Karnataka High Court
The Regional Manager vs Mrs Maimuna W/O A K Hameed Since Dead By ... on 23 November, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2023:KHC:42359
RSA No. 725 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.725 OF 2010 (MON)
BETWEEN:
THE REGIONAL MANAGER
K S F I C , PADIL,
MANGALORE - 575 007.
...APPELLANT
(BY SRI.S.B.PAVIN., ADVOCATE)
AND:
1. MRS. MAIMUNA
W/O A.K. HAMEED,
SINCE DEAD BY HER LRS
1(a) AHMED RASHEED
AGED 46 YEARS.
1(b) AISHA RESHMAN,
Digitally signed by AGED ABOUT 44 YEARS.
THEJASKUMAR N
Location: HIGH 1(c) NAFISA UMAR,
COURT OF
KARNATAKA AGED ABOUT 42 YEARS.
1(d) MOHAMMED HUSSAIN
AGED ABOUT 41 YEARS.
1(e) MOIDEEN P K.,
AGED ABOUT 38 YEARS.
1(f) NASIMA RASHID,
AGED ABOUT 35 YEARS
ALL ARE CHILDREN OF LATE MAIMUM AND
R/O A.K.H COMPOUND,
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RSA No. 725 of 2010
PADIL,
MANGALORE - 575 007.
2. THE STATE OF KARNATAKA,
REPRESENTED BY
DEPUTY COMMISSIONER,
D.K. DISTRICT,
MANGALORE.
...RESPONDENTS
[BY SRI.PUNDIKAI ISHWAR BHAT, ADV., FOR R1(a, d & e);
R1(b), R1(f) ARE SERVED AND UNREPRESENTED;
NOTICE TO R1(c) IS HELD SUFFICIENT;
SMT.RASHMI PATEL, HCGP FOR R2]
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Sri.S.B.Pavin., learned counsel for the appellant and
Sri.Pundikai Ishwar Bhat., learned counsel for respondents
1(a), (d) & (e) have appeared in person.
The notice to the respondent No.1(b), 1(f) was ordered
on 27.07.2010. A perusal of the office note depicts that the
notice to respondent No.1(b), 1(f) is served. The respondent
No.1(b) and (f) have neither engaged the services of an
advocate nor conducted the case as party in person.
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The notice to respondent No.1(c) is held sufficient vide
order dated:15.04.2011.
2. This is an appeal from the Court of III Addl. District
& Sessions Judge, Dakshina Kannada, Mangalore.
3. For convenience's sake, the ranking of the parties
shall be referred to as per their status and ranking before the
Trial Court.
4. The plaint averments are these:
It is stated that the plaintiff is the absolute owner of the
suit schedule property. She purchased it under a registered
Sale Deed in the year 1965 and she has been in peaceful
possession and enjoyment of the suit schedule property. It is
said that during the first week of April 1995, when the plaintiff
had been to the suit schedule property, she noticed that her
property was covered by wooden poles around it. On enquiry,
she came to know that the said wooden poles were erected by
the officials attached to the first defendant. Hence, she was
issued a legal notice on 01.05.1995 calling upon the defendants
to remove the wooden poles erected thereon. Despite the
service of the notice, the defendants did not comply with the
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notice. Hence, she was constrained to take shelter under the
Court of law and filed a suit seeking relief for a permanent
prohibitory injunction restraining the defendants, their officials
or any one claiming through or under the defendants from
trespassing into or cutting the cutting the trees growth or
causing any waste or damage to the plaint schedule property
and also for a permanent mandatory injunction directing the
defendants to remove the wooden poles erected around the
plaint 'A' schedule property.
After the issuance of the suit summons, the defendants
appeared through counsel, the first defendant filed a detailed
written statement. The second defendant adopted the written
statement filed by the first defendant by filing a memo. The
defendants denied the ownership of the plaintiff on the plaint
'A' schedule property. They specifically contended that the
property in question is an acquired land in L.A.C.No.08/1961
and after the acquisition, the property has been handed over to
the Forest Department. Hence, the question of title and
possession over the suit schedule property does not arise.
Among other grounds, they prayed for the dismissal of the suit.
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Based on the above pleadings, the Trial Court framed
issues. The parties led evidence and marked the documents.
On the trial of the action, the Trial Court vide Judgment &
Decree dated 17.02.1998 decreed the suit. Aggrieved by the
Judgment and Decree of the Trial Court, the first defendant
preferred an appeal before the First Appellate Court in
R.A.No.505/2004. On appeal, the First Appellate Court vide
Judgment & Decree dated 25.11.2009 confirmed the Judgment
& Decree of the Trial Court and dismissed the appeal. Hence,
this Regular Second Appeal is filed by the first defendant under
Section 100 of CPC.
