Karnataka High Court
Sri Krishnappa vs The Bengaluru Development Authority on 17 March, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 310 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 310 OF 2024 (INJ)
BETWEEN:
1. SRI KRISHNAPPA
AGED ABOUT 60 YEARS,
S/O LATE SIDDAPPA AND
SMT THIMMAKKA
RESIDING AT SY.NO.30/2
NAGARABAVI 2nd STAGE,
BENGALURU 560 072
MOBILE NO. 9880653789
2. SRI. M GANGARAJU
AGED ABOUT 66 YEARS,
S/O LATE MALLAIAH
R/AT SITE NO.4
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
Digitally BENGALURU 560 072
signed by
LEELAVATHI 3. SMT. SHANTHA KUMARI S
SR AGED ABOUT 38 YEARS,
Location: W/O S NARAYANA,
High Court of R/AT SITE NO.1A
Karnataka CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
4. SMT. LATHA
AGED ABOUT 34 YEARS,
WO HUCCHE GOWDA,
R/AT SITE NO.1A,
R/AT SITE NO. 3/2
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RFA No. 310 of 2024
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
5. SRI. N K SHIVAKUMAR
AGED ABOUT 33 YEARS,
S/O S KRISHNAPPA
R/AT SITE NO.1A,
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
6. SMT. NAGAMMA
AGED ABOUT 49 YEARS,
W/O S KRISHNAPPA
R/AT SITE NO.1B AND 1D
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
7. SMT. SOWBHAGYA
AGED ABOUT 59 YEARS,
W/O P THIPPE RUDRAPPA,
R/AT SITE NO.6
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
...APPELLANTS
(BY SRI. B M SIDDAPPA, ADVOCATE FOR A1 TO A7)
AND:
1. THE BENGALURU DEVELOPMENT AUTHORITY
SANKEY ROAD, KUMARA PARK WEST,
BENGALURU 560 020
REPRESENTED BY ITS COMMISSIONER
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RFA No. 310 of 2024
2. SRI. C M SOMSHEKHAR
AGED ABOUT 64 YEARS,
S/O LATE C B MEGHA NAIK
R/AT SITE NO.3
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
3. SRI. B ESYA NAIK
AGED ABOUT 68 YEARS,
S/O LATE KRISHNA NAIK,
R/AT SITE NO.3
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 07
4. SRI. T PRAHALAD
AGED ABOUT 37 YEARS,
S/O THIPPE SWAMI
R/AT SITE NO.3/2
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
5. SMT. M K NAGAMANI
AGED ABOUT 65 YEARS,
W/O K N NAGE GOWDA,
R/AT SITE NOS. 1A AND 1B
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
6. SRI. MALLIKARJUNA
AGED ABOUT 35 YEARS,
S/O LATE S RAMACHANDRAPPA AND
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RFA No. 310 of 2024
LATE SMT. CHIKKAMMA
R/AT SITE NO. 1A, 1B, 1C, 1D
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
7. SMT. HUCHAMMA
AGED ABOUT 58 YEARS,
W/O G B NANJAPPA,
R/AT SITE NO.2
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
8. SMT. SUNANDA
AGED ABOUT 60 YEARS,
W/O LATE N R RAJANNA,
R/AT SITE NO.3/1
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
9. SRI. S PANNALAL
AGED ABOUT 53 YEARS,
S/O SHESHARAM G
R/AT SITE NO.1
CARVED OUT OF SY.NO.30/2
KRISHNAPPA GARDEN,
80 FEET RING ROAD,
NAGARBHAVI 2nd STAGE,
BENGALURU 560 072
...RESPONDENTS
(BY SRI. K. KRISHNA, ADVOCATE FOR R1
NOTICE TO R2 TO R9 IS DISPENSED WITH V/O DTD 19.3.2024)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE ORDER DATED 25.10.2023 PASSED ON I.A.IN
OS.NO.26321/2020 ON THE FILE OF THE XXVIII ADDITIONAL CITY
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RFA No. 310 of 2024
CIVIL JUDGE, MAYO HALL, BANGALORE, ALLOWING THE I.A. FILED
UNDER ORDER VII RULE 11(d) R/W SEC.151 OF CPC FOR
REJECTION OF PLAINT AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
1. This Appeal by the unsuccessful plaintiff in O.S.
No.26321/2020 is directed against the impugned order passed on
I.A.1/2023 culminating in the impugned judgment and decree dated
25.10.2023 passed by the XXVIII Addl. City Civil Judge, Mayohall
Unit, Bengaluru whereby the said application on I.A.1/2023 filed by
the respondent-BDA under Order VII Rule 11(d) of Code of Civil
Procedure, 19081 was allowed whereby resulting in the trial Court
rejecting the plaint and consequently dismissing the suit as barred
by res judicata
2. Heard learned counsel appellants and learned counsel for
the BDA and perused the material on record.
3. A perusal of the material on record will indicate that the
appellant-plaintiffs instituted the aforesaid suit against the
1
Hereinafter referred to as the ‘CPC‘
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respondents-defendants for permanent injunction and other reliefs
in relation to the suit schedule immovable properties. According to
the appellants-plaintiffs, they are purchasers on various portions of
the suit schedule bearing old Sy.No.30 new survey No.30/2
situated at Nagarabhavi Village, Yashavanthapura Hobli,
Bengaluru North Taluk, measuring 1 acre 11 guntas out of a total
extent of 4 acres 16 guntas now coming within the limits of BBMP,
Krishnappa Garden, 18 feet ring road, Nagarabhavi 2nd Stage,
Bengaluru-72 as described in the schedule to the plaint. The said
suit was opposed by the respondent-BDA who not only filed the
written statement disputing and denying the various claims and
contentions urged by the appellant appellant-plaintiff but also filed
an application under Order VII Rule 11(d) of CPC inter alia
contending that the dispute between the predecessor in title of the
appellant and the BDA had culminated in order dated 26.08.2019
passed in Civil Appeal No.3600/2001 by the Hon’ble Supreme
Court in the case of M/s. Vinayaka House Co-operative Society
Limited V/s State of Karnataka and others reported in AIR
2019 SCC 4473 and consequently, the present suit by persons
claiming through the unsuccessful parties in the said earlier round
of litigation was barred by res judicata and the plaint was liable to
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be rejected in the present case. The said application was opposed
by the appellant-plaintiff who reiterated that the subject mater of
dispute before the Apex Court was 3 acres 5 guntas while the
subject matter of the present suit was an extent of land measuring
1 acre 11 guntas falling outside of 3 acres 5 guntas and which
was not the subject matter of the earlier round of litigation and as
such, the matter requires trial and the plaint could not have been
rejected as barred by res judicata.
4. After hearing the parties, the trial Court proceeded to reject
the plaint by primarily/heavily placing reliance upon the judgment
of the Apex and thereby came to the conclusion that the appellant-
plaintiff did not have any manner of right, title and interest or
possession over the suit schedule properties and that the plaint
was liable to be dismissed.
5. Aggrieved by the impugned order, resulting in the impugned
judgment and decree dismissing the suit of the appellants-plaintiffs
are before this Court by way of present appeal.
6. In addition to reiterating the various contentions urged in the
memorandum of appeal and referring to the material on record,
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learned counsel for the appellant invited my attention to the plaint
averments in order to point out that the appellant had not the
suppressed the earlier round of litigation culminating in the
aforesaid judgment of the Apex Court. In this context, it is
submitted that it is the specific contention of the appellants-plaintiffs
that the subject matter of dispute in the earlier round of litigation
was restricted to 03 acres 5 guntas while the appellants-plaintiffs
were purchasers of land in an extent of 1 acre 11 guntas which
fell outside the subject matter of dispute in the earlier round of
litigation and consequently the appellants-plaintiffs being in lawful
and peaceful possession and enjoyment of their respective portions
in the remaining extent of 1 acre 11 guntas, they were entitled to
decree for permanent injunction.
7. It is submitted that the Trial Court has committed a grave
and serious error in placing reliance only upon the earlier round of
litigation which culminated before the Apex Court in order to reject
the plaint and consequently dismissed the suit by passing the
impugned order which deserves to be set aside.
8. Per contra, learned counsel for the respondent-BDA submits
that in the light of the judgment of the Apex Court in the case of
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M/s.Vinayaka House Co-operative Society Limited (supra) the
claim of the appellants-plaintiffs is barred by res-judicata and that
the entire land measuring 6 acres 1 gunta including the suit
schedule property measuring 1 acre 11 guntas had already been
acquired by the State Government for the benefit of Vinayaka
House Building Co-operative Society Limited and consequently, the
Trial Court was fully justified in passing the impugned order
rejecting the plaint and consequently dismissing the suit and as
such, there is no merit in the appeal and the same is liable to be
dismissed.
9. The only point that arises for consideration in the appeal is
as to whether the Trial Court was justified in rejecting the plaint of
the appellants-plaintiffs as barred by res judicata?
10. Before adverting to the contentions, it would be necessary to
refer to the judgment of the Apex Court in the earlier round of
litigation, wherein it was held as under:
“Bangalore was a beautiful city — once”, said Justice O.
Chinnappa Reddy, in one of his judgments of the year 1987 (B.K.
Srinivasan v. State of Karnataka [B.K. Srinivasan v. State of
Karnataka, (1987) 1 SCC 658] ). He went on to say : (SCC p.
661, para 1)
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RFA No. 310 of 2024“1. … It was a city with magic and charm, with elegant avenues,
gorgeous flowers, lovely gardens and plentiful spaces. Not now.
That was before the invasion of concrete and steel, of soot and
smoke, of high rise and the fast buck. Gone are the flowers, gone
are the trees, gone are the avenues, gone are the spaces…..”
Indeed, Bangalore was a beautiful city. It had luscious gardens,
beautiful lakes, well-laid roads, plenty of open spaces and
wonderful weather throughout the year. It was one of the most
beautiful cities in the country. It was rightly called the “Garden
City” and a “Pensioner’s Paradise”. These are things of the past.
The city’s environment is degraded so much and so fast that the
time will not be far away for us to say “once upon a time
Bangalore was a beautiful city”. Traffic jams, overcrowding,
haphazard constructions, dying lakes, destruction of the flora,
shrinking of lung spaces, etc. have become the order of the day.
Its clear cool foggy air has turned into grey smoke and brown
dust. All this has happened in the name of development. Of
course, the development in today’s time comes at a cost that the
city of Bangalore has very dearly paid. What is lost has already
been lost and no amount of work or effort can bring back the
glorious garden days of Bangalore. The only thing that can be
done and must be done is to at least wake up now, meticulously
plan and develop the city in order to maintain whatever little is left
of the old Bangalore City and develop the ever-growing city on
the broad lines of the glorious days of the past.
2. Keeping the above in mind as a blueprint, let us come to the
facts of this case
3. The appellant is a society registered under the Karnataka
Cooperative Societies Act, 1959, with the objective of inter alia
acquiring lands for formation of house sites and for distributing
the same to its members. The appellant had requested the State
Government to acquire an extent of 100 acres of land in
Nagarabhavi Village, Yeswanthapura Hobli, Bangalore. In the
year 1982, the State Government accorded sanction for initiation
of proceedings for acquisition of 78 acres 16 guntas of land for
the benefit of the appellant. It appears that even before the
initiation of acquisition proceedings, Vijayanagar Industrial
Workers Housing Cooperative Society Ltd. had approached the
appellant with a representation that it had already entered into an
agreement dated 6-11-1982 with Respondent 3 to purchase the
entire extent in Survey No. 30, of which she claimed to be the
owner. Accordingly, the said society requested the appellant to
withdraw its request for acquisition of the said land. This is
evident from the agreement at Annexure P-1 entered into
between the third respondent and the said society. Under the
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said agreement, out of the total sale consideration of Rs 50,000
per acre, Respondent No. 3 had received a sum of Rs 25,500
and had parted with possession of the land in favour of the said
society and stated that she had no objection to the land being
acquired by the State Government.
4. In compliance with the procedure prescribed under Chapter VII
of the Land Acquisition Act, 1894 (for short “the LA Act“), the
State Government executed an agreement at Annexure P-2,
undertaking to acquire land in favour of the appellant which
included Sy. No. 30 measuring 5 acres 33 guntas and 8 guntas of
pot kharab land. On 16-1-1985, Notification under Section 4(1) of
the LA Act was issued proposing to acquire the required extent of
land including Sy. No. 30. An enquiry under Section 5-A of the LA
Act was conducted and a report was submitted to the State
Government recommending acquisition.
