Karnataka High Court
The City Municipal Council vs Smt Mallamma on 31 July, 2024
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RSA No. 642 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 642 OF 2016 (INJ)
BETWEEN:
THE CITY MUNICIPAL COUNCIL
CHIKMAGALUR,
CHICKMAGALUR DISTRICT-577101
REPRESENTED BY ITS COMMISSIONER
...APPELLANT
(BY SRI A. NAGARAJAPPA, ADVOCATE)
AND:
SMT. MALLAMMA
W/O RAMAIAH,
AGED ABOUT 68 YEARS,
RESIDING AT GOWRI KALUVE,
VIJAYAPURA EXTENSION,
CHICKMAGALORE,
Digitally signed by CHICKMAGALUR DISTRICT-577101
MAHALAKSHMI B M
...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI H.N.MANJUNATH PRASAD, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 25.01.2016 PASSED IN
R.A.NO.61/2014 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM, CHIKKAMAGALURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
04.08.2014 PASSED IN O.S.NO.332/2009 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, CHIKMAGALUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 642 of 2016
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing concurrent findings of facts recorded by the
Courts below, the defendant is before this Court in the
present Regular Second Appeal.
2. Parties herein are referred to as per the rank
before the Trial Court for the sake of convenience.
3. Suit seeking the relief of permanent injunction
restraining the defendant from dispossessing the plaintiff
from the suit property. It is the case of the plaintiff that
under a resolution dated 21.12.1972, City Municipality,
Chikmagalur-defendant decided to grant sites to the site-
less people and in Sy.No.101, several sites were formed
and among them one site measuring 30 x 40 feet,
(hereinafter referred to as 'suit property') was granted in
favour of the plaintiff under registered sale deed dated
20.04.1990, pursuant to the execution of the sale deed,
khata was mutated in the name of the plaintiff and she is
in possession of the suit property from the date of
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execution of the sale deed. It is stated that the defendant
cancelled the khata without notice to the plaintiff and the
defendant along with its officials are trying to dispossess
the plaintiff from the suit property.
4. On notice, the defendant appeared and filed
written statement, inter alia, denying the plaint
averments. The defendant contended that no sites were
allotted to the plaintiff and the alleged sale deed was not
executed in her favour. The claim of the defendant is that
the plaintiff in collusion with one Chikkaveerappa, who was
working in the municipality, fabricated the sale deed and
other documents in respect of site Nos.101 and 99 and
after coming to know about this fact by the defendant, the
license granted to the plaintiff to construct the building
and the khata was cancelled. It is stated that the suit
property is a corner site and it is not proposed to be
granted to anybody much the less to the plaintiff. The
specific contention of the defendant is that the plaintiff got
the sale deed fabricated in collusion with the other persons
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of the corporation and the plaintiff is not the owner of the
suit property.
5. The Trial Court on basis of pleadings, framed
the following issues:
1) zÁªÉ zÁR®Ä ªÀiÁrzÀ ¢£À¢AzÀ zÁªÁ ¥Àj²¥ÀÖzÀ°è «ªÀj¹gÀĪÀ
D¹ÛUÉ ªÁ¢AiÀÄÄ ±ÁAw jÃwAiÀÄ C£ÀĨsÉÆÃUÀ ªÀÄvÀÄÛ ¸Áé¢üãÀzÀ°è
EzÀÝgÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢ªÀÄAiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉÀAiÉÄÃ?
2) ¥ÀæwªÁ¢AiÀÄjAzÀ D¬ÄvÀÄ J£À߯ÁzÀ CrØ-DvÀAPÀªÀ£ÀÄß ªÁ¢AiÀÄÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉ ?
3) ¥ÀæwªÁ¢AiÀÄgÀ «gÀÄzÀÝ ªÁzÀ ¥ÀvÀæzÀ°è PÉÆÃjgÀĪÀAvÉ ¥ÀjºÁgÀ
¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
4) ªÀiÁqÀĪÀ DzÉñÀ CxÀªÁ rQæ K£ÀÄ?
6. The Trial Court on the basis of pleadings, oral
and documentary evidence, arrived at a conclusion that
the plaintiff has proved her lawful possession over the suit
property and decreed the suit of the plaintiff restraining
the defendant permanently from dispossessing the plaintiff
from the suit property and in any way disturbing her
peaceful possession and enjoyment over the same.
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7. Aggrieved, the defendant preferred appeal
before the First Appellate Court. The First Appellate Court,
while re-appreciating and re-considering the entire oral
and documentary evidence, confirmed the judgment and
decree of the Trial Court. Aggrieved, the defendant is
before this Court.
8. Heard the learned counsel appearing for the
appellant-City Municipal Council, Chikkamagalur and
learned counsel for respondent-Mallamma.
