This appeal is filed by the defendant – Bangalore

Development Authority (‘for short, ‘the BDA’) under

Section 96 of Civil Procedure Code challenging the

judgment and decree dated 29.09.2006 passed by the IX

Additional

City

Civil

Judge,

Bangalore,

in

O.S.No.3039/1991, whereby the suit filed by the plaintiff

has been decreed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The case of the plaintiff is that he was in peaceful

possession of the suit schedule property bearing No. i.e.,

sites bearing No.30, 31, 39 and 40 in Sy.No.30/3,

Nagawara main road, Bangalore. The further case of the

plaintiff is that he has purchased the property from the

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absolute owner, i.e., defendant No.1, by an Agreement

Deed dated 10.05.1984. From the date of agreement he

is in the possession of the property and he has put up a

building. It is his further case that the said property which

was acquired has been de-notified on 27.12.1984. On

16.01.1991 and 14.05.1991 the defendant – BDA tried to

demolish the super structure built on the suit schedule

property. Hence, plaintiff filed a suit for injunction

restraining

the

defendants

from

dispossessing

and

demolishing the structure on the suit schedule property.

4. After

service

of

summons,

defendant No.1

appeared through counsel and filed written statement

contending that he has not executed any agreement of

sale in favour of the plaintiff and he has denied the

averments made in the plaint. Defendant No.2 – appellant

herein filed a written statement and contended that the

land bearing Sy.No.30/3 of Nagawara Village, measuring 3

acres 10 guntas has been acquired by the Government

under the BDA Act. Since 20 guntas has been already

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developed the award has been passed only to the extent

of 2 acres 30 guntas. The suit schedule property is

coming within the acquired land. The suit filed by the

plaintiff is not maintainable. On the basis of the pleadings

of the parties, the following issues were framed before the

trial court:

“1)

Whether

the

plaintiff

is

in

lawful

possession of the suit schedule property?

2) Whether there is interference by the

defendants?

3) Whether the plaintiff is entitled to the

perpetual injunction sought for?

4) Whether the suit is bad for want of a notice

under Section 64 of the Bangalore Development

Authority Act?

5) What decree or order?”

5. To prove the case, plaintiff examined himself as

PW-1 and produced 8 documents. Defendants, neither

examined any witnesses nor produced any documents. On

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consideration of the oral and documentary evidence, the

trial court answered issue Nos. 1 and 3 partly in the

affirmative, issue No.2 in the affirmative and decreed the

suit. Being aggrieved by the same, defendant No.2 has

filed this appeal.

6.

Learned

counsel

appearing

for

the

appellant/defendant No.2 has contended that the suit

schedule property has been acquired by the BDA, the

plaintiff is an unauthorized occupant and he has no right

or title over the suit schedule property. Even he has not

produced any documents regarding his title. Since the suit

schedule property has been acquired by the Government

under the BDA Act, the suit itself is not maintainable. In

support of his contention, he has relied on the judgment of

the Hon’ble Apex Court in the case of COMMISSIONER,

BANGALORE

DEVELOPMENT

AUTHORITY

AND

ANOTHER

vs.

BRIJESH

REDDY

AND

ANOTHER

reported in (2013) 3 SCC 66. Hence, he sought for

allowing the appeal.

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7. Notice to plaintiff/respondent No.1 is held sufficient

and appeal against defendant No.1/respondent No.2 is

abated.

8. Heard learned counsel for the appellant. Perused

the impugned order and the original records.

9. The only point for consideration in this case is,

“whether the judgment and decree passed by the trial

court is erroneous, arbitrary and call for any i