5. The State Government, having accepted the recommendation,
issued a declaration under Section 6(1) of the LA Act on 4-3-
1986, to the effect that several extent of land including Sy. No. 30
was needed for the public purpose of the appellant Society.
6. The third respondent, claiming to be the owner of an extent 4
acres 16 guntas of land in Sy. No. 30, filed WP No. 12566 of
1986 before the High Court of Karnataka questioning the
notifications issued under Sections 4(1) and 6(1) of the LA Act
and obtained an interim order dated 8-7-1986 staying
dispossession. Acquisition was challenged on the ground that the
third respondent was not issued with any notice; that no enquiry
was held; and that acquisition was not for public purpose.
7. Subsequently, awards were passed which were approved by
the State Government. In respect of Sy. No. 30, an award was
passed fixing compensation at the rate of Rs 45,000 per acre.
The Land Acquisition Officer in terms of his letter dated 6-4-1987
(Annexure P-5) called upon the appellant to deposit Rs 19,76,948
including the general award amount, in compliance whereof the
appellant has deposited the amount.
8. The third respondent made a representation as per Annexure
P-6 dated 26-8-1990 to the State Government for withdrawing the
acquisition proceedings in respect of 3 acres 5 guntas of land in
Sy. No. 30 (hereafter referred to as “disputed property”). The
representation of Respondent No.3 stated that she had sold the
land in Sy. No. 30 long back. The purchasers of the sites had
come forward to construct the houses on the sites which was
objected to by the Land Acquisition Officer and the appellant. It
was also contended that she had sold the sites as she had to
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maintain her family as her children were unemployed and that
she had to perform the marriages of her sons and daughters.
9. The High Court by its order dated 22-2-1991 dismissed the writ
petition by rejecting all the contentions of Respondent 3.
10. Soon after the dismissal of the writ petition, Respondent 3
claiming to be the owner of 4 acres 16 guntas of land in Sy. No.
30, again filed WP No. 5558 of 1991 before the High Court
questioning the award determining the market value of the
acquired land. On 12-3-1991, the High Court granted an interim
order staying the dispossession. The State Government delivered
possession of the land acquired in terms of the official
memorandum dated 13-10-1992/14-10-1992 to an extent of 68
acres 17 guntas to the appellant. The extent delivered to the
appellant included 1 acre 25 guntas in Sy. No. 30 out of total
extent 6 acres 1 gunta. Balance of disputed land measuring 4
acres 10 guntas in Sy. No. 30 which formed subject-matter of
interim order of stay in WP No. 5558 of 1991 was not delivered to
the appellant.
11. The High Court by order dated 15-7-1998 [Thimmakka v.
State of Karnataka, 1998 SCC OnLine Kar 390 : ILR 1999 Kar
793] dismissed the writ petition WP No. 5558 of 1991 by
imposing a cost of Rs 2000 on the ground that the appellant
having suffered an order in WP No. 12566 of 1986, ought not to
have filed another writ petition for the same relief. Respondent 3
challenged this order in intra-court appeal before the Division
Bench of the High Court in WA No. 4245 of 1998.
12. In spite of dismissal of WP No. 12566 of 1986 and WP No.
5558 of 1991 rejecting the challenge made by Respondent 3 to
the acquisition, the State Government issued a withdrawal
Notification dated 19-8-1998 under Section 48 of the LA Act in
respect of the disputed property, even without affording an
opportunity of being heard to the appellant. The appellant
challenged this order by filing Writ Petition No. 26558 of 1998
before the High Court.
13. Writ Appeal No. 4245 of 1998 filed by Respondent 3 came to
be dismissed by the Division Bench in terms of the order dated
18-11-1998 [Thimmakka v. State of Karnataka, 1998 SCC
OnLine Kar 989] , thereby confirming the order in Thimmakka v.
State of Karnataka [Thimmakka v. State of Karnataka, 1998 SCC
OnLine Kar 390 : ILR 1999 Kar 793] . On the same day i.e. 18-
11-1998 [Vinayaka House Building Coop. Society Ltd. v. State,
WP No. 26558 of 1998, order dated 18-11-1998 (Kar)] , the High
Court allowed WP No. 26558 of 1998 filed by the appellant on the
ground that the appellant had not been heard in the matter before
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issuing the notification under Section 48 of the LA Act and the
matter was remitted to the State Government for reconsideration
after affording opportunity to the appellant. It was directed that
until the time the State Government took fresh decision, the
status quo as regards possession and nature of the property
would be maintained.
14. Respondent 3 had only sought de-notification of the disputed
property i.e. 3 acres and 5 guntas in Sy. No. 30. However, even
out of the balance 2 acres and 36 guntas, only 1 acre 25 guntas
had been handed over to the appellant. Accordingly, after
dismissal of the writ appeal WA No. 4245 of 1998 filed by
Respondent.No.3, the appellant requested the State Government
to deliver possession of further 1 acre 11 guntas in Sy. No. 30
which did not form part of the request made by Respondent No.3
for de-notification. The State Government having failed to act, the
appellant filed WP No. 2592 of 1999 before the High Court for
necessary direction. The High Court in terms of the order dated
2-2-1999 [Vinayaka House Building Coop. Society Ltd. v. State of
Karnataka, 1999 SCC OnLine Kar 712] allowed the said writ
petition directing the State Government to hand over possession
of 1 acre 11 guntas of land to the appellant and accordingly
possession of the said extent was handed over to the appellant.
Thus, a total extent of 2 acres 36 guntas of land was handed over
to the appellant out of 5 acres 33 guntas. The review petition filed
by Respondent.No. 3 seeking review of the order dated 2-2-1999
in Vinayaka House Building Coop. Society Ltd. v. State of
Karnataka [Vinayaka House Building Coop. Society Ltd. v. State
of Karnataka, 1999 SCC OnLine Kar 712] was dismissed
[Thimmakka v. Vinayaka House Building Coop. Society Ltd.,
1999 SCC OnLine Kar 711] by the High Court imposing costs of
Rs 2500 with the following observations : (Thimmakka case
[Thimmakka v. Vinayaka House Building Coop. Society Ltd.,
1999 SCC OnLine Kar 711] , SCC OnLine Kar para 5)
“5. Thus it is clear that a clever attempt is being attempted to be
made by the petitioner to get over an order of this Court by
creating an impression that the petitioner has attempted
suppression of fact and has practised fraud. On the contrary, it is
clear that the petitioner is playing fraud on this by means of
representing that 1 acre 11 guntas of land restored to the first
respondent form part of the property, claimed by the petitioner.
This is a clear misrepresentation. I am of the opinion that this writ
petition is totally misconceived and is made with oblique motive.
Accordingly this revision petition is dismissed with costs of Rs
2500 payable to the first respondent.”
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15. After lapse of about 5 years of the order dated 18-11-1998 in
Vinayaka House Building Coop. Society Ltd. v. State [Vinayaka
House Building Coop. Society Ltd. v. State, WP No. 26558 of
1998, order dated 18-11-1998 (Kar)] , in terms whereof the
notification under Section 48 of the LA Act in respect of the
disputed property had been quashed, the State Government
issued notice to the appellant regarding its proposal to de-notify
the land. On 28-8-2003, the appellant filed detailed statement of
objections to the proposed de-notification of the acquired land.
Ignoring objection raised by the appellant, the State Government
proceeded to pass an order deciding to withdraw the aforesaid
land measuring 3 acres 5 guntas in Sy. No. 30.
16. Being aggrieved by the Government Order dated 27-12-2003
and the consequential Notification dated 12-1-2004 issued under
Section 48 of the LA Act, the appellant approached the learned
Single Judge of the High Court by filing WP No. 4912 of 2004.
The learned Single Judge dismissed the writ petition on 8-3-2004
[Vinayaka House Building Coop. Society Ltd. v. State of
Karnataka, 2004 SCC OnLine Kar 657] and the writ appeal filed
by the appellant in Writ Appeal No. 2583 of 2004 challenging the
said order has been dismissed by the Division Bench on 7-8-
2008 [Vinayaka House Building Coop. Society Ltd. v. State of
Karnataka, Writ Appeal No. 2583 of 2004, order dated 7-8-2008
(Kar)] . The appellant has called in question the legality and
correctness of the said order in this appeal.
17. We have heard Mr Basava Prabhu Patil, learned Senior
Advocate for the appellant, Mr Joseph Aristotle S., for
Respondents 1 and 2 and Mr Huzefa Ahmadi, learned Senior
Advocate for Respondent 3.
18. Mr Patil, learned Senior Counsel, submits that the first
respondent has exercised the power under Section 48(1) of the
LA Act in an arbitrary and whimsical manner. The order
prejudicially affects the interest of the appellant. The exercise of
power lacks bona fides and suffers from vice of arbitrariness. It is
further submitted that the disputed property forms an integral part
of the layout formed by the appellant. A portion of the disputed
property is reserved for civic amenities. If the land in question is
de-notified, it will have adverse impact on the planned
development of the layout leading to public inconvenience. It is
further submitted that the individual interest of Respondent.No.3
cannot come in the way of larger public interest. It is also
submitted that according to the third respondent, she had already
sold 1/3rd of 3.5 acres to the third parties by a registered sale
deed on 28-5-1992. According to her representation, the
purchaser has already formed sites in disputed property. She
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cannot maintain an application under Section 48(1) of the LA Act
for de-notification of the land already sold. Having failed in her
challenge to the acquisition proceedings, she could not have
maintained the application for de-notification. Section 48(1) was
basically meant for the State Government to de-notify the land
from acquisition when it is not possible to acquire the said land
and not meant for the owners, particularly when lands are being
acquired for public purpose.
19. On the other hand, learned advocates appearing for the
respondents have sought to justify the impugned order. Mr
Ahmadi, learned Senior Counsel, appearing for the third
respondent submits that the appellant society is not a bona fide
housing society. It is submitted that there was no bar for the third
respondent to maintain an application for de-notification under
Section 48(1) of the LA Act even though her writ petition
challenging the acquisition proceedings has ended in dismissal.
Taking into account the hardship suffered by the third
respondent, the State Government has de-notified the land in her
favour. Accordingly, the third respondent prays for dismissal of
the appeal.
20. We have carefully considered the submissions of the learned
counsel made at the Bar.
21. Section 48 of the LA Act corresponds to Section 54 of the old
Act 10 of 1870. For ready reference, Section 54 of the old Act is
as under:
“54. Government not bound to complete acquisition.–Except
in the case provided for in Section 44, nothing in this Act shall be
taken to compel the Government to complete the acquisition of
any land unless an award shall have been made or a reference
directed under the provisions hereinbefore contained.
Compensation when acquisition is not completed.–But
whenever the Government declines to complete any acquisition,
the Collector shall determine the amount of compensation due for
the damage (if any) done to such land under Section 4 or Section
8 and not already paid for under Section 5, and shall pay such
amount to the person injured.”
22. Section 54 of the old Act gave power to the Government for
withdrawal of the land which it has proposed to acquire. This
power had to be exercised before the award is made. This was
causing great hardship to the Government. The reasons for re-
enacting the said provision in the LA Act of 1894 can be gathered
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from the preliminary report of the Select Committee dated 2-2-
1893, which is as under:
“Section 54 of the Act (10 of 1870) gives to the Government or
the public bodies whom it represents the power of withdrawal
from land it has proposed to acquire. This power, however, must
be exercised before the award is made. After award, withdrawal
is prohibited whatever may be the circumstances. Experience
has shown that the only occasion on which powers of withdrawal,
would be really useful are when an award has shown that the
Government was seriously misled by an underestimate of the
value of the land. A case has been reported in which a
municipality has been nearly ruined by being compelled to
proceed with an acquisition in which the award was inordinately
in excess of the original valuation. We think, therefore, that power
to withdraw should be given after, as well as before, the award,
but that, if so exercised, it should only be on terms of the most
liberal compensation to the owner and that, if he is dissatisfied
with the Collector’s offer, he should have the same rights of
reference to the Judge as in case of acquisition”.
(emphasis supplied)
23. The Select Committee in its second report dated 23-3-1893
has given certain clarifications, which are as under:
“We have altered the terms of the first clause of Section 48,
which gives certain powers to the Government to withdraw from a
contemplated acquisition of land so as to make it clear that this
withdrawal may be made at any time before possession is taken
but not afterwards. Instances were quoted in our preliminary
report in which the Collector was proved by the Judge’s award to
have been seriously misled as to the value of the land and in
which the Government would not have acquired the land had it
received a correct appraisement. We think, that a Government
which provides compensation from the taxes of the Empire
should have larger powers of withdrawal than are given by the
present Act, but we are of opinion that no such power should be
given after possession has once been taken and that each Local
Government must protect itself by executive instructions to
Collectors to refrain from taking possession until after the award
of the Judge, in every case in which there is a material difference
between the Collector and the owner as to the value of the
property.”
