Dismissed

Shoukath Pasha v. Town Municipal Council

Karnataka HC12 Sept 2024RSA/572/2018

Case brief

AI extract

What is this about?

Plaintiff's suit for declaration and permanent injunction over land allegedly demolished by the municipal council was concurrently dismissed by both courts below for failure to prove property identification and boundaries. The High Court found no perversity or substantial question of law and dismissed the appeal at admission, also rejecting the application for additional documents.

What the court decided

AI extract

Shoukath Pasha Vs Town Municipal Council — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:37365 RSA NO.572 OF 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.572 OF 2018 (DEC/INJ)

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BETWEEN:

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SHOUKATH PASHA S/O LATE SHEIK BASHEER AGED ABOUT 52 YEARS, OCC:BUSINESS, R/AT NO.3329, SAIT COMPOUND, BANGARPET, KOLAR DISTRICT - 563 114.

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…APPELLANT

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(BY SRI. M. NASRULLAH KHAN, ADVOCATE)

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AND:

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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TOWN MUNICIPAL COUNCIL BANGARPET, KOLAR DISTRICT-563 114. REP. BY ITS CHIEF OFFICER

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(BY SRI. ABHINAV R., ADVOCATE)

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…RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 20^TH NOVEMBER, 2017 PASSED IN REGULAR APPEAL NO.39 OF 2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL, JMFC K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04^TH APRIL, 2017 PASSED IN ORIGINAL SUIT NO.227 OF 2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., BANGARPET.

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NC: 2024:KHC:37365 RSA NO.572 OF 2018

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 20^th November, 2017 passed in Regular Appeal No.39 of 2017 on the file of Senior Civil Judge and Principal, JMFC., K.G.F. (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 04^th April, 2017 passed in Original Suit No.227 of 2007 on the file of the Principal Civil Judge and JMFC., Bangarpet (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be dismissed.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

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Facts in brief for adjudication of this appeal are that, one Sheik Basheer-father of the plaintiff has purchased the schedule property as per registered Sale Deed dated 09^th October, 1974 and he was in possession of the same. It is also

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3 - NC: 2024:KHC:37365 RSA NO.572 OF 2018

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stated in the plaint that, on demise of the father of the plaintiff, the plaintiff is in possession of the suit schedule property. It is further stated that the father of the plaintiff built shops in the schedule property and same are not the subject matter of the suit. It is stated that the shops in the schedule property is surrounded by compound and the defendant-TMC, without any right, title and interest in respect of the schedule property, have illegally demolished the part of the building available in the vacant Site. Hence, the plaintiff caused legal notice on 12^th October, 2007 to the defendant-TMC, however, no reply has been made by the defendant to the said legal notice. It is also stated that the defendant has removed the gate and zinc sheet compound wall on 03^rd November, 2007. Therefore, the plaintiff filed suit in Original Suit No.227 of 2007 before the Trial Court, seeking relief of declaration with consequential relief of permanent injunction against the defendant-TMC.

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On service of notice, defendant entered appearance and filed detailed written statement and took-up a specific contention that there is no land bearing Survey No.134 in Bangarpet within the boundaries as given in the plaint schedule. It is also contended that the defendant Municipality

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4 - NC: 2024:KHC:37365 RSA NO.572 OF 2018

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has a slaughter house consisting of vacant space, shops for sale of Meat. It is also contended that the plaintiff has damaged a portion of the said property belonging to the Municipality through Earth Moving equipment (JCB) and as such, defendant Municipality lodged complaint with the Police against the plaintiff. Accordingly, the defendant sought for dismissal of the suit.

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On the basis of pleadings on record, the Trial Court framed issues for its consideration.

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In order to prove their case, plaintiff himself was examined as PW1 and got marked 14 documents as Exhibits P1 to P14. On the other hand, defendants examined five witnesses as DW1 to DW5 and got marked 16 documents as Exhibits D1 to D16.

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The Trial Court, after considering the material on record, by judgment and decree dated 04^th April, 2017, dismissed the suit. Being aggrieved by the same, the plaintiff has preferred Regular Appeal No.39 of 2017 and same has been resisted by the defendant-TMC. The First Appellate Court, after re-appreciating the material on record, by its judgment

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5 - NC: 2024:KHC:37365 RSA NO.572 OF 2018

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and decree dated 20^th November, 2017, dismissed the appeal consequently, confirmed the judgment and decree passed in Original Suit No.227 of 2007. Being aggrieved by the same, the plaintiff preferred this Regular Second Appeal along with application IA.2 of 2018 under order XLI Rule 27 of the Code of Civil Procedure for production of certain documents.

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Heard Sri. M. Nasrullah Khan, learned counsel appearing for the appellant and Sri. Abhinav R., learned counsel appearing for the respondent.

