favour one Krishna

Bhat and not in favour of the plaintiff - Society. Hence the claim of 39

the plaintiff of having conveyed title to any portions of the suit schedule properties was without any substance as it never had any right to make such conveyances.

On the basis of the above pleadings, the trial court had framed the following issues :

“1. Whether the plaintiff proves that the schedule properties are in its lawful possession and enjoyment? 2. Whether the plaintiff proves interference? 3. What relief and decree the parties are entitled for?”

The same were answered in the affirmative and the suit having been decreed in favour of the plaintiff, the present appeals are filed.

4. The second of these appeals is filed by defendants no.2 and

3, supporting the case of defendant no.4, while alleging that the plaintiff had created certain nebulous documents to claim the suit properties.

5. The learned Senior Advocate Shri B.M.Shyamprasad, appearing for the counsel for the appellant in the first of these 40

appeals and Shri V.B. Shivakumar, appearing for the appellants in the second of these appeals would commonly canvass the following:

It is highlighted that the plaintiff had placed reliance on certain agreements of sale, affidavits and powers of attorney, that were executed in favour of the alleged executive director of the plaintiff - Society and not the plaintiff. Hence, this glaring circumstance had been glossed over in proceeding on the footing that the plaintiff had discharged the burden of proving its case.

It is contended that significantly, the Society was not placing reliance on any title deed to claim lawful possession of the suit property.

It is also canvassed that the plaintiff - Society could not hold agricultural land as there was a statutory bar to the same and hence reliance placed on time barred sale agreements was wholly illegal and contrary to public policy. Therefore, the approach of the trial court in holding that the plaintiff - society had established its possession of the suit property is illegal and cannot be sustained. 41

It is also pointed out that defendants 2 and 3 had purchased the properties in question under registered sale deeds, which were not challenged at any point of time, and not at all by the plaintiff - society, and hence possession could not be claimed over the suit property. Further, by virtue of the sale deeds, mutation entries as well as the record of rights had been effected in favour of the defendants and hence, there was a presumptive value in favour of the defendants 2 and 3, under whom defendant no.4 was claiming.

It is also pointed out that the criminal cases initiated by the original owners, Chikkathayamma and Sarasamma as well as defendants 2 and 3 had resulted in the police filing a ‘B’ report and hence the sale deeds executed in favour of the appellant had become final .

The suit property being vacant land, it is the settled position of law that the plaintiff can establish possession only on the basis of title deeds, which the plaintiff admittedly, did not possess and hence the suit ought to have been dismissed. 42

6. The learned counsel for the respondent - plaintiff, Shri

B.L.Sanjeev and also the learned counsel for several members of the plaintiff – Society, who had sought to implead themselves as parties to the proceedings, Shri Puttige R. Ramesh and Shri Y.K.Sharma, were heard. They have only sought to justify the judgment of the trial court, apart from drawing attention to legal principles, on which their possession through the plaintiff was to be protected.

The reason for permitting the proposed respondents to participate in these proceedings, though their application to implead themselves was not decided, was that the Society presently is said to be under the supervision of an Administrator, and there was no elected managing body – and the learned counsel Shri Sanjeev had hence pleaded his handicap in not having been fully instructed. And on this court finding that the appeals were virtually uncontested, the audience afforded to the counsel for the proposed respondents was hence in advancement of justice and no serious objection was taken by the counsel for the appellants either. 43

On a close perusal of the record and on a consideration of the contentions canvassed and the several authorities cited by the counsel for the parties, the first thought that strikes one is whether the parties should have been permitted to go to trial at all, having regard to the tenor of the pleadings and the involved manner in which the plaintiff was seeking to assert its right to possession and the basis thereof. In that, the main issue on which the parties went to trial in the suit, as regards the lawful possession of the plaintiff, had generated voluminous evidentiary material, both relevant and irrelevant. This, in itself, was an indication that there was a serious dispute as to the manner in which the plaintiff was claiming a right to possession in the suit properties. Admittedly, the title deeds in respect of the suit schedule properties stood in favour of the appellant-defendant no.4, as on the date of the suit. The validity or otherwise of the same was not in issue and could not also have been considered in the suit. It was certainly a case where the parties ought to have been relegated to a comprehensive suit. 44

It is therefore curious as to how the trial court has arrived at a finding in favour of the plaintiff in respect of the main issue, notwithstanding the serious dispute as regards title to the property.

