1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 1st DAY OF JUNE 2015

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.1876 OF 2014

CONNECTED WITH

REGULAR FIRST APPEAL No.124 OF 2015

IN R.F.A.No.1876/2014

BETWEEN: Bangalore Development Authority, Kumara Park West, Bengaluru, By its Secretary. … APPELLANT (By Shri. K.M. Nataraj, Senior Advocate for Shri. S.G.Hegde, Advocate) AND: 1. Smt. Venkata Ratnamma, Aged about 79 years, Wife of Late Mahadevan, 2. Sri. Gangadhara Murthy, Major, Son of C. Mahadevan, 3. Smt. Gaythri,

R

2

Wife of Raghu, Major, 4. Smt. Gangalakshmi, Wife of Ramesh, 5. Smt. Bharati, Wife of Sri. Suresh, 6. Smt. Nandini, Daughter of Late C. Mahadevan, All are residing at No.13, Kallapalli, Bangalore – 560 042. 7. Smt. Nagaratnamma, Wife of Late C. Radhakrishna, Aged about 68 years, 8. Sri. C.R.Chandrashekar, Son of Late Radhakrishna, Aged about 45 years, 9. Sri. Raju, Son of Late Radhakrishna, Aged about 42 years, Respondents No.7 to 9 Residing at No.32, Kallahalli, Civil Station, Bangalore. 10. Sri. Bhaskar N Raju, Aged about 41 years,

3

Son of Late Narayana Raju, 11. Smt. N. Shantha, Daughter of Late Narayana Raju, Aged about 58 years, 12. Smt. Roopa N Raju, Daughter of Late N. Narayana Raju, Age about 34 years, Respondents 10 to 12 Residing at No.32, 1st ‘A’ Cross, Rajmahal Vilas Extension, Sadashivanagar, Bangalore – 560 080. …RESPONDENTS (By Shri. R. Vijaya Kumar .R, Advocate for Respondent Nos. 7 to 9; Shri. P. Chandrashekar, Advocate for M/s. Ravi B Naik Associates for Respondent Nos. 10 to 12; Respondent Nos.1 to 6 served and unrepresented )

*****

This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 22.11.2014 passed in O.S.No.2129/2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for permanent injunction. IN R.F.A.No.124/2015 BETWEEN: 1. Sri. Bhaskar N Raju, Son of Late Narayana Raju,

4

Aged about 42 years, 2. Smt. N. Shantha, Daughter of Late Narayana Raju, Aged about 62 years, 3. Smt. Roopa N Raju, Daughter of Late N. Narayana Raju, Aged about 39 years, All are residing at No.32, 1st A Cross, Rajmahal Vilas Extension, Sadashivanagar, Bangalore – 560 080. …APPELLANTS (By Shri P.Chandrashekar, Advocate for Smt. Vijetha R Naik, Advocate) AND: 1. Bangalore Development Authority, Kumara Park West, Sankey Tank Road, Bangalore 560 020 By its Secretary. 2. Smt. Venkata Ratnamma, Wife of Late Mahadevan, Aged about 79 years, 3. Gangadhara Murthy, Son of C. Mahadevan, Aged about 65 years,

5

4. Smt. Gayathri, Wife of Raghu, Aged about 50 years,

5. Gangalakshmi, Wife of Ramesh, Aged about 45 years,

6. Bharati, Wife of Sri Suresh, Aged 43 years,

7. Smt. Nandhini, Daughter of Late C. Mahadevan, Age: 40 years, Respondents 2 to 7 are Residents of No.13, Kallapalli, Bangalore 560 042.

8. Smt. Nagaratnamma, Wife of Late C. Radhakrishna, Aged about 69 years,

9. C.R.Chandrashekar, Son of Late Radhakrishna, Aged about 45 years,

10. C.R.Raju, Son of Late Radhakrishna, Aged about 42 years, Respondent Nos. 7 to 10 are Residing at No.32, Kallahalli, Civil Station, Bangalore – 560 042. …RESPONDENTS (By Shri. R. Vijayakumar, Advocate for Respondent Nos. 8 to 10)

6

This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 22.11.2014 passed in O.S.No.2129/2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for declaration and permanent injunction. These Regular First Appeals having been heard and reserved on 28.4.2015 and coming on for pronouncement of Judgment this day, the Court delivered the following:-

J U D G M E N T

These appeals are heard and disposed of together, as they are

preferred against the same judgment.

2. The appellant in appeal no. RFA 1876/2014, namely, the

Bangalore Development Authority, (Hereinafter referred to as the

‘BDA’, for brevity), a statutory body constituted under the Bangalore

Development Authority Act, 1976, (Hereinafter referred to as the

‘BDA Act’, for brevity) was the plaintiff. The suit was filed for a

declaratory relief that the property bearing survey no.10/17 of

Jarakabandekaval, Yeshwanthpura hobli, Bangalore north taluk

measuring 29 guntas, presently bearing Industrial site no.86/G

formed by the BDA, which was more fully described in the Schedule

to the plaint, was never withdrawn from the acquisition proceedings

7

pursuant to the final notification dated 13.4.1964, issued under the

provisions of Mysore Land Acquisition Act, 1884.

And also to declare that a judgment and decree passed in civil

suit bearing O.S.No.554/1981, by the court of the 17th Additional

City Civil Judge, Bangalore, dated 25.9.1992, as not binding the

plaintiff, BDA.

And for injunctory reliefs restraining defendants no.1 to 7

from interfering with the said property.

