Karnataka High Court
Sri M R Gowrishankar vs The Block Development Officer on 18 December, 2023
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RSA No. 171 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 171 OF 2015 (INJ)
BETWEEN:
1. SRI M R GOWRISHANKAR
S/O LATE M V RAMAIAH,
AGED 56 YEARS,
R/AT MUTHUKUR VILLAGE,
ANUGONDANAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU DISTRICT
1A. SMT. N. VISHALAKSHI
W/O LATE M.R. GOWRISHANKAR
AGED ABOUT 52 YEARS
1B. SRI. TRISHUL G
S/O LATE M.R. GOWRISHANKAR
Digitally signed AGED ABOUT 30 YEARS
by R DEEPA
Location: High 1C. SRI. SUNIL KUMAR G.
Court of S/O LATE M.R. GOWRISHANKAR
Karnataka AGED ABOUT 28 YEARS
APPELLANTS 1(A) TO 1(C) ARE
R/AT No.127
MUTHKUR VILLAGE
M.M. SANDRA POST
VIA KADUGODI
BANGALORE - 560 067
1D. SMT. G. NAVYA
D/O LATE M.R. GOWRISHANKAR
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RSA No. 171 of 2015
W/O MOHAN
R/AT No.25
GIRIJA SHANKAR LAYOUT
2ND CROSS, ANEKAL
BANGALORE - 562 106.
...APPELLANTS
[BY SRI. ABHINAY Y.T., ADVOCATE FOR APPELLANT 1(B-D)
VIDE ORDER DATED 01.09.2023 APPELLANT Nos.1(B-D)
ARE TREATED AS LR'S OF DECEASED APPELLANT No.1]
AND:
1. THE BLOCK DEVELOPMENT OFFICER
NOW CALLED EXECUTIVE OFFICER
TALUK PANCHYATH,
HOSKOTE,
BENGALURU RURAL DISTRICT - 562 114
2. THE VILLAGE ACCOUNTANT
NOW CALLED PANCHAYATH SECRETARY,
ANUGONDAHALLY,
GROUP PANCHAYAT HOBLI,
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT - 562 114
...RESPONDENTS
(BY SRI. M.S. DEVARAJU, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 17.11.2014 PASSED IN
R.A.NO.14/2013 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DTD 14.12.2012 PASSED IN OS.NO.146/1995 ON
THE FILE OF THE PRL. CIVIL JUDGE & JMFC., HOSAKOTE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 171 of 2015
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 17.11.2014, in
R.A.No.14/2013 passed by Principal Senior Civil Judge,
Bangalore Rural District, Bangalore, confirming the
judgment and decree dated 14.12.2012 in
O.S.No.146/1995 passed by the Principal Civil Judge and
JMFC, Hosakote.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is the plaintiff and respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for permanent injunction against
the defendants restraining from interfering into the
peaceful possession and enjoyment over the suit schedule
property. It is the case of the plaintiff that the plaintiff is
the absolute owner of suit schedule property bearing
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Khaneshumari No.185, Muthkur village, Anugondahally
Hobli, Hoskote taluk, Bangalore Rural district, measuring
east to west; 100 feet and north to south; 38 feet. The
said property is the ancestral property of the plaintiff. It is
contended that the partition took place in the year 1938 in
between the plaintiff's father and his brother and in the
said partition the suit schedule property had fallen to the
share of plaintiff's father. He was in possession of the suit
schedule property till his death. After his demise, in the
year 1962, the plaintiff and his family members were in
joint possession of the suit schedule property. There was
a pit in the suit schedule property and the family of the
plaintiff making use of the same for the purpose of storing
manure from the time immemorial. In the year 1984,
there was partition effected between the plaintiff and his
brothers, in the said partition the suit schedule property
was allotted to the share of plaintiff along with other
properties. The brothers of the plaintiff had executed the
document on 04.01.1984. From the perusal of the said
document khata was changed in the name of the plaintiff.
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The plaintiff after obtaining the permission from the
Mandal panchayath constructed the building. The
defendant No.2 at the instance of the Chairman and the
Taluk Board Member made an attempt to create the
records along with defendant No.1 and to encroach the
suit schedule property. The defendant No.1 canvassed in
the village that he would form a road in the suit schedule
property along with defendant No.2. The plaintiff
requested the defendants not to lay road in the suit
schedule property, but the defendants did not gave any
heed to the request made by the plaintiff. Hence, the
plaintiff filed the suit.
