Karnataka High Court
Sri R Srinivasaiah vs Aiish Staff Welfare And Cultural ... on 26 September, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1327 OF 2009 (INJ)
BETWEEN:
SRI R SRINIVASAIAH
S/O LATE RANGAIAH
AGED 71 YEARS
C/O L LINGAIAH
R/OF D NO.88-A
16TH CROSS, V V MOHALLA
MYSURU-570 002.
...APPELLANT
(BY SRI NITISH K N., ADVOCATE FOR
SRI K V NARASIMHAN, ADVOCATE)
AND:
AIISH STAFF WELFARE AND CULTURAL SOCIETY
ALL INDIA INSTITUTE OF SPEECH AND HEARING
MANASA GANGOTHRI
MYSURU-570 006.
REPRESENTED BY ITS.
a. PRESIDENT
b. SECRETARY
c. JOINT SECRETARY
d. TREASURER
...RESPONDENTS
(BY SRI RANGANATH S. JAIN, ADVOCATE)
2
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 30TH JUNE, 2009 PASSED IN
R.A.NO.134 OF 2000 BY II ADDITIONAL CIVIL JUDGE (SR.DN)
AND CJM, MYSURU, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 30TH MARCH, 2000
PASSED IN OS.NO. 893 OF 1997 ON THE FILE OF THE V
ADDITIONAL FIRST CIVIL JUDGE (JR. DN), MYSURU.
IN THIS APPEAL, ARGUMENTS BEING HEARD, JUDGMENT
RESERVED, COMING ON "PRONOUNCEMENT OF ORDERS" THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is preferred by the plaintiff
challenging the judgment and decree dated 30th June, 2009
passed in Regular Appeal No.134 of 2000 on the file of the II
Additional Civil Judge (Sr. Dn.) and CJM, Mysore, setting aside
the judgment and decree dated 30th March, 2000 passed in OS
No.893 of 1997 on the file of the V Addl. First Civil Judge
(Jr.Dn.), Mysuru, decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal
are referred to with their status and rank before the trial Court.
3. The factual matrix of the case are that the plaintiff is a
Life Member of the Defendant-Society. The defendant-Society is
formed for the purpose of providing housing to its Members.
The defendant-Society allotted Site bearing No.13 at Block No.A-
06 at Bogadi, Mysuru. Plaintiff has paid entire amount of
Rs.45,000/- to the defendant-Society as per the allotment letter
dated 29th December, 1990 (Exhibit P1). Thereafter, the
defendant-Society has not issued the possession certificate and
accordingly, the plaintiff approached the defendant-Society for
necessary action and pursuant to the same, the plaintiff came to
know that the defendant-Society tried to alienate the site and
therefore the plaintiff has filed the suit for permanent injunction
against the defendant-Society. On service of notice, defendant
entered appearance and filed detailed written statement,
denying the averments made in the plaint. It is the specific
defence of the defendant that plaintiff's wife-Smt. Parvatamma,
owns a house bearing No.28 at Udayagiri, Mysuru and therefore,
the plaintiff is not entitled to get a site from the defendant-
Society and accordingly, sought for dismissal of the petition. On
the basis of the pleadings on record, the trial Court framed
issues for its consideration.
4. Plaintiff was examined as PW1 and produced 14
documents and same were marked as Exhibits P1 to P14. On
the other hand, defendant has examined one witness as DW1
and marked four documents and same were marked as Exhibits
D1 to D4. The trial Court, after considering the material on
record by its judgment and decree dated 30th March, 2000,
decreed the suit and feeling aggrieved by the same, the
defendant-Society has preferred Regular Appeal 134 of 2000
before the First Appellate Court and the said appeal was resisted
by the plaintiff. The First Appellate Court, after considering the
material on record, by its judgment and decree dated 30th June,
2009, allowed the appeal and as such, set aside the judgment
and decree passed by trial Court in Original Suit No.893 of 1997
and feeling aggrieved by the same, the plaintiff has filed this
second appeal.
5. This Court, by order dated 26th March, 2010 has
formulated the following question for consideration:
"Whether the First Appellate Court fell in error
in the misapplication of the Mysore Urban
Development Authority (Allotment Rules)?
6. Heard Sri Nitish, learned counsel for the appellant and
Sri Ranganath S. Jain, learned counsel appearing for the
respondent.
7. Sri Nitish, learned counsel appearing for the appellant
drew the attention of the Court to the finding recorded by the
trial Court on issue No.1 and argued that at the time of issuing
of allotment letter (Exhibit P1), no condition has been stipulated
that the site will be cancelled in the event the family members
have a site or house anywhere in Mysuru city. The said
condition No.1 in the allotment letter dated 29th December,
1990, stipulates the said restriction on the allottee only and in
that view of the matter, the finding recorded by the First
Appellate Court is without jurisdiction. He also submitted that
Mysore Urban Development (Allotment) Rules, came into force
subsequent to the allotment of the Site and therefore, the
impugned judgment and decree of the First Appellate Court
requires to be interfered with in this appeal. He also submitted
that the plaintiff has paid the entire consideration in respect of
the schedule site and therefore, he invited the attention of the
Court to the cross-examination of DW1 and submitted that so far
the defendant-Society has not cancelled the site allotted in
favour of the plaintiff and in that view of the matter, the
interference is to be made with regard to the impugned
judgment and decree of the First Appellate Court.
