M. K. Rajashekaran vs The Chief Officer
2023 Latest Caselaw 6871 Kant

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                                                    NC: 2023:KHC:35435
                                                  RSA No. 1842 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 29TH DAY OF SEPTEMBER, 2023

                                        BEFORE

                          THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO.1842 OF 2017 (DEC/INJ)

                   BETWEEN:

                       M. K. RAJASHEKARAN
                       S/O. LATE KUPPASWAMY MODILEAR,
                       AGED ABOUT 65 YEARS,
                       RESIDING AT NO.4166,
                       DANDU ROAD, BANGARPETE TOWN,
                       BANGARPETE TALUK,
                       KOLAR DISTRICT-563 116.
                       SINCE DEAD, BY LEGAL REPRESENTATIVES

                   1(A) R. THILAGAVATHI
                        W/O M K RAJASHEKARAN
Digitally signed
                        AGED ABOUT 67 YEARS
by SHARANYA T
Location: HIGH     1(B) K R MURUGESH
COURT OF
KARNATAKA               S/O M K RAJASHEKARAN
                        AGED ABOUT 45 YEARS

                   1(C) K R RAMESH
                        S/O M K RAJASHEKARAN
                        AGED ABOUT 42 YEARS

                   1(D) K R GOWARI
                        D/O M K RAJASHEKARAN
                        AGED ABOUT 40 YEARS
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                                     NC: 2023:KHC:35435
                                 RSA No. 1842 of 2017




       ALL ARE R/AT NO.4166,
       DANDU ROAD, BANGARPETE TOWN,
       BANGARPETE TALUK,
       KOLAR DISTRICT-563 116


                                         ...APPELLANTS
(BY SRI KRISHNAMOORTHY D, ADVOCATE)

AND:

1.   THE CHIEF OFFICER
     TOWN MUNICIPALITY BANGARPET,
     KOLAR DISTRICT-563 116.

2.   CHANDRAPPA
     EX-COUNSILOR,
     AGED ABOUT 49 YEARS,
     19TH WARD, KUPPUSWAMY
     MUDALIYAR LAYOUT, BANGARPETE,
     KOLAR DISTRICT-563 116.

3.   KUTTY
     S/O MURUGESH
     (RTD, RAILWAY EMPLOYEE)
     AGED ABOUT 42 YEARS,
     PROP. SRP TRAVEL, KOMARLA COMPLEX,
     CORONATION ROAD,
     BANGARPET-563 116.


                                      ...RESPONDENTS

     THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD 28.06.2017 PASSED IN
R.A.NO.132/2016 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC., KGF AND ETC.
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                                                  NC: 2023:KHC:35435
                                             RSA No. 1842 of 2017




     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Heard the learned counsel appearing for the

appellant. This matter is listed for admission.

2. The factual matrix of the case of the plaintiff

before the Trial Court that he is the absolute owner and in

lawful possession of the 'B' schedule property. The

plaintiff further contend that the defendant No.2 is

illegally constructed the building in 'B' schedule property

and so also the plaintiff he is entitled for mandatory

injunction. The contention of the plaintiff that the

defendants are interfering with the plaintiff's peaceful

possession and enjoyment of the suit schedule property.

The defendants also took the specific contention that the

Court has no pecuniary jurisdiction to try the suit. Based

on the pleading of the parties, the Trial Court framed the

Issues and allowed the parties to lead their evidence.

Thereafter, the Trial Court having considered the material

NC: 2023:KHC:35435 RSA No. 1842 of 2017

on record answered the Issues framed in respect of

plaintiff as negative since the title document has not

produced before the Court except relying upon the Ex.P1

release deed and Ex.P2 endorsement as well as the letter

received from TMC at Ex.P3 to 5 and approved layout plan

at Ex.P6. Hence, the Trial Court comes to the conclusion

that without producing any title deed, the question of

declaring that the plaintiff is the owner of the suit 'b'

schedule property does not arise. The Trial Court also

taken note that the nature of the suit schedule property is

a site and suit is not valued under Section 7 of KCF AND

SV Act and comes to the conclusion that the suit schedule

property is not an ancestral property, hence, question of

invoking Section 7 does not arise when the suit property is

a site and the same is not properly valued and answered

the same as affirmative accepting the contention of the

defendants and dismissed the suit of the plaintiff.