4. Defendant Nos.1 and 2 filed written statement
denying the averments made in the plaint. It is contended
that the distance between suit property and the tar road
formed by the defendants is 100 feet and Mandal
Panchayath did not issue license in favour of the plaintiff
for construction of a building. Hence, prayed to dismiss
the suit.
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5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
i. Whether plaintiff proves that he is in lawful
possession and enjoyment of the suit
schedule property with correctness to
boundaries?
ii. Whether the alleged cause of action is true?
iii. Whether the suit brought is not maintainable?
iv. What order or decree ?
6. The plaintiff in order to substantiate his case,
examined himself as PW-1 and got examined one witness
as PW-2 and got marked 27 documents as Exs.P1 to P27.
Defendant examined one BDO as DW-1 and got examined
three witnesses as DW-2 to DW.4 and got marked 24
documents as Exs.D1 to D24. The Court Commissioner is
examined as CW.1 and got marked 6 documents as
Exs.C.1 to C6. The trial Court on the assessment of oral
and documentary evidence of the parties, answered issue
Nos.1 and 3 in the affirmative and issue No.2 in the
negative and issue No.4 as per the final order. The trial
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Court dismissed the suit of the plaintiff with costs vide
judgment dated 14.12.2012.
7. The plaintiff aggrieved by the judgment and
decree passed by the trial Court, filed an appeal in
R.A.No.14/2013 on the file of the Principal Senior Civil
Judge, Bangalore Rural District, Bangalore. The First
Appellate Court, after hearing the parties, has framed the
following points for consideration:
1. Whether the plaintiff proves the alleged
cause of action?
2. Whether the trial Court is correct in
appreciating the oral and documentary
evidence?
3. Whether the judgment of the trial Court is
perverse, capricious and needs interference
of this Court?
4. To what order ?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point Nos.1
and 3 in the negative, point No.2 in the affirmative and
point No.4 as per the final order and consequently
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dismissed the appeal filed by the plaintiff, confirming the
judgment and decree passed by the trial Court. The
plaintiff, aggrieved by the judgments and decrees passed
by the Courts below, has filed this second appeal.
9. This court admitted the appeal on the following
substantial questions of law :
i. Were the courts below justified in dismissing
the suit of the plaintiff when DW.1 -Assistant
Executive Engineer has admitted in his
affidavit of evidence that property bearing
No.185 which is the suit property belongs to
the plaintiff?
ii. Were the Courts below justified in dismissing
the suit of the plaintiff when the plaintiff has
filed earlier suit in O.S.No.232/1995 in
respect of suit schedule property against one
Venkataraju, Muniswamy, Haji and Assistant
Executive Engineer, PWD, Hoskote Division
and M.Krishnamurthy which suit was decreed
and confirmed in R.A.No.16/2005.
iii. Were the courts below justified in dismissing
the suit of the plaintiff on the ground that
suit is not maintainable in view of the
provisions of Section 79 of CPC as the State
Government was not made party by ignoring
the fact that the plaintiff has not sought for
any relief against state. When the Executive
Officer and Panchayath Secretary who are
the parties and consequently recorded a
perverse finding?
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iv. Were the Courts below justified in dismissing
the suit of the plaintiff ignoring the evidence
of Court commissioner and the
commissioner's report Ex.P5 dated
22.07.1995?
v. Were the courts below justified in dismissing
the suit of the plaintiff in the facts and
circumstances of the present case?
10. Heard learned counsel for the plaintiff and
defendants.
11. Learned counsel for the plaintiff submits that
both the Courts below have recorded a finding that the
plaintiff is in possession of the suit schedule property and
DW.1 has also admitted in the affidavit of evidence that
property bearing khaneshumari No.185 which is a suit
schedule property belongs to the plaintiff. He submits that
in a suit for bare injunction, the Court is required to
consider the possession and interference. He submits that
when both the Courts below have admitted the finding
that the plaintiff is in possession of the suit schedule
property, the trial Court ought to have decreed the suit, on
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the contrary, the trial Court dismissed the suit of the
plaintiff on technical grounds. It is submitted that the
First Appellate Court confirmed the judgment and decree
passed by the trial Court. He submits that the action of the
respondents does not form within the purview of Section
289 of the Karnataka Gram Swaraj And Panchayat Raj Act,
1993 (hereinafter referred to as 'Panchayat Raj Act' for
short). He submits that the First Appellate Court has
committed an error in placing reliance on Section 289 of
Panchayat Raj Act. Hence, in order to buttress his
argument, he has placed reliance on the judgment of this
Court in the case of Ningappa Vs. The Gram Panchayat
Committee, Hulyal in RSA No.2357/2007 disposed of on
09.08.2012. Hence, on these grounds he prays to allow
the appeal.