8. Per contra, Sri Ranganath S. Jain, learned counsel
appearing for the respondent-Society sought to justify the
impugned judgment and decree of the First Appellate Court. He
submits that the wife of the petitioner is having a house in
Mysuru City, and hence he submits that the finding recorded by
First Appellate Court is just and proper and does not call for any
interference by this court in this appeal.
9. In the light of the submission made by the learned
counsel appearing for the parties, I have carefully examined the
finding recorded by both the courts below and perused the
records. It is not in dispute that the plaintiff is a Life Member of
the defendant -Society. As per Exhibit P1, dated 29th December,
1990, site No.13 was allotted in favour of the plaintiff. Condition
No.1 in the allotment letter, stipulated as follows:
"1. Allottees must have no site or house
anywhere in Mysuru City."
(emphasis supplied)
10. On careful examination of the aforementioned
condition, the said stipulation is only with regard to the allottees
and not to its family members and in that view of the matter,
the defence of the defendant-Society that the wife of the plaintiff
is having a house at Udayagiri, Mysuru, cannot be accepted.
That apart, I have carefully examined the written statement and
the evidence of DW1. No bye-law of the Society has been
produced before the trial Court, denying allotment in favour of
the plaintiff. DW1 on 16th November, 1999, deposed as follows:
"ªÁ¢AiÀÄ ¥ÀwßAiÀÄ ºÉ¸Àj£À°è ªÀÄ£É EgÀĪÀÅzÀjAzÀ £ÁªÀÅ
CªÀjUÉ ¤ªÉñÀ£À ºÀAaPÉ wgÀ¸ÀÌj¹zÉÝêÉ."
11. On the basis of the aforementioned deposition, no
documents have been produced before the trial Court regarding
cancellation of the site in favour of the plaintiff. It is also
relevant to deduce the cross-examination of DW1 on 15th
February, 2000. The same reads thus:
"£ÁªÀÅ ªÁ¢UÉ ªÀÄAdÆgÀÄ ªÀiÁrzÀ ¸ÉÊl£ÀÄß ªÀiËTPÀªÁV
gÀzÀÄÝ ªÀiÁrgÀÄvÉÛêÉ. d£ÀgÀ¯ï ¨Ár CxÀªÁ ¸ÁªÀiÁ£Àå
«ÄÃnAUÀ£À°è F §UÉÎ °TvÀªÁV AiÀiÁªÀÅzÉà gɸÀ®ÆåµÀ£ï
ªÀiÁr®è."
12. In view of the aforementioned admission made by
DW1 that the site allotted in favour of the plaintiff has not been
cancelled yet and therefore, the finding recorded by the First
Appellate Court requires to be interfered with in this appeal.
13. I have also examined Evidence of PW1. In the
affidavit, the plaintiff has stated that neither himself nor his
family members own a site or a house in Mysuru City. The
evidence on record would indicate that the wife of the plaintiff is
having a house in Mysuru, however, due to family rift, plaintiff
and his wife are not residing together and therefore, though the
defendant-Society raised objection with regard to the same,
however, the site has not been cancelled till the filing of the case
and, if at all, the defendant-Society is of the opinion that the
plaintiff and his wife are residing together, the defendant-Society
ought to have cancelled the site after hearing the plaintiff. In
the instant case, in view of non-cancellation of the site allotted in
favour of the plaintiff, would indicate that the defendant-Society
is well aware about the fact that the plaintiff and his wife are
residing separately and hence the finding recorded by the trial
Court on Issue No.1 is just and proper and in that view of the
matter, the finding recorded by the First Appellate Court requires
to be set aside in this appeal. It is also to be noted that no
cogent evidence has been produced by the defendant-Society to
prove that the plaintiff is having immoveable property in Mysuru
City and in that view of the matter, the interference made by the
First Appellate Court requires to be rectified in this appeal. Even
otherwise since the Mysuru Urban Development Authority
("MUDA" for short) has allotted the site in favour of the Society
for allotment of sites in favour of its Members, whether such a
condition is stipulated by MUDA is to be looked into and in the
absence of such a condition in the allotment made by the MUDA
in favour of defendant-Society, I find force in the submission
made by the learned counsel appearing for the appellant herein.
For the aforestated reasons, the substantial question of law
framed by this court, favours the plaintiff/appellant herein. In
the result, I pass the following:
ORDER
1) Appeal is allowed;
2) Judgment and decree dated 30th June, 2009
passed in Regular Appeal No.134 of 2000 on
the file of the II Additional Civil Judge (Sr. Dn.)
and CJM, Mysore, is set aside.
3) Judgment and decree dated 30th March, 2000
passed in OS No.893 of 1997 on the file of the
V Addl. First Civil Judge (Jr.Dn.), Mysuru is
confirmed. Suit is decreed.
Sd/-
JUDGE
lnn
