Dismissed

Sri Ramesh v. the Belgaum Urban Development Authority

Karnataka HC7 Oct 2021RSA/2370/2007

Case brief

AI extract

What is this about?

In a second appeal challenging the dismissal of a suit for permanent injunction regarding acquired property, the High Court in Karnataka applied the Supreme Court in Commissioner BDA V/s Brijesh Reddy. It held that a suit concerning acquired property is not maintainable, leading to the dismissal of the appeal.

What did the court decide?

The second appeal was dismissed with no other relief granted.

Sri Ramesh Vs the Belgaum Urban Development Authority — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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R.S.A. NO.2370/2007 (RES)

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BETWEEN

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SRI RAMESH SON OF KRISHNAJI JAVALKAR, SINCE DECEASED R/BY HIS LRS

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1A) APPASAHEB RAMESH JAVALKAR, AGE: 50 YEARS, OCC: BUSINESS,

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1B) BALASAHEB RAMESH JAVALKAR, AGE: 48 YEARS, OCC: BUSINESS,

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1C) AJAY RAMESH JAVALKAR, AGE: 48 YEARS, OCC: BUSINESS,

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ALL ARE R/O COURT STREET, CAMP, BELAGAVI-590 002.

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...APPELLANTS

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(BY SRI SHIVARAJ S.BALLOLI AND SRI GIRISH A.YADAWAD, ADVOCATES)

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AND

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THE BELGAUM URBAN DEVELOPMENT AUTHORITY, MAL MARUTI EXTENSION, BELAGAVI, REPRESENTED BY ITS COMMISSIONER.

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... RESPONDENT

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(BY SRI M.A.HULYAL, ADVOCATE)

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THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 17.07.2007 PASSED IN R.A.NO.149 OF 2002 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (SR.DN.), BELAGAVI CONFIRMING THE JUDGMENT AND ORDER DATED 04.06.2002 PASSED IN O.S.NO.697 OF 1993 ON THE FILE OF CIVIL JUDGE (JR.DN.), BELAGAVI AND THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT.

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

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JUDGMENT

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This Regular Second Appeal is directed against the concurrent judgments and decrees dated 04.06.2002 passed by the trial Court in O.S.No.697/1993 and by the first Appellate Court in R.A.No.149/2002 dated 17.07.2007 whereby the suit and the appeal filed by the appellant’s father was dismissed by the trial Court.

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Brief facts giving rise to this appeal are as

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follows:

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The original appellant instituted a suit in O.S.No.697/1993 against the respondent/Belgaum Urban Development Authority (BUDA) for permanent

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injunction and other reliefs in respect of suit schedule immovable property. The said suit was opposed by the respondent/BUDA inter alia contending that the suit schedule property was the subject matter of acquisition proceedings and consequently, a suit challenging acquisition was not maintainable since the jurisdiction of the Civil Court is ousted and the plaint was liable to be rejected. In the said suit, the respondent/BUDA filed an application/I.A.No.10 under Order VII Rule 11(d) C.P.C. seeking rejection of the plaint on the ground that the suit was barred by law inasmuch as the suit for permanent injunction in respect of an acquired property was not maintainable. After hearing the parties, the trial Court proceeded to pass the impugned order rejecting the plaint on the ground that the suit was not maintainable and consequently dismissed the suit. Aggrieved by the impugned judgment and decree passed by the trial Court, the appellant preferred an appeal in R.A.No.149/2002 which was also dismissed by the

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first Appellate Court confirming the impugned judgment and decree passed by the trial Court. Aggrieved by the impugned concurrent judgments and decrees passed by the trial Court and the first Appellate Court, appellant is before this Court by way of present second appeal.

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Heard learned counsel for the appellants and learned counsel for respondent. Perused the material on record.

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While admitting this appeal, this Court framed the following substantial question of law:

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“Whether the Courts below are justified in rejecting the plaint under Order VII Rule 11(d) of C.P.C.?”

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In addition to reiterating the various

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contentions urged in the appeal and referring to the material on record, learned counsel for the appellant submits that the impugned judgments and decrees are wholly erroneous and perverse inasmuch as the

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suit filed by the appellant was for permanent

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injunction simpliciter and the validity or legality of the acquisition proceedings having been not challenged, it cannot be said that the suit was not maintainable and consequently the impugned judgments and decrees passed by the Courts below deserve to be set aside.

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Per contra, learned counsel for

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respondent/BUDA submits that the suit schedule property was acquired by the BUDA and in the light of the decision of the Apex Court in the case of

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Commissioner BDA V/s Brijesh Reddy, 2013 (4)

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KLJ Page 66 suit was not maintainable. It is therefore submitted that both the Courts below have come to the correct conclusion that the plaint in the

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suit was liable to be rejected and the impugned judgments and decrees do not warrant interference by this Court in the present appeal.

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I have given my anxious consideration to

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the rival submissions and perused the material on record.

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The material on record indicates that out of

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the total extent of land in R.S.No.1388/2A measuring 37 guntas 12 annas, the respondent/BUDA has acquired 22 guntas and passed an award in respect of 22 guntas on 06.06.1990. However in respect of the remaining extent of 15 guntas 12 annas, the respondent/BUDA has not passed any award. In Brijesh Reddy’s case supra, arising out of a suit for permanent injunction, the Apex Court has clearly held that the suit for permanent injunction in respect of the acquired property is not maintainable and the same was liable to be dismissed. As stated supra, the material on record in the instant case including the impugned judgments and decrees will indicate that respondent/BUDA had acquired the suit schedule property measuring 22 guntas and consequently in

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view of the decision of the Apex Court in Brijesh Reddy’s case supra, I am of the considered opinion that the substantial question of law formulated by this Court with regard to maintainability of the suit stands squarely covered and answered by the decision of the Apex Court in Brijesh Reddy’s case particularly when the suit schedule property involved in the suit was 22 guntas which had been acquired by the respondent/BUDA who had also passed an award on 06.06.1990. Under these circumstances, the question of law framed by this Court referred to supra has to be answered in the negative and since no other question of law muchless substantial question of law arises for consideration in the present appeal, there is no merit in the appeal and the same is liable to be dismissed. Accordingly, it is

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dismissed .

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SD/JUDGE

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CLK

Sri Ramesh v. the Belgaum Urban Development Authority

Case brief

What is this about?

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Sri Ramesh v. the Belgaum Urban Development Authority

Case brief

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