12. Per contra, learned counsel for the defendants
supports the impugned judgments and decrees passed by
the Courts below. He further submits that action of the
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defendants is just and proper. Hence on these grounds he
prays to dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. Substantial question of law Nos.1 to 5:
Substantial question of law Nos.1 to 5 are taken together
for common discussion as they are interlinked with each
other. The plaintiff in order to substantiate his case
examined himself as PW.1 and he has reiterated the plaint
averments in the examination-in-chief and in order to
prove his case, he has produced documents. Ex.P.1 is the
Vibhaga pathra; Exs.P2 to P4 are the tax demand register
extracts; Ex.P5 is the house tax list; Exs.P.6 to P11 are
the tax paid receipts; Ex.P.12 is the license issued by
Mandal Panchayath granting permission to the plaintiff to
construct the building over the khaneshumari No.185;
Ex.P.13 is the postal receipt; Ex.P.14 is the postal
acknowledgment; Ex.P.15 is the letter; Ex.P.16 is the
certified copy of the sale deed; Ex.P.17 is the certified
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copy of the registered partition deed which discloses that
there was partition between the plaintiff and his brother
and in the said partition, the suit schedule property was
fallen to the share of plaintiff; Ex.P.18 is the tax demand
register extract; Ex.P.19 is the tax paid receipt and
Exs.P20 and P21 are the tax demand registers; Ex.P.22 is
the certified copy of the judgment passed in
O.S.No.232/1995 wherein the plaintiff has filed the suit in
respect of suit schedule property seeking for the relief of
permanent injunction against one Venkataraju,
Muniswamy, Haji and Assistant Executive Engineer, PWD,
Hoskote Division and M.Krishnamurthy, but the suit came
to be dismissed against Assistant Executive Engineer,
PWD, and the suit was decreed against defendant Nos.1 to
3 and 5 in the said suit. Ex.P23 is the certified copy of the
decree passed in O.S.No.232/1995 and Exs.P.24 to P27
are the certified copy of judgment and decree passed in
R.A.No.69/2005 which discloses that the defendant Nos.1
to 3 and 5 in the said suit aggrieved by the judgment and
decree passed in O.S.No.232/1995 preferred the appeal.
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The First Appellate Court dismissed the appeal filed by the
defendants in said regular appeal.
15. From the perusal of the records, the plaintiff's
name is shown in the revenue records and further trial
Court has held that the plaintiff is in possession of the suit
schedule property in O.S.No.232/1995. From the perusal
of evidence of PW.1 and records produced by the plaintiff
it discloses that plaintiff is in possession and enjoyment of
the suit schedule property. It is the case of the plaintiff
that the defendants are trying to lay road at the instance
of O.S.No.232/1995.
16. In rebuttal, the official of the defendants were
examined as witnesses wherein they have reiterated the
written statement averments in the examination-in-chief
and produced the documents. Ex.D1 is the house/land
assessment register; Ex.D2 is the cash bill; Ex.D3 is the
resolution book; Ex.D4 is the General licence; Ex.D5 is the
license book; Ex.D6 is the plan; Exs.D7 and D8 are the
letters; Exs.D9 to D11 are the notices; Ex.D12 is the copy
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of estimate; Exs.D13 and D14 are the objections; Ex.D15
is the report; Ex.D16 is the licence copy; Exs.D17 to D19
are the notice copies; Ex.D20 is the spot sketch; Ex.D.21
is the estimation and Exs.D.22 to D24 are the letters. In
the evidence of defendants, the defendants have denied
that the license had issued to the plaintiff for constructing
the building and also judgment passed in
O.S.No.232/1995. Further, during the pendency of suit,
Court commissioner was examined. The application was
filed by the plaintiff to appoint Court commissioner to
inspect the site. The said application came to be allowed.
Accordingly, the commissioner was appointed to inspect
the suit schedule property. The commissioner has
submitted the report. The commissioner was examined as
CW.1 and got marked documents Ex.C1 is the rough
sketch, Ex.C2 is the spot mahazar, Ex.C3 is memo of
instruction, Ex.C4 is the warrant and Ex.C5 is the
commissioner's report. The report submitted by the
commissioner is in favour of the plaintiff. Though the trial
Court had recorded the finding that the plaintiff is in
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possession of the suit schedule property, but declined to
grant relief of injunction only on the ground that the
plaintiff has failed to prove the interference and plaintiff
has not made the competent authority as defendants in
the said suit. The finding of trial Court regarding plaintiff
being in possession has not challenged by the defendants.
