Bhagirat Education Trust vs Beruni Masjid Managing Committee
2022 Latest Caselaw 5519 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

        DATED THIS THE 28 t h DAY OF MARCH, 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                 R.S.A. NO.133/2007 (PAR)

BETWEEN

BHAGIRAT EDUCAT ION TRUST ,
GANGAVATHI
BY ITS SECRETARY
PRAHALAD S/O ESHWARAPPA
AGED ABOUT 45 YRS,
OCC BUSINESS,
R/AT NEAR VEERABHADRESHWAR TEMPLE,
GANGAVATHI-583227.
                                            ...APPELLANT
(BY SRI.MAHESH WODEYAR, ADV.)

AND

1 .   BERUNI MASJID M ANAGING COMMITTEE,
      THROUGH ITS SECRETARY,
      BUS STAND ROAD, GANGAVATHI-583227.

2 .   THE CITY MUNI CIPAL COUNCI L,
      GANGAVATHI,
      BY ITS COMMISSIONER,
      GANGAVATHI-583227.
                                       ...RESPONDENTS
(BY SRI.B.M.CHANNAMALLIKARJUNA SWAMY, ADV. FOR C/R1;
 SRI .B.SHARANABASAVA, ADV. FOR R2)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED:22.12.2006 PASSED IN R.A.NO.
44/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
GANGAVATHI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED:30.6.2006 PASSED I N OS.NO.
64/2005 ON THE FILE OF THE ADDL.CIVI L JUDGE (JR.DN.) &
JMFC, GANGAVATHI.
                                      2




     THIS RSA COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT , DELIVERED THE FOLLOWING:

                                 JUDGMENT

Challenging judgment and decree dated 22.12.2006

passed by Civil Judge (Sr.Dn.), Gangavathi in

R.A.no.44/2006, this appeal has been filed.

2. Appellant herein was plaintiff before trial Court

and respondent in first appeal. Respondent no.1 herein

was defendant no.1 in trial court and appellant in first

appeal. While respondent no.2 herein was defendant no.2

in trial court and respondent no.2 before first appellate

Court. For the sake of convenience, parties to this appeal

are referred to as per their ranks in trial Court.

3. Brief facts as stated are that O.S.no.64/2005

was filed seeking for decree of permanent injunction

restraining defendants from disturbing peaceful

possession and enjoyment of plaintiff over suit schedule

property, viz., open space with sheds situated at Murahari

Nagar, Gangavathi and same is bounded on East by New

Daily Market Road; West by Defendants no.2's Maszid

Compound; North by Road and South by Maruti Temple.

4. It was stated that plaintiff-Trust was running

primary school in Maruti temple premises. As said place

was not convenient to run school, it intended to secure

suit property from defendant no.1 and made an

application for allotment. Same was considered by Finance

Committee of defendant no.1 at Sl.no.1566 on 08.11.2000

and recommended for allotment. As plaintiff was seeking

allotment of property permanently, sanction of

Government was necessary. Defendant no.1 forwarded

recommendation to Government for approval. In the

meanwhile, plaintiff deposited Rs.10,990/- with defendant

no.1. It is further claimed by plaintiff that defendant no.1

had put plaintiff in possession of suit property and

plaintiff had erected temporary sheds to run classes. It

was further stated that defendant no.2 was a Masjid

committee wielding political influence, tried encroaching

suit property by force. In order to protect suit property

from encroachment, plaintiff filed suit.

5. On service of suit summons, defendant no.1 filed

written statement contending that suit was not

maintainable. Registration and establishment of school by

plaintiff was denied. It also denied application being

submitted by plaintiff for allotment. It contended that suit

property belongs to it, in which plaintiff had illegally

erected structures without any grant or permission.

Defendant no.1 however, stated that defendant no.2 had

filed application before defendant no.1 - Municipality

objecting illegal sheds erected by plaintiff, after which,

spot inspection was conducted on 25.06.2005 and notice

was issued to plaintiff to remove illegal sheds. Deposit of

amount by plaintiff was denied.