(emphasis supplied)
24. Section 48 of the LA Act, 1894 is as under:
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RFA No. 310 of 2024“48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed.–(1)
Except in the case provided for in Section 36, the Government
shall be at liberty to withdraw from the acquisition of any land of
which possession has not been taken.
(2) Whenever the Government withdraws from any such
acquisition, the Collector shall determine the amount of
compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings thereunder, and
shall pay such amount to the person interested, together with all
costs reasonably incurred by him in the prosecution of the
proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may
be, to the determination of the compensation payable under this
section.”
25. It is clear that an important change was affected in law in
1894 by enactment of this section. Under the previous Act, the
Government could not withdraw from the acquisition after an
award had been made or a reference directed. This was causing
hardship in cases where the land turned out to be more valuable
than the acquisition was worth. The difficulty has been removed
by fixing the bar at the taking of possession, an act which can be
indefinitely postponed to meet the occasion. When possession
under Section 16 of the LA Act is not taken, the Government can
withdraw from acquisition and the person interested would be
entitled to compensation for the damage suffered in consequence
of the acquisition proceedings and also to such costs of the
proceedings as reasonably incurred by him. Section 48, however,
will have no application when once the land has vested in the
Government under Section 16 of the LA Act.
26. The two reports referred to above indicate that the liberty to
withdraw from acquisition under Section 48(1) of the LA Act was
made available prior to taking possession of the land in order to
curtail payment of exorbitant award amount in cases where it was
no longer possible for the Government to effectuate the intended
purpose of acquisition.
27. In LAO v. Godrej & Boyce [LAO v. Godrej & Boyce, (1988) 1
SCC 50] , this Court was considering the de-notification of land
before taking its possession. In this case, the Government had
intended to acquire vast piece of land for construction of houses
by the State Housing Board but this land had been overrun by
slum dwellers to such an extent that it was no longer possible for
the Government to effectuate the intended purpose of acquisition.
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It was observed that the State Government was not responsible
for the occupation of land by trespassers. Therefore, the State
Government cannot be compelled to go ahead with the
acquisition when the purpose of such acquisition could not be
achieved. In this regard, it is beneficial to note the observations of
the Supreme Court : (Godrej & Boyce case [LAO v. Godrej &
Boyce, (1988) 1 SCC 50] , SCC p. 56, para 6)
“6. … Where slum dwellers on a large scale occupy pieces of
land, social and human problems of such magnitude arise that it
is virtually impossible for municipalities, and no mean task even
for the Government, to get the lands vacated. If the Government
is reluctant to go ahead with the acquisition in view of these
genuine difficulties, it can hardly be blamed. We see no
justification to direct the Government to acquire the land and
embark on such a venture. We are also of the opinion that the
fact that the Government exercised the power of withdrawal after
the writ petition was filed does not spell mala fides once the
existence of circumstances, which, in our opinion, justified the
Government’s decision to withdraw, is acknowledged.”
28. It is thus clear that sub-section (1) of Section 48 of the LA Act
empowers the Government to withdraw from acquisition
proceedings of the land of which possession has not been taken.
It is further provided that when the Government withdraws from
acquisition, the Collector shall determine the amount of
compensation due for the damages suffered by the owner in
consequence of notice or proceedings thereunder. A combined
reading of sub-section (1) and sub-section (2) of Section 48 of
the LA Act makes it clear that the purpose of Section 48 was
mainly to ensure that the State Government is not compelled to
acquire the land when the acquisition ceases to be beneficial for
the intended purpose. That is why, sub-section (2) of Section 48
provides for payment of compensation to the owner, whose land
was notified for acquisition but not acquired for the reason that
such an acquisition is against the public interest and public
revenue.
29. However, from the language employed in sub-section (1) of
Section 48, it can also be inferred that there is no bar to de-notify
the land from acquisition at the request of the landowners. We
are of the view that when an application is made for de-
notification of the land, the Government has to consider the same
with great care and caution. The Government has to consider the
application keeping in mind the subservience of public interest
because the lands are being acquired for public purpose. The
Government should not exercise this power in an arbitrary and
whimsical manner. The decision of withdrawal from acquisition
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RFA No. 310 of 2024
should be bona fide and backed by valid reasons. It is settled that
the Government could not withdraw land from acquisition without
giving the beneficiary of acquisition an opportunity of being
heard. (See : State Govt. Houseless Harijan Employees’ Assn. v.
State of Karnataka [State Govt. Houseless Harijan Employees’
Assn. v. State of Karnataka, (2001) 1 SCC 610] .)
30. It is also necessary to emphasise here the need to have
planned development of the city and the importance of planning
schemes and the ill effects of de-notification of the land from the
approved scheme/plan. Town planning schemes are made for
the immediate need of the community. Town planning is meant
for planned development of certain local areas in order to make
utilities and facilities available to the general public. Planned
development of the city is a sine qua non for its health and
growth, given the rapid increase in population of the city on
account of influx of thousands of people from other parts of the
country.
31. The Karnataka Town and Country Planning Act, 1961 (for
short “the Planning Act”) and the Bangalore Development Act,
1976 (for short “the BDA Act“) play an important role in the
planned development of the city of Bangalore. The Planning Act
was enacted by the State Legislature for the regulation of
planned growth of land use and development and for executing
town planning schemes in the State of Karnataka. The Planning
Act has created a planning authority which has been given power
to check, survey and locate the area for development by
declaring it as a planning area. It also provides for preparation of
master plan for development of the city after carrying out the
survey of the area within its jurisdiction. The zoning regulations
are made from time to time, classifying the land use in the
planning area.
32. The State Legislature has enacted the BDA Act for the
establishment of a development authority for the development of
city of Bangalore and areas adjacent thereto and for matters
connected therewith. The State Government has constituted
Bangalore Development Authority to effectuate the purpose of
the BDA Act. This authority is a planning authority for the city of
Bangalore. The main object of the BDA Act is planned
development of the city of Bangalore and to check haphazard
and irregular growth of the city. BDA is the sole authority which
draws the schemes for formation layouts within the Bangalore
metropolitan area. This Act envisages development of two types
of layouts. The first is formation of a layout by BDA itself. For this
purpose, BDA has to draw a development scheme. The
particulars to be provided in the development scheme are
enumerated in Section 16 of BDA Act. The development scheme
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made by BDA provides for acquisition of the land, laying and
relaying of all or any land including the construction and
reconstruction of buildings, formation and alteration of the streets,
provision for drainage, water supply, electricity, reservation of not
less than 15% of the area of the layout for public purpose and
playground and an additional area of not less than 10% of the
total area of the layout for civic amenities. Section 18 of the BDA
Act provides for sanction of the scheme submitted by BDA. After
acquisition, the State Government vests the acquired land with
BDA for formation of a layout strictly in accordance with the
sanctioned scheme.
33. The second type of layout under the BDA Act is a private
layout. Section 32 of the BDA Act provides for formation of
private layouts. If any person intends to form an extension or a
layout, he has to make a written application with a plan to the
Commissioner, BDA under sub-section (2) of Section 32. The
said plan has to contain laying out sites of the area, reservation
of land for open spaces, the intended level, direction and width of
the street, street alignment and the building line and the
proposed sites abutting streets, the arrangement for levelling,
paving, metalling, flagging, channelling, sewering, draining,
conserving and lighting the streets and for adequate drinking
water supply. A private layout cannot be formed without the
approval of the layout plan by the Commissioner, BDA and such
layout has to be formed strictly in accordance with the approved
plan. While forming the layout, BDA or a private individual or a
society, as the case may be, cannot deviate from the sanctioned
scheme or the approved layout plan.
34. It has come to the notice of this Court that of late the State
Government has been de-notifying the lands acquired for public
purpose for the benefit of the authorities like BDA or other urban
development authorities and for the formation of private housing
layouts, adversely affecting the planned development of the city
of Bangalore and other cities in the State of Karnataka. The
instant case is a classic example where the power has been
blatantly misused ignoring larger public interest.
35. As noticed above, the State Government had accorded
sanction for initiation of acquisition proceedings for the benefit of
the appellant in the year 1982 itself. The State Government
executed the agreement in the month of August 1984,
undertaking to acquire 78 acres 16 guntas of land in favour of the
appellant, including the land in Sy. No. 30 belonging to the third
respondent. Notifications under Sections 4(1) and 6(1) of the LA
Act were issued and possession was taken except the disputed
land to an extent of 3 acres 5 guntas.
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36. The approved layout plan was issued by the Government in
compliance with the provisions of the BDA Act and the Planning
Act. The layout plan produced by the appellant at Annexure P-13
would indicate that meticulous planning has been undertaken for
planned development of the layout. The plan also indicates that
lands have been reserved for civic amenities, open spaces and
also for roads. The width of the street and its alignment, the
building line and the proposed sites abutting the streets, have
been perfectly drawn.
37. The appellant has contended that the disputed property falls
in the middle of the layout. However, the third respondent has
contended that the disputed property is situated in the southern
end of the layout. Whether the disputed property falls in the
middle of the layout or in the southern end makes no difference
so long as it is within the layout. It is also clear from the materials
on record that a portion of the disputed property has been
earmarked as a civic amenity and the remaining portion abutting
the street has been proposed for residential sites. If the order of
de-notification is allowed to stand, the very object of the planned
development of the layout would be lost. There will be shortage
of civic amenity sites in the layout and it would no longer be
possible to set the street alignment and the building line as per
the approved plan. This will have adverse impact on the planned
development of the layout leading to public inconvenience. It will
nullify the object and the purpose for which the Planning Act and
the BDA Act have been enacted by the legislature.
38. Experience has shown us that the lands are being de-notified
before taking possession or dropped from acquisition before the
issuance of declaration by the Government are mostly at the
instance of land mafias in connivance with influential persons;
political or otherwise. These lands are generally situated within
the layouts in major cities and specially in Bangalore City. After
de-notification, multi-storied complexes come up on these lands
comprising of large number of residential and non-residential
units. This has a direct impact on the existing infrastructure
consisting of water supply, sewerage and lighting. Similarly, the
traffic movement facility suffers unbearable burden and is often
thrown out of gear because the original scheme/layout plan did
not envisage construction of these complexes. The civic
amenities provided in the original layout plan were in proportion
to the development proposed in the scheme/plan. The
purchasers of residential sites, who wish to have a roof over their
heads, fall prey to the designs of unscrupulous land mafias. We
may not hesitate to add that irreparable damage has already
been done to many layouts in Bangalore and in other places by
allowing construction of multi-storied buildings within the layouts.
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RFA No. 310 of 2024
39. We are of the considered view that the Government should
refrain from de-notifying or dropping any land being acquired for
the formation of a layout, under Section 48 of the LA Act or under
any other law. The courts should also be very strict while
considering the plea of the landowners seeking de-notification of
the lands which are being acquired or quashing of the notification
on the ground of lapsing of the scheme or on any other grounds
in respect of the acquired lands for the formation of the layout. It
has to be kept in mind that private interest always stands
subordinated to the public good.
40. It is also to be noted here that the area reserved for civic
amenity should not be diverted for any other purpose other than
the purpose for which it was reserved in the sanctioned scheme
or the approved layout plan. The plan for building in the layout
should be sanctioned strictly in accordance with the building bye-
laws. If a site is earmarked for residential purpose, no plan
should be sanctioned for construction of a non-residential
building at such site. The construction on the sites by the
allottees should be made in accordance with the plan sanctioned
by the competent authority.
41. It is no doubt true that right to build on one’s own land is a
right incidental to the ownership of the land. This right has been
regulated in the interest of the community residing within the
limits of the city in general and the layout in particular. This has to
be strictly implemented for the planned development of the city. If
it is not controlled, it will have tremendous burden on the
infrastructure available in the layout.
42. We are of the view that Section 14-A of the Planning Act,
which empowers the Planning Authority to grant permission for
change of land use or development, has no application to the
lands acquired under Sections 17 to 19 of the BDA Act for the
implementation of the scheme or the layout approved under
Section 32 of the said Act. The position is similar even in respect
of the other Development Authorities in the State of Karnataka.