7. From a perusal of the judgment, the reasoning of the trial court, in answering the issue in the affirmative could be summarized thus :

After reiterating the rival contentions of the parties at paragraphs 1 to 9, the trial court has embarked on its reasoning from paragraph 10. It is concluded that the suit properties were no longer agricultural lands and that sites had been formed on the lands by the

Society. That it did not matter whether it was on a deemed approval of the BDA or on a sanction of the layout plan by the

Pattangere Village Panchayath, as per Exhibits P.40 or P.41, respectively, which according to the trial court, was irrelevant. This position, it is held by the trial court, was evident with effect from the year 1993, as is established by the said documents.

The execution of documents in favour of one Krishna Bhat by defendants 2 and 3, could not be disbelieved, for the reason that 45

there was evidence to indicate that Krishna Bhat and defendant no.2 were colleagues working together in the ITI Ltd., Bangalore and were not strangers. Secondly, the several documents executed in favour of Bhat were sought to be only after a period of ten years. In that, Exhibit P-66, a General Power of Attorney dated 23.8.1985 , in respect of the suit properties is sought to be denied under Exhibit

D-15 , a notice issued by Defendant no.2, only as on 18.4.1995.

Inspite of the continued physical possession of the Society of the lands in question since the year 1975, after having paid the entire consideration amount to the land owners, and the admission by defendant no.2 in Exhibit P-66, the General Power of Attorney executed by him in favour of the predecessor-in-interest of the plaintiff - society, the sale deed in respect of the suit properties was executed in favour of defendants 2 and 3, due to unavoidable circumstances and that they were holding the property on behalf of the Society. In the face of the said intention of defendant no.2, as expressed therein, it was not open to defendant no.2 to have issued the notice at Exhibit D-15, ten years later seeking to deny the 46

transaction. The trial court has then categorically declared that the sale deeds in favour of defendants 2 and 3 were indeed for and on behalf of the plaintiff. This is further fortified by the fact that the vendors under the sale deeds in favour of Defendants 2 and 3 have received payments from the plaintiff, as evidenced by Exhibits P-47 to 49.

It is held that in so far as the formation of the layout by the plaintiff is concerned, though the BDA had filed a suit against the plaintiff, questioning its activity on the suit property, the same had not been pursued, as the suit property had, by operation of law, come within the jurisdiction of a Notified Area Committee and was hence without the jurisdiction of the BDA . The layout plan having been approved by the Pattanagere Grama Panchayath was sufficient to enable the plaintiff to develop the residential layout. There was proof of formation of house sites thereafter, as PW-2 and PW-3 had produced sale deeds executed by the Society in respect of such sites, as per Exhibits P-76 and P-77. It is found by the trial court, that 47

defendant no.2 himself has purchased a site as per Exhibit P-44, dated 5.2.1992.

It is held that the formation of such sites is evident even from the execution proceedings initiated by the appellant - fourth defendant, pursuant to the decree for specific performance of the agreements of sale, said to have been executed by defendants 2 and

3 in her favour, obtained in the civil suits in O.S.Nos.10086 and

10087 of 1996, since execution is taken out in respect of ten house sites and not agricultural land. It was never the case of the defendants that sites had been formed by them on the agricultural land . Whereas it was evident from the material on record that the suit properties were not under cultivation from the year 1993. The

V Phase of the layout said to have been formed by the plaintiff was provided with electricity connection by the concerned authorities and the said area included the suit properties.

It is found that defendants 2 and 3 had executed agreements of sale dated 25.7.1987, Exhibits P-33 and P-35, respectively, in favour of the fourth defendant, in respect of the suit schedule 48

properties. And much prior to the execution of the said deeds, defendants 2 and 3 had executed the General Power of Attorney dated 23.8.1985 and had admitted the possession of the suit properties having been delivered to the plaintiff. Therefore, the trial court has held that they were not acting bona fide . And further that the alleged possession of the lands handed over to defendant no.4 was only as on 25/26.12.-1992 on receiving full payment of the sale consideration. Thus, the trial court has concluded that the plaintiff

- society was in firm possession of the suit properties, as evidenced by Exhibits P-9, P-66 and P-44. Though the trial court goes on to hold that the claim of the plaintiff – to title to the property cannot be accepted – as contended by it, with reference to Exhibits P-1 to

P-8, the trial court was of the opinion that in a suit for injunction, title to the suit property is not very material and that if it is able to establish its possession even otherwise than on title deeds, the plaintiff would be entitled to the relief of injunction.