6. Defendant no.2 in its separate written statement

stated that defendant no.2 was running Mosque adjacent

to WAKF property. It was stated that for construction of

road and gutter by defendant no.1, it had lost some of its

land. In lieu of such land, it was seeking for grant of suit

property as it was adjacent to its property.

7. During pendency of application of defendant no.2,

plaintiff had encroached and put up construction. It was

further contended that without sanction from Government,

plaintiff acquired no right and sought dismissal of suit.

8. Based on pleadings, trial Court framed following

issues:

"1. Whether plaintiff proves that it is in lawful possession of suit schedule property as on the date of suit?

2. Whether plaintiff proves that alleged interference by defendants?

3. Whether plaintiff is entitled to relief of permanent inj unction as prayed for in the suit?

4. What order or decree?"

9. Thereafter plaintiff examined three witnesses as

PW-1 to PW-3 and got marked Exhibits P1 to P10. On

behalf of defendants, one witness was examined by

defendant no.1 and three witnesses were examined by

defendant no.2 as DW-1 to DW-4. Exhibits D1 to D17

were marked.

10. On consideration, trial court answered issue

nos.1, 2 and 3 in affirmative and issue no.4 by decreeing

suit. While answering issue no.1, trial Court considered

Ex.P5 - application filed by plaintiff on 07.07.2005 to

defendant no.1; Ex.P6 - resolution of financial committee

of municipality on 08.11.2000; Ex.P8 - acceptance of

application of plaintiff, endorsement issued by C.M.C.,

Gangavathi dated 20.07.2005 and receipt for having

deposited Rs.10,990/- and Ex.P4 - notice dated

02.07.2005 issued to plaintiff to vacate suit property to

come to conclusion that plaintiff had established its

possession over suit property. It also took note of

contention of defendant no.2 in written statement alleging

unauthorized occupation of suit property by plaintiff as

corroborating plaintiff's possession over suit property. It

held that Ex.P4 - notice issued by defendant no.1 to

plaintiff, as establishing interference by defendant no.1.

On said findings, trial court decreed suit.

11. Against said decree, only defendant no.2 filed

appeal in R.A.No.44/2006. First appellate court, however

framed general issues regarding validity of judgment and

decree of trial court, and on consideration thereof allowed

appeal setting aside judgment and decree passed by trial

court directing defendant no.1 to proceed against plaintiff

to evict it from suit property as per law and directions

issued by higher authorities. Aggrieved by same, plaintiff

is in appeal.

12. Sri Mahesh Wodeyar, learned counsel for

appellants submitted that appeal was admitted on

13.02.2007 to consider following substantial question of

law:

"Whether the lower Appellate court was justified in setting aside the judgment and decree of the trial court at the instance of the second defendant / appellant, who admittedly had no interest on the date of the suit or on the date of appeal, except that he was only an applicant for grant of lands?"

13. Learned counsel submitted that while considering

point no.1, first appellate court observed that defendant

no.1 - City Municipal Council had not preferred any appeal

against finding of trial court that plaintiff was in settled

possession. And that only ground on which defendant no.2

filed appeal was that some portion of its property was lost

for formation of road and it intended to seek allotment of

suit property as alternative land. This established that

defendant no.2 had no right in suit property and was

therefore not an aggrieved party. But first appellate court

failed to consider this aspect.

14. He also submitted that finding of first appellate

court pivoted on contents of Ex.D.6 dated 24.04.2001,

referring to which it concluded that proposal for allotment

of suit land to plaintiff was rejected by government. But

Ex.D.6 would reveal that proposal was not rejected but

returned as incomplete, with direction to send only

completed proposals. Therefore first appellate court erred

in assuming that government had directed defendant no.1

to take action against plaintiff for its eviction. Therefore,

reversal of trial court decree was on such erroneous

conclusion and issuance of direction to defendant no.1 to

evict plaintiff from suit property was wholly illegal and

called for interference.

15. Counsel for defendant no.1 remained absent.

Arguments taken as nil.

16. Sri B. Sharanabasava, learned counsel for

respondent no.2 opposed appeal and contended that

judgment and decree passed by trial court merely

protected plaintiff from eviction except by due process of

law. As notice - Ex.P.4 issued by defendant no.1 was in

accordance with law. While reversing judgment and decree

of trial court, first appellate court had merely directed

defendant no.1 to proceed against plaintiff in accordance

with law. Therefore as findings against plaintiff were

concurrent no interference was called for.