43. We make it clear that henceforth, the planning/development
authorities in the State of Karnataka, including BDA shall not
permit change of land use within the layout formed by BDA or a
private layout formed under Section 32 of the BDA Act or the
layout formed by any other authority contrary to the scheme
sanctioned by the State Government or the layout plan approved
by the competent authority. BDA or the other
planning/development authorities shall not venture to alter the
sanctioned scheme/approved layout plan in any manner. BDA
and the other planning/development authorities, Bruhat
Bangalore City Municipal Corporation, Bangalore, or any other
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RFA No. 310 of 2024
authorities in the State of Karnataka authorised to sanction the
plan for construction of the buildings shall not sanction any plan
for construction contrary to the sanctioned scheme/approved
layout plan. The sites reserved for parks, playgrounds or for
providing other amenities shall be used strictly for the purpose for
which they were reserved. Be it noted that violation of any of
these directions by the authorities will be viewed strictly.
44. It is also hereby clarified that if de-notified lands or the lands
dropped from acquisition before the issuance of the declaration
under the BDA Act or any other law are available within the BDA
layout or the private layout approved by BDA or the layout formed
by any urban development authorities in the State of Karnataka,
the said lands shall be utilised strictly in accordance with the land
utilisation proposed in the scheme/approved layout plan. Hence,
building permission or the sanctioned plans to build on these
lands shall not be issued by any authorities contrary to the land
utilisation proposed in the scheme/approved layout plan.
45. Now, let us focus on the conduct of the third respondent who
had managed to obtain an order of de-notification. It is clear from
the materials on record that even prior to the issuance of
preliminary notification, M/s Vijayanagar Industrial Workers
Housing Cooperative Society Ltd. had entered into an agreement
on 6-11-1982 with the third respondent to purchase the land in
question. In fact, the third respondent had also received partial
compensation from the said society. She has challenged the
acquisition proceedings thereafter by filing writ petition in WP No.
12566 of 1986. During the pendency of this case, she filed a
representation dated 26-9-1990, requesting the State
Government to withdraw from acquisition of the said land. In the
said representation, it was contended that she had sold the said
land long back for the purpose of collecting funds to perform the
marriage of her children and that she had divided the sale
proceeds amongst her children. It was also contended that
pursuant to the sale, the purchaser had come forward to
construct houses and the Land Acquisition Officer and the
appellant had objected to the same. On the said ground, she had
sought de-notification of the land after the dismissal of WP No.
12566 of 1986. Therefore, the Land Acquisition Officer passed an
award. She filed the second writ petition challenging the
acquisition proceedings in WP No. 5558 of 1991, which was
rightly dismissed by the High Court and intra-court appeal filed by
her challenging the said order was also dismissed by the Division
Bench. It is obvious that in the said cases, she had raised the
grounds which had been raised by her in her representation
seeking de-notification of the disputed property.
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RFA No. 310 of 2024
46. The appellant has opposed the proposal for de-notification by
filing detailed objections as per Annexure P-12. The conduct of
third respondent in filing case after case for quashing the
notification issued by the State Government for acquisition of the
land has been brought to the notice of the Government. It was
also stated that since the lands have been notified for acquisition
for a public purpose, namely, for the formation of a layout, a
portion of the said land cannot be de-notified as it will adversely
affect the layout, causing public inconvenience. The first
respondent, without adverting any of these contentions, has
passed an order of de-notification. We are of the view that the
said order has been passed without application of mind and it is
arbitrary in nature.
47. In this appeal, the fourth respondent has filed an application
contending that he had purchased certain extent of land out of
the disputed property. In support of his contentions he has
produced sale deed dated 27-5-1992 executed by the third
respondent in favour of his vendor, Smt P.N. Kanthanna. In fact,
the third respondent in her statement of objections filed in this
appeal has admitted having sold the land. However, it is pleaded
that de-notification of the land is necessary in order to convey
better title in favour of the purchasers. It is stated as under:
“23. The contention that this respondent has no subsisting
interest in the land in question as she has sold the land is totally
false. This respondent has to convey better title in favour of the
purchasers and therefore her request to denotify the land is not
tainted with any mala fides. As stated earlier, this respondent has
sold certain land to sustain herself and her family.”
48. Since the third respondent has already sold certain portion of
the land, she could not have maintained the application for de-
notification of the said portion of the land as she has no
subsisting interest in the said land. We are also of the view that
even the subsequent purchaser of the land cannot seek de-
notification of the land from acquisition as his sale deed is void.
49. We have also noticed that the State Government has been
de-notifying the lands under Section 48(1) of the Act for the past
10-15 years and allegations have been made that these orders
have been passed with ulterior motives. We are of the view that
the State Government has to reconsider all these orders and take
corrective steps in case it is found that such orders have been
passed in violation of the law. Perpetuation of illegality has to be
ceased, desisted and deterred at any cost.
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50. Mr Ahmadi, learned Senior Counsel, submits that the
appellant is not a bona fide housing society and that 90% of its
members are not eligible to become its members and that they
are not entitled for allotment of sites from the appellant. It is not
possible to consider these contentions of Mr Ahmadi in this
appeal. However, if the third respondent has any grievance in
relation to the bona fides of the society, she may lodge a suitable
complaint before the competent authority. If such complaint is
filed, we direct the authority concerned to consider the same in
accordance with law.
51. A contention has also been raised by the third respondent
that the appellant society has sold sites meant for civic amenities
illegally to various persons and the show-cause notice has been
issued by the competent authority in this regard. The third
respondent has produced the notices issued by Pattangere City
Municipal Council, Bangalore dated 8-7-1998 at R-18 which is as
under:
“Annexure R-18
Pattanagere City Municipal Council
Bangalore, Dated 8-7-1998
The President/Secretary,
Sri Vinayaka House Building
Cooperative Society Limited,
No. 3, Adi Chunchanagiri Complex,
Vijayanagar, Bangalore 40Sir,
Sub. : Representation with regard to transfer of katha from the
City Municipal Council fraudulently in respect of C.A. reserved
sites to some of the members of your society contrary to law and
rules of BDA in the layout formed at 2nd stage, Nagarabhavi and
suppressing the information.
With relation to the above subject, the layout formed by Sri
Vinayaka House Building Cooperative Society Ltd., is the layout
which comes within Ward No. 7 of our City Municipal Council
limits. It is noticed that the sites have been developed, approval
being obtained by the Bangalore Development Authority, the
sketch/plan has been got sanctioned and the sites have been
allotted.
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RFA No. 310 of 2024But, the Local City Municipal Council Member, Sri V. Prakash,
B.Com., LL.B., Advocate has submitted the complaint in writing
on behalf of the general public that the plan/sketch in respect of
certain areas has not been sanctioned by BDA and the area
which has been reserved for civic amenities by BDA have been
formed in to sites and by giving wrong information to some of the
members and in violation of the rules of Government and BDA,
the President, C.H. Subboji Rao and the Secretary M.S.
Srinivasa Murthy have fraudulently registered the said civic
amenities sites to the civilians and cheated the said persons.
Therefore, it has come to the notice of our City Municipal Council
that kathas have been effected for 39 members by giving wrong
information. I hereby order to give explanation as to why legal
action should not be initiated against the President, Secretary
and the members who have obtained the sites, within 7 days
from the date of receipt of this notice.
Yours faithfully,
sd/-
Commissioner
Pattangere CMC
Bangalore-39.”
(emphasis supplied)
53. The appellant has not denied the above contentions by filing
a rejoinder. It is necessary to notice here that out of 5 acres 33
guntas and 8 guntas of port kharab land in Sy. No. 30,
possession of 2 acres 36 guntas has been taken by the State
Government and delivered to the appellant. The subject-matter of
this appeal is only 3 acres 5 guntas of land in Sy. No. 30.
Admittedly, the possession of this land has not been taken so far.
In the layout plan, a portion of this land is reserved for civic
amenities and the balance of the land is meant for formation of
house sites.
54. An intervener application has been filed by one Mrs Bhavna
Praveen contending that certain sites have been formed in the
disputed property and possession of these sites have been given
to members of the appellant Society, namely, R. Dhanabalan, D.
Vinod Kumar and Mrs D. Geetha. The sale deeds have also been
executed in respect of these sites in their favour.
55. Contempt Petition (Civil) No. 823 of 2018 was filed by S.
Krishnappa complaining of violation of the interim order of status
quo granted by this Court in this appeal dated 7-1-2009
[Vinayaka House Building Coop. Society Ltd. v. State of
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RFA No. 310 of 2024
Karnataka, 2009 SCC OnLine SC 49] . It was alleged that the
contemnors therein have trespassed into the disputed property
and began to construct illegally on the said land. A reply was filed
by the appellant herein contending that Sites Nos. 501, 526, 527,
528 and 529 have been formed out of 2 acres 36 guntas of land
in Sy. No. 30, the possession of which was already delivered to
the appellant and that the sites formed in the said land have been
allotted to the members of the Society as per the plan approved
by BDA prior to the order of de-notification. Relevant portion of
the objection is at para 10 which is as under:
“10. That, the said Sites Nos. 501, 526, 527, 528 and 529 have
been formed out of 2 acres 36 guntas of land in Survey No. 30
which has been handed over in favour of the Society by the order
passed by the Hon’ble High Court of Karnataka in WP No. 10249
of 2003 and the same has been allotted in favour of the members
of the Society as per the approved BDA and that too, prior to the
order of the de-notification dated 27-12-2003 and Notification
dated 12-1-2004 issued by the Government of Karnataka.”
56. Therefore, even according to the appellant, the disputed
property is vacant and no allotment/sale of the sites have been
made out of this land. However, it is evident from the
abovereferred two letters and other materials on record that the
appellant has illegally formed the sites in the other lands reserved
for civic amenities in the approved plan. In order to compensate
for the loss of land reserved for civic amenities, it is just and
proper to direct the appellant to reserve the entire disputed
property measuring 3 acres 5 guntas in Sy. No. 30 for civic
amenities and playground. Therefore, we direct the appellant to
utilise the portion of the disputed property reserved as a civic
amenity site in the layout plan for providing civic amenities. The
competent authorities are directed to develop the balance of the
disputed property as a park or a playground or both for the
benefit of general public. The appellant shall not allot/sell the
disputed property or any portion thereof either to its members or
to any other parties. The Commissioner, BDA is directed to
ensure compliance of this order.
(emphasis supplied)
57. If it is found that the appellant has allotted any site in the
disputed property in favour of its members or any other parties,
the appellant has to refund the consideration paid by them with
interest @ 18% p.a. from the date of the allotment till the date of
payment. Ordered accordingly.
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RFA No. 310 of 2024
58. The State Government is directed to take possession of the
aforesaid disputed property and transfer the same to the
appellant forthwith for its utilisation in terms of para 56 of this
judgment.
59. In the light of the above discussions, we pass the following
orders:
59.1. The judgment and order of the Division Bench as also of
the learned Single Judge impugned herein are hereby set aside.
59.2. The order passed by the first respondent dated 27-12-2003
and the consequent Notification dated 12-1-2004 pertaining to
the lands in dispute are hereby quashed.
60. The appeal and all the pending applications are disposed of
accordingly, without any order as to costs. In view of the above,
Contempt Petition (C) No. 823 of 2018 in CA No. 3600 of 2011 is
also disposed of. The Registry is directed to send a copy of this
judgment to the Commissioner, Bangalore Development
Authority, Bangalore forthwith.
11. In the context of the aforesaid judgment, it would also be
necessary to extract the plaint averments in the instant suit which
reads as under:
The plaintiff named above respectfully submits as under: –
(01) The addresses of the parties for the purposes of issuing
court notices, summons, etc.,.are as shown in the cause title. The
plaintiffs may also be served through his counsel
Sri.S.D.N.PRASAD. Sri.M.N.UMESH, and Smt.M.B.Yashoda,
Advocates, No.24/1, 2nd Floor, Opp to Bishop Cotton Women’s
College, 1st Cross, C.S.I Compound, Mission Road, Bengaluru-
27
(02) The mother of the plaintiff No.1 namely Smt. Thimmakka
was the absolute owner of all that piece and parcel of land
bearing Sy.No.30, measuring to an extent of 4 Acres 16 guntas
situated at Nagarabavi village, Yeshwanthapura Hobli, Bengaluru
North Taluk, having acquired the same by virtue of a registered
sale deed executed by its previous owner Smt. Kariyamma dated
17-12-1969. The certified copy of the said registered sale deed
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RFA No. 310 of 2024
dated 17-12-1969 is produced herewith as ‘DOCUMENT No.01
The mother of the plaintiff No. 1 Smt. Thimmakka died on 23-09-
2011 leaving behind the plaintiff No. 1 to succeed to her estate.
