TaxTMI 
TaxTMI 
2015 (6) TMI 1233
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....ion proceedings 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-m-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, 1988, (Hereinafter referred to as 'the MLA Act', for brevity). Ac....
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....tiffs 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the absolute owners of the very same suit property as was involved in the present suit, in view of the State having withdrawn from the acquisition proceedings, as claimed by the plaintiffs therein.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 decreed in favour of Mumyamma 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 t....
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....ial 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 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-m - 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 B....
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....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? 5. To what deem 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 p....
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....m 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. 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 contain....
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.... 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 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 for....
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....ded 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 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 p....
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....s the said Board did not disposes 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 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 ....
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....ation 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 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 submi....
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...., 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 plaintiffs property. The question to be decided is whether the property has been acquired and subsequently there has been a denotification?. 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 find....
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.... 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 finding has been reversed which is not permissible in the review application. ....
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....y 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 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 main....
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....ty 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. In Gerard v. Worth of Paris Ltd. (1936) 2 AllER 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 ord....