Karnataka High Court

The Harlayya Samaj Panch Committe vs The Commissioner on 16 January, 2024

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                                                        RSA No.5543 OF 2010




                             IN THE HIGH COURT OF KARNATAKA

                                      DHARWAD BENCH

                        DATED THIS THE 16TH DAY OF JANUARY, 2024

                                            BEFORE

                           THE HON'BLE MR JUSTICE ANIL B KATTI

                        REGULAR SECOND APPEAL NO.5543 OF 2010


                   BETWEEN:

                   THE HARLAYYA SAMAJ PANCH COMMITTEE
                   REPRESENTED BY ITS SECRETARY
                   SRI BANAKAPPA BIDIKAR
                   AGE: 75 YEARS, OCC: SECRETARY
                   R/O.MANIKILLA MOCHI GALLI
                   DHARWAD-580 001
                                                                    ...APPELLANT

MANJANNA           (BY SMT.PALLAVI S.PACHHAPUR, ADVOCATE FOR
E
                       SRI.SRINAND A PACHHAPUR, ADVOCATE)
Digitally signed
by MANJANNA E
Date: 2024.01.24
15:45:07 +0530
                   AND:


                   1.     THE COMMISSIONER
                          HUBLI- DHARWAD MUNCIPAL CORPORATION
                          DHARWAD-580 001

                   2.     THE MADAR SAMAJ, DHARWAD
                          RETIRED BY ITS SECRETARY
                          OF MANIKILLA
                          DHARWAD-580 001
                                                                  ...RESPONDENTS
                   (BY SRI.G.I.GACHCHINAMATH, ADVOCATE FOR R1
                       SRI.HEMANTH L.HAVARAGI, ADVOCATE FOR R2)
                                               ***

                        THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC.,
                   PRAYING AGAINST THE JUDGMENT & DECREE DATED:31.03.2010
                   PASSED IN R.A. NO.56/2006 ON THE FILE OF THE I-ADDL. CIVIL
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                                                 RSA No.5543 OF 2010



JUDGE (SR.DN.) & CJM, DHARWAD, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGMENT DTD: 24.11.2005 AND THE DECREE
PASSED IN O.S.NO.430/2003 ON THE FILE OF THE II-ADDL. CIVIL
JUDGE (JR.DN) AND JMFC-II, DHARWAD, DECREEING THE SUIT
FILED FOR PERMANENT INJUNCTION.


    THIS REGULAR SECOND APPEAL                      COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS                     DAY, THE COURT
PRONOUNCED THE FOLLOWING:



                            JUDGMENT

Appellant/plaintiff feeling aggrieved by the judgment

of the First Appellate Court on the file of I Addl.Senior Civil

Judge and CJM, Dharwad in R.A.NO.56/2006 dated

31.03.2010 in setting aside the judgment and decree of

the Trial Court on the file of II Addl.Civil Judge(Jr.Dn.) and

JMFC II Court Dharwad in O.S.No.430/2003 dated

24.11.2005 preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the Trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

plaintiff can be stated in nutshell to the effect that the suit

RSA No.5543 OF 2010

property is the community hall Manikilla Mochigalli, within

Dharwad city comprises sites bearing CTS nos.388, 389,

392/1, 392/2, 387 and 394 of Dharwad city and the same

is bounded by:-

       East       :Property of Bhimappa Saundatti
       West       :Road,
       North      :Property of Doddamani
       South      :Durgadevi Gudi

The erstwhile owner of the said CTS numbers are

Nagendra and Bhimappa, Hatelappa Soundatti,

Shankrappa Saundatti, legal heirs of Yellawwa w/o

Saundatti, Sainavva w/o Mahadevappa Kashappa and

Budivantavva sambrani, Tippanna Ramdurga who were

pious and dedicated to the community by donating the

land in the year 1953 given to the custody of the plaintiff

committee. The defendant corporation in the year 1974-75

has built the suit community hall on the sites comprising

all the aforementioned CTS numbers to the plaintiff for the

use and enjoyment of the plaintiff committee and

members. The defendant No.1 corporation was trying to

assign the said community hall to defendant No.2 and in

RSA No.5543 OF 2010

this regard the defendant No.1 corporation has served

Secretary of plaintiff committee with notice. The defendant

No.1 corporation was hatching plan to dispossess plaintiff

committee from the suit community hall by concocting

documents. The plaintiff committee is in actual possession

of the suit community hall. The defendant No.1

corporation is interfering with the peaceful possession and

enjoyment of the suit property by plaintiff and trying to

hand over the community hall to defendant No.2.

Therefore the plaintiff was constrained to institute the suit

on hand for the relief claimed in the suit.

4. In response to the suit summons, the defendant

No.1 has appeared through counsel and defendant No.2 in

spite of summons did not chose to appear to contest the

claim of plaintiff and was placed ex-parte by order dated

18.12.2003.

