Allowed

The Regional Manager v. Mrs Maimuna W/O a K Hameed Since Dead by Her Lrs

Karnataka HC23 Nov 2023RSA/725/2010

Case brief

AI extract

What is this about?

In a Regular Second Appeal under Section 100 CPC, the High Court of Karnataka set aside the Trial Court's decree granting a permanent injunction and the First Appellate Court's confirmation. The Court held that the subject property was acquired land where compensation was paid to the original owner, rendering the injunction suit unsustainable.

What did the court decide?

Judgments of the Trial Court and First Appellate Court set aside; Regular Second Appeal allowed.

The Regional Manager Vs Mrs Maimuna W/O a K Hameed Since… — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.725 OF 2010 (MON)

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BETWEEN:

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THE REGIONAL MANAGER K S F I C , PADIL, MANGALORE - 575 007.

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…APPELLANT

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(BY SRI.S.B.PAVIN., ADVOCATE)

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AND:

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MRS. MAIMUNA W/O A.K. HAMEED, SINCE DEAD BY HER LRS

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1(a) AHMED RASHEED AGED 46 YEARS.

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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1(b) AISHA RESHMAN, AGED ABOUT 44 YEARS.

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1(c) NAFISA UMAR, AGED ABOUT 42 YEARS.

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1(d) MOHAMMED HUSSAIN AGED ABOUT 41 YEARS.

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1(e) MOIDEEN P K., AGED ABOUT 38 YEARS.

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1(f) NASIMA RASHID, AGED ABOUT 35 YEARS

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ALL ARE CHILDREN OF LATE MAIMUM AND R/O A.K.H COMPOUND,

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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PADIL, MANGALORE - 575 007.

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THE STATE OF KARNATAKA, REPRESENTED BY DEPUTY COMMISSIONER, D.K. DISTRICT, MANGALORE.

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…RESPONDENTS

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[BY SRI.PUNDIKAI ISHWAR BHAT, ADV., FOR R1(a, d & e); R1(b), R1(f) ARE SERVED AND UNREPRESENTED; NOTICE TO R1(c) IS HELD SUFFICIENT; SMT.RASHMI PATEL, HCGP FOR R2]

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, SEEKING CERTAIN RELIEFS.

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THIS REGULAR SECOND APPEAL IS COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri.S.B.Pavin., learned counsel for the appellant and Sri.Pundikai Ishwar Bhat., learned counsel for respondents 1(a), (d) & (e) have appeared in person.

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The notice to the respondent No.1(b), 1(f) was ordered on 27.07.2010. A perusal of the office note depicts that the notice to respondent No.1(b), 1(f) is served. The respondent No.1(b) and (f) have neither engaged the services of an advocate nor conducted the case as party in person.

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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The notice to respondent No.1(c) is held sufficient vide order dated:15.04.2011.

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This is an appeal from the Court of III Addl. District & Sessions Judge, Dakshina Kannada, Mangalore.

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For convenience’s sake, the ranking of the parties shall be referred to as per their status and ranking before the Trial Court.

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The plaint averments are these:

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It is stated that the plaintiff is the absolute owner of the suit schedule property. She purchased it under a registered Sale Deed in the year 1965 and she has been in peaceful possession and enjoyment of the suit schedule property. It is said that during the first week of April 1995, when the plaintiff had been to the suit schedule property, she noticed that her property was covered by wooden poles around it. On enquiry, she came to know that the said wooden poles were erected by the officials attached to the first defendant. Hence, she was issued a legal notice on 01.05.1995 calling upon the defendants to remove the wooden poles erected thereon. Despite the service of the notice, the defendants did not comply with the

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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notice. Hence, she was constrained to take shelter under the Court of law and filed a suit seeking relief for a permanent prohibitory injunction restraining the defendants, their officials or any one claiming through or under the defendants from trespassing into or cutting the cutting the trees growth or causing any waste or damage to the plaint schedule property and also for a permanent mandatory injunction directing the defendants to remove the wooden poles erected around the plaint 'A' schedule property.

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After the issuance of the suit summons, the defendants appeared through counsel, the first defendant filed a detailed written statement. The second defendant adopted the written statement filed by the first defendant by filing a memo. The defendants denied the ownership of the plaintiff on the plaint 'A' schedule property. They specifically contended that the property in question is an acquired land in L.A.C.No.08/1961 and after the acquisition, the property has been handed over to the Forest Department. Hence, the question of title and possession over the suit schedule property does not arise. Among other grounds, they prayed for the dismissal of the suit.

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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Based on the above pleadings, the Trial Court framed issues. The parties led evidence and marked the documents. On the trial of the action, the Trial Court vide Judgment & Decree dated 17.02.1998 decreed the suit. Aggrieved by the Judgment and Decree of the Trial Court, the first defendant preferred an appeal before the First Appellate Court in R.A.No.505/2004. On appeal, the First Appellate Court vide Judgment & Decree dated 25.11.2009 confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Hence, this Regular Second Appeal is filed by the first defendant under Section 100 of CPC.