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Sri. M. Nasrullah Khan, learned counsel appearing for the appellant contended that, both the Courts below have not properly appreciated the fact that the plaintiff was a bonafide occupant of the suit schedule property and his father has surveyed the land in question during the 1989-90 and as per the survey report, the defendant has encroached the portion of the property belonging to the plaintiff. It is also argued by learned counsel appearing for the appellant that the defendant-

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TMC had not produced any documents relating to the suit schedule property except the extract of rent payment register pertaining to the existing Mutton Shops constructed by

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NC: 2024:KHC:37365 RSA NO.572 OF 2018

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encroaching the land belonging to the plaintiff, however, the plaintiff produced the registered Sale Deed dated 09^th October,1974, which clearly establish that the defendant-TMC had slaughter house at Eastern side of the suit schedule property. Therefore, he sought for interference of this Court.

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Per contra, Sri. Abhinav R., learned counsel appearing for the respondent submitted that, both Courts below on finding of fact, arrived at a conclusion that the father of the plaintiff has not constructed building in the schedule property and no documents have been produced by the plaintiff with regard to the same. It is also submitted by learned counsel appearing for the respondent-TMC that the father of the plaintiff had purchased the property measuring 100 x 35 feet in Survey No.134 and the description of the suit schedule property is 65 x 35 and therefore, the suit filed for declaration itself is not maintainable. He also submitted that the additional documents produced at application IA.2 of 2018 filed under Order XLI Rue 27 of the Code of Civil Procedure do not convey the title to the schedule property. Accordingly, he sought for dismissal of the appeal.

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NC: 2024:KHC:37365 RSA NO.572 OF 2018

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In the light of the submission made by learned counsel appearing for the parties, the father of the plaintiff had purchased the schedule property as per the registered Sal Deed dated 09^th October, 1974 (Exhibit P1). It is the case of the plaintiff that the defendant-TMC had rented the portion of the premises in the schedule property for slaughter house. It is also forthcoming from the finding recorded by the Trial Court that the defendant-TMC had constructed shops in the land belonging to the defendant Municipality and the said aspect has been admitted by the PW1 in his evidence. PW1 also deposed that the plaintiff has not constructed any building in the suit schedule property. It is also deposed by the PW1 that, certain shops are situate in the schedule property and same were not subject matter of the suit. Perusal of the evidence of PW1 makes it clear that the plaintiff has deposed that the extent of land is 115 x 38. It is also stated by PW1 that, all the four sides of the suit schedule property, roads are in existence however , the same is contrary to the description mentioned in the schedule . Taking into consideration the fact that the defendant has disputed the boundaries at the suit schedule property and the entire extent of land as stated in the registered Sale Deed

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dated 09^th October, 1974 is not the subject mater of the suit., the reasons assigned by the Trial Court in dismissing the suit is just and proper. The First Appellate Court, after reappreciating the material on record, arrived at a conclusion that the plaintiff has failed to prove the identification of the property and has not provided exact description and boundaries of the property in the plaint. Having taken note of the finding recorded by the First Appellate Court, as the suit is one filed for relief of declaration, it is the duty of the plaintiff to provide entire details relating the description of the suit schedule property and also to establish his right over the schedule property through cogent oral and documentary evidence. Since, both the Courts below concurrently held against the plaintiff to grant relief of declaration, I do not find any merit in the appeal.

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The plaintiff/appellant has filed application IA.2 of 2018 under Order XLI Rule 27 of the Code of Civil Procedure and produced 11 documents as additional documents. Most of the documents are the Voter ID, Death Certificate and Family Tree. The remaining documents are the Tippani and Survey report. However, on careful examination of the said Tippani,

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NC: 2024:KHC:37365 RSA NO.572 OF 2018

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the description as mentioned, the name of the plaintiff is not forthcoming from the Tippani. In that view of the matter, the appellant has failed to establish his case as there is no perversity in the judgment and decree passed by both the Courts below. Even before, this Court, the plaintiff has not made out case for interference despite having filed application IA.2 of 2018 along with certain documents and those documents do not probable to the case of the plaintiff to grant relief of declaration. Accordingly, IA.2 of 2018 is dismissed. Having arrived at a conclusion that there is no perversity in the judgment and decree passed by the Courts below, as the plaintiff has failed to make out a case for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at the stage of admission itself. Accordingly, Regular Second Appeal is

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dismissed.

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SD/(E.S. INDIRESH) JUDGE

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ARK

Shoukath Pasha v. Town Municipal Council

Case brief

What is this about?

What the court decided

Shoukath Pasha v. Town Municipal Council

Case brief

What is this about?

What the court decided

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