Karnataka High Court
The City Municipal Council vs Smt Mallamma on 31 July, 2024
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NC: 2024:KHC:30329
RSA No. 642 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 642 OF 2016 (INJ)
BETWEEN:
THE CITY MUNICIPAL COUNCIL
CHIKMAGALUR,
CHICKMAGALUR DISTRICT-577101
REPRESENTED BY ITS COMMISSIONER
...APPELLANT
(BY SRI A. NAGARAJAPPA, ADVOCATE)
AND:
SMT. MALLAMMA
W/O RAMAIAH,
AGED ABOUT 68 YEARS,
RESIDING AT GOWRI KALUVE,
VIJAYAPURA EXTENSION,
CHICKMAGALORE,
Digitally signed by CHICKMAGALUR DISTRICT-577101
MAHALAKSHMI B M
...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI H.N.MANJUNATH PRASAD, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 25.01.2016 PASSED IN
R.A.NO.61/2014 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM, CHIKKAMAGALURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
04.08.2014 PASSED IN O.S.NO.332/2009 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, CHIKMAGALUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:30329
RSA No. 642 of 2016
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing concurrent findings of facts recorded by the Courts below, the defendant is before this Court in the present Regular Second Appeal.
2. Parties herein are referred to as per the rank before the Trial Court for the sake of convenience.
3. Suit seeking the relief of permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property. It is the case of the plaintiff that under a resolution dated 21.12.1972, City Municipality, Chikmagalur-defendant decided to grant sites to the site- less people and in Sy.No.101, several sites were formed and among them one site measuring 30 x 40 feet, (hereinafter referred to as 'suit property') was granted in favour of the plaintiff under registered sale deed dated 20.04.1990, pursuant to the execution of the sale deed, khata was mutated in the name of the plaintiff and she is in possession of the suit property from the date of -3- NC: 2024:KHC:30329 RSA No. 642 of 2016 execution of the sale deed. It is stated that the defendant cancelled the khata without notice to the plaintiff and the defendant along with its officials are trying to dispossess the plaintiff from the suit property.
4. On notice, the defendant appeared and filed written statement, inter alia, denying the plaint averments. The defendant contended that no sites were allotted to the plaintiff and the alleged sale deed was not executed in her favour. The claim of the defendant is that the plaintiff in collusion with one Chikkaveerappa, who was working in the municipality, fabricated the sale deed and other documents in respect of site Nos.101 and 99 and after coming to know about this fact by the defendant, the license granted to the plaintiff to construct the building and the khata was cancelled. It is stated that the suit property is a corner site and it is not proposed to be granted to anybody much the less to the plaintiff. The specific contention of the defendant is that the plaintiff got the sale deed fabricated in collusion with the other persons -4- NC: 2024:KHC:30329 RSA No. 642 of 2016 of the corporation and the plaintiff is not the owner of the suit property.
5. The Trial Court on basis of pleadings, framed the following issues:
1) zÁªÉ zÁR®Ä ªÀiÁrzÀ ¢£À¢AzÀ zÁªÁ ¥Àj²¥ÀÖzÀ°è «ªÀj¹gÀĪÀ D¹ÛUÉ ªÁ¢AiÀÄÄ ±ÁAw jÃwAiÀÄ C£ÀĨsÉÆÃUÀ ªÀÄvÀÄÛ ¸Áé¢üãÀzÀ°è EzÀÝgÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢ªÀÄAiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉÀAiÉÄÃ?
2) ¥ÀæwªÁ¢AiÀÄjAzÀ D¬ÄvÀÄ J£À߯ÁzÀ CrØ-DvÀAPÀªÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉ ?
3) ¥ÀæwªÁ¢AiÀÄgÀ «gÀÄzÀÝ ªÁzÀ ¥ÀvÀæzÀ°è PÉÆÃjgÀĪÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
4) ªÀiÁqÀĪÀ DzÉñÀ CxÀªÁ rQæ K£ÀÄ?
6. The Trial Court on the basis of pleadings, oral and documentary evidence, arrived at a conclusion that the plaintiff has proved her lawful possession over the suit property and decreed the suit of the plaintiff restraining the defendant permanently from dispossessing the plaintiff from the suit property and in any way disturbing her peaceful possession and enjoyment over the same. -5-
NC: 2024:KHC:30329 RSA No. 642 of 2016
7. Aggrieved, the defendant preferred appeal before the First Appellate Court. The First Appellate Court, while re-appreciating and re-considering the entire oral and documentary evidence, confirmed the judgment and decree of the Trial Court. Aggrieved, the defendant is before this Court.
8. Heard the learned counsel appearing for the appellant-City Municipal Council, Chikkamagalur and learned counsel for respondent-Mallamma.
9. The main argument advanced by the learned counsel for appellant is that the license and the khata in favour of the plaintiff has been cancelled after coming to know that the plaintiff along with the other officials of the Municipality had committed fraud and obtained the registered sale deed in his favour and the Courts below without appreciating the facts has erroneously restrained the defendant-appellant from dispossessing the plaintiff from the suit property. Learned counsel submits that there -6- NC: 2024:KHC:30329 RSA No. 642 of 2016 arises substantial question of law to be framed by this Court in this second appeal.