3. It was the case of the plaintiff that before its constitution in

the year 1976, its predecessor-in –interest was the City Improvement

Trust Board, (hereinafter referred to as ‘the CITB’, for brevity), also

a statutory body which was engaged in the planned development of

Bangalore City. It was stated that in order to form and establish an

Industrial layout, known as Industrial Suburb, II Stage, it was

proposed to acquire lands situated around Jharakabandekaval,

Yelahanka, Bangalore North taluk, including the land bearing survey

no.10/17. A notification dated 13.4.1964 was said to have been

issued under the provisions of the Mysore Land Acquisition Act,

8

1988, ( Hereinafter referred to as ‘the MLA Act’, for brevity).

According to the revenue records, the said land bearing survey no.

10/17 is said to have been found in the name of Chikkavenkatappa,

son of Pillavenkatappa, as the Khatedar. It was stated that notices

under Section 9 and 10 of the Land Acquisition Act, 1898,

(Hereinafter referred to as ‘the LA Act, 1898’, for brevity) having

been issued, it is stated that the widow of Chikkavenkatappa had

entered appearance and is said to have petitioned seeking the

notified land be reconveyed in her favour.

However, an award having been passed, vide award dated

14.7.1965, the award amount was said to have been kept in a revenue

deposit for the benefit of the khatedars. It was also stated that after

issuing award notices, physical possession is said to have been taken

over by the CITB on 7.10.1965.

It was stated that the above and other lands so acquired were

said to have been substantially put to use and the Scheme, under

which the acquisition proceedings had been initiated, was

substantially implemented.

9

In the year 1976, the plaintiff having been constituted, the

powers and functions of the erstwhile CITB were said to have been

exercised and performed by the BDA. It is stated that in the above

background, the BDA is said to have allotted the suit schedule

property on a Lease –cum-Sale basis in favour of one Narayana Raju.

And a registered lease deed is said to have been executed as on

26.11.1977 in favour of the said allottee. The said allottee having

died, he was represented in the suit by defendants 8 to 10, his legal

representatives.

It is said that one Muniyamma, claiming to be the widow of

Chikkavenkatappa, as already stated, is said to have sought for

reconveyance of the land in her favour. It is stated that in response

to the same the plaintiff had issued an endorsement dated

27.10.1980, to the effect that the erstwhile CITB had, by a

Resolution dated 16.1.1974, recommended the de-notification of the

suit schedule property. However, it was the plaintiff’s case that there

were no further steps taken in that regard, to complete the formality.

The property in question, however, was integrated into the industrial

10

layout and was the subject matter of allotment in favour of late

Narayana Raju, represented by defendants 8 to 10. The property

hence stood vested in the plaintiff as absolute owner, subject to the

lease agreement aforesaid.

It was the plaintiff’s further case that the aforesaid

Muniyamma and her two sons, namely (late) Mahadevan and

Defendant no.7, are said to have filed a civil suit in O.S.554/1981 on

the file of the 17th Additional City Civil Judge, Bangalore, seeking a

declaratory relief, to the effect that they were the absolute owners of

the very same suit property as was involved in the present suit, in

view of the State having withdrawn from the acquisition

proceedings, as claimed by the plaintiffs therein. Consequently, they

had sought injunctory reliefs against Narayana Raju, who was

admittedly in possession and had also put up construction over the

suit property, as an allottee of an industrial site, claiming under the

present plaintiff, the BDA. Significantly, the BDA was not a party

to the said suit. However, the said suit was said to have been

11

decreed in favour of Muniyamma and defendant no.7 herein, as on

25.9.1992.

As against the above said judgment and decree, late Narayana

Raju is said to have preferred an appeal before this court in

RFA 73/1993. The same is said to have been dismissed as on

7.4.1999. Subsequently, defendants 8 to 10, as the legal

representatives of late Narayana Raju, are said to have preferred a

Review Petition in C.P.683/1999, which in turn was said to have

been allowed and the earlier judgment by this very court had been

recalled and the judgment and decree in the suit was said to have

been reversed and the suit dismissed, by an order dated 8.3.2001.

As against the order passed in the above Review petition,

defendant no. 7 herein is said to have filed a Special Leave Petition

in SLP 8030-31/2001, before the Supreme Court of India. It

transpires that by an Order dated 13.2.2008, the said petition having

been allowed, granting leave to appeal and the appeal is said to have

been allowed, reversing the decision of this court dated 8.3.2001. In

12

the result, the judgment and decree of the trial court in

O.S.554/1981 stood revived.

It was hence the plaintiff’s grievance that by virtue of the

judgment and decree in O.S.No.554/1981, the plaintiff’s right, title

and interest over the suit property was directly affected. The

plaintiff claimed that it became aware of the repercussions of the

above said proceedings, to which the BDA was not a party, only

when routinely taking stock of disputed items of property which

were subject matter of the earlier acquisition proceedings. And also

when the lessee’s possession was sought to be disturbed. It is

thereafter, that the plaintiff and its men are said to have taken steps

to obtain the particulars of the earlier proceedings and had filed the

suit.

It was specifically urged that the suit filed by the legal

representatives of the erstwhile owner of the land in question was

not maintainable on more than one count. It was pointed out that it

is on record that possession of the land had been taken over

pursuant to the acquisition proceedings, as early as in the year 1965.

13

Hence a suit for declaration that the plaintiff in O.S.554/1981, was

the absolute owner of the suit property, filed in the year 1981 was

not maintainable. Secondly, that the land in question being subject

matter of acquisition proceedings, the civil court had no jurisdiction

to entertain the suit.