5. The defendant No.1 has filed written statement

admitting the description of the suit property and the

defendant No.1 corporation has built community hall on

the suit survey number claimed by the plaintiff and

RSA No.5543 OF 2010

handed over the same to the plaintiff committee on rental

charges. Thereafter, by resolution No.171 dated

28.09.2001 the rent was waived and community hall in

possession of the plaintiff was given with free of cost. It is

the case of defendant No.1 that the slum clearance

scheme of Hubli-Dharwad, the CTS numbers mentioned in

plaint were declared as slum area. The house less persons

who were residing in the said CTS numbers were re-

housed in Madarmaddi area CTS No.497/HYG and 324/S

totally 158 plots have been laid and the same have been

developed into suitable housing plots which were allotted

to the displaced persons by executing 99 years lease deed.

There is an open space abutting the community hall. The

defendant No.2 has demanded the open space abutting to

the community hall which is in possession of defendant

No.1 corporation. The defendant No.1 corporation has got

right title and interest over the open space abutting to the

suit property. There is no cause of action to the suit of

plaintiff. Therefore, on these grounds prayed for dismissal

of the suit.

RSA No.5543 OF 2010

6. On the basis of pleadings of both the parties,

the Trial Court has framed necessary issues. The plaintiff

in order to prove the case relied on oral testimony of

PWs.1 and 2 and the documents Ex.P.1 to Ex.P.9. On

behalf of defendant No.1 corporation, DW.1 is examined

and relied documents Ex.D.1 to Ex.D.4. The Trial Court

after hearing the arguments of both the learned counsels

and on appreciation of oral and documentary evidence

placed before it has decreed the suit of plaintiff and

granted the relief of permanent injunction, restraining the

defendant from interfering in peaceful possession and

enjoyment of the suit property by the plaintiff.

7. The defendant No.1 corporation has challenged

the said judgment and decree of Trial Court on the file of

I Addl.Senior Civil Judge and CJM, Dharwad in

R.A.No.56/2006. The First Appellate Court after re-

appreciation of evidence on record by judgment dated

31.03.2010 has allowed the appeal and dismissed the suit

of plaintiff.

RSA No.5543 OF 2010

8. Appellant/plaintiff challenged the judgment and

decree of First Appellate Court contended that the First

Appellate Court has not properly appreciated the evidence

placed on record and committed serious error in holding

that there is no any interference of defendant No.1

corporation in peaceful possession and enjoyment of the

suit property. The observations and the findings of the

First Appellate Court that Ex.P.7 is only the notice and the

defendant No.1 is empowered to issue said notice which

cannot be termed as an interference in peaceful

possession and enjoyment of the suit property by the

plaintiff cannot be legally sustained. The defendant No.1

corporation has no any legal authority over the suit

property. The approach and appreciation of oral and

documentary evidence by the First Appellate Court in

allowing the appeal and in dismissing the suit of plaintiff is

contrary to law and evidence on record. Therefore, prayed

for allowing the appeal and to set aside the judgment and

decree of the First Appellate Court, consequently to

restore the judgment and decree passed by Trial Court.

RSA No.5543 OF 2010

9. In response to the notice of appeal respondent

Nos.1 and 2 have appeared through their counsel. The

Trial Court records have been secured.

10. This Court by order dated 28.03.2014 admitted

the appeal to consider the following substantial question of

law.

1) Whether the First Appellate Court has committed a serious error in allowing the appeal and dismissing the suit of the plaintiff by ignoring material evidence placed on record and thereby the judgment is perverse and illegal?

11. Heard the arguments of both sides.

12. On careful perusal of oral and documentary

evidence placed on record by parties to the suit, it would

go to show that, the suit property is the community hall

Manikilla Mochigalli within Dharwad city with the

boundaries pleaded in para 3 of the plaint. The said

community hall comprises of CTS Nos.388, 389, 392/1,

392/2, 387 and 394 of Dharwad city, the following table

would depict the owners of the respective CTS numbers.


                                         RSA No.5543 OF 2010



            Owners                         CTS Nos.







Legal Heirs of Yellawwa w/o      392/2
Saundatti
Sainavva w/o Mahadevappa         387
Kashappa and Budivantavva
Sambrani

13. The plaintiff have claimed that the above

referred owners are pious and dedicated to the plaintiff

community and donated the land in favour of the plaintiff

committee in the year 1953. Whereas, it is the case of

defendant No.1 corporation that the above referred CTS

numbers are declared as slum area and under the scheme

vide G.O.No.LLH 11(10) IAW-57 of 05.09.1959. The slum

families in Manakilla areas were dishoused from the said

area. Thereafter, the houseless persons residing in the

above referred CTS numbers were re-housed in

Madarmaddi area in CTS No.497/HYG and 324/S totally

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RSA No.5543 OF 2010

158 plots have been laid and the same have been

developed into suitable housing plots. The said plots were

allotted to the displaced persons by executing 99 years

lease deed in favour of the corporation in respect of the

above said CTS numbers. However, the plaintiff still

asserts that the above referred persons are the owners of

the CTS numbers referred in para 3 of the plaint.