In so far as the incidental proceedings for acquisition of lands for the formation of the layout, in anticipation of which, the plaintiff 49

- Society had ventured into the present transactions, are concerned, were found to have been dropped and though the plaintiff had pursued the revival of the same unsuccessfully. In this regard, the trial court holds that it made no difference as the plaintiff was not precluded from acquiring the property on its own.

It is held that the General Power of Attorney dated 23.8.1995, would override the sale deed if any executed in favour of defendants

2 and 3 and also the further transfer in favour of defendant no.4.

With regard to the plaintiff not having taken any further steps pursuant to Exhibits P-1 to P-8 to have the transaction completed by seeking conveyance of the suit properties through registered sale deeds, the trial court has opined that the plaintiff had no knowledge of the transfer made in favour of defendants 2 and 3. It is only on learning about the same, that a notice was issued to defendants 2 and

3 as per Exhibit P-10. However, in view of the continued possession of the plaintiff having been established, any such transactions were not significant. 50

The trial court has accepted the proposition canvassed by the plaintiff that even if title to the suit property could not be made out, it could protect its possessory right, with reference to the following authorities :

1. M.Kallappa Shetty vs. M.V.Lakshminarayana Rao, AIR 1972

SC 2299

2. Kallappa Rama Londa vs. Shivappa Nagappa Aparaj and others,

AIR 1995 Kar.238,

3. P.Fatesh Ahamed Saheb vs. Sandur Usman Saheb, ILR 1997

Kar.999.

The trial court has accordingly held that the plaintiff had established its possession over the suit properties.

The trial court has found a case for the plaintiff on a conjoint reading of the following documents:

a. Agreement dated 28.3.1975, Exhibit P-9, which is a deed executed by H. Lankappa, the second defendant in favour of the

Writers and Artists House Building Co-operative Society Ltd., as the plaintiff - society was earlier known. The second defendant has 51

agreed thereunder to transact the purchase of lands described therein, including the suit schedule properties, from the respective land owners, for the benefit of the Society and to surrender the lands in favour of the society after exemption was granted by the Urban

Land Ceiling Authorities or after the State government initiated acquisition proceedings in respect of those lands for the benefit of the Society. This document is without any preamble or indicating the background in which it is executed. There is no apparent consideration indicated.

b. A General Power of Attorney executed by H. Lankappa in favour of the plaintiff - society, dated 23.8.1985, Exhibit P-66 with the following recitals :

“Whereas the schedule property clearly described hereunder originally belonged to one Smt.Sarasamma and Smt.Chikkathayamma, both are residents of Halagevadeyarahalli village, Kengeri Hobli, Bangalore South Taluk. During the year 1975 when we have discussed with the first person Sri Lankappa regarding the formation of Sachchidananda Nagar Layout, in and around the area of Halagevadeyarahalli, I, Lankappa, have agreed to make available agricultural lands for the layout from land owners 52

and on 28.03.1975 first person Lankappa also executed a Memorandum of Understanding for Sale Agreement. That the schedule property was also within the limit of your Layout Sketch. I secured these two items of properties to society from the original owners on 15.04.1975, after oral agreement and the original owners also delivered the possession to you by receiving token advance. Thereafter, on 12.01.1984 I secured an agreement of sale from Smt.Sarasamma and Smt.Chikkathayamma in respect of the schedule properties in favour of society. Whereas we, the first parties H.Lankappa and Nanjamma have purchased the schedule properties from Smt.Sarasamma and Smt.Chikkathayamma under two registered sale deeds. Due to unavoidable circumstances, instead of getting the said sale deeds registered in favour of society and even though the society is in actual physical possession of the lands ever since 1975 and the entire consideration amount has been paid by the society to the land owners through me, the schedule lands were registered in favour of myself and my wife. The payment made by the society from time to time duly acknowledge and agreements of sale with the original owners were also entered into for and on behalf of the society. The society is the absolute owner in actual possession and enjoyment of the property; but the Revenue records pertaining to both items of properties, stand in our name in view of the registered sale deeds. We also took part in formation of the Layout in the interest of society and its 53

members and due to personal problems. We are not able to be available to the society for its requirements in the formation of the Layout as and when required. Hence, we are executing this Power of Attorney conferring the following powers on the holder society.”

