Karnataka High Court
Subash S/O Bhimanna Karamunge vs Sangamesh S/O Mallikarjun Mashette And ... on 6 August, 2024
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NC: 2024:KHC-K:5707
RSA No. 200082 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200082 OF 2023
(DEC/INJ)
BETWEEN:
SUBASH S/O BHIMANNA KARAMUNGE,
AGE: 63 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O. OLD TOWN BHALKI, TQ. BHALKI,
DIST. BIDAR-585401.
...APPELLANT
(BY SRI K. M. GHATE, ADVOCATE)
AND:
1. SANGAMESH S/O MALLIKARJUN MASHETTE,
Digitally signed AGE: 36 YEARS, OCC: EMPLOYEE,
by RENUKA R/O. MASHETTE GALLI, OLD TOWN, BHALKI,
Location: HIGH
COURT OF TQ. BHALKI-585328, DIST. BIDAR.
KARNATAKA
2. THE SECRETARY,
APMC MARKET YARD,
BHALKI, TQ. BHALKI-585328,
DIST. BIDAR.
...RESPONDENTS
(BY SRI AJAYKUMAR A.K., ADVOCATE FOR R1;
SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR R2)
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RSA No. 200082 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN RA
NO.3/2014 DATED:28.02.2022 ON THE FILE OF THE HON'BLE
SENIOR CIVIL JUDGE, BHALKI CONSEQUENTLY PLEASED TO
ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AN
DECREE DATED OF THE TRIAL COURT IN OS.NO.65/2012
DATED:30.09.2013 BEFORE CIVIL JUDGE AT BHALKI AND
THEREBY PLEASED TO DECREE THE SUIT OF THE APPELLANT
PLAINTIFF AS PRAYED FOR THROUGHOUT COST.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents. The appellant is challenging the dismissal of
suit which is confirmed by the First Appellate Court.
2. The suit is one for declaration of title and
injunction. The plaintiff has filed a suit claiming right over
plot No.76 which according to plaintiff is allotted by
Agricultural Produce Marketing Committee (for short
'APMC'). The suit is filed on the premise that the plot
allotted to him is now allegedly allotted to defendant No.1.
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Defendant No.2 is APMC. The suit is dismissed on the
premise that notice under Section 137 of the APMC Act is
not issued before instituting the suit.
3. The suit is also dismissed on the premise that
the allotment of site No.76 which is said to have been
made in favour of defendant No.1 is not questioned by the
plaintiff.
4. Learned counsel appearing for the appellant
would contend that the allotment has not yet taken place
and there is no resumption of land which is allotted to the
plaintiff in the year 1998.
5. Learned counsel for the respondents would
submit that the plaintiff has violated the conditions.
Allotment was made in the year 1998 and without seeking
permission appellant has sold the property to someone
and later the said sale deed is cancelled. In the backdrop
of this fact, the APMC has taken a decision to allot the plot
to defendant No.1.
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6. After hearing the counsel for the appellant and
respondents, the following substantial questions of law are
framed:-
i) Whether the trial Court and First Appellate
Court were justified in holding that the suit is not
maintainable for want of Section 137 of APMC Act.
ii) Whether the trial Court and First Appellate
Court were justified in holding that the suit is without
challenging the allotment in favour of defendant No.1
is not maintainable.
7. As can be noticed from the admitted position,
the property bearing plot No.76 was allotted to the plaintiff
on 11.10.1998 on certain conditions. Now the respondent
No.2 contends that the appellant has violated the terms
and conditions of allotment, as such, the appellant is not
entitled to the property and said plot is allotted to
defendant Nol.1.
8. It is noticed that before the trial Court, the
defendants though engaged Advocates and appeared, did
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not file written statement. The defendants No.1 and 2 did
not produce materials before the trial Court.
9. The trial Court has dismissed the suit by
referring to Section 137 holding that Section 137 is
mandatory before instituting the suit. As can be noticed
from Section 137 of APMC Act, before instituting the suit
the notice under Section 137 is mandatory. The object of
issuing notice is to put the APMC on notice and to ensure
that if there is any lapse on the part of APMC to rectify the
same to avoid litigation. However, this Court is of the
view that since the plaintiff claims that site is allotted to
him on 20.04.1998 and there appears no resumption of
site in accordance with the procedure contemplated, the
judgment and decree passed by the trial Court will have to
be set-aside and the plaintiff should be given an
opportunity to institute a suit after complying requirement
of Section 137 of Act of 1966 and thereafter, in case the
suit is instituted, the same shall be considered in
accordance with law.
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10. In view of the above, this Court has made the
following:-
ORDER
i) Appeal is allowed.
ii) The impugned judgment and decree dated
28.02.2022 passed in R.A. No.3/2014 by the
Senior Civil Judge, Bhalki and judgment and
decree dated 30.09.2013 passed in O.S.
No.65/2012 passed by the Court of the Civil
Judge, Bhalki are set-aside.
iii) It is made clear that this Court has not
expressed any opinion on the merit of the
claims of either of the plaintiff or defendants.
iv) All questions are kept open, to be decided in
the fresh suit, if any initiated.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
CT:PK