The defendants 7(a) to (c), the legal representatives of

defendant no.7 who had died during the pendency of the suit, had

filed their written statement contesting the suit. It was contended

that the plaintiff was not entitled to any relief. It was disputed that

the suit schedule property could now be identified as Industrial site

no.86/G or that it was situated in land bearing survey no.10/17. On

the other hand it was said that the site no.86/G was to be found

located in land bearing survey no.10/4. It was pointed out that this

very question had been addressed in the earlier suit in

O.S.No.554/1981. And that this very court had held that site

no.86/G was situated in land bearing Sy.no. 10/4 and that this

factum had also been confirmed by the Supreme Court of India.

And it was asserted that the CITB had never acquired the land

14

bearing survey no.10/17 and that the present suit was nothing but a

ruse to lay claim over the same.

It was contended that though the preliminary and final

notifications for acquisition of the land in question had been issued,

physical possession had never been taken, either by the erstwhile

CITB or the plaintiff, from Smt. Muniyamma or Radhakrishna, who

was said to be the son of Muniyamma. In other words, it was

sought to be emphasized that neither Muniyamma nor her

successors-in – interest, had been divested of the property.

It was alleged that in the year 1981, Narayana Raju who was

claiming to be an allottee of an industrial site bearing no.86/G,

under the BDA, is said to have trespassed on land bearing survey no.

10/17 and having sought to lay claim to the same. It had entailed

Muniyamma and her sons filing the civil suit in OS 554/1981, which

had run its course and had now attained finality – in the matter

having reached the apex court and the judgment and decree in

favour of Muniyamma and her sons having been affirmed.

15

It was also sought to be pointed out that during the pendency

of the suit in OS 554/1981, the BDA had been notified through its

Commissioner, that it was required to appear and produce records

pertaining to the acquisition proceedings and accordingly one

Byraiah, was said to be examined as PW-2, as on 16.8.1986 and

20.7.1988. Further, one Mahadevaiah had been examined as DW-2

on behalf of the BDA, to speak for the material produced, as on

27.6.1989. Therefore, it would have to be presumed that BDA was

aware of the claims of both the parties in the suit, especially when

one of them, the defendant therein, was claiming to be in possession

of the suit property under the BDA. Hence it is contended that the

present suit is only an attempt to raise decided issues, to circumvent

the judgment and decree that has attained finality in respect of the

suit schedule property.

It is further pointed out that the plaintiff had acknowledged

that there was indeed a resolution passed by the CITB as on

16.1.1974 recommending that the suit property be dropped from the

acquisition proceedings. And such a resolution could be passed only

16

if possession of the land in question had not been taken. And as it

is not the case of the BDA that it had taken possession of the land in

question, after it came into existence in the year 1975, it is conclusive

that the owners of the land have never been divested of physical

possession of the land and hence, it could not be said that the same

had vested with the BDA. This aspect of the matter has been found

as a fact in the earlier proceedings and was conclusively decided. On

the above and other incidental pleadings, it was sought that the suit

be dismissed.

4. The trial court had framed the following issues on the basis

of the above pleadings :

“1. Whether the plaintiff proves that the suit

property which was acquired under notification dated

13.4.1964 is not denotified and plaintiff is in possession?

2. Whether the plaintiff proves that the

judgment and decree in O.S.No.554/1981 is not

binding on the plaintiff?

3. Whether the plaintiff proves that there is

interference to its possession by defendants 1 to 7?

4. Whether the plaintiff proves that it is

entitled for the relief claimed in the suit?

17

5. To what decree or order?

Additional Issues:

1. Whether suit filed by the plaintiff is hit

by principles of constructive res-judicata?

2. Whether suit of the plaintiff is hit by

principles of estoppels, acquiescence and waiver?

3. Whether suit is barred by law of

limitation?”

The trial court has answered Issue Nos.1 to 4 in the negative,

Additional Issue Nos.1 to 3 in the affirmative and Issue No.5 as per

the final order and has dismissed the suit. It is that which is under

challenge in the present appeals.

5. The learned Senior Advocate Shri K.M.Nataraj, appearing

for the counsel for the plaintiff – appellant, contends as follows :

That the trial court had failed to notice that the suit in

O.S.No.554/1981 was not maintainable. Firstly, it is pointed out

that there was no denial of the fact that the suit schedule property

was subject matter of acquisition proceedings. The validity or

otherwise of the same having been concluded in accordance with

18

law, could not have been tested, even incidentally, in the said suit.

Whereas it was the sine qua non and the basic premise on which the

suit relief had been claimed. Secondly, when the defendant in that

suit was claiming as an allottee of an industrial site, having been put

in possession of the suit property under a lease deed executed by the

plaintiff herein, it was evident that the suit was bad for non-joinder

of a proper and necessary party and any decree against the lessee,

would not bind the owner, BDA.

The suit, in any event, ought to have been dismissed on a

glaring circumstance that the plaintiff therein, having admitted that

the suit property was subject matter of acquisition proceedings had

further contended that the acquiring authority had recommended the

withdrawal from the acquisition proceedings – in so far as the suit

property was concerned. There was no indication of any further

steps having been taken to implement that recommendation. This is

an admitted position. However, the proposition that such a

resolution being available on record was sufficient to conclude that

the acquisition proceedings in respect of the suit property had been

19

withdrawn and dropped – having been accepted by the court below,

had resulted in the fallacious judgment.

Further, the reasoning of the trial court that the earlier

judgment was binding on the plaintiff – BDA, on the principle of

constructive res judicata, even though it was not a party to the same,

is opposed to a first principle, and patently erroneous, vitiating the

judgment.

Hence, it is contended that if the judgment and decree of the

trial court are to be set at naught on legal principle, having regard to

the several undeniable circumstances, it is wholly unnecessary to

enter upon factual details alleged in order to set aside the judgment

in the present suit or to negate the so called finality of the judgment

in the earlier suit in O.S.No.554/1981, in so far as the plaintiff’s

interest is concerned.