3. Being aggrieved the judgment and decree of

the Trial Court, an appeal was preferred before the First

NC: 2023:KHC:35435 RSA No. 1842 of 2017

Appellate Court. The First Appellate Court also considering

the grounds urged in the appeal memo comes to the

conclusion that the appeal preferred by the plaintiff is not

maintainable considering the Sections 101 to 103 of the

Indian Evidence Act since the burden is on the plaintiff to

prove that he is the absolute owner and he is in peaceful

possession and enjoyment of the suit schedule property.

The Trial Court also taken note of the admission elicited

from the mouth of PW1 wherein he categorically admitted

that he has not obtained the modified layout plan of Ex.P6

from KDA, KGF and also admitted that the Electricity

Department has not issued the document in his favour

stating that the place which was used for passing the high

tension wire is not required for this said department. The

First Appellate Court also taken note of the fact that the

application submitted before the Deputy Commissioner

with respect to Ex.P13 came to be dismissed and he has

filed an appeal before the High Court. In this regard, the

question was put to PW1 that only the site shown at Ex.P6

belongs to him and rest of the place belongs to the

NC: 2023:KHC:35435 RSA No. 1842 of 2017

Government and for that he answered that high tension

line which was passing in the said sites are also belongs to

him. The First Appellate Court also taken note of all these

material on record. The First Appellate Court also taken

note of the important document at Ex.D1 which is certified

copy the order of Deputy Commissioner, Kolar discloses

that the plaintiff had filed the appeal before the Deputy

Commissioner challenging the resolution of defendant

No.1-Municipality dated 29.04.1983 reserving the suit

schedule property as park area. All these materials were

taken note by the First Appellate Court and comes to the

conclusion that the plaintiff has not placed any material to

prove the ownership and dismissed the appeal of the

plaintiff. Being aggrieved by the judgment and decree of

both the Courts, the present appeal is filed before this

Court by the plaintiff.

4. The main contention of the counsel for the

appellant that there is no dispute with regard to that the

property belongs to the appellant and release deed is also

NC: 2023:KHC:35435 RSA No. 1842 of 2017

executed and the same is marked as Ex.P1. The other

documents which clearly disclose the fact that the

appellant is the owner of the suit schedule property and

both the Courts fail to consider the same hence,

interference of this Court required and this Court has to

admit the appeal and to frame the substantial question of

law.

5. Having heard the learned counsel for the

appellant and also on perusal of the material on record

particularly, the judgments of the Trial Court as well as the

First Appellate Court and also pleading it is very clear that

the plaintiff claiming that he is the absolute owner and

possession of the suit schedule property and except

relying upon the release deed which was executed in the

partition. no other document is placed before the Trial

Court. In order to substantiate the contention that he is

the absolute owner, the plaintiff has to produce the title

deed in respect of the suit schedule property since he is

claiming the relief of declaration and even not made any

NC: 2023:KHC:35435 RSA No. 1842 of 2017

attempt to produce the same before the First Appellate

Court and hence, the question of granting the declaration

does not arise. Both the Courts have taken note of the

material on record and came to the conclusion that in the

absence of title deed, the question of granting the relief of

declaration does not arise. The First Appellate Court also

taken note of the provision of Sections 101 to 103 of the

Indian Evidence Act and comes to the conclusion that the

burden of proving the title lies on the plaintiff to establish

that he is the absolute owner of 'B' schedule property and

the defendants are illegally put up construction over the

'B' schedule property. When title deed is not placed

before the Trial Court as well as First Appellate Court in

order to prove the title, the question of admitting second

appeal and invoking Section 100 of CPC does not arise.

Unless a perversity is found in the judgments of the Trial

Court as well as the First Appellate Court, the question of

invoking Section 100 of CPC does not arise. Hence, the

appellant has not made out any grounds to admit the

appeal and to frame the substantial question of law.

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6. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN