Sri K Marthanda Murthy Vs Erehalli Mandal Panchayath /Group Panchayat

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 10.06.2025 PASSED IN RA NO.25/2023 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSIN THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.01.2023 PASSED IN OS

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NO.268/2015 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMRC, BHADRAVATHI.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.Nanjunda Swamy N., learned counsel for the appellant.

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Present appeal is filed by the unsuccessful plaintiff against the respondent which is the Erehalli Mandal Panchayath/Group Panchayat, Erehalli village, Bhadravathi, Shivamogga District in respect of the

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property which is a vacant site bearing No.10 said to have been carved in Sy.No.1 of Koralakoppa, Bhadravathi Taluk

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measuring 23 feet x 54 feet bounded on East by Government School, West by house of Mohammed Kata, North by Shivani Road and South by property of Mandal

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Panchayath.

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Suit on contest, came to be dismissed by the

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Trial Court inter alia holding that plaintiff failed to prove that he is in lawful possession of the suit property.

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Trial Court also appreciated that while

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entertaining the suit against the Governmental authority, apart from parameters namely lawful possession and interference, public interest or public policy is also to be taken note of as is held by the Hon’ble Apex Court in the case of Raunaq International Limited v. I.V.R. Construction Limited and Others reported in AIR 1999 SC 393 and recorded a categorical finding that plaintiff failed to prove the possession over the suit property.

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Being aggrieved by the same, the unsuccessful plaintiff filed an appeal before the First Appellate Court in RA No.25/2023.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the factual aspects and

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the position of law governing the lis on hand, dismissed the appeal of the appellant and confirmed the dismissal of the suit.

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While so doing, First Appellate Court not only

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reappreciated the material evidence but also took into consideration the admission made by P.W.1 wherein he

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has specifically answered that in respect of the suit property, there was a Government school and since the building was a very old building, the same was demolished and construction of the new school has been taken up.

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First Appellate Court also reappreciated the answers elicited in the cross-examination of P.W.2 wherein P.W.2 has stated that he does not know how the title to the suit site is derived to Sheshamma who is the mother of the plaintiff. He has stated that he has seen the suit site about 10 to 12 years earlier to filing of the suit.

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9. Being further aggrieved by the same, plaintiff

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has filed the present appeal on following grounds and raising following substantial questions of law:

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GROUNDS

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“The Hon'ble First Appellate Court without assigning valid reasons, without considering the facts and circumstances of the case and without appreciating material evidence on record has wrongly confirmed the judgment of the Trial Court, Hence, the impugned judgment and decree of the First Appellate Court and trial court are perverse, illegal and liable to be set aside.

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The Hon'ble Lower courts failed to consider that the suit schedule property was granted on upset price to the mother of the Appellant on 20.07.1970 by then chairman of Antheregange, group panchayath after collecting upset price of Rs.40/- and issued Hakku Patra as per document at Ex.P1 and thereafter Khatha was transfer in her name in Patta Book as per Ex.P4 and she had paid the tax to the said Panchayath in respect of suit Schedule property as Ex.P2, Ex.P3, Exp.P7 to 13 and she obtained licence for construction from the said Antharagange mandal panchayath on

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18.08.1984 and 22.07.1988 as EX.P 5 and 6. The Mother of Appellant was the absolute owner and in possession over the suit schedule property and after her death, appellant's father had executed the registered will at EX.P18, wherein bequeathed all his properties along with suit schedule property to his children and wherein allotted the suit schedule property to the appellant. As such the plaintiff/appellant is the absolute owner and in possession over the suit schedule property after death of Appellant's parents. He has inherited the suit schedule property. The Hon'ble trial court without appreciated all the above said documents and evidence, wrongly held that the appellant has not filed any documents showing that as on the date of filing the suit he was in possession of the suit schedule property. Hence, the impugned Judgment and Decree of the lower courts are perverse, illegal and capricious and is liable to be set aside.

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The Hon'ble Lower court failed to consider the Judgement and Decree passed in favour of mother of Appellant in O.S No.842/1983. In the said suit the mother of Plaintiff/Appellant had filed above said suit against one Shivaram and the secretary, Antharagange, Madal Panchayath in respect of the suit schedule property questioned

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herein, since they were interfering with her possession over the suit schedule property. The said suit came to be Decreed by the Hon'ble 1st Addl., Civil Judge (Jr. Dn) and JMFC, Bhadravathi as per Ex. P17(a), in the said suit was filed in respect of the very same schedule property questioned herein. In the said suit the Hon'ble trial court held that the mother of Appellant was granted said property by the 2nd Defendant Panchayath on 27-07-1970 and also held that she is in lawful possession over the said property. Admittedly T.Krishnamurthy is the husband of said T.Sheshamma, after her death, the said T.Krishnamurthy, the father of Appellant allotted the said property to the Appellant and remaining properties to his other childrens by executing registered will as per Ex.P18. Thus the Plaintiff is the absolute owner and the possession of the suit schedule property. It is respectfully submitted that even in the absence of above said will, the Appellant being a son of Smt. T.Sheshamma, has inherited the suit schedule property and is the absolute owner and in lawful possession of the same. The above aspect of the matter has not been considered by the both the courts while passing the impugned Judgement and Decrees. Hence the impugned Judgment and Decrees of

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the lower courts are illegal, capricious and liable to be set aside.