6. On the other hand, while seeking to justify the findings of

the trial court, Shri R. Vijaya Kumar, counsel appearing for

respondents 1 to 9, would contend that apart from the suit filed by

the appellant being barred by constructive res judicata, the suit was

20

not maintainable in the form in which it was brought. The plaintiff

had not sought for a declaration of title to the suit property and

hence a mere declaration as to the judgment and decree in favour of

the respondents in O.S.554/1981 being declared as not binding the

BDA, would hardly result in the BDA establishing title to the

property.

It is contended that even assuming that the land in question

had been notified for acquisition under the MLA Act, there is

material on record to indicate that the compensation amount has not

been paid to the land owner and has possibly remained in a revenue

deposit, or even withdrawn by the acquiring authority, going by

certain exchange of correspondence on record. Further, with the

coming in to force of The Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013, (hereinafter referred to as ‘the 2013 Act’, for brevity) in

terms of Section 24 thereof, the acquisition proceedings have lapsed

and are no longer relevant.

21

It is further contended that the acquisition proceedings even

if could be presumed to be unassailable before a civil court, on the

footing that the Land Acquisition Act, 1894 , was a self contained

Code and hence the jurisdiction of the civil court was barred, such a

bar however, would not have applied to land which was not the

subject matter of acquisition – but was mistaken as being so, as was

the case in respect of the suit property. Though the subject matter

of acquisition was land bearing survey no.10/4, the allottee had been

put in possession of Survey No.10/17 , which was given up from the

acquisition proceedings . It is only under the 2013 Act, that there is

a bar, under Section 63 to any suit relating to any dispute pertaining

to land which is the subject matter of acquisition proceedings.

It is vehemently urged that the suit was apparently a

mischievous effort to re-kindle a controversy that has been set to

rest in O.S.No.554/1981. The judgment and decree in that suit

having been affirmed by the apex court, it is final and binding on the

plaintiff- BDA and it would result in a gross irregularity to address

the very controversy which was the subject matter of the said suit.

22

It is contended that the principles of estoppel, acquiescence &

waiver would apply to the appellant and hence was precluded from

filing the suit and the present appeal. It is also pointed out that

during the pendency of the suit in O.S.No.554/1981, an application

in IA No. 3 was filed to bring the BDA on record, as a party to the

suit, which was resisted with vehemence and it was declared by the

BDA that it was not a proper or necessary party to the suit and

hence the volte-face in its stand, in the present appeal to contend

that the said judgment and decree was not binding on it , since it had

remained in the dark – as to the said suit is untenable. This is apart

from the circumstance that both the plaintiff and the defendant, in

that suit, had summoned and examined officers of the BDA, to

produce and testify in relation to the records pertaining to the

acquisition of the suit property and hence such a contention is hardly

available to the appellant.

The learned counsel also seeks to draw sustenance from the

tenor of Section 38C of the BDA Act, to contend that the

Resolution passed by the CITB to withdraw from acquisition

23

proceedings in so far as the suit schedule property is concerned and

to denotify the same, is binding on the BDA and is deemed to have

been given effect to.

7. Shri Nataraj would contend, by way of reply, that

notwithstanding the findings of the trial court in the civil suit

O.S.554/1981, that may have been, by implication, affirmed by the

apex court, the legal issue as to whether a civil court was vested with

jurisdiction to address the validity of the acquisition proceedings –

had never arisen for consideration at any stage of that suit.

Therefore, it is contended that the trial court had remained oblivious

to the lack of jurisdiction in the earlier instance and so also has the

trial court, in the present instance, failed to address the grievance of

the plaintiff that the concluded acquisition proceedings, in respect of

the suit schedule property, has been set at naught, by virtue of the

judgment in O.S.554/1981 which was rendered by the trial court,

wholly without jurisdiction.

The contention that there was a serious discrepancy in the

allottee having been put in possession of land bearing no. 10/17

24

when what was acquired was land bearing survey no. 10/4 is also

not material. The lands bearing Survey nos. 10/4, 10/14 & 10/17

of Jharakabande Kaval had been acquired. Hence it was immaterial

even if the allottee had been put in possession of one or the other

portion of the land, after the said lands had been formed into an

industrial layout.

Further, sustenance sought to be drawn from Section 38 C of

the BDA Act, is also misplaced as the said Section is also subject to

the acquisition proceedings, which may have otherwise attained

finality. In any event, these controversies can hardly be decided by

the civil court. This in fact would fortify the case of the appellant

that a civil court was totally without jurisdiction in addressing the

acquisition proceedings.

The appellants in the appeal in RFA 124/2015 are the legal

representatives of the defendant in OS 554/ 1981 and defendants 8

to 10 in the present suit. And would seek to support the case of the

appellant as they claim under the BDA, as legal representatives of

25

the allottee, who was put in possession of the suit property by the

BDA.

8. In the light of the above circumstances, the points that arise

for consideration in these appeals are :

a) Whether the present suit by the BDA was barred on the

doctrine of res judicata .

b) Whether the BDA was bound by the judgment and decree

in OS.No. 554 / 1981.

c) Whether the judgment and decree in OS 554 / 1981 could

not be challenged by the BDA , as not binding it.

d) Whether the suit by the BDA was barred by limitation.

e) Whether the want of jurisdiction in the civil court, to test

the validity of compulsory acquisition proceedings, was ever present

to the mind of the trial court or the appellate courts in the earlier

proceedings and the trial court in the present suit.

