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G.V. Reddy v/s Ministry of Communication Employees Co-Operative Housing Society Ltd.


Company & Directors' Information:- GV CORPORATION LIMITED [Strike Off] CIN = U22130TN2006PLC060979

Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- REDDY HOUSING PRIVATE LIMITED [Active] CIN = U45200KA2012PTC064521

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

Company & Directors' Information:- G & D COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64200MP2007PTC019633

    Regular First Appeal No. 1069 of 2019

    Decided On, 02 July 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.B. PRABHAKARA SASTRY

    For the Appearing Parties: V. Lakshminarayana, H.N. Shashidhara, Advocates.



Judgment Text


The present appellant had filed a suit in the Court of LXXII Addl.City Civil & Sessions Judge, at Mayo Hall, Bengaluru, (hereinafter for brevity referred to as 'trial Court'), in O.S.No.26443/2014, seeking the relief of permanent injunction restraining the defendant or its agents, servants or any other person claiming through them from interfering with the plaintiff's peaceful possession and enjoyment of suit schedule property. The suit schedule property is a land bearing Survey No.31 and measuring to an extent of 1 acre 35 guntas, situated at Kayamgutta, Byatarayanapura Village, Yelahanka Hobli, Bengaluru North Taluk. The present respondent was defendant in the trial Court, at whose application i.e., IA.No.1/2016, filed under Order VII Rule 11(a) read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC'), the plaint of the plaintiff came to be rejected by the order of the trial Court dated 6.2.2019. It is against the said order, the plaintiff has preferred the present appeal.

2. In the trial Court, the defendant-Society (respondent herein) stated in its application that the suit schedule property has been acquired by the Bengaluru Development Authority (hereinafter for brevity referred to as 'BDA') under a Gazette Notification for the formation of the Layout by the defendant-Society. As such, after formation of the layout, the Society and the allottees of the sites are in possession and enjoyment of the entire property, including the suit schedule property. As such, a suit for injunction filed in a Civil Court with respect to a non-existing property is not maintainable. Further, it was also contended that since the land was acquired under Land Acquisition Act, 1894 (hereinafter for brevity referred to as 'Land Acquisition Act'), in a process to known to law and which acquisition has reached its finality, the suit in a Civil Court for the relief of permanent injunction is not maintainable.

3. The said application was opposed by the plaintiff (appellant herein) by filing his objections stating that the plaintiff has purchased the property based upon an Agreement of Sale dated 2.4.1993 from its vendor Smt.Munibachamma and Smt.Venkatamma for a lawful consideration. The Sale Deed was got executed in his favour on 27.7.2012 in an Execution Petition i.e., EP.No.2566/2010, on the file of 28th Addl.City Civil Court, Bengaluru. The plaintiff has contended that he came to know about the Gazette Notification by the original kathedar only when the defendant filed Miscellaneous Petition No.25211/2012 to set aside the judgment and decree passed in O.S.No.16611/2003, which suit was filed by the plaintiff against the vendors of the property for enforcing the relief of specific performance. The trial Court after hearing both side, observing that when the subject matter property was the subject matter of the land acquisition, then the present suit cannot be maintained in a Civil Court, the plaint was rejected by allowing IA.No.1/2016 filed by the defendant under Order VII Rule 11(a) read with Section 151 of CPC.

4. Learned Senior Counsel appearing for the appellant/plaintiff in his argument submitted that the trial Court ought to have looked into the plaint averments, but, not the written statement. As such, the finding of the trial Court is erroneous. In his support, learned Senior Counsel relied upon two judgments of Hon'ble Apex Court.

In the first judgment in Madiraju Venkatara Ramana Raju -vs- Peddireddigari Ramachandra Reddy and others, (2018) 14 SCC 1, at Para-45, the Hon'ble Apex Court was pleased to observe as below :

" Under Order 7 Rule 11(a), only the pleadings of the plaintiff-petitioner can be looked at as a threshold issue. Whereas, entire pleadings of both sides can be looked into for considering the preliminary issue under Order 14 Rule 2. Neither the written statement nor the averments or case pleaded by the opposite party can be taken into account for answering the threshold issue for rejection of election petition in terms of Order 7 Rule 11(a) of the Act."

In the second judgment relied upon by the learned Senior Counsel for the appellant which is in R.K.Roja -vs- U.S.Rayadu and another, (2016) 14 SCC 275, the Hon'ble Apex Court while dealing with an application filed under Order VII Rule 11 of CPC, was pleased to observe that, the application filed under Order VII Rule 11 of CPC should not be considered on the basis of defendant's allegation in written statement or allegations made in the application for rejection of plaint. However, application for rejection under Rule 11 cannot be made as a ruse for retrieving lost opportunity to file written statement.

In both the judgments referred above, the Hon'ble Apex Court has observed that rejection of plaint under Order VII Rule 11 of CPC could be based upon the pleadings made in the plaint. However, it cannot be ignored of the fact that both the above judgments were rendered by the Hon'ble Apex Court in an Election Petition involving the matter of election.