5. Learned counsel for the appellant and respondents
1(a), (d) & (e) have urged several contentions.
6. Sri.S.B.Pavin., learned counsel for the appellant
submits that the Judgments and Decrees of both Courts are
illegal and arbitrary and the same are liable to be set aside.
Next, he submits that the first defendant disputed the
title of the plaintiff. The plaintiff has no legal title over the suit
schedule property, and she is not in physical possession of the
suit schedule property. It is also contended that the first
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defendant is an absolute owner in actual possession of the suit
schedule property. Since the title is disputed hence, a suit for a
bare permanent injunction is not maintainable.
A further submission is made that the suit schedule
property is the subject matter of the Land Acquisition
Proceedings in L.A.C.No.08/1961 and the subject matter of
M.F.A.No.249/1967. The land acquisition proceedings were
ended in M.F.A.No.249/1967 and hence plaintiff cannot be the
owner of the suit schedule property and thus she is not entitled
to any relief.
Learned counsel vehemently contended that both courts
overlooked the issue regarding the acquisition of the property.
Lastly, he submits that viewed from any angle, the
Judgments and decrees of both Courts are liable to be set
aside. Counsel, therefore, submits that the Regular Second
Appeal may be allowed.
7. Sri.Pundikai Ishwara Bhat., learned counsel for
respondents 1(a), (d) & (e) justified the Judgments and
Decrees passed by the Trial Court and the First Appellate Court.
He submits that the plaintiff is the absolute owner of the
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property in question. She has purchased the same back in the
year 1965 and the documents are standing in her name. A
further submission is made that the possession of the plaintiff
has not disturbed. It is also submitted that since the date of
purchase, the plaintiff is in actual possession and enjoyment of
the suit schedule property.
Learned counsel vehemently contended that the Trial
Court extenso referred to the material on record and justified in
decreeing the suit and on appeal, the Judgments and Decrees
of the Trial Court are confirmed.
Lastly, he submits that the appellant has not made any
grounds to interfere with the Judgments and Decrees of the
Trial Court and the First Appellate Court. The Appeal is devoid
of merits. Hence, the same may be dismissed.
8. Heard, the contentions urged on behalf of the
respective parties and perused the appeal papers with utmost
care.
This Court vide order dated:27.07.2010 admitted the
appeal and framed the following substantial questions of law:
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"Whether the Courts below was justified in
decreeing the suit of the plaintiff when the order
passed by this Court in MFA No.249/1967 indicates
that the land in question was acquired and
compensation was given at Rs.10,000/- per acre (as
per Ex.D.1)?"
9. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the suit is one for a bare
injunction based on possession as on the date of the filing of
the suit. The plaintiff contends that she purchased the suit
schedule property under a registered the sale deed back in the
year 1965. The defendants took a specific defense that the suit
schedule property is a acquired land in L.A.C.No.08/1961. To
substantiate the contention about the acquisition, they
produced a copy of the order passed by this Court in
M.F.A.No.249/1967 and the same is marked at Ex.D1. The Trial
Court took note of the same, yet concluded that the defendants
have not produced any documents to show that the suit
schedule property is acquired land. This is incorrect. Since a
perusal of the records would reveal that Ex.D1 is a copy of the
order in M.F.A.No.249/1967. The suit schedule property is a
property bearing R.S.No.23/14, Bagayath measuring 38 Cents
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situated at Alape Village of Mangalore Taluk. This property was
the subject matter of the land acquisition proceedings. Hence,
it can be safely concluded that the suit schedule property is an
acquired land. Furthermore, the original owner Smt.Sharadha
N.Rai has received the compensation amount. The issue
regarding acquisition and the receival of the compensation
amount by the original owner has been overlooked by both
Courts. I may venture to say that both Courts have failed to
have regard to relevant considerations and disregarded
relevant matters. In my considered opinion, the judgments and
decrees of both courts are unsustainable in law.
10. The substantial questions of law framed by this
Court is answered holding that the Trial Court is not justified in
decreeing the suit in respect of an acquired land. The First
Appellate Court is also not justified in confirming the Judgment
and Decree of the Trial Court.
For the reasons stated above, the Judgments of the Trial
Court and First Appellate Court are unsustainable in law and
accordingly, they are set aside.
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11. The Judgment and Decree dated 17.02.1998 passed
by the Court of V Additional Civil Judge (Jr.Dn.) D.K. Mangalore
in O.S.No.416/1995 and the Judgment and Decree
dated:25.11.2009 passed by the III Additional District Judge
D.K. Mangaluru in R.A.No.505/2004 are set-aside.
12. Resultantly, the Regular Second Appeal is allowed.
Sd/-
JUDGE
MRP