Point (a): The trial court having framed an additional issue

no.1 , as to whether the suit is hit by the doctrine of constructive res

26

judicata , has after an elaborate discussion, spanning several issues

which are sought to be considered together and thereby blurring the

area of discussion on any particular issue, has concluded thus :

“In this view of the matter findings on Issues 1 and 2 and

Additional Issues 1 to 3 would be record without saying against

plaintiff – BDA.” ( sic)

The trial court has expressed that in view of the earlier

opinion expressed in OS 554 / 1981 , that the BDA would suffer the

decree passed against the defendant therein, as well, since the

defendant therein who was an allottee claiming under the BDA had

contested the suit, appears to have been accepted by the trial court in

the present instance. The trial court has also proceeded on the

premise that the several findings of fact arrived at in the earlier suit

have attained finality and the trial court has refused to address the

same notwithstanding the circumstance that the defendant therein

was not at all competent to represent the BDA, though claiming

under the BDA as a mere lessee in occupation of the land in

question. The trial court has also proceeded on the presumption

27

that the BDA was adequately represented in the earlier proceedings,

as two its officials had appeared before the court to depose in

respect of certain documents produced on behalf of the BDA,

pursuant to witness summonses issued and hence any decree passed

against the defendant therein was also binding against the BDA.

The trial court, in the first instance, in OS 554 / 1981, and in

the present case has proceeded on a misconception that the

defendant allottee had been conferred the entire right, title and

interest in the subject property by the BDA, in order that any decree

passed against such allottee would also bind the BDA. When it is

sought to be alleged that the defendant in the earlier suit was a privy

of the BDA and therefore any finding suffered by the privy would

bind the principal, should also be read with the qualification that the

test of res judicata is the identity of title in the two litigations and the

identity of the actual property involved in the two cases. The

defendant in the earlier proceedings was at best seeking to protect

his possession, while claiming under a lease deed executed by the

BDA. He was not competent to represent the lessor nor was in a

28

position to remove any doubts created about the validity of the

acquisition proceedings, whether the recommendation by the CITB

was acted upon, withdrawn from the acquisition proceedings and

whether the acquisition proceedings had been completed in all

respects. The presumption on his part would naturally be that BDA

had valid title in putting him in possession as a lessee. He was

certainly not an agent of the BDA. It cannot hence be said that the

present suit was between the same parties or anybody claiming under

the earlier party. In so far as the BDA was concerned, the defendant

in the earlier suit may have been claiming under it, the BDA was

certainly not claiming under him. To place them on par as one

having adequately represented the other, does not stand to reason or

the law. The suit was not barred as being res judicata.

Point (b) : In order to appreciate how far the BDA can be

said to be bound by the judgment and decree in OS 554 / 1981 , it is

necessary to have an overview of the frame of suit and the reliefs

sought in the said case, the defence set up by the defendant, the

issues that arose for consideration and the findings thereon.

29

The plaintiffs in the said suit claimed that property bearing sy.

no.10/17 of Jarakabandekaval, Yelahanka hobli, Bangalore North

Taluk, was coparcenary property of Chikkavenkatappa and P.

Narasimhappa. That at a partition dated 10.8.1926, is said to have

fallen to the share of Chikkavenkatappa, under whom the plaintiffs

were claiming as his widow and sons, respectively.

The pleading in so far as the acquisition proceedings and the

manner in which the plaintiffs therein were claiming to have

continued as owners thereof is best reproduced verbatim :

“4. Under a Gazette notification dated 30.4.1964

(Thirty-Four-Nineteen Sixty Four) along with the

other lands belonging to the plaintiffs the suit schedule

lands were also the subject of acquisition by the

B.D.A. but possession continued to remain with the

plaintiffs as the said Board did not disposses the

plaintiffs and as a matter of fact no compensation was

paid and it is learnt by the plaintiffs that the said Board

de-notified as on 16.1.1974 (Sixteen-One-Nineteen

Seventy Four) as a result of which the title and

possession of the lands continued to remain with the

plaintiffs and the Board ceased to have jurisdiction and

the schedule lands remain an agricultural lands “as it is

and where it was”. The Photostat copy of Gazette

30

notification is document No.6 (Six) and the

endorsement of the said Board are document Nos. 7

and 8 (Seven and Eight).”

It is further claimed that during the second week of October

1980, the plaintiffs had noticed structures having been put up by the

defendant and that there was a poultry farm and that the defendant

had occupied the land in question. That they had then learnt that he

was said to be an allottee who had been put in possession under a

Lease deed. According to the plaintiffs – this was not possible as the

acquisition proceedings had not been completed and on the other

hand, the land in question had been denotified. Hence the suit.

The reliefs claimed were, for a declaration that the plaintiffs

are the absolute owners of the suit property and for recovery of

possession and other reliefs.

The sole defendant had denied that the land in question was

de-notified or with drawn from the acquisition proceedings and

contended as follows :

“2. xxx xxx xxx It is material and very

necessary to state that after preliminary

31

notification, the matter was taken up on the

file of the Land Acquisition Officer in LAC

75/1964-65 and a final notification was issued

in No.PLM 20.MNJ 1964 dated 13.4.1964,

declaring to acquire the suit Schedule property

as required under Section 6 of the Land

Acquisition Act. The Khatedar was one

Sri Chikka Venkatappa who is no other than

the husband of the first plaintiff. After

observing all other formalities required under

the provisions of the Land Acquisition Act, an

award was passed on 7.7.1965 awarding an

amount of Rs.4226.25 ps. For the extent of 29

guntas of land as compensation. There-after

the possession of the land was taken by the

acquiring authority on 13.8.1965. From these

facts which form part of the record it is clear

that there could be no denotification of the

land acquired by the erstwhile City

Improvement Trust Board, Bangalore who had

taken possession of the property after passing

an award and the property in question

completely vested in the erstwhile City

Improvement Trust Board, Bangalore free

32

from all encumbrances. The question of

denotification does not arise and even if there

is one, it is illegal and ineffective.