5. The plaint of the plaintiff filed in the trial Court, a copy of which is produced by the appellant along with his memo dated 24.5.2019, go to show that, the plaintiff has mentioned about the defendant claiming ownership of the suit schedule property stating that the suit schedule property was the subject matter of acquisition and it has long back been acquired for the purpose of formation of a layout by the defendant- Society. As such, even according to the plaint averment, the plaintiff was aware as on the date of filing the Original Suit that the suit schedule property was subject matter of land acquisition and according to the defendant, the land had long back been acquired by the Bengaluru Development Authority under Land Acquisition Act.

6. By the argument of the parties and from the materials placed before this Court, it further go to show that before the vendor of the property to the plaintiff selling the suit schedule property, the said vendor had challenged the acquisition of the suit schedule property in Writ Petition No.6574/2005 (LA-RES), which came to be disposed of by this Court on 18.7.2007 and thereafter, they preferred a Writ Appeal No.1620/2007. The challenge made by the petitioners against the Notification issued under Section 4(1) and Section 6(1) of Land Acquisition Act, was said to have been dismissed by this Court. The present plaintiff had filed a writ petition in W.P.No.50904/2014 (LA-RES), which also came to be dismissed by this Court on 8.10.2015, holding that the Sale Deed executed in his favour does not confer upon him any title and at the most, he can claim compensation on the basis of his vendor's title.

7. Admittedly, the present plaintiff had purchased the said land subsequent to its acquisition under Land Acquisition Act. Section 16 of the Land Acquisition Act leads to a legal presumption about taking over of the possession of the land and vesting the same with the State. Any way, the fact remains that, before plaintiff could purchase the suit schedule property, the said land was already shown to be acquired under Land Acquisition Act.

8. Learned counsel for the respondent in his argument relied upon two judgments of Hon'ble Apex Court. The first judgment is in H.N.Jagannath and others -vs- State of Karnataka and others, (2018) 11 SCC 104. In the said judgment, the Hon'ble Apex Court was pleased to hold that Civil Court has no jurisdiction to examine the acquisition proceedings by necessary implication. The Civil Court looses its jurisdiction under Section 9 of CPC. It is High Court which gets jurisdiction under Article 226 of the Constitution of India or Supreme Court under Article 136 of the Constitution of India to examine the validity of acquisition proceedings.

The second judgment that was relied upon by the learned counsel for the respondent is in Commissioner, Bangalore Development Authority and another -vs- Brijesh Reddy and another, (2013) 3 SCC 66. In the said case also, with respect to Land Acquisition Act and at Section 9 of CPC and regarding the maintainability of suit in Civil Court when scheduled lands were acquired under land acquisition proceedings, the Hon'ble Apex Court was pleased to observe that Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, power of Civil Court to take cognizance under Section 9 of CPC stands excluded and Civil Court has no jurisdiction to go into question of validity or legality of Notification under Section 4, declaration under Section 6 and subsequent proceedings. It was further held that Civil Court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under Land Acquisition Act. Only right available to aggrieved person is to approach High Court under Article 226 and Supreme Court under Article 136 of the Constitution of India with self-imposed restrictions on their exercise of extraordinary power.

9. In the light of the above judgments and if the plaint averments of the plaintiff is seen, as observed above, the plaintiff in his plaint itself has stated about he coming to know of the acquisition of the suit schedule property by the acquiring authority before he said to have purchased the land from his vendor Smt.Munibachamma. Further, the trial Court has considered the Gazette Notifications issued by the Government authority under Section 4(1) and Section 6(1) of the Land Acquisition Act. As such, even after confining to the plaint averments itself, still, it reveals that, much earlier to the plaintiff purchasing the suit schedule property from his vendor, the land had already been acquired by the acquisition authority and the Bengaluru Development Authority had also taken over possession of the property and formed a layout.

10. Therefore, when admittedly the subject matter property was acquired under Land Acquisition Act, which is a special and comprehensive Act, the remedy available to the plaintiff even for the relief of injunction is not under Section 9 and Order VII Rule 11 of CPC, but, it may be under Article 226 of the Constitution of India before the jurisdictional High Court or under Article 136 of the Constitution of India before the Hon'ble Supreme Court.

11. Thus, by considering the observations made in the judgments relied upon by the learned Senior Counsel for the appellant, even after confining to the plaint av

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erments, since the plaintiff has failed to show that his plaint averments and reliefs sought for cannot go without challenging the acquisition proceedings, then, even in the guise of some bare injunction suit, he cannot maintain the original suit under Section 9 read with Order VII Rule 11 of CPC. As such, the trial Court has rightly rejected the plaint by allowing the Interlocutory Application No.1/2016 filed by the defendant under Order VII Rule 11 read with Section 151 of CPC before it. 12. I do not find any discrepancy or error in the said finding of the trial Court. Thus, I am of the view that the appellant has not made out any ground to admit the appeal for hearing. 13. Accordingly, I proceed to pass the following order: ORDER There are no grounds for admitting this appeal. As such, the Appeal stands dismissed. In view of dismissal of the main appeal itself, the pending IA.No.2/2019 filed under Order 41 Rule 5 of CPC, praying for stay, IA.No.3/2019 filed under Section 151 of CPC, for direction and IA.No.4/2019 filed under 151 of CPC, praying for order of status quo, does not survive for consideration.
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