c. Sale deed dated 5.2.1992 executed by the plaintiff - society in favour of the second defendant in respect of a site no.109 formed in lands, including the suit properties. The following recital in the sale deed may be pertinent :

“Whereas the vendor society is the absolute owner in possession and enjoyment of the area called the 5 th Phase of VIshwabharathi Housing Complex measuring about 63 acres in survey Nos.212, 213, 216, 233, 233/1, 234, 235, 236, 237/1A, 237/1B, 237/2, 238, 239, 240, 241 and 242/2 of Halagevaderahalli, Kengeri Hobli, Bangalore South Taluk, duly deemed urbanized and classified and Residential area in the Comprehensive Development Plan prepared by the Planning Authority and approved by the Government of Karnataka vide Order No.HUD3/55p83/84-85 dated 12.10.1984 and in view of the judgments of the Hon’ble High Court of Karnataka in Writ Petition No.7910/86 dated 08.03.1990 and Writ Appeal No.1844/90 dated 27.11.1991 and formed in the said layout.”

54

It is accepted by the trial court that the plaintiff - society was not in a position to acquire and hold agricultural land and hence an arrangement was made between the Executive Director of the plaintiff - Society one Krishna Bhat and the second defendant, who were said to have been erstwhile co-workers at the ITI Industries

Ltd., who were good friends – till they fell out later, for the said second defendant along with his wife - the third defendant, to hold the lands sought to be purchased from land owners as described in the above agreement at Exhibit P-9, till such time the plaintiff was in a position to hold the lands in question in its own name.

And this arrangement is further evidenced by the execution of

Exhibits P-1 to P-4 and Exhibits P-5 to P-8, in respect of the

Schedule –A and B properties, respectively. Namely, an agreement of sale dated 12.1.1984, executed by one Sarasamma, the erstwhile owner of suit Schedule –A land, in favour of Krishna Bhat (Exhibit

P-1), two affidavits by the said Sarasamma, dated 21.3.1984 and

30.1.1994 (Exhibits P-2 and P-3, respectively), wherein it is declared that the entire sale consideration in respect of the property had been 55

received and that the property was unencumbered and would be available for a formal transfer in favour of the plaintiff. A general power of attorney dated 21.3.1984 (Exhibit P-4) executed by the said seller, in favour of Krishna Bhat, with absolute right to deal with the property in any manner.

Similar is the documentation made at Exhibits P-5 to P-8, by

Chikkathayamma, the erstwhile owner of Schedule – B lands in favour of Krishna Bhat.

Even according to the trial court, Exhibits P-1 to P-8 , cannot be cited as documents conferring title to the properties, on the

Society. The court however, has concluded that the plaintiff has established its long possession pursuant to the above documents and hence such possession is to be protected.

On the other hand, defendant no.4 was claiming under registered sale deeds in respect of the suit properties, said to have been executed pursuant to enforcement of agreements of sale said to have been executed by defendants 2 and 3 in her favour. It was hence not sufficient if the plaintiff merely claimed possession of the 56

suit properties, it was necessary also to examine whether the plaintiff could claim to have lawfully entered into such possession. The above documents relied upon by the plaintiff cannot be readily sustained as affording a right to the plaintiff – society, to claim possession over the suit properties. Except Exhibit P-66, none of the above documents are executed in favour of the plaintiff - society. There is no indication as to when the suit properties were conveyed in favour of the Society, to enable it to convey the same to third-parties. In so far as Exhibit P-66 is concerned it candidly discloses a benami transaction, whereby the second defendant admits to having acquired the suit properties for and on behalf of the Society , in his own name, with funds provided by the Society.