‘DOCUMENT No.02’ is the copy of the death certificate.
(03) Out of the said extent of 4 Acres 16 guntas, M/s Vinayaka
House Building Co-operative Society sought to acquire an extent
of 3 Acres 5 guntas of land for the benefit of its members. In that
regard preliminary and final notifications were issued. The said
notifications had been challenged before the Hon’ble High Court
of Karnataka. During the pendency of the writ petitions before the
Hon’ble High Court of Karnataka, the mother of the plaintiff had
approached the state of Karnataka and sought for deleting the
extent of 3 acres 5 guntas from acquisition. The State of
Karnataka after considering the said representation was pleased
to order to delete the said land from acquisition by issuing a
notification under Section 48 of the Land Acquisition Act on 12-
01-2004. ‘DOCUMENT No.03’ is the copy of the said notification
issued under Section 48(1) of the Land Acquisition Act deleting
the said land from acquisition. Infact, the Special Land
Acquisition Officer had prepared a sketch showing the extent of 3
acres 5 guntas and the balance extent of 1 acre 11 guntas owned
by Smt. Thimmakka. ‘DOCUMENT No.04’ is the copy of the said
sketch prepared by Special Land Acquisition Officer.
(04) M/s Vinayaka House Building Co-operative Society in whose
benefit the land was sought to be acquired had challenged the
notification under Section 48(1) of L.A.Act by filing a writ petition
before the Hon’ble High Court of Karnataka in W.P.No.4912/2004
and the Hon’ble High Court of Karnataka by its order dated 08-
03-2004 was pleased to dismiss the said writ petition.
DOCUMENT No.5′ is the copy of the final order in
W.P.No.4912/2004.
(05) As against the said order, the said society filed an appeal
before the Hon’ble High Court of Karnataka in
W.A.No.2583/2004. During the pendency of the said writ Appeal,
the Hon’ble High Court of Karnataka had appointed the
Commissioner of B.D.A to inspect the land and to report about
the status of the land in question. The Commissioner, B.D.A after
inspection of the property had submitted a detailed report to the
Hon’ble High Court of Karnataka. The copy of the
Commissioner’s report filed in W.A.No.2583/2004 is produced
herewith as ‘DOCUMENT No.06’. Thereafter, the Hon’ble High
Court of Karnataka by its order dated 07-08-2008 was pleased to
dismiss the said writ Appeal, thereby upheld the order of de-
notification. ‘DOCUMENT No.07’ is the copy of the final order
passed in W.A.No.2583/2004 dated 07-08-2008.
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RFA No. 310 of 2024
(06) The aforesaid orders passed by the Hon’ble High court of
Karnataka was carried by the said society before the Hon’ble
Supreme Court of India in Civil Appeal No.3600/2011 and the
Hon’ble Supreme Court of India, by its order dated 26-08-2019
was pleased to set aside the orders passed by the Hon’ble High
Court of Karnataka in W.P.No.4912/2004 and W.A.No.2583/2004
and has further directed the State Government to take
possession of the disputed property and to form play ground or
park for the use of general public. ‘DOCUMENT No.08’ is the
copy of the final order passed by the Hon’ble Supreme Court of
India in Civil Appeal No.3600/2011.
(07) The subject matter of this suit is remaining extent of 1 Acre
11 guntas out of 4 Acres 16 guntas of Sy.No.30 of Nagarabavi
village, Yeshwanthapura Hobli, Bengaluru North Taluk and the
said property is morefully described in the schedule hereunder
and hereinafter referred to as ‘SUIT SCHEDULE PROPERTY’.
(08) The narration of the aforesaid fact clearly reveals that the
order of the Hon’ble Supreme Court is confined to 3 Acres 5
guntas of land in Sy.No.30. Infact, the mother of the plaintiff No: 1
had filed a suit in O.S.No.6386/1993 before this Hon’ble Court
against the Defendant herein seeking for the relief of mandatory
and permanent injunction to delete the property bearing Sy.No.30
measuring to an extent of 4 Acres 16 guntas from the layout plan
of M/s Vinayaka House Building Co-operative Society. The said
suit after contest was decreed by this Hon’ble Court on 22-08-
2006.DOCUMENT No.09′ is the copy of the judgement and
decree passed in O.S.No.6386/1992 dated 21-08-2006.
(09) As stated earlier, the acquisition proceeding was related only
to an extent of 3 Acres 5 guntas out of four acres 16 guntas of
land bearing Sy. No.30 of Nagarabavi village. Infact, the plaintiff
No. 1 has sold major portion of the land in the remaining extent of
1 Acre 11 guntas and sale deeds have been executed in their
favour. The present suit is filed to protect the interest of the
purchasers of sites from the plaintiff No.1 and the remaining
plaintiffs are the purchasers of sites from the mother of the
plaintiff No. 1. Infact, the B.D.A commissioner, who had visited
the spot as per the directions of the Hon’ble High Court of
Karnataka has also submitted a report stating that several
houses have come up in the land in question.
(10) The Plaintiff No. 2 to 15 have purchased various sites carved
out of the Schedule Property, now coming within the
agglomeration of Bruhat Bengaluru Mahanagara Palike (BBMP),
– 31 –
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RFA No. 310 of 2024
carved out of Sy. No. 30/2, Krishnappa Garden, 80 feet ring road,
Nagarbhavi 2nd Stage, Bengaluru-560 072, in the following
manner-
Sl. Site No. Owner Manner of Acquisition
No
1. Northern Plaintiff Sale Deed No. BLN-1-
Portion of No.2 21738-2004-05
site No.3,
measuring (Document No.10
30 feet x herein)
50 feet
Tax paid receipt for
the year 2019-
Document No.10(a)
2. Site No.4 Plaintiff Sale Deed No. BLN-1-
measuring No.3 19134-2004-05
40 feet x
30 feet (Document No.11
herein)
Tax paid receipt for
the year 2020-21
Document No.11(a)
3 Northern Plaintiff Sale Deed No. BLN-1-
Portion of No.4 21744-2004-05
site No.3,
measuring (Document No.12
30 feet x herein)
50 feet
Bbmp Khata dated
05.09.2014 Document
No.12(a)
4 Site No.1A Plaintiff Gift Deed No. NGB-1-
measuring No.5 02581-2018-19
30 feet x
50 feet (Document No.13
herein)
Tax paid receipt for
the year 2019-2020
Document No.13(a)
5 Site No.3/2 Plaintiff Sale Deed No. NGB-
measuring
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NC: 2025:KHC:10884
RFA No. 310 of 2024
18 feet x No.6 1-05697-2009-10
50 feet
(Document No.14
herein)
Tax paid receipt for
the year 2008-09
Document No.14(a)
6 Site No.1A Plaintiff Gift Deed No. NGB-1-
measuring No.7 08140-2018-19
30 feet x
50 feet (Document No.15
herein)
BBMP Khata dated
23-09-2020 -
Document No.15(a)
7 Site No.1A Plaintiff Sale Deed No.
AND 1B No.8 9023/03-04,
measuring Bengaluru North
60 feet x Taluk Sub-Registrar
140 feet
(Document No.16
herein)
BBMP Khata dated
09-07-2018- -
Document No.16(a)
8 Site Plaintiff Sale Deed No.
No.1A No.9 3152/02-03,
AND 1B Bengaluru North
measuring Taluk Sub-Registrar
60 feet x
80 feet (Document No.17
herein)
BBMP Khata dated
09-07-2018-
Document No.17(a)
9 Site No.1A Plaintiff Gift Deed No. BLN-1-
measuring No.1 22838-2004-05
62 feet x
140 feet (Document No. 18
herein)
10 Site No.1B Plaintiff Gift Deed No. BLN-1-
measuring
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RFA No. 310 of 2024
62 feet x No.11 22838-2004-05
40 feet
11 Site No.1C Plaintiff Gift Deed No. BLN-1-
measuring No.11 22838-2004-05
15 feet x
40 feet
12 Site No.1D Plaintiff Gift Deed No. BLN-1-
measuring No.11 22838-2004-05
50 feet x
40 feet
13 Site No.3 Plaintiff GPA No.447/2000-01,
No.12 Bengaluru North
measuring Taluk Sub-Registrar
30 feet x
50 feet (Document No. 19
herein)
Tax paid receipt for
the year 2020-21 -
Document NO.19(a)
14 Site No.1C Plaintiff Sale Deed No. BLN-1-
measuring No.13 58183-2006-07
50 feet x
40 feet (Document No.20
herein)
BBMP Khata of the
year 2021- Document
No.20(a)
15 Site No.1B Plaintiff Gift Deed No. BLN-1-
measuring No.14 58177-2006-07
85 feet x
70 feet (Document No.21
herein)
BBMP Khata dated
19-03-2020-
Document No.21(a)
16 Site No.1D Plaintiff Gift Deed No. BLN-1-
measuring No.14 58177-2006-07
43 feet x
50 feet
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RFA No. 310 of 2024
17 Site No.2 Plaintiff Sale Deed No. BLN-1-
measuring No.15 50939-2006-07
25 feet x
30 feet (Document No.22
herein)
BBMP Khata dated
19-03-2020-
Document No.22(a)
18 Site No.6 Plaintiff GPA dated 10-6-1993
measuring No.16
40 feet x (Document No.23
30 feet herein)
Tax paid receipt
for the year 2015-
16 - Document
NO.23(a)
19 Site No.3/1 Plaintiff Sale Deed No. NGB-
measuring No.17 1-10284-2015-16
25 feet x
50 feet (Document No.24
herein)
BBMP Khata dated
02-05-2016-
Document No.24(a)
20 Site No.1 Plaintiff Sale Deed No. NGB-
measuring No.18 1-03221-2007- 08
16.70 feet
x 21 feet (Document No.25
herein)
BBMP Khata dated
28-02-2014 Document
No.25(a)
3) Infact, the Bruhat Bengaluru Mahanagara Palike has also lald
underground drainage system, sanitary pipes and also provided
water connections to the houses constructed in the suit schedule
property. The extract of the Schedule Property for the years
2020-21 is herewith produced as DOCUMENT No. 26.
Photographs reflecting the same are collectively produced
herewith as ‘DOCUMENT No.27’.
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(12) Infact even in respect of 3 Acres 5 guntas of land which has
bee directed to be made as park/playground, the compensation
payable in view of acquisition is not paid and plaintiff No. 1
reserves right to seek appropriate compensation in lieu of such
acquisition.
(13) In the guise of the order passed by the Hon’ble Supreme
Court of India to form park or play ground in the extent of 3 Acres
5 guntas, the Defendant is trying to demolish the buildings
constructed in the suit schedule property. The Defendant has
absolutely no manner of right, title and interest in respect of the
suit schedule property. Moreover, the extent of 3 Acres 5 guntas
has already been identified and the same is a separate property.
Inspite of it, the defendant on the strength of the order passed by
the Hon’ble Supreme Court is trying to encroach upon the suit
schedule property and is trying to disrupt the road, U.G.D,
Sanitary connection and is forcibly trying to demolish the
structures standing in the suit schedule property. The Defendant
has no manner of right, title and interest in respect of the suit
schedule property. In view of the high handed attempt on part of
the Defendant, the plaintiff has approached this Hon’ble Court
seeking necessary reliefs.
(14) The cause of action for the present suit arose on 09-10-2020
and on 07-11-2020, when the officials of the Defendant tried to
disrupt road, Underground drainage connection, sanitary
connection, etc., and the plaintiffs resisted the said illegal
attempts made by the Defendant’s officials. However, the officials
of the defendant have threatened the plaintiffs to continue their
illegal attempt. The cause action still subsists as the defendant’s
officials may at any time may barge into the suit schedule
property and demolish the structures.
(15) The required court fee has been paid as per the valuation
slip annexed to the plaint.
(16) There is no pendency of litigation or legal proceedings either
in the past or the present with respect to the subject matter of the
suit in any court, to the knowledge of these Plaintiffs.
(17) WHEREFORE, the plaintiffs respectfully pray that this
Hon’ble Court be pleased to pass a Judgement and Decree in his
favour and against the Defendant:-
– 36 –
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RFA No. 310 of 2024
(a) granting a decree of permanent injunction restraining the
Defendant, their men, officers or any other persons acting under
it from interfering with the peaceful possession and enjoyment of
the suit schedule property and demolish the structures standing
therein,
(b) granting a decree of permanent injunction restraining the
Defendant, their men, officers or any other persons acting under
it from disrupting the road, U.G.D, Sanitary connection, etc., in
the suit schedule property and
(c) award cost and grant such other reliefs as this Hon’ble Court
deems fit to grant in the circumstances of the case in the interest
of justice and equity.