The said finding has attained finality.
17. From the perusal of the records, the plaintiff is
seeking for relief of permanent injunction against the
defendants. The defendants denied that they did not lay
road in the suit schedule property. Action of the
defendants in laying road in the property of plaintiff
without acquiring the said property is illegal. The right to
property is the constitutional right. As per the Article 300A
of Constitution of India, No person shall be deprived of his
property save by authority of law. Further, the trial Court
has failed to consider Order 1 Rule 9 of CPC, wherein 'No
suit shall be defeated by reason of the mis-joinder or
non-joinder of parties'. Further, the First Appellate Court
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has confirmed the judgment of the trial Court only on the
technical grounds without considering the material on
record. Further, in order to consider the case, it is
required to consider Section 295 of the Karanataka
Panchayat Raj Act, 1993, which reads as under:
295. Bar of suits etc.- (1) No civil court
shall entertain a suit objecting to an
assessment demand or charge made or
imposed under this Act, or for the recovery
of any sum of money collected under the
authority of this Act, or for damages on
account of any assessment or collection of
money under the said authority, if the
provision of this Act have been in substance
and effect compiled with.
(2) No, suit or other legal proceeding shall
lie against a Chief Executive Officer or
Executive Officer or Secretary or any other
officer of the Government or a Grama
Panchayat or Taluk Panchayat or Zilla
Panchayat or any member, officer, servant or
agent of such Grama Panchayat, Taluk
Panchayat or Zilla Panchayat acting under its
direction in respect of anything done or
purporting to have been lawfully done and in
good faith under this Act or any rule,
regulation, bye-law or order made
thereunder except with the previous sanction
of the Zilla Panchayat or such officer as the
Zilla panchayat may specify.
(3) No suit or other legal proceeding shall
lie against the Government in respect of
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anything done under this Act, or any rule,
regulation or bye law made thereunder.
18. Sub Section 4 of Section 289 of the Panchayat
Raj Act states that the necessary of issuing a notice to the
Gram Panchayat would not arise when the suit is instituted
under Section 38 of the Specific Relief Act, 1963. Section
38 of the Specific relief Act deals with the perpetual
injunction. Sub Section 3 of Section 38 of Specific Relief
Act speaks of invasion of the plaintiff's right to the
enjoyment of the property, in other words, injunction is
sought against the defendant where there is a threat to
the plaintiff's right to enjoy his property. The Karnataka
Gram Swaraj and Panchayat Raj Act, 1993 is a special
enactment which interalia, deals with the manner in which
proceedings could be initiated against the Panchayat as
opposed to Section 80 of CPC which is a general provision.
Therefore, the special provision i.e., Section 289 of the
special enactment namely Karnataka Panchayat Act would
prevail over the CPC in the matter of institution of the suit
against the Panchayats. Having regard to Section 289(4),
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the necessity of issuing a notice to the Gram Panchayat
would not arise, as the present suit is one filed under
Section 38 of the Specific Relief Act. The Courts below
were not right in holding that the suit filed by the plaintiff
is not maintainable. The plaintiff is claiming the
possession over the suit schedule property. In a suit for
bare injunction, the Court is required to see the possession
over the suit schedule property as on the date of suit and
also interference. Admittedly, in the instant case, both the
Courts below have recorded the finding that the plaintiff is
in possession of the suit schedule property. But the trial
Court has dismissed the suit on the ground that the
plaintiff has failed to prove the interference, but the First
Appellate Court has confirmed the judgment on the ground
that no notice was issued as required under Section 289 of
Panchayat Raj Act, 1993, as I have already recorded the
finding that the suit is under Section 38 of Specific Relief
Act and Section 289(4) of the Panchayat Raj Act, 1993
provides that the provisions of Section 289 of said Act
shall not apply for the suit filed for perpetual injunction.
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The grievance of the plaintiff is against the defendants and
no relief is sought against Government official. Hence,
assertion of arraying Government as a party to suit would
not arise. Hence, question of notice under Section 79 of
CPC would not arise. The Courts below have committed
an error in passing the impugned judgments and decrees.
In view of the above discussion, all the substantial
questions of law are answered in the negative.
19. Accordingly, I proceed to pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed by the
trial Court is set aside.
Suit of the plaintiff is decreed. The
defendants are restrained from interfering with
the plaintiff's peaceful possession and
enjoyment over the suit schedule property.
No order as to the costs.
SD/-
JUDGE
SKS