9. The main argument advanced by the learned
counsel for appellant is that the license and the khata in
favour of the plaintiff has been cancelled after coming to
know that the plaintiff along with the other officials of the
Municipality had committed fraud and obtained the
registered sale deed in his favour and the Courts below
without appreciating the facts has erroneously restrained
the defendant-appellant from dispossessing the plaintiff
from the suit property. Learned counsel submits that there
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arises substantial question of law to be framed by this
Court in this second appeal.
10. Per Contra, learned counsel for the respondent
justifies the judgment and decree of the Courts below and
submits that against the concurrent findings of facts
cannot be interfered with under Section 100 of CPC and
there arises no substantial question of law for
consideration in the present second appeal and sought for
dismissal of the appeal. The counsel for respondent
brought to the notice of this Court, the findings recorded
in R.S.A.No.3259/2006 wherein this Court held that the
plaintiff has proved that she has been in lawful possession
and enjoyment of the suit property as on the date of the
suit.
11. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the material on record including the judgment
and decree of the Courts below.
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12. Suit is one for permanent injunction restraining
the defendant from interfering with the peaceful
possession and enjoyment of the suit property, the claim
of possession is in light of the registered sale deed
executed in her favour by the defendant-City Municipality
on 20.04.1990.
13. In order to substantiate her claim, plaintiff
examined herself as PW1 and marked documents at Ex.P1
to Ex.P20 and also examined one witness as PW2. On the
other hand, the defendant examined Revenue Officer as
DW1 and marked documents at Ex.D1 to Ex.D11 and also
examined one witness-Krishnamurthy who has been
examined as DW2. The burden was on the plaintiff to
establish that she was in lawful possession of the suit
property as on the date of institution of the suit, the sale
deed at Ex.P1 dated 20.04.1990 executed in favour of the
plaintiff is not in dispute, what is disputed by the
defendant is the manner in which it has been executed.
According to the defendant, it is urged that the sale deed
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executed in favour of the plaintiff was by playing fraud.
The sale deed in favour of the plaintiff executed on
20.04.1990 is on account of any fraud as contended by
the defendant, the same had to be challenged by the
defendant in accordance with law, what remains before
this Court is that the defendant has not challenged the
execution of the registered sale deed before any Court of
law.
14. The other aspect is that there was a suit filed
by the plaintiff seeking permanent injunction against the
defendant and another third person, which was dismissed
having found that there is no interference by the present
defendant and the plaintiff had approached this Court in
R.S.A.No.3259/2006. The findings recorded in that suit
was that the plaintiff is in possession and enjoyment of the
suit property as on the date of the suit, but since the
plaintiff failed to prove interference by the defendant-City
Municipality, the suit of the plaintiff was dismissed. The
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relevant findings recorded by this Court in RSA
No.3259/2006 at paragraph No.4 reads as under:
" 4. On careful reading of both the
impugned judgments and decrees, it could be
seen that the Trial Court has recorded its finding
that the plaintiff proved that she had been in
lawful possession and enjoyment of the suit
schedule property as on the date of the suit but
she failed to prove the interference alleged
against the defendants. The Appellate Court,
while concurring with the said findings allowed
the said regular appeal and thereby confirmed the
judgment and decree of the Trial Court. On
careful reading of the averments at paragraph No.
No.5 in the plaint insofar as they relate to the
interference alleged against the defendants it
could be seen that the interference is alleged
against the first defendant only and not against
the second defendant who has been the officer of
the Municipality. The said averments read as
under:
"The defendant more particularly the first
defendant even though not having any kind of
right, title or interest in over the schedule
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property with the help of the members of the
Mahila Mandali tried to cause obstruction to the
construction work of the plaintiff's house
property, in that regard on 25.02.2000 the first
defendant along with the anti social elements
came near the schedule sit and threatened the
plaintiff with consequences and stopped the
construction work. With great difficulty the
plaintiff resisted the high handed act of the first
defendant and also the second defendant on
the guise of the first defendant approach also
visited the spot and orally instructed the
Plaintiff not to go ahead with the construction
work. Even though the second defendant he
himself has granted the site and also the
license to the plaintiff despite that he has given
oral instructions in violation of the terms and
conditions enumerated in the license which is
highly unlawful on the part of the second
defendant."
15. The plaintiff has established by placing cogent
evidence about the possession and enjoyment of the suit
property. The Trial Court, while assessing the entire oral
and documentary evidence, arrived at a conclusion that
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the plaintiff is in possession and enjoyment of the suit
property. The First Appellate Court, being the last fact
finding Court, has re-appreciated and re-considered the
entire oral and documentary evidence independently and
arrived at a conclusion that the plaintiff possession over
the suit property is established. The manner in which both
Courts have considered the entire oral and documentary
evidence, this Court is of the considered view that no
substantial question of law arises for consideration in the
present Regular Second Appeal and the same does not
warrant any interference under Section 100 CPC,
accordingly, this Court pass the following:
ORDER
I) The Regular Second Appeal is hereby
dismissed.
II) The judgment and decree of the Courts below
stands confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
RHS