SCHEDULE PROPERTY
All that piece and parcel of land bearing Old Sy.No.30, New Sy.
No. 30/2, situated Nagarabavi village, Yeshwanthapura Hobli,
Bengaluru North Taluk, measuring to an extent of 1 Acre 11
guntas (out of 4 Acres 16 guntas), now coming within the
agglomeratiort of. Bruhat Bengaluru Mahanagara Palike (BBMP),
Krishnappa Garden, 80 feet ring road, Nagarbhavi 2nd Stage,
Bengaluru-560 072, and bounded on: –
East by: – Sarkari Halla,
West by: – Remaining Land bearing Sy.No.30/2
12. A careful perusal of the plaint averments would clearly
indicate that the appellants- plaintiffs have not suppressed the
earlier round of litigation which culminated in the order of Apex
Court referred to supra. On the other hand, it is the specific
contention of the appellants-plaintiffs that the subject matter of
dispute in the earlier round of litigation and the acquisition
– 37 –
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RFA No. 310 of 2024
proceedings was only in relation to 3 acres 5 guntas out of a total
extent of 4 acres 16 guntas and that since the appellants-plaintiffs
do not claim any right over the aforesaid 3 acres 5 guntas and
instead claim right over portions of the remaining extent of 1 acre
11 gutnas, the aforesaid judgment of the Apex Court would neither
operate as res judicata nor come in the way of appellants-plaintiffs
putting the claim for possession based on lawful title and
possession over the suit schedule properties.
13. In this context, it is also relevant to state that in the facts of
the instant case, the question/ issue relating to res judicata would
clearly be mixed question of fact and law which can neither be
treated as preliminary issue nor can be made the basis to reject the
plaint as held by the Apex Court in the case of Sathyanath and
Another v. Sarojamani reported in (2022) 7 SCC 644 wherein it is
held as under:
6. Order 14 Rule 2 before amendment by Act 104 of
1976 reads thus:
“2. Issues of law and fact.–Where issues both of law
and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be
disposed of on the issues of law only, it shall try those
issues first, and for that purpose may, if it thinks fit,
postpone the settlement of the issues of fact until after
the issues of law have been determined.”
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7. The said provision came up for consideration before
this Court in a judgment reported as S.S. Khanna v. F.J.
Dillon [S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497] . It
was held that under Order 14 Rule 2 of the Code where
issues both of law and of fact arise in the same suit and
the court is of opinion that the case or any part thereof
may be disposed of on the issues of law only, it shall try
those issues first, and postpone the settlement of the
issues of fact until other issues of law have been
determined. It was held as under : (AIR pp. 502-03,
para 18)
“18. … Under Order 14 Rule 2 Code of Civil Procedure,
where issues both of law and of fact arise in the same
suit, and the Court is of opinion that the case or any part
thereof may be disposed of on the issues of law only, it
shall try those issues first, and for that purpose may, if it
thinks fit, postpone the settlement of the issues of fact
until after the issues of law have been determined. The
jurisdiction to try issues of law apart from the issues of
fact may be exercised only where in the opinion of the
Court the whole suit may be disposed of on the issues of
law alone, but the Code confers no jurisdiction upon the
Court to try a suit on mixed issues of law and fact as
preliminary issues. Normally all the issues in a suit
should be tried by the Court : not to do so, especially
when the decision on issues even of law depend upon
the decision of issues of fact, would result in a lopsided
trial of the suit.”
8. Order 14 Rule 2 after the substitution of Rule 2 by Act
104 of 1976, effective from 1-4-1977, reads thus:
“2. Court to pronounce judgment on all issues.–(1)
Notwithstanding that a case may be disposed of on a
preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all
issues.
(2) Where issues both of law and of fact arise in the
same suit, and the Court is of opinion that the case or
any part thereof may be disposed of on an issue of law
only, it may try that issue first if that issue relates to–
(a) the jurisdiction of the Court, or
– 39 –
NC: 2025:KHC:10884
RFA No. 310 of 2024
(b) a bar to the suit created by any law for the time
being in force,
and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has
been determined, and may deal with the suit in
accordance with the decision on that issue.”
9. Some other provisions of the Code, which are relevant
to decide the issues raised in the present appeal are as
follows:
ORDER 20
JUDGMENT AND DECREE
“5. Court to state its decision on each issue.–In
suits in which issues have been framed, the Court shall
state its finding or decision, with the reasons therefor,
upon each separate issue, unless the finding upon any
one or more of the issue is sufficient for the decision of
the suit.
***
ORDER 41
APPEALS FROM ORIGINAL DECREES
24. Where evidence on record sufficient, appellate
court may determine case finally.–Where the
evidence, upon the record is sufficient to enable the
appellate court to pronounce judgment, the appellate
court may, after resettling the issues, if necessary,
finally determine the suit, notwithstanding that the
judgment of the Court from whose decree the appeal is
preferred has proceeded wholly upon some ground other
than that on which the appellate court proceeds.
25. Where appellate court may frame issues and
refer them for trial to Court whose decree appealed
from.–Where the Court from whose decree the appeal
is preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
appellate court essential to the right decision of the suit
– 40 –
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RFA No. 310 of 2024
upon the merits, the appellate court may, if necessary,
frame issues, and refer the same for trial to the Court
from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional
evidence required; and such Court shall proceed to try
such issues, and shall return the evidence to the
appellate court together with its findings thereon and the
reasons therefor [within such time as may be fixed by
the appellate court or extended by it from time to time].”
10. The amended provision of Order 14 came up for
consideration before the Full Bench of the Allahabad High
Court in a judgment reported as Sunni Central Waqf
Board v. Gopal Singh Vishrad [Sunni Central Waqf Board
v. Gopal Singh Vishrad, 1990 SCC OnLine All 387 : AIR
1991 All 89] . It was held that material changes had
been brought about by substituting Order 14 Rule 2 of
the Code. The word “shall” in the unamended provision
has been replaced by the word “may” in the substituted
provision, therefore, it is now discretionary for the Court
to decide the issue of law as a preliminary issue, or to
decide it along with the other issues. It was further held
that even all issues of law cannot be decided as
preliminary issues and only those issues of law falling
within the ambit of clauses (a) and (b) of sub-rule (2) of
Rule 2 could be decided. The High Court held as under :
(SCC OnLine All paras 22 & 24-25)
“22. Under the above provision once the court came to
the conclusion that the case or any part thereof could be
disposed of on the issues of law only it was obliged to try
those issues first and the other issues could be taken up
only thereafter, if necessity survived. The court had no
discretion in the matter. This flows from the use of the
word “it shall try those issues first”. Material change has
been brought about in legal position by amended Order
14 Rule 2 which reads as follows:
***
24. The word “shall” used in old Order 14 Rule 2 has
been replaced in the present Rule by the word “may”.
Thus now it is discretionary for the Court to decide the
issue of law as a preliminary issue or to decide it along
with the other issues. It is no longer obligatory for the
Court to decide an issue of law as a preliminary issue.
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RFA No. 310 of 2024
25. Another change brought about by the amended
provision is that not all issues of law can be decided as
preliminary issues. Only those issues of law can be
decided as preliminary issues which fell within the ambit
of clauses (a) and (b) of sub-rule (2) of Rule 2 of Order
14. Clause (a) mentions “jurisdiction of the Court” and
clause (b) deals with ‘bar to the suit created by any law
for the time being in force’. In the present case clause
(a) is not attracted. The case is sought to be brought
within the ambit of clause (b). For bringing it under
clause (b) the Limitation Act and the Muslim Waqf Act
have been invoked.”
11. A Full Bench of the Himachal Pradesh High Court in a
judgment reported as Prithvi Raj Jhingta v. Gopal Singh
[Prithvi Raj Jhingta v. Gopal Singh, 2006 SCC OnLine HP
25 : AIR 2007 HP 11] , held as under : (SCC OnLine HP
paras 8-9)
“8. The legislative mandate is very clear and
unambiguous. In the light of the past experience that the
old Rule 2 whereby, in the fact-situation of the trial court
deciding only preliminary issues and neither trying nor
deciding other issues, whenever an appeal against the
judgment was filed before the Appeal Court and the
Appeal Court on finding that the decision of the trial
court on preliminary issues deserved to be reversed, the
case per force had to be remanded to the trial court for
trial on other issues. This resulted in delay in the
disposal of the cases. To eliminate this delay and to
ensure the expeditious disposal of the suits, both at the
stage of the trial as well as at the appeal stage, the
legislature decided to provide for a mechanism whereby,
subject to the exception created under sub-rule (2), all
issues, both of law and fact were required to be decided
together and the suit had to be disposed of as a whole,
of course based upon the findings of the trial court on all
the issues, both of law and fact.
9. Based upon the aforesaid reasons therefor, and in the
light of legislative background of Rule 2 and the
legislative intent as well as mandate based upon such
background, as well as on its plain reading, we have no
doubt in our minds that except in situations perceived or
warranted under sub-rule (2) where a court in fact
frames only issues of law in the first instance and
– 42 –
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RFA No. 310 of 2024
postpones settlement of other issues, under sub-rule (1),
clearly and explicitly in situations where the court has
framed all issues together, both of law as well as facts
and has also tried all these issues together, it is not open
to the court in such a situation to adopt the principle of
severability and proceed to decide issues of law first,
without taking up simultaneously other issues for
decision. This course of action is not available to a court
because sub-rule (1) does not permit the court to adopt
any such principle of severability and to dispose of a suit
only on preliminary issues, or what can be termed as
issues of law. Sub-rule (1) clearly mandates that in a
situation contemplated under it, where all the issues
have been framed together and have also been taken up
for adjudication during the course of the trial, these must
be decided together and the judgment in the suit as a
whole must be pronounced by the court covering all the
issues framed in the suit.”
12. A Single Bench of the Punjab and Haryana High
Court in a judgment reported as Hardwari Lal v. Pohkar
Mal [Hardwari Lal v. Pohkar Mal, 1978 SCC OnLine P&H
66 : AIR 1978 P&H 230] compared the provision of Order
14 Rule 2 prior to and after the amendment and held as
under : (SCC OnLine P&H para 5)
“5. A comparative reading of the said provision as it
existed earlier to the amendment and the one after
amendment would clearly indicate that the consideration
of an issue and its disposal as preliminary issue has now
been made permissible only in limited cases. In the
unamended Code, the categorisation was only between
issues of law and of fact and it was mandatory for the
Court to try the issues of law in the first instance and to
postpone the settlement of the issues of fact until after
the issues of law had been determined. On the other
hand, in the amended provision there is a mandate to
the Court that notwithstanding that a case may be
disposed of on a preliminary issue, the Court has to
pronounce judgment on all the issues. The only
exception to this is contained in sub-rule (2). This sub-
rule relaxes the mandate to a limited extent by
conferring a discretion upon the Court that if it is of
opinion that the case or any part thereof may be
disposed of “on an issue of law only”, it may try that
issue first. The exercise of this discretion is further
– 43 –
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RFA No. 310 of 2024
limited to the contingency that the issue to be so tried
must relate to the jurisdiction of the Court or a bar to the
suit created by a law in force.”
13. A Single Bench of the Patna High Court in a
judgment reported as Dhirendranath Chandra v. Apurba
Krishna Chandra [Dhirendranath Chandra v. Apurba
Krishna Chandra, 1978 SCC OnLine Pat 207 : AIR 1979
Pat 34] held that even if the case may be disposed of on
a preliminary issue, the court is bound to pronounce
judgment on all the issues, subject to the provision in
sub-rule (2) according to which if the case or any part
thereof may be disposed of on issue of law only and if
that issue relates to jurisdiction of the court or a bar to
the suit created by law for the time being in force, the
court may try such issue first. The High Court held as
under : (SCC OnLine Pat para 6)
“6. A plain reading of Rule 2 will show that ordinarily
even if the case may be disposed of on a preliminary
issue, the Court is bound to pronounce judgment on all
issues. This ordinary rule is subject to only one exception
which has been provided in sub-rule (2) according to
which if the case or any part thereof may be disposed of
on issue of law only and if that issue of law relates to the
jurisdiction of the Court or a bar to the suit created by
any law for the time being in force the court may try
such issue first. It is, therefore, clear that a departure
from the ordinary rule provided in sub-rule (1) of Rule 2
can be made by the Court only in the circumstances
mentioned in sub-rule (2) and even in these
circumstances the Court has only a discretion that it may
try an issue of law relating to the points mentioned in
clauses (a) and (b) of sub-rule (2) as a preliminary issue
before framing other issues. There is, however, nothing
in sub-rule (2) which in my opinion makes it obligatory
for the Court to try such an issue first in all cases. If,
therefore, the Court is of opinion that in any particular
case it will be more expedient to try all the issues
together and therefore, if it refuses to try and decide any
issue of law even on the points referred to in clauses (a)
and (b) of sub-rule (2) as a preliminary issue before
taking up other issues.”