3. After having passed the award

and after having taken possession of the suit

schedule property, the Land Acquisition

Officer immediately handed over possession of

the suit Schedule property to the Engineering

Department and thereafter the City

Improvement Trust Board, allotted the suit

Schedule Property in favour of the defendant

and after collecting the necessary allotment

price has delivered possession of the suit

Schedule property to the defendant as

evidenced by the Possession certificate issued

by the City Improvement Trust Board,

Bangalore is No.PRNo.19/77-78 dated

7.12.1977. Thus it makes it very clear that the

plaintiffs have absolutely no manner of right

over the suit Schedule property. The only

right that they have got is for the

compensation amount awarded by the

erstwhile City Improvement Trust Board,

Bangalore for having acquired the suit

33

Schedule property. The compensation amount

was kept in Revenue Deposit which the

plaintiffs failed to receive. The allegations that

the property continued to be in possession of

the plaintiffs is a deliberate falsehood. As

already stated above, the property was acquired

by due process of law and possession was

taken by the C.I.T.B., after passing the award.

It could not be in continuous possession of the

plaintiffs. This is invented for the purpose of

this suit.

4. The defendant submits that in

pursuance of the allotment made in his favour,

he has been put in possession and has put up

constructions on the property in question and

he cannot be prevented from putting up

further constructions. The plaintiffs have no

right whatever to question the defendant to

carry on any construction work. The plaintiffs

have deliberately come forward with this suit

making false and frivolous allegations and

attempting to course the defendant to terms if

possible. But their attempt having failed, still

they are persisting in their attempts by filing an

34

application/before this Hon’ble Court and

praying for an order of injunction, stating that

the defendant is in unlawful possession of the

property. The defendant submit that the suit is

not maintainable as the property has been

acquired and taken possession of and the relief

claimed for by the plaintiffs is not available to

them. The suit is also not maintainable as the

City Improvement Trust Board which acquired

the property and which bad allotted the same

in favour of the defendant is not made a party

which is a necessary party to the suit and the

suit is bad for non-joinder of necessary party.

The defendant submits that the plaintiffs are

not entitled to any of the reliefs claimed by

them in the plaint and the suit is liable to be

dismissed with exemplary costs.”

Of the Issues framed in the suit, Issue nos.1, 3 & 8 are

significant. The same are reproduced hereunder :

“1. Whether the plaintiff proves that

the CITB after denotification dt:16.1.74 lost

its right and title in the suit property and has

35

no jurisdiction to enter into lease-cum-sale

with the defendant and put him in possession

of the Schedule property?

3. Whether the defendant proves

that in view of the final notification and the

award passed that there could be no

denotification?

8. Is the B.D.A. a necessary party

to the suit? If so, is the suit not bad for non

joinder of necessary party?”

The trial court ultimately came to the conclusion that the

defendant failed to prove that the land in question was not

denotified. In other words, the trial court had accepted that the land

had been dropped from the acquisition proceedings on the basis of

the material produced, namely, a Resolution passed by the CITB

recommending the withdrawal from acquisition proceedings of the

said land and certain other incidental references made elsewhere.

There was, however, no formal notification, duly published in the

Gazette, forthcoming.

36

Issue no.8 , was answered thus :

“Issue No.8: Now, the question for

consideration is whether the B.D.A is a necessary

party to the suit. Admittedly, the property does

not belong to the B.D.A. I have already held that

CITB has not taken possession of this property

and it was de-notified and the property continued

to be in possession of the plaintiff. When the

ownership continued with the plaintiffs, it follows

that B.D.A. is not a necessary party to this suit.

Hence, this issue is answered accordingly.”

The suit was accordingly decreed.

In the appeal preferred against the said judgment, in RFA

73/1993 , this court held thus :

“7. Heard the respective counsel.

The only question to be decided in this appeal

is whether the plaintiff is entitled to a

declaration as prayed for?.

8. Exhibit P-13 is corrected and

revised lay out plan produced by the plaintiff

which shows that plaintiff’s property. The

question to be decided is whether the property

has been acquired and subsequently there has

37

been a de-notification?. Under Ex.D.8, the

register of lands notified and acquired for

public purposes and compensation paid

therefore, the entries as against

Chikkavenkatappa in respect of Sy.No.10/17,

there is an entry which reads as

“denotified vide

No.HMA/37/MNJ/69 dated

2.3.1970.”

Narasimhappa also in respect of the

Sy.No.10/18, there is an endorsement of

denotification having the same

No.HMA/37/MNJ/69. dated 2.3.1970.

The entire resistance of the defendants come

on the ground that the land has been acquired

and the acquired land has been handed over to

him. It is the case of the plaintiff that de-

notification has taken place and in view of the

de-notification, the defendant cannot have any

right over the same at all.

10. “The trial court gave a finding

that no possession has been taken and

therefore, the Court held that in as much as

38

there is no proof that the authorities have

taken possession of the land in question before

the issuance of notification dated 13.4.1964

and withdrawn the acquisition on 2.3.1970, the

plaintiff’s rights continues with him.” Relying

upon the above decision, it is argued that the

possession was never taken from the plaintiffs

and the plaintiffs continues to be in possession

and there is no proof forthcoming for having

been taken possession from the plaintiff.

Therefore, once the notification has been

withdrawn, the plaintiff’s right cannot be

questioned at all.”

And the appeal was dismissed.

However, in a Review Petition, this court had elaborately

discussed the material on record, and also the absence of relevant

material, in coming to a different conclusion in proceeding to recall

the judgment of dismissal and reversing the judgment and decree of

the trial court.