14. Plaintiff did not dispute that the defendant No.1

has built community hall on the CTS numbers referred in

para 3 of the plaint and handed over the community hall

to the plaintiff committee on rental basis. It is further not

in dispute that the defendant No.1 corporation by

resolution No.171 dated 28.09.2001 have waived the rent

and the community hall was given to be used by plaintiff

on free of cost. Thus, the plaintiff committee is in actual

physical possession of the community hall built by the

defendant No.1 corporation which was given to the

plaintiff committee for the beneficial use and enjoyment of

the community hall for it's members' use and occupation.

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RSA No.5543 OF 2010

15. The plaintiff committee apart from the evidence

of Secretary of the plaintiff community as PW.1 also

examined PW.2 Bhimarao Savadatti who was the owner of

CTS Nos.388 and 392/2. PW.2 has deposed to the effect

that CTS number referred in the plaint including the

aforementioned CTS number belongs to him were given to

the plaintiff committee on 02.01.1952 for the beneficial

enjoyment of the children belongs to plaintiff committee

and delivered physical possession to the plaintiff

committee. However, PW.2 also admits in his cross-

examination that Haralayya Samudaya Bhavana

(community hall) was constructed by the defendant No.1

corporation in 1979-80 and the same was given to the

plaintiff committee for the beneficial use and enjoyment of

the community members. PW.2 during the cross-

examination denied the suggestions that in the name of

his mother Yellavva Somappa Savadatti given to his

mother in lieu of CTS No.392/2 executed registered

documents, but claims that the defendant No.1

corporation has given the open space to her mother.

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RSA No.5543 OF 2010

Therefore, it is evident that there is the dispute of title

between PW.2 and other owners of the CTS numbers and

defendant No.1 corporation. The plaintiff committee or

defendant No.1 corporation has not produced any title

documents with respect to the aforementioned CTS

numbers. It is true that in a suit for the relief of

permanent injunction, the issue of title becomes

immaterial and it is only the possession has to be decided.

DW.1 has categorically admitted in his cross-examination

that he has not produced any documents to show the

ownership right of defendant No.1 corporation over the

aforementioned CTS numbers. The issue of possession has

to be decided based on the evidence on record.

16. The oral testimony of PW.1 Benakappa Kallappa

Beedikar, Secretary of the plaintiff committee and PW.2

Bhimrao Savadatti owner of CTS Nos.388 and 392/2 would

go to show that the defendant No.1 corporation has

constructed the community hall and delivered the

possession of the same to the plaintiff committee for use

and occupation of the activities of the plaintiff committee.

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RSA No.5543 OF 2010

The said fact is also not denied by the defendant No.1.

Therefore, the plaintiff committee is in possession of

community hall is proved by plaintiff out of the evidence

placed on record.

17. The Trial Court having appreciated the evidence

on record come to the conclusion that there is a threat to

the right of plaintiff being in possession of the community

hall and granted the relief of permanent injunction.

Whereas, the First Appellate Court has recorded finding

that on the basis of Ex.P.7 notice issued by the defendant

No.1 corporation which it is empowered does not amounts

to threat to the right of plaintiff being in possession of

community hall and has dismissed the suit of plaintiff. The

document at Ex.P.7 is the notice issued by the defendant

No.1 corporation dated 30.10.2003 for being present at

3 p.m. on 04.11.2003, since corporation authority is

visiting the suit property for measurement. This notice is

issued by defendant No.1 corporation pursuant to the

representation of defendant No.2 dated 20.06.2003

Ex.D.3. The defendant No.2 is seeking for grant of land

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RSA No.5543 OF 2010

measuring 35 ft. X 15 ft. in the back portion of the

community hall. The defendant No.1 corporation has not

produced any documents to show that it is only the

constructed portion of community hall was given and not

the open space situated to the back side of the community

hall. The causing of notice by defendant No.1 to the

plaintiff community Ex.P.2 is based on the representation

of defendant No.2 Ex.D.3. The said action of defendant

No.1 at the instance of defendant No.2 would be sufficient,

threat to the right of plaintiff possession over community

hall. Therefore, in order to protect the admitted lawful

possession of the plaintiff community over the suit

property when there is threat of dispossession is entitled

for the relief of injunction.

18. It is true that the Trial Court has granted the

relief of permanent injunction which will prevent the

defendant No.1 corporation even for taking any steps in

accordance with law over the suit property. Therefore, the

possession of plaintiff committee will have to be protected

by grant of injunction till dispossession under due process

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RSA No.5543 OF 2010

of law. The First Appellate Court has committed error in

holding that there is no invasion of threat to the right of

plaintiff and in declining the grant of relief of injunction to

the plaintiff, consequently question of law framed by this

Court is answered in affirmative and proceed to pass the

following:

ORDER

Appeal filed by appellant/plaintiff is hereby allowed.

The judgment of the First Appellate Court on the file

of I Addl.Senior Civil Judge and CJM, Dharwad in

R.A.No.56/2006 dated 31.03.2010 is hereby set aside.

The judgment and decree of the Trial Court on the

file of II Addl.Civil Judge(Jr.Dn.) and JMFC II Court

Dharwad is modified as under:

The defendant No.1 corporation or nobody on it's

behalf are hereby restraining by way of injunction from

interfering in peaceful possession and enjoyment of the