10. Per Contra, learned counsel for the respondent justifies the judgment and decree of the Courts below and submits that against the concurrent findings of facts cannot be interfered with under Section 100 of CPC and there arises no substantial question of law for consideration in the present second appeal and sought for dismissal of the appeal. The counsel for respondent brought to the notice of this Court, the findings recorded in R.S.A.No.3259/2006 wherein this Court held that the plaintiff has proved that she has been in lawful possession and enjoyment of the suit property as on the date of the suit.
11. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record including the judgment and decree of the Courts below.
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NC: 2024:KHC:30329 RSA No. 642 of 2016
12. Suit is one for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property, the claim of possession is in light of the registered sale deed executed in her favour by the defendant-City Municipality on 20.04.1990.
13. In order to substantiate her claim, plaintiff examined herself as PW1 and marked documents at Ex.P1 to Ex.P20 and also examined one witness as PW2. On the other hand, the defendant examined Revenue Officer as DW1 and marked documents at Ex.D1 to Ex.D11 and also examined one witness-Krishnamurthy who has been examined as DW2. The burden was on the plaintiff to establish that she was in lawful possession of the suit property as on the date of institution of the suit, the sale deed at Ex.P1 dated 20.04.1990 executed in favour of the plaintiff is not in dispute, what is disputed by the defendant is the manner in which it has been executed. According to the defendant, it is urged that the sale deed -8- NC: 2024:KHC:30329 RSA No. 642 of 2016 executed in favour of the plaintiff was by playing fraud. The sale deed in favour of the plaintiff executed on 20.04.1990 is on account of any fraud as contended by the defendant, the same had to be challenged by the defendant in accordance with law, what remains before this Court is that the defendant has not challenged the execution of the registered sale deed before any Court of law.
14. The other aspect is that there was a suit filed by the plaintiff seeking permanent injunction against the defendant and another third person, which was dismissed having found that there is no interference by the present defendant and the plaintiff had approached this Court in R.S.A.No.3259/2006. The findings recorded in that suit was that the plaintiff is in possession and enjoyment of the suit property as on the date of the suit, but since the plaintiff failed to prove interference by the defendant-City Municipality, the suit of the plaintiff was dismissed. The -9- NC: 2024:KHC:30329 RSA No. 642 of 2016 relevant findings recorded by this Court in RSA No.3259/2006 at paragraph No.4 reads as under:
" 4. On careful reading of both the impugned judgments and decrees, it could be seen that the Trial Court has recorded its finding that the plaintiff proved that she had been in lawful possession and enjoyment of the suit schedule property as on the date of the suit but she failed to prove the interference alleged against the defendants. The Appellate Court, while concurring with the said findings allowed the said regular appeal and thereby confirmed the judgment and decree of the Trial Court. On careful reading of the averments at paragraph No. No.5 in the plaint insofar as they relate to the interference alleged against the defendants it could be seen that the interference is alleged against the first defendant only and not against the second defendant who has been the officer of the Municipality. The said averments read as under:
"The defendant more particularly the first defendant even though not having any kind of right, title or interest in over the schedule
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NC: 2024:KHC:30329 RSA No. 642 of 2016 property with the help of the members of the Mahila Mandali tried to cause obstruction to the construction work of the plaintiff's house property, in that regard on 25.02.2000 the first defendant along with the anti social elements came near the schedule sit and threatened the plaintiff with consequences and stopped the construction work. With great difficulty the plaintiff resisted the high handed act of the first defendant and also the second defendant on the guise of the first defendant approach also visited the spot and orally instructed the Plaintiff not to go ahead with the construction work. Even though the second defendant he himself has granted the site and also the license to the plaintiff despite that he has given oral instructions in violation of the terms and conditions enumerated in the license which is highly unlawful on the part of the second defendant."
15. The plaintiff has established by placing cogent evidence about the possession and enjoyment of the suit property. The Trial Court, while assessing the entire oral and documentary evidence, arrived at a conclusion that
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NC: 2024:KHC:30329 RSA No. 642 of 2016 the plaintiff is in possession and enjoyment of the suit property. The First Appellate Court, being the last fact finding Court, has re-appreciated and re-considered the entire oral and documentary evidence independently and arrived at a conclusion that the plaintiff possession over the suit property is established. The manner in which both Courts have considered the entire oral and documentary evidence, this Court is of the considered view that no substantial question of law arises for consideration in the present Regular Second Appeal and the same does not warrant any interference under Section 100 CPC, accordingly, this Court pass the following:
ORDER I) The Regular Second Appeal is hereby dismissed.
II) The judgment and decree of the Courts below stands confirmed.
Sd/-
(K.S. HEMALEKHA) JUDGE RHS List No.: 1 Sl No.: 6