Karnataka High Court

Pradhan Mandal Panchayat vs Pandurang on 23 March, 2022

Bench: Ashok S. Kinagi

                               1




          IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

      DATED THIS THE 23RD DAY OF MARCH, 2022

                           BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

                 RSA No.1396/2006 (INJ)

BETWEEN:

1.     Pradhan Mandal Panchayat
       Rudrawadi, Tq. Aland,
       District-Gulbarga-585 102.
       Represented by Adyaksha.

2.     Secretary Mandal Panchayat
       Rudrawadi, Tq. Aland,
       District-Gulbarga-585 102.
       Represented by Secretary.
                                                   ...Appellants
(By Sri. A.M.Nagaral, Advocate for
 Sri. Basava Prabhu S. Patil & Sri. A Niranjan Kumar,
 Sri. B Subramanya Prasad, Advocates)

AND

1.    Pandurang S/o Sambaji,
      Age about 51 years,
      R/o Kotan Hipparga Village,
      Tq. Aland, District-Gulbarga-585 102.

2.    Sridhar S/o Pandurang,
      Age about 35 years,
      R/o Kotan Hipparga Village,
      Tq. Aland, District-Gulbarga-585 102.
                                                ... Respondents
(By Sri. R.J.Bhusare, Advocate for R2;
Appeal stands abated against R1 V/o dated 09.02.2021)
                              2




      This Regular Second Appeal is filed under Section
100 of CPC, praying to set aside the judgment and decree
dated 09.06.2005, passed by the Court of Civil Judge
(Sr.dn.) at Aland in R.A.No.11/2005 and restore the
judgment and decree dated 17.01.2005 on the file of the
Prl. Civil Judge (Jr.Dn.) & JMFC at Aland, in
O.S.No.316/1991.

      This appeal coming on for orders, this day, the Court
delivered the following:-


                      JUDGMENT

This appeal is filed challenging the judgment and

decree dated 09.06.2005 passed in R.A.No.11/2005

by the Civil Judge (Sr.Dn) Aland.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the defendants and respondents are

the plaintiffs before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

The plaintiffs filed a suit for relief of perpetual

injunction restraining the defendants from destroying

the suit four chowks situated at Kotan Hipparga village

in Aland Taluk. The Kotan Hipparga village comes

under Rudrawadi Mandal Panchayat. Prior to it, the

village panchayat of Kotan Hipparga village was

merged in Rudrawadi Mandal Panchayat. It is alleged

that the villagers of Kotan Hipparga village were

constructed four suit chowks namely "Basaveshwar

Chowk, Chatrapati Shivaji Chowk, Siddeshwar Chowk

and Mahadev Chowk in different places, with due

permission of the Kotan Hipparga Village panchayat.

The said four chowks are suit properties. The suit

chowks were erected in the year 1967. Some people

of Kotan Hipparga village approached the defendants

with a request to give permission for erecting

Ambedkar Chowk by destroying one of the above said

chowk. At that time, the defendants have not

considered the request of the said people. One

Shamrao and another filed a suit for perpetual

injunction in O.S.No.60/1988 before the Munsiff Court

at Aland and the said suit is pending. The plaintiffs

and other elders of the villagers request the

defendants not to destroy the chowks, which will have

been, hurt the feelings of the said villagers. Inspite of

this, the defendants on the first week of October-1991

tried to destroy the said chowks. Hence, cause of

action arose for the plaintiffs to file a suit for perpetual

injunction.

3.1. Defendants filed written statement

contending that the plaintiffs have no locus standi to

file the present suit in the representative capacity in

view of pendency of O.S.No.60/1988 in Munsiff Court

at Aland. It is denied that in the year 1967, the public

of Kotan Hipparga village erected these suit chowks

with due permission of the then village panchayat. It

is contended that there are no records as such in the

defendants' office. In view of non-existence of the suit

chowks at Kotan Hipparga Village, the attachment of

religious sentiment towards the suit chowks to the

Kotan Hipparga Village peoples does not arise. It is

further contended that the plaintiffs have got an

alternative remedy under the provisions of Karnataka

Village Panchayat Act. It is further contended that the

suit filed by the plaintiffs is not maintainable under

Section 232 (2) of Karnataka Village Panchayat Act.

Hence, prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether plaintiffs prove that, the suit properties were established in accordance with law and their use of the same in lawful?

2. Whether the plaintiffs prove that, defendants have illegally interfered with their lawful enjoyment of suit property?

3. Whether the plaintiffs prove that, suit as brought is maintainable?

4. What relief and order?

3.3. In order to prove the case, plaintiff Nos.1

and 2 examined themselves as PW-1 and PW-4 and

examined two witnesses as PW.2 and PW.3 and got

marked Ex.P1 to P3. On the other hand, defendants

examined their official witness as DW-1 and DW-2 and

got marked Ex.D1 to D8. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiffs have failed to prove

that the suit properties were established in accordance

with law and their use of the same in lawful and

further held that the plaintiffs have failed to prove

that defendants have illegally interfered with their

lawful enjoyment of suit property and further held that

the plaintiffs have failed to prove that the suit is

maintainable and consequently dismissed the suit.