14. A Single Bench of the Bombay High Court in a
judgment reported as Usha Sales Ltd. v. Malcolm Gomes
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[Usha Sales Ltd. v. Malcolm Gomes, 1983 SCC OnLine
Bom 122 : AIR 1984 Bom 60] held that after the
amendment, a duty is cast upon the court that it must
proceed to hear all the issues and pronounce the
judgment on the same, except that the court may try an
issue relating to the jurisdiction of the court or to the
legal bar to the suit as a preliminary issue. It was held to
be more in the nature of discretion rather than a duty. It
was held as under : (SCC Online Bom paras 11-12)
“11. From the above it is easily seen that there is an
obligation cast upon the court that even though a case
may be disposed of on a preliminary issue the courts
shall subject to the provision of sub-rule (2) pronounce
judgment on all issues. In other words, the obligation to
decide a question of law as a preliminary issue if that
decision disposes of the case or part of the case is no
longer, there. Similarly, the discretion to decide any
other issue as a preliminary issue has been taken away
totally from the Court. On the other hand, a duty is cast
upon the Court that it must proceed to hear all the issues
and pronounce judgment on the same.
12. There is, however, a small exception carved out to
the above provision. The Court may try an issue relating
to the jurisdiction of the Court or to the legal bar to the
suit as a preliminary issue but this is more in the nature
of a discretion rather than a duty and the Court is not
bound to try any issue despite the provision contained in
sub-rule (2) of Rule 2 of Order 14 of the Code. The
words “it may try” are clearly indicative of the fact that
discretion is given to the Court and no duty is cast upon
the Court to decide any issue as a preliminary issue.”
15. A Single Bench of the Jammu and Kashmir High
Court in a judgment reported as Aruna Kumari v. Ajay
Kumar [Aruna Kumari v. Ajay Kumar, 1989 SCC OnLine
J&K 23 : AIR 1991 J&K 1] held as under : (SCC OnLine
J&K para 4)
“4. … Admittedly both the parties have to lead evidence
regarding both the issues. In case Issue 2 is allowed to
be treated as preliminary the parties will certainly lead
evidence in the case and instead of disposing of the case
expeditiously it will prolong the matter and frustrate the
very basis of law contained in Order 14 Rule 2, Civil
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Procedure Code. The evidence to be led by both the
parties will almost cover both the issues and it cannot,
therefore, be said that by allowing Issue 2 to be treated
as preliminary the trial of the case would be expedited.
When we review the whole law on the point it becomes
clear that where issue of jurisdiction is a mixed question
of law and fact requiring evidence to be recorded by both
the sides same cannot be treated as a preliminary issue.”
16. The matter has also been examined by this Court in
a judgment reported as Ramesh B. Desai v. Bipin Vadilal
Mehta [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5
SCC 638] wherein it was held as under : (SCC p. 650,
para 13)
“13. Sub-rule (2) of Order 14 Rule 2CPC lays down
that where issues both of law and of fact arise in the
same suit, and the court is of the opinion that the case
or any part thereof may be disposed of on an issue of
law only, it may try that issue first if that issue relates to
(a) the jurisdiction of the court, or (b) a bar to the suit
created by any law for the time being in force. The
provisions of this Rule came up for consideration before
this Court in S.S. Khanna v. F.J. Dillon [S.S. Khanna v.
F.J. Dillon, AIR 1964 SC 497] and it was held as under :
(SCR p. 421)
‘***’
Though there has been a slight amendment in the
language of Order 14 Rule 2CPC by the amending Act,
1976 but the principle enunciated in the abovequoted
decision still holds good and there can be no departure
from the principle that the Code confers no jurisdiction
upon the court to try a suit on mixed issues of law and
fact as a preliminary issue and where the decision on
issue of law depends upon decision of fact, it cannot be
tried as a preliminary issue.”
17. This Court in Ramesh B. Desai [Ramesh B. Desai v.
Bipin Vadilal Mehta, (2006) 5 SCC 638] held that the
principles enunciated in S.S. Khanna [S.S. Khanna v. F.J.
Dillon, AIR 1964 SC 497] still hold good and the Code
confers no jurisdiction upon the court to try a suit on
mixed issues of law and fact as a preliminary issue and
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where the decision on issue depends upon the question
of fact, it cannot be tried as a preliminary issue. The said
finding arises from the provision of Order 14 Rule 2
clauses (a) and (b). After the amendment, discretion has
been given to the court by the expression “may” used in
sub-rule (2) to try the issue relating to the jurisdiction of
the court i.e. territorial and pecuniary jurisdiction, or a
bar to the suit created by any law for the time being in
force i.e. the bar to file a suit before the civil court such
as under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002 and numerous other laws particularly relating
to land reforms. Hence, if Order 14 Rule 2 is read along
with Order 12 Rule 5, the court is expected to decide all
the issues together unless the bar of jurisdiction of the
court or bar to the suit in terms of sub-rule (2) clauses
(a) and (b) arises. The intention to substitute Rule 2 is
the speedy disposal of the lis on a question which oust
either the jurisdiction of the court or bars the plaintiff to
sue before the civil court.
18. We may state that the First Schedule appended to
the Code contains the procedure to be applied in respect
of the matters coming for adjudication before the civil
court. Such procedure is handmaid of justice as laid
down by the Constitution Bench judgment of this Court
reported as Amarjit Singh Kalra v. Pramod Gupta
[Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC
272] wherein it was observed as under : (SCC p. 300,
para 26)
“26. Laws of procedure are meant to regulate effectively,
assist and aid the object of doing substantial and real
justice and not to foreclose even an adjudication on
merits of substantial rights of citizen under personal,
property and other laws. Procedure has always been
viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of
justice.”
19. A three-Judge Bench in a subsequent judgment
reported as Kailash v. Nanhku [Kailash v. Nanhku,
(2005) 4 SCC 480] held that all rules of procedure are
handmaid of justice. The language employed by the
draftsman of processual law may be liberal or stringent
but the object of prescribing procedure is to advance the
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cause of justice. The Court held as under : (SCC p. 495,
paras 28-29)
“28. All the rules of procedure are the handmaid of
justice. The language employed by the draftsman of
processual law may be liberal or stringent, but the fact
remains that the object of prescribing procedure is to
advance the cause of justice. In an adversarial system,
no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation.
Unless compelled by express and specific language of the
statute, the provisions of CPC or any other procedural
enactment ought not to be construed in a manner which
would leave the court helpless to meet extraordinary
situations in the ends of justice. The observations made
by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar
[Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774]
are pertinent : (SCC p. 777, paras 5-6)
‘5. … The mortality of justice at the hands of law troubles
a Judge’s conscience and points an angry interrogation at
the law reformer.
6. The processual law so dominates in certain systems as
to overpower substantive rights and substantial justice.
The humanist rule that procedure should be the
handmaid, not the mistress, of legal justice compels
consideration of vesting a residuary power in Judges to
act ex debito justitiae where the tragic sequel otherwise
would be wholly inequitable. … Justice is the goal of
jurisprudence — processual, as much as substantive.’
29. In State of Punjab v. Shamlal Murari [State of Punjab
v. Shamlal Murari, (1976) 1 SCC 719 : 1976 SCC (L&S)
118] the Court approved in no unmistakable terms the
approach of moderating into wholesome directions what
is regarded as mandatory on the principle that : (SCC p.
720)
‘Processual law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. Procedural prescriptions
are the handmaid and not the mistress, a lubricant, not a
resistant in the administration of justice.’
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In Ghanshyam Dass v. Dominion of India [Ghanshyam
Dass v. Dominion of India, (1984) 3 SCC 46] the Court
reiterated the need for interpreting a part of the
adjective law dealing with procedure alone in such a
manner as to subserve and advance the cause of justice
rather than to defeat it as all the laws of procedure are
based on this principle.”
20. This Court in Sugandhi v. P. Rajkumar [Sugandhi v.
P. Rajkumar, (2020) 10 SCC 706 : (2021) 1 SCC (Civ)
116] held that if the procedural violation does not
seriously cause prejudice to the adversary party, the
courts must lean towards doing substantial justice rather
than relying upon procedural and technical violations. It
is not to be forgotten that litigation is nothing but a
journey towards truth which is the foundation of justice
and the Court is required to take appropriate steps to
thrash out the underlying truth in every dispute. It was
held as under : (SCC pp. 708-09, para 9)
“9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does not
seriously cause prejudice to the adversary party, courts
must lean towards doing substantial justice rather than
relying upon procedural and technical violation. We
should not forget the fact that litigation is nothing but a
journey towards truth which is the foundation of justice
and the court is required to take appropriate steps to
thrash out the underlying truth in every dispute.
Therefore, the court should take a lenient view when an
application is made for production of the documents
under sub-rule (3).”
21. The provisions of Order 14 Rule 2 are part of the
procedural law, but the fact remains that such procedural
law had been enacted to ensure expeditious disposal of
the lis and in the event of setting aside of findings on
preliminary issue, the possibility of remand can be
avoided, as was the language prior to the unamended
Order 14 Rule 2. If the issue is a mixed issue of law and
fact, or issue of law depends upon the decision of fact,
such issue cannot be tried as a preliminary issue. In
other words, preliminary issues can be those where no
evidence is required and on the basis of reading of the
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plaint or the applicable law, if the jurisdiction of the court
or the bar to the suit is made out, the court may decide
such issues with the sole objective for the expeditious
decision. Thus, if the court lacks jurisdiction or there is a
statutory bar, such issue is required to be decided in the
first instance so that the process of civil court is not
abused by the litigants, who may approach the civil court
to delay the proceedings on false pretext.
22. In fact, in a judgment reported as A. Shanmugam v.
Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam [A. Shanmugam v.
Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 :
(2012) 3 SCC (Civ) 735] , this Court held as under :
(SCC p. 458, para 39)
“39. Our courts are usually short of time because of huge
pendency of cases and at times the courts arrive at an
erroneous conclusion because of false pleas, claims,
defences and irrelevant facts. A litigant could deviate
from the facts which are liable for all the conclusions. In
the journey of discovering the truth, at times, this Court,
at a later stage, but once discovered, it is the duty of the
court to take appropriate remedial and preventive steps
so that no one should derive benefits or advantages by
abusing the process of law. The court must effectively
discourage fraudulent and dishonest litigants.”
23. The different judgments of the High Court referred to
above are in consonance with the principles laid down by
this Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin
Vadilal Mehta, (2006) 5 SCC 638] that not all issues of
law can be decided as preliminary issues. Only those
issues of law can be decided as preliminary issues which
fell within the ambit of clause (a) relating to the
“jurisdiction of the Court” and (b) which deal with the
“bar to the suit created by any law for the time being in
force”. The reason to substitute Rule 2 is to avoid
piecemeal trial, protracted litigation and possibility of
remand of the case, where the appellate court differs
with the decision of the trial court on the preliminary
issues upon which the trial court had decided.
24. On the other hand, the learned counsel for the
respondent relies upon the judgments of this Court
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reported as Abdul Rahman v. Prasony Bai [Abdul
Rahman v. Prasony Bai, (2003) 1 SCC 488] , Srihari
Hanumandas Totala v. Hemant Vithal Kamat [Srihari
Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9
SCC 99 : (2021) 4 SCC (Civ) 489] and Jamia Masjid v.
K.V. Rudrappa [Jamia Masjid v. K.V. Rudrappa, (2022) 9
SCC 225 : 2021 SCC OnLine SC 792] to contend that on
a question of res judicata, the preliminary issue needs to
be framed.
25. In Abdul Rahman [Abdul Rahman v. Prasony Bai,
(2003) 1 SCC 488] , this Court was examining a suit filed
by the appellant in the year 1999 to declare that the
defendant is not the daughter of Mangal Singh and that
the appellant is in adverse possession even during the
lifetime of Mangal Singh. An additional issue was framed
regarding the jurisdiction of the civil suit to try the said
suit. The High Court in proceedings passed an order on
29-11-2001 [Abdul Rahman v. Labh Singh, 2001 SCC
OnLine Raj 1174] dismissing the suit on the preliminary
issue whether the dispute to the present civil suit has
already been decided and adjudicated by the Court and
is barred by the principles of res judicata. An intra court
appeal was filed which was dismissed on 4-12-2001
[Abdul Rahman v. Prasony Bai, 2001 SCC OnLine Raj
1143] and thereafter, the matter travelled to this Court.
