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TMI Blog2015 (6) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Whether the BDA was bound by the judgment and decree in OS. No. 554/1981? - HELD THAT:- 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io decidendi - 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 binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is mimical to the growth of law. 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. Appeal allowed - decided in favor of appellant. - Regular First Appeal Nos. 1876 of 2014 and 124 of 2015 - - - Dated:- 1-6-2015 - Anand Byrareddy, J. For the Appearing Parties : K.M. Nataraj, Senior Advocate for S.G. Hegde, Advocate. JUDGMENT Anand Byrareddy, J. 1. These appeals are hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the result, the judgment and decree of the trial court in O.S. 554/1981 stood revived. It was hence the plaintiffs grievance that by virtue of the judgment and decree in O.S. No. 554/1981, the plaintiffs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant 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 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 judicata, has after an elaborate discussion, spanning several issues which are sought to be considered together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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. 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 partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition 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 ₹ 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 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 Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts. 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 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 Issue No. 8, was answered thus : Issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ORDER These appeals are preferred by the plaintiff against the judgment and order dated 8.3.2001 passed by the High Court of Karnataka in RFyi. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the BDA did have such knowledge and hence ought to have filed a suit immediately and that the suit filed in the year 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 subsilentio, in the first instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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