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Learned counsel for the appellant and respondents 1(a), (d) & (e) have urged several contentions.

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Sri.S.B.Pavin., learned counsel for the appellant submits that the Judgments and Decrees of both Courts are illegal and arbitrary and the same are liable to be set aside.

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Next, he submits that the first defendant disputed the title of the plaintiff. The plaintiff has no legal title over the suit schedule property, and she is not in physical possession of the suit schedule property. It is also contended that the first

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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defendant is an absolute owner in actual possession of the suit schedule property. Since the title is disputed hence, a suit for a bare permanent injunction is not maintainable.

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A further submission is made that the suit schedule property is the subject matter of the Land Acquisition Proceedings in L.A.C.No.08/1961 and the subject matter of M.F.A.No.249/1967. The land acquisition proceedings were ended in M.F.A.No.249/1967 and hence plaintiff cannot be the owner of the suit schedule property and thus she is not entitled to any relief.

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Learned counsel vehemently contended that both courts overlooked the issue regarding the acquisition of the property.

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Lastly, he submits that viewed from any angle, the Judgments and decrees of both Courts are liable to be set aside. Counsel, therefore, submits that the Regular Second Appeal may be allowed.

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Sri.Pundikai Ishwara Bhat., learned counsel for respondents 1(a), (d) & (e) justified the Judgments and Decrees passed by the Trial Court and the First Appellate Court. He submits that the plaintiff is the absolute owner of the

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7 - NC: 2023:KHC:42359 RSA No. 725 of 2010

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property in question. She has purchased the same back in the year 1965 and the documents are standing in her name. A further submission is made that the possession of the plaintiff has not disturbed. It is also submitted that since the date of purchase, the plaintiff is in actual possession and enjoyment of the suit schedule property.

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Learned counsel vehemently contended that the Trial Court extenso referred to the material on record and justified in decreeing the suit and on appeal, the Judgments and Decrees of the Trial Court are confirmed.

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Lastly, he submits that the appellant has not made any grounds to interfere with the Judgments and Decrees of the Trial Court and the First Appellate Court. The Appeal is devoid of merits. Hence, the same may be dismissed.

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Heard, the contentions urged on behalf of the respective parties and perused the appeal papers with utmost care.

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This Court vide order dated:27.07.2010 admitted the appeal and framed the following substantial questions of law:

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8 - NC: 2023:KHC:42359 RSA No. 725 of 2010

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"Whether the Courts below was justified in decreeing the suit of the plaintiff when the order passed by this Court in MFA No.249/1967 indicates that the land in question was acquired and compensation was given at Rs.10,000/- per acre (as per Ex.D.1)?"

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The facts are sufficiently stated and do not require reiteration. Suffice it to note that the suit is one for a bare injunction based on possession as on the date of the filing of the suit. The plaintiff contends that she purchased the suit schedule property under a registered the sale deed back in the year 1965. The defendants took a specific defense that the suit schedule property is a acquired land in L.A.C.No.08/1961. To substantiate the contention about the acquisition, they produced a copy of the order passed by this Court in M.F.A.No.249/1967 and the same is marked at Ex.D1. The Trial Court took note of the same, yet concluded that the defendants have not produced any documents to show that the suit schedule property is acquired land. This is incorrect. Since a perusal of the records would reveal that Ex.D1 is a copy of the order in M.F.A.No.249/1967. The suit schedule property is a property bearing R.S.No.23/14, Bagayath measuring 38 Cents

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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situated at Alape Village of Mangalore Taluk. This property was the subject matter of the land acquisition proceedings. Hence, it can be safely concluded that the suit schedule property is an acquired land. Furthermore, the original owner Smt.Sharadha N.Rai has received the compensation amount. The issue regarding acquisition and the receival of the compensation amount by the original owner has been overlooked by both Courts. I may venture to say that both Courts have failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the judgments and decrees of both courts are unsustainable in law.

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The substantial questions of law framed by this Court is answered holding that the Trial Court is not justified in decreeing the suit in respect of an acquired land. The First Appellate Court is also not justified in confirming the Judgment and Decree of the Trial Court.

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For the reasons stated above, the Judgments of the Trial Court and First Appellate Court are unsustainable in law and accordingly, they are set aside.

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10 -

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NC: 2023:KHC:42359 RSA No. 725 of 2010

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The Judgment and Decree dated 17.02.1998 passed by the Court of V Additional Civil Judge (Jr.Dn.) D.K. Mangalore in O.S.No.416/1995 and the Judgment and Decree dated:25.11.2009 passed by the III Additional District Judge D.K. Mangaluru in R.A.No.505/2004 are set-aside.

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Resultantly, the Regular Second Appeal is allowed.

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Sd/JUDGE

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MRP List No.: 2 Sl No.: 13

The Regional Manager v. Mrs Maimuna W/O a K Hameed Since Dead by Her Lrs

Case brief

What is this about?

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The Regional Manager v. Mrs Maimuna W/O a K Hameed Since Dead by Her Lrs

Case brief

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