In these circumstances, this Court held as under : (Abdul
Rahman case [Abdul Rahman v. Prasony Bai, (2003) 1
SCC 488] , SCC p. 497, para 21)
“21. For the purpose of disposal of the suit on the
admitted facts, particularly when the suit can be
disposed of on preliminary issues, no particular
procedure was required to be followed by the High Court.
In terms of Order 14 Rule 1 of the Code of Civil
Procedure, a civil court can dispose of a suit on
preliminary issues. It is neither in doubt nor in dispute
that the issues of res judicata and/or constructive res
judicata as also the maintainability of the suit can be
adjudicated upon as preliminary issues. Such issues, in
fact, when facts are admitted, ordinarily should be
decided as preliminary issues.”
26. A perusal of the above judgment of this Court shows
that it was an admitted fact that issue of res judicata and
of constructive res judicata can be adjudicated as
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preliminary issue. Since it was an admitted fact, it
cannot be said that principle of law has been enunciated
that a plea of res judicata can be decided as a
preliminary issue.
27. In Srihari Hanumandas Totala [Srihari Hanumandas
Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99 :
(2021) 4 SCC (Civ) 489] , the property was mortgaged
in favour of Karnataka State Finance Corporation (for
short “the Corporation”). The Corporation auctioned the
property as the loan was not repaid. The legal heirs of
the borrower filed a suit in OS No. 138 of 2008
challenging the sale deed dated 8-8-2006 executed by
the Corporation and partition of the suit property. A
separate OS No. 103 of 2007 was filed by the purchaser
from the Corporation. Such suit of the purchaser was
decreed on 26-2-2009. The decree in the said suit was
affirmed by the High Court on 11-8-2017 [Hemanth v.
Ghanashyam Shrinivas Chindak, 2017 SCC OnLine Kar
6481] . The purchaser from the Corporation filed an
application under Order 7 Rule 11 for rejection of the
plaint of OS No. 138 of 2008. Such application was
dismissed by the learned trial court. The order was
affirmed in revision by the High Court holding that the
ground of res judicata could not be decided merely by
looking at averments in the plaint. It is the said order
which became subject-matter of challenge before this
Court.
28. This Court in Srihari Hanumandas Totala [Srihari
Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9
SCC 99 : (2021) 4 SCC (Civ) 489] found that the plea of
res judicata requires consideration of the pleadings,
issues and decision in the previous suit and such a plea
would be beyond the scope of Order 7 Rule 11. However,
in the operative paragraph, it was observed that the trial
court shall consider whether a preliminary issue should
be framed under Order 14, and if so, to decide it within a
period of three months of raising the preliminary issue.
The operative part of the order reads thus : (Srihari
Hanumandas Totala case [Srihari Hanumandas Totala v.
Hemant Vithal Kamat, (2021) 9 SCC 99 : (2021) 4 SCC
(Civ) 489] , SCC p. 113, para 28)
“28. For the above reasons, we hold that the plaint was
not liable to be rejected under Order 7 Rule 11(d) and
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affirm the findings of the trial court and the High Court.
We clarify however, that we have expressed no opinion
on whether the subsequent suit is barred by the
principles of res judicata. We grant liberty to the
appellant, who claims as an assignee of the bona fide
purchaser of the suit property in an auction conducted by
KSFC, to raise an issue of the maintainability of the suit
before the Additional Civil Judge, Belgaum in OS No. 138
of 2008. The Additional Civil Judge, Belgaum shall
consider whether a preliminary issue should be framed
under Order 14, and if so, decide it within a period of 3
months of raising the preliminary issue. In any event,
the suit shall be finally adjudicated upon within the outer
limit of 31-3-2022.”
29. This Court in Srihari Hanumandas Totala [Srihari
Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9
SCC 99 : (2021) 4 SCC (Civ) 489] was thus examining
the scope of Order 7 Rule 11 of the Code, whereas such
is not the issue in the present appeal. In fact, the
defendant has filed an application for framing of
preliminary issues. The direction of the High Court is on
such application. Therefore, such application needs to be
considered in the light of the provisions of Order 14 Rule
2 of the Code.
30. In Jamia Masjid [Jamia Masjid v. K.V. Rudrappa,
(2022) 9 SCC 225 : 2021 SCC OnLine SC 792] , the
judgment and decree in a second appeal holding that the
suit is barred by the principle of res judicata was the
subject-matter of challenge before this Court. The
learned trial court decided Issues 5 and 6 related to res
judicata and limitation as preliminary issue. It was held
that suit was not barred by limitation but barred by res
judicata. In appeal, such finding was affirmed. However,
in second appeal, the matter was remanded to the trial
court for disposal of the suit in accordance with law
holding that the suit is not barred by res judicata. In
appeal against such judgment and decree, the appeal
was remanded to the High Court. The High Court after
remand held that the judgment in a representative suit
under Section 92 of the Code binds the parties to the suit
and would thus operate as res judicata.
31. In appeal before this Court, it was considered
whether res judicata raises a mixed question of law and
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facts. The Court held as under : (Jamia Masjid case
[Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 :
2021 SCC OnLine SC 792] , SCC paras 26 & 66)
“26. The court while undertaking an analysis of the
applicability of the plea of res judicata determines first, if
the requirements of Section 11CPC are fulfilled; and if
this is answered in the affirmative, it will have to be
determined if there has been any material alteration in
law or facts since the first suit was decreed as a result of
which the principle of res judicata would be inapplicable.
We are unable to accept the submission of the appellants
that res judicata can never be decided as a preliminary
issue. In certain cases, particularly when a mixed
question of law or fact is raised, the issue should await a
full-fledged trial after evidence is adduced. In the
present case, a determination of the components of res
judicata turns on the pleadings and judgments in the
earlier suits which have been brought on the record. The
issue has been argued on that basis before the trial court
and the first appellate court; followed by two rounds of
proceedings before the High Court (the second following
upon an order of remand by this Court on the ground
that all parties were not heard). All the documentary
material necessary to decide the issue is before the court
and arguments have been addressed by the contesting
sides fully on that basis.
***
66. In view of the discussion above, we summarise our
findings below:
66.1. Issues that arise in a subsequent suit may either
be questions of fact or of law or mixed questions of law
and fact. An alteration in the circumstances after the
decision in the first suit, will require a trial for the
determination of the plea of res judicata if there arises a
new fact which has to be proved. However, the plea of
res judicata may in an appropriate case be determined
as a preliminary issue when neither a disputed question
of fact nor a mixed question of law or fact has to be
adjudicated for resolving it.”
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32. A perusal of the said judgment would show that only
Issues 5 and 6 were decided relating to res judicata and
limitation as preliminary issues by judgment dated 3-2-
2006. This Court set aside the finding on the preliminary
issue by judgment dated 23-9-2021 [Jamia Masjid v.
K.V. Rudrappa, (2022) 9 SCC 225 : 2021 SCC OnLine SC
792] i.e. almost more than 15 years later when the
matter was remanded back to the trial court. The
absence of the decision on all issues has necessitated the
matter to be remanded back, defeating the object of
expeditious disposal of lis between the parties. The
conclusion in para 66.1 in Jamia Masjid case [Jamia
Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 : 2021 SCC
OnLine SC 792] is that the plea of res judicata in
appropriate cases may be determined as preliminary
issue when it is neither a disputed question of fact nor a
mixed question of law and fact. Such finding is what this
Court held in Ramesh B. Desai [Ramesh B. Desai v. Bipin
Vadilal Mehta, (2006) 5 SCC 638] .
33. We find that the order of the High Court to direct the
learned trial court to frame preliminary issue on the
issue of res judicata is not desirable to ensure speedy
disposal of the lis between parties. Order 14 Rule 2 of
the Code had salutary object in mind that mandates the
court to pronounce judgments on all issues subject to
the provisions of sub-rule (2). However, in case where
the issues of both law and fact arise in the same suit and
the court is of the opinion that the case or any part
thereof may be disposed of on an issue of law only, it
may try that suit first, if it relates to jurisdiction of the
court or a bar to the suit created by any law for the time
being in force. It is only in those circumstances that the
findings on other issues can be deferred. It is not
disputed that res judicata is a mixed question of law and
fact depending upon the pleadings of the parties, the
parties to the suit, etc. It is not a plea in law alone or
which bars the jurisdiction of the court or is a statutory
bar under clause (b) of sub-rule (2).
34. The objective of the provisions of Order 41 Rules 24
and 25 is that if evidence is recorded by the learned trial
court on all the issues, it would facilitate the first
appellate court to decide the questions of fact even by
reformulating the issues. It is only when the first
appellate court finds that there is no evidence led by the
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parties, the first appellate court can call upon the parties
to lead evidence on such additional issues, either before
the appellate court or before the trial court. All such
provisions of law and the amendments are to ensure one
objective i.e. early finality to the lis between the parties.
35. Keeping in view the object of substitution of sub-rule
(2) to avoid the possibility of remanding back the matter
after the decision on the preliminary issues, it is
mandated for the trial court under Order 14 Rule 2 and
Order 20 Rule 5, and for the first appellate court in terms
of Order 41 Rules 24 and 25 to record findings on all the
issues.
36. Therefore, the order of the High Court remanding
the matter to the learned trial court to frame preliminary
issues runs counter to the mandate of Order 14 Rule 2 of
the Code and thus, not sustainable in law. The learned
trial court shall record findings on all the issues so that
the first appellate court has the advantage of the
findings so recorded and to obliviate the possibility of
remand if the suit is decided only on the preliminary
issue.
37. Consequently, the appeal is allowed. The order
[Sarojamani v. Sathyanath, 2021 SCC OnLine Mad
10012] passed by the High Court is hereby set aside.
13. As stated supra, while it is the specific contention of the
appellants-plaintiffs that the suit schedule properties fall outside of
the extent of 3 acres 5 guntas which was a subject matter of the
dispute in the earlier round of litigation before the Apex Court, it is
the specific contention of the respondent-BDA that the suit
schedule properties come within the total extent of 6 acres 1 gunta
acquired by the State Government for the benefit of M/s. Vinayaka
House Co-operative Society Limited V/s State of Karnataka
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and others reported in AIR 2019 SCC 4473. It is therefore clear
that several contentious issues and disputed questions of law and
fact arise for consideration between the appellants and the
respondent-BDA which would necessarily have to be decided by
the Trial Court only after full fledged trial and not at the stage of
considering an application for rejection of plaint which needless to
state would can be based only upon the plant averment and not
based on the defence putforth by the respondent-BDA. As stated
earlier, the appellants-plaintiffs have not suppressed the earlier
round of litigation culminating the aforesaid order of the Apex Court
and on the other hand, specifically contend that the suit schedule
properties were not the subject matter of the earlier round of
litigation and the said dispute/issue between the appellants and
the respondent-BDA as to whether the earlier round of litigation
before the Apex Court would cover and include the suit schedule
property or not would necessarily have to be decided only after
full fledged trial and not while considering an application for
rejection of plaint. Under these circumstances, I am of the
considered opinion that the trial Court misdirected itself completely
in placing reliance upon the earlier judgment of the Apex Court for
the purpose of rejecting the claim of the appellant-plaintiff by
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summarily rejecting the plaint without appreciating the various
averments made in the plaint referred to supra warranting
interference by this Court in the present appeal. Accordingly point
formulated above in the present appeal is answered by holding that
trial Court fell in error in rejecting the plaint and by setting aside the
impugned order and remitting the matter back to the trial for
reconsideration afresh in accordance with law. Hence, the
following:
ORDER
i) Appeal is hereby allowed.
ii) Impugned order dated 25.10.2023 in O.S.
No.26321/2020 on I.A.1/2023 passed by the XXVIII
Addl. City Civil Judge, Mayohall Unit, Bengaluru is
set aside. Matter is remitted back to the trial Court
for reconsideration afresh in accordance with law.
iii) All rival contentions between the appellants and
respondent including non joinder of parties,
maintainability etc., are kept open and no opinion
is expressed on the same.
– 58 –
NC: 2025:KHC:10884
RFA No. 310 of 2024
iv) Appellants and respondent-BDA are directed to
appear before the Trial Court on 07.04.2025 without
awaiting further notice from the Trial Court.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BS
List No.: 1 Sl No.: 11
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