A Special Leave petition having been preferred before the

apex court, it was evident that the apex court, in granting leave to

39

appeal and allowing the appeal, was primarily concerned with the

propriety of the manner in which this court had proceeded in

reversing the judgment of the trial court, and not so much on the

merits of the case. This is evident from the tenor of the order. The

same is extracted hereunder for ready reference.

“O R D E R

These appeals are preferred by the plaintiff

against the judgment and order dated 8.3.2001

passed by the High Court of Karnataka in

R.F.A.No.73 of 1993 and C.P.No.683 of 1999.

The facts of this case illustrate a disquieting

feature as to how the power under Order LXVII

Rule 1 is being misused.

The plaintiffs filed a suit in 1981 for

declaration of possession. The suit was decreed by

the trial court on 25.9.1992. Aggrieved thereby the

defendants filed appeal before the High Court which

was dismissed on merits after recording a finding by

the same Judge on 7.4.1999. Plaintiffs’ Execution

Petition was allowed by the Executing Court and

warrant of delivery of possession was issued. After

the warrant of delivery of possession was issued it

appears that the defendants filed a review

application under Order LXVII Rule 1 some time

40

in August, 1999 and by the impugned order the

High Court has allowed, not only the review

application but allowed the appeal which was

already dismissed by the Court on 7.4.1999.

Order LXVII Rule 1 entitles a party who,

from the discovery of new and important matter or

evidence which, after the exercise of due diligence was

not within his knowledge or could not be produced

by him at the time when the decree was passed or

order made, or on account of some mistake or error

apparent on the face of the record, desires to obtain a

review of the decree passed or order made against

him, to apply for a review of judgment to the Court

which passed the decree or made the order.

Power of review, therefore, is limited and

confined subject to the aforesaid conditions.

In the present case the learned Judge which

dismissed the appeal of the defendants on merits on

7.4.1999 allowed the review application by

appreciating the entire evidence on record as if the

Judge was sitting as an appellate court, which is not

permissible under the law. While disposing of the

appeal the learned Judge also recorded that the land

in question was throughout in the possession of the

plaintiffs. However, in review application the same

41

finding has been reversed which is not permissible in

the review application.

Suffice it to say that in the regular appeal

the learned Judge has clearly recorded the admission

of the defendants that the land allotted to the

defendants was in Survey No.10/4. Having

recorded the finding at the admission of the

defendants, sitting in a review, the learned Judge has

also alloted the Survey No.10/17, the same land

which was alloted and was in the ownership of the

plaintiffs. The learned Judge, in our view,

committed a grave miscarriage of justice.

In the result, the appeals are allowed. The

judgment and order of the High Court under

challenge is set aside. There will be no order as to

costs.”

It is significant that the trial court had arrived at a categorical

finding that the BDA was not a necessary party to the suit. When it

was BDA that could claim as the owner of the property and the

defendant in the said suit was only a lessee in occupation with a

limited right. The lessee was hardly competent to represent the

BDA or the CITB, against whom the trial court was in effect

granting relief in favour of the plaintiffs. Any such finding which

42

had the effect of effacing the right, title and interest of the BDA , to

the property in question, without the BDA being made a party to the

suit, would not bind the BDA.

The fact that two witnesses had appeared on behalf of the

BDA to produce certain records pertaining to the suit schedule

property, in the course of the suit, cannot be construed as being akin

to the BDA having been privy to the proceedings and having been in

a position to plead its case or contest the claim of the plaintiffs.

Those witnesses were representing BDA for the limited purpose of

producing records, pursuant to a witness summons. They were not

even shown to be the authors of any of the documents so produced

and marked.

The further contention and finding that during the course of

the suit, an application in I.A. No. 3 having been contested on behalf

of the BDA and a declaration made in the pleadings thereto that

BDA was not a necessary party, did not make it any less so. It was

ultimately for the trial court to have decided whether it was so. And

a final finding in that regard having been categorically expressed, in

43

deciding Issue no.8, it cannot be said that the said judgment is

binding on the BDA.

It is also significant that CITB had ceased to exist even as on

the date of filing of the suit. Any declaration in respect of land that

was acquired in furtherance of any scheme formulated by the CITB ,

could only affect the BDA, which was the direct successor-in-

interest of the CITB and hence findings against the CITB, without

the BDA being made a party , can hardly bind it.

It is of much significance that the above aspects have never

arisen at any time in the proceedings before the trial court, this court

or the apex court.

Point (c ) : The suit in OS 554/1981 has attained finality

with the matter reaching the apex court and on disposal of the

appeals in Civil Appeal No.8901-8902/2001 by order dated

15.02.2008. The present suit having been filed immediately

thereafter, was certainly maintainable. It may be that in a

proceeding, as between parties who were before the apex court, even

if erroneous findings have been arrived at and affirmed, such parties

44

would not be in a position to re-open the matter on other and more

relevant material, albeit neither considered or brought to the

attention of the court. But that embargo would not apply to one

who was not a party to the earlier proceeding and is in a position to

demonstrate that there were legal impediments to the very

maintainability of the suit, apart from demonstrating that he is the

party actually affected. As is the BDA , in the present circumstances.

Point ( d ) : The finding against the BDA, that the suit was

barred by limitation is not tenable. The cause of action it may be

said has arisen only when the judgment and decree in OS 554 /

1981 attained finality before the apex court , as aforesaid, and hence

the suit filed immediately thereafter was in time .