17. Learned counsel further contended that Section

72(2) of Karnataka Municipalities Act, 1964, prohibited

grant of any immovable property belonging to Municipality

for an upset price or on lease for a term exceeding five

years, without previous sanction from government. As

there was no sanction, plaintiff's claim was contrary to

law therefore, impugned judgment and decree was

justified and sought for dismissal of appeal.

18. From above submission, there is no dispute that

defendant no.1 is owner of suit property. It is also not in

dispute that plaintiff was running educational institution

and filed application for allotment of suit property. It is

further not in dispute that defendant no.2 intended to

apply for allotment of suit property. While plaintiff claims

to be in lawful possession of suit property by virtue of

resolution of Finance Committee of defendant no.1 dated

11.12.2000, deposit of Rs.10,990/- and construction of

sheds for running educational institution in suit property;

defendant no.1 disputes lawful possession of plaintiff over

suit property and states that it had initiated steps for

eviction of plaintiff from suit property by issuing notice

dated 02.07.2005 - Ex.P.4. Therefore, before allotment as

per law, claim of plaintiff to be in possession by putting

up sheds, at best be unauthorised occupation and cannot

be 'lawful possession'.

19. Finding of trial court regarding lawful possession,

referring to deposition of PW1, contents of Ex.P.6 -

resolution of finance committee, Ex.P.7 - endorsement

issued by City Municipal Council, Gangavati and resolution

passed on 08.12.2000 and Ex.P.8 - receipt for having

received Rs.10,990/- would therefore be contrary to law.

20. Though indeed, referring to Ex.D.6 first appellate

court concluded that proposal submitted for allotment of

suit property to plaintiff was rejected by Government and

therefore plaintiff's possession was not lawful and on said

finding reversed judgment and decree of trial court and

directed defendant no.1 to evict plaintiff from suit

property in accordance with law, admittedly, suit property

belongs to municipality. Though there is dispute, whether

and when defendant no.2 filed application for allotment of

suit land, it is not in dispute that plaintiff had sought

allotment of suit land. Considering such application,

finance committee of defendant no.1 had recommended

for sanction. Said resolution was confirmed by council of

defendant no.1 and as required under Section 72(2) of

Municipalities Act, proposal was submitted to Government

for approval. But said proposal has not been accepted by

Government vide Ex.D.6. Though proposal for allotment of

suit land to plaintiff was not rejected, there is nothing on

record to indicate that completed proposal was forwarded

to Government for consideration or whether defendant

no.1 had intimated rejection of proposal to plaintiff.

21. Under the circumstances, decree passed by trial

court protecting plaintiff against eviction except as per

due process of law, cannot be said to be illegal. Merely on

the basis of claim of defendant no.2 to have filed

application to defendant no.1 requesting grant of suit land

on 21.04.1993, interference by first appellate court

issuing direction to defendant no.1 to evict plaintiff from

suit property would be perverse. Especially so, when

defendant no.2 has not placed on record any material to

have pursued its claim. As defendant no.2 would not be an

aggrieved party, appellate court would not be justified in

interfering with judgment and decree passed by trial court

at the instance of defendant no.2.

22. In view of above discussion, substantial

question of law has to be answered in the negative, with a

clarification that Section 72(2) of Karnataka Municipalities

Act mandates prior sanction from government for

permanent grant. And plaintiff would not get any right in

respect of suit property except against eviction in

accordance with law. It would, however be open to

plaintiff to pursue its right with the authorities in

accordance with law.

23. In view of above finding, I pass following:

ORDER

Appeal is allowed in part.

Judgment and decree dated 22.12.2006 passed by

Civil Judge (Sr.Dn.), Gangavati in R.A.no.44/2006 is set

aside.

Consequently, judgment and decree dated 30.06.2006

passed by the Addl.Civil Judge (Jr.Dn.) & JMFC, Gangavati in

OS.no.64/2005, is restored.

No order as to costs.

Sd/-

JUDGE

KGK/CLK/PSG