3.4. The plaintiffs aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.11/2005. The First Appellate Court framed the

following points for consideration:

1. Whether the plaintiffs have established their case existence of suit chowks called Basweshwar Chowk, Chatrapati Shivaji Chowk, Siddeshwar Chowk and Mahadev Chowk in Kotan Hipparga since last 25 years as contended in the plaint?

2. Whether the plaintiffs establish their case that the alleged notice issued by the Gram Panchayat dated 30.10.1991 is interference on the part of the defendants and they are exceed their power for issuance of such notice?

3. Whether the judgment and decree passed by the Trial Court is erroneous much against to the facts and it against the panchayat Act not appreciated the oral and documentary evidence passed by the plaintiffs and not appreciated the admissions given by the defendants and dismissed the suit of the plaintiff which needs interference by this Court for modification, varied and to setting aside the judgment and decree by allowing

this appeal filed under Order 41 Rule 1 r/w Section 96 of CPC?

4. What order?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, allowed the

appeal and set aside the judgment and decree passed

by the trial Court and consequently decreed the suit of

the plaintiffs. The defendants aggrieved by the

judgment and decree passed by the First Appellate

Court filed this appeal.

4. Heard learned counsel for the defendants and

learned counsel for plaintiffs.

5. Learned counsel for the defendants submits

that the lower Appellate Court has committed an error

in recording a finding that provision of Section 232 (2)

of Karnataka Village Panchayat Act, which is old law

and the learned trial Judge relied upon old law and

dismissed the suit. It is not maintainable. He further

submits that even under the provisions of Karnataka

Gram Swaraj and Panchayat Raj Act, 1993, as per

Section 295(2) the suit is not maintainable. The

appellate Court without examining the said aspect has

proceeded to pass the impugned judgment and

decree. Hence, he submits that the appellate Court

has committed an error in decreeing the suit of the

plaintiffs. Hence, on these grounds he prays to allow

the appeal.

6. Per contra, learned counsel for the plaintiffs

submits that the suit filed by the plaintiffs in the

representative capacity is maintainable. The appellate

Court after considering the material on record was

justified in decreeing the suit of the plaintiffs. He

further submits that the provision which was relied

upon by the defendants is no more in existence.

Hence the appellate Court was justified in holding that

the suit filed by the plaintiffs is not maintainable.

Hence, on these grounds prays to dismiss the appeal.

7. This Court admitted the appeal on

03.04.2009 on the following substantial question of

law;

"Whether the lower Appellate Court was justified in reversing the judgment and decree of the trial Court".

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. It is the case of the plaintiffs that chowks

were erected in the year 1967 and at the instigation of

some villagers, the defendants were trying to destroy

the suit chowks. Hence, the plaintiffs with an

apprehension that the defendants may destroy the

chowks and if chowks are destroyed, the feelings of

the said villagers will be affected. In support of the

case, the plaintiff Nos.1 and 2 examined as PW.1 and

PW.4. They have reiterated the plaint averments in

their examination in chief. Learned counsel for the

defendants denied the case of the plaintiffs and

further contended that the suit in O.S.No.60/1988

filed in respect of suit, which is subject matter of

chowks and the same is pending. In support of their

case, the plaintiffs have produced Ex.P1, which was

issued by the defendant No.2 on 30.10.1991. Hence,

the cause of action arose to file a suit based on the

public notice i.e. Ex.P1. It is the contention of the

plaintiffs that the suit chowks were erected in the year

1967, in order to substantiate the same, the plaintiffs

have not produced any record to show that the suit

chowks were erected in the year 1967. The trial Court

has recorded a finding that the plaintiffs have failed to

prove that the suit chowks were erected in the year

1967 and they are in lawful possession and further

feelings of the villagers are being affected.

10. The defendants have taken a specific

defence in the written statement that the suit filed by

the plaintiffs in a representative capacity is not

maintainable under Section 232(2) of Karnataka

Village Panchayat Act, which reads as under;

"No suit or other legal proceedings shall lie against the Government, the Commissioner, Deputy Commissioner, Assistant Commissioner, Tahasildar or any other officer or Government or a Panchayat or Taluk Board or any member, officer, servant or agent of such panchayat or Taluk Board acting under its direction, in respect of anything done or purporting to have been done lawfully and in good faith under this act or any rule, bye-law, regulation or order made thereunder".

11. As per Section 232(2) no suit or other legal

proceedings shall lie against the Government, the

Commissioner, Deputy Commissioner, Assistant

Commissioner, Tahasildar or any other officer or

Government or a panchayat or Taluk Board acting

under its direction, in respect of anything done or

purporting to have been done lawfully and in good

faith under this act or any rule, bye-law, regulations.

Considering section 232(2), the trial Court held that

the suit filed by the plaintiffs is not maintainable. The

appellate Court has recorded a finding that the trial

Court relying upon the old law held that the suit is not