A contention that a cause of action arose to the BDA

immediately on the BDA becoming aware of the controversy and

claim raised by the plaintiffs in OS 554 / 1981, may not be an

acceptable reason for the court below in having come to a

conclusion that the BDA did have such knowledge and hence ought

to have filed a suit immediately and that the suit filed in the year

45

2008 being barred by limitation is not tenable. A cause of action

arose only when the judgment and decree became final and the

possibility of the BDA being deprived of the property loomed large.

Point (e) : It is seen that the trial court , in OS 554 / 1981

proceeded on the basic premise that the suit property was denotified.

And secondly that the plaintiffs had never been divested of the

same. It is these very findings that were seemingly affirmed and are

said to have attained finality. The question whether the suit was

maintainable if the suit property was admittedly subject matter of

compulsory acquisition proceedings was never present to the mind

of the trial court or the appellate courts at any point of time.

And in spite of this want of jurisdiction having been

emphasized in the present suit, the trial court has placed heavy

reliance on the findings in the earlier proceedings and has held that

the BDA is bound by the same in dismissing the suit.

It may therefore be said that the question of want of

jurisdiction had passed sub-silentio, in the first instance and has

46

deliberately been brushed aside by the trial court in the present

proceedings.

Professor P.J. Fitzgerald, editor of the Salmond on

Jurisprudence, 12th edition, explains the concept of sub silentio at page

153 in these words:

A decision passes sub silentio, in the technical sense that has

come to be attached to that phrase, when the particular point of law

involved in the decision is not perceived by the court or present to

its mind. The court may consciously decide in favour of one party

because of point A, which it considers and pronounces upon. It

may be shown, however, that logically the court should not have

decided in favour of the particular party unless it also decided point

B in his favour; but point B was not argued or considered by the

court. In such circumstances, although point B was logically

involved in the facts and although the case had a specific outcome,

the decision is not an authority on point B. Point B is said to pass

sub silentio.

47

In Gerard v. Worth of Paris Ltd. (1936) 2 All ER 905 (CA), the

only point argued was on the question of priority of the claimant’s

debt, and, on this argument being heard, the court granted the order.

No consideration was given to the question whether a garnishee

order could properly be made on an account standing in the name of

the liquidator. When, therefore, this very point was argued in a

subsequent case before the Court of Appeal in Lancaster Motor Co.

(London) Ltd. vs. Bremith Ltd. (1941) 1 KB 675, the court held itself not

bound by its previous decision. Sir Wilfrid Greene, M.R., said that

he could not help thinking that the point now raised had been

deliberately passed sub silentio by counsel in order that the point of

substance might be decided. He went on to say that the point had to

be decided by the earlier court before it could make the order which

it did; nevertheless, since it was decided “without argument, without

reference to the crucial words of the rule, and without any citation of

authority”, it was not binding and would not be followed.

Precedents sub silentio and without argument are of no moment. This

rule has ever since been followed. One of the chief reasons for the

48

doctrine of precedent is that a matter that has once been fully argued

and decided should not be allowed to be reopened. The weight

accorded to dicta varies with the type of dictum. Mere casual

expressions carry no weight at all. Not every passing expression of a

judge, however eminent, can be treated as an ex cathedra statement,

having the weight of authority. (See Municipal Corporation of Delhi vs.

Gurnam Kaur (1989) 1 SCC 101).

The question whether the principle of ‘incuriam’ would extend

and apply to a conclusion of law, was neither raised nor preceded by

any consideration. In other words can such conclusions be

considered as declaration of law? Here again the English courts and

jurists have carved out an exception to the rule of precedents. It has

been explained as rule of sub-silentio. “A decision passes sub-silentio, in

the technical sense that has come to be attached to that phrase,

when the particular point of law involved in the decision is not

perceived by the court or present to its mind.” (Salmond on

Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London)

Ltd. v. Bremith Ltd. (1941) 1 KB 675, the Court did not feel bound by

49

earlier decision as it was rendered ‘without any argument, without

reference to the crucial words of the rule and without any citation of

the authority’. It was approved by this Court in Municipal

Corporation of Delhi vs. Gurnam Kaur (1989) 1 SCC 101. The bench

held that, ‘precedents sub-silentio and without argument are of no

moment’. The courts thus have taken recourse to this principle for

relieving from injustice perpetrated by unjust precedents. A decision

which is not express and is not founded on reasons nor it proceeds

on consideration of issue cannot be deemed to be a law declared to

have a binding effect as is contemplated by Article 141. Uniformity

and consistency are core of judicial discipline. But that which

escapes in the judgment without any occasion is not ratio decidendi. In

B. Shama Rao vs. Union Territory of Pondicherry (AIR 1967 SC 1480) it

was observed, ‘it is trite to say that a decision is binding not because

of its conclusions but in regard to its ratio and the principles, laid

down therein’. Any declaration or conclusion arrived without

application of mind or preceded without any reason cannot be

deemed to be declaration of law or authority of a general nature

50

binding as a precedent. Restraint in dissenting or overruling is for

sake of stability and uniformity but rigidity beyond reasonable limits

is inimical to the growth of law.” (See State of U.P. and another vs.

Synthetics and Chemicals Ltd. and Another (1991) 4 SCC 139).

The trial court as may be seen from the tenor of the judgment

and by the extensive reference to case law, has proceeded to place

reliance on the same in affirming the findings arrived at earlier, as if

it was a court exercising writ jurisdiction, in addressing the

infirmities, if they could be so construed, in so far as the acquisition

proceedings are concerned.

The trial court has hence erred in placing reliance on the

findings arrived at earlier and in not addressing the suit by the BDA

in its proper perspective.

Consequently, these appeals are allowed . The judgment and

decree of the trial court is set aside and the suit is decreed as prayed

for.

Sd/- JUDGE

KS*