Such a transaction is illegal and is incapable of enforcement in view of the provisions of the Benami Transactions (Prohibition) Act,

1988. There is no pleading or proof to claim that the transaction would be saved under Section 6 of the said Act. No suit could be entertained to enforce any right under such a transaction. This aspect of the matter however, has neither occurred to the defendants 57

or to the trial court and no such point has even been suggested any where in the record. In any event, it cannot be said that the manner in which the plaintiff claims to have come into possession of the suit property is evident from any of the documents above referred, which have found favour with the trial court. As already stated, the very exercise of embarking on a detailed examination of the respective claim to title of the parties was itself an error committed by the trial court.

There is no doubt that some material evidence has been brought on record to indicate that the plaintiff has carried out developmental activity pertaining to formation of house sites and provision of infrastructure on the suit property. But the same has been carried out at the plaintiff’s own risk and intermittently, without having any semblance of title over the property. The property does remain as vacant land, even if portions of it have been alienated by the plaintiff in favour of third-parties, including in favour of the second defendant, as per Exhibit P-44. 58

The following observations of the Apex court in the case of

Anathulla Sudhakar v. P.Buchi Reddy , AIR 2008 SC 2033 , is relevant in considering whether the plaintiff was entitled to the relief of permanent injunction :

“13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit though it may arise incidentally or collaterally.

14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to 59

examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.”

The Apex Court, while summarising the legal position, with regard to suits for prohibitory injunction relating to immovable property has further held thus:

“(a) Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with 60

reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar, 2005 AIR SCW 3516. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in a suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or 61

tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

The trial court, however, has placed reliance on three decisions to conclude that the question of title to the property would not be material in deciding on possession of a party to the disputed property. This proposition is not sound and would not apply to the case on hand, with reference to those decided cases, as seen presently.

In the first of the cases namely, M. Kalappa Setty v. MV

Lakshminarayana Rao , supra, the appeal before the apex court arose out of a suit, where the plaintiff had sought for a declaration of title and permanent injunction. It was not a suit for permanent injunction, simpliciter. As stated in Anathulla Sudhakar’s case, the scope and approach of the court in the two kinds of cases would be different and cannot be equated. 62

In Kallappa Rama Londa v. Shivappa Nagappa Aparaj, supra, there were two suits filed, one for the relief of permanent injunction and another for a declaration of title and permanent injunction. The same were clubbed and tried together. Hence, that was also not a case of a suit for permanent injunction, simpliciter.

In Fatesh Ahamed Saheb v. Sandur Usman Saheb, supra, again it was a suit for a declaration of title and permanent injunction.

Therefore, the trial court was not justified in relying on findings in the above cases to sustain the proposition of law put forth.

In so far as the several persons, who claim to have purchased sites formed in the layout, said to have been formed in the suit schedule properties are concerned, they are hardly in a position to support the case of the plaintiff. The contractual relationship between the Society and the erstwhile land owners on the one hand and the defendants 2 and 3 on the other, being vague and unclear and may even prove to be illegal, any conveyances made in their favour of portions of the suit schedule property, can only be subject 63

matter of independent proceedings and is not capable of being urged and addressed in the present proceedings.

Elaborate arguments were canvassed to urge that the judgment of the trial court could be sustained on the following propositions namely :

A person in peaceful possession is entitled to retain his possession and in order to protect such possession, he may even use reasonable force to keep out a trespasser. A rightful owner, who has been wrongfully dispossessed of land, may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take law in to his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in to his own hands. 64

The doctrine of part performance embodied in Section 53- A of the Transfer of Property Act, 1882, is also sought to be pressed into service in claiming protection of their possession.

These and other grounds, which may be available to any persons, who may be exercising settled possession over any portion of the suit properties, which is a question of fact to be established, can certainly be urged in appropriate proceedings. There is no scope to consider the same in the present proceeding. Hence, the applications I.A.1/2013, I.A.2/2013 and I.A.1/2014 in

R.F.A.No.1351/2009 and the applications I.A.1/2013, I.A.1/2014 and I.A.2/2014 in R.F.A.No.46/2010 are rejected.

The appeals are hence allowed and the judgment and decree of the trial court is set aside. The suit of the plaintiff is dismissed.

Sd/- JUDGE

nv*