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 The Hon'ble first Appellant court in its Judgement at para No.21 observed that PW1/Appellant admitted in his cross examination that as per Ex.P14 to 16 and Ex.D3 the Grama Panchayath putting foundation for construction of school building, if perused the photograph at Ex.P14 to 16 which produced along with the Plaint it revels that no construction was seen in the suit schedule property and if perused the Ex.D3 piler was putting over the suit schedule property after filling of the above suit even though the status quo order was granted by the Hon'ble lower court by its order dated 07-01-2016. Hence the said observation is contrary to records/materials on the file, Hence the above said Judgment and Decree of the trail court and 1st Appellant are illegal, capricious and liable to be set aside.

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The Respondent/Defendant produced photos of the suit: schedule property claiming that as per Ex.D14, that they have already put up construction before filing of the suit. But if perused the photo at Ex.D14 it has taken the said photos on 16-08-2019 at 6.26. Hence the said photos had taken during pendency of the suit. The Defendant has also produced estimate for

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construction of class room for lower primary school at Gowrapura, Bhadravathi but it does not shown when the said estimate was prepared and sanctioned given and the same has prepared for their convenience and filed at the time of evidence. If perused the photos at Ex.P14 to 16 which produced at the time of suit it revels that as on the date of filling of the suit the suit schedule property was vacant and the Respondent was trying to put up construction by taking advantage that the Appellant was not residing in the village and immediately there after the Plaintiff filed the case and taken the Interim order of status quo which reveals that the suit schedule property was vacant at the time of filling of the above case and the same was in the possession of Plaintiff/Appellant, the same was not considered the Hon'ble lower courts while passing the impugned Judgements and Decrees. the above said Judgement and Decree of the trail court and 1st Appellant are illegal, capricious and liable to be set aside.

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The Hon'ble lower courts failed to consider the evidence of Dw1 in prospective manner. In the written statement the Defendant taken a contention that suit schedule property was not granted to the mother of Appellant and disputed

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the Hakku patra at Ex.P1. But in the cross examination the Dw1 admitted that, the then Antharaganga grama panchayath had issued Hakku patra in favour of mother of Appellant in respect of site No.10, Sy.No.1 of Koralakoppa Village, Bhadravathi Taluk. He also admitted that if gramapanchayathi was transferred to any other gramapanchayath or amalgamate to the any other gramapanchayath, the records of earlier gramapanchayath are transferred to later gramapanchayath. As such they are having all the records of granting of sites to the persons of Koralakoppa village in Sy.No.1 of the said village. They have not produced the documents regarding granting of sites in Sy.No.1 by then the Antharagange group panchayath, the Respondent with an intension to grab the valuable property of the Appellant has not produced the said documents before the court and Hence adverse Inference is to be drawn against the Respondent for non-production of list of sites allotted in Sy.No.1 of Koralakoppa Village. The Hon'ble lower court without considering the same have wrongly come to a conclusion that Appellant was not in possession of suit schedule property as on the date of filling of the suit which is contrary to law and liable to be set-aside.

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 The Hon'ble trial court by its order dated 07.01.2016 passed on IA, No2 has directed the parties to the suit to maintain the status quo. As the respondent was trying to put up constriction over the Suit schedule property even subsistence of status Quo order, the appellant has filed application IA.No.8 for police help for implementation of said order and the said application came to be allowed on 03.02.2016. Subsequently the respondent had filed the Miscellaneous Appeal in MA.No.04/2016, which came to be dismissed after hearing parties in view of establishing the possession over the suit schedule property by the Appellant. The same was not considered by the courts below while passing over the impugned Judgments and Decrees. the above said Judgments and Decrees of the trail court and 1st Appellant are illegal, capricious and liable to be set aside.”

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SUBSTANTIAL QUESTIONS OF LAW

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“1. Whether the Lower Court were right in dismiss the suit of the Plaintiff/Appellant by holding that the Appellant was not in possession of the suit schedule property as on the date of filling of the suit, without considering Hakku patra at Ex.P1, Patta book at Ex.P4, tax paid receipts at Ex.P2, 3, 7 to 13, license

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for construction issued by Antharagange group Panchayath as per Ex.P5 and license issued by Antharangage Mandal Panchayath as per Ex.P6?

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2. Whether the Lower Courts were right in held that the respondent has put up pillars and compound over the suit schedule property without considering photos at Ex.D14 to 16 which was filled along with Plaint wherein no construction was made by the Respondent at the time of filling of the suit?

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3. Whether the Lower courts were right in come to a conclusion that the Appellant was not in possession of the suit schedule property without considering the Judgment and Decree passed in O.S No.842/1993 as per Ex.P17(a) wherein it is Decreed in favour of mother of Appellant against the Antharagange Group Panchayath now become as Erehalli, Mandal Panchayath and also held that mother of the Appellant is in possession and enjoyment of the suit schedule property and after her death, her husband executed registered will as per Ex.P18 wherein bequeathed the suit schedule property to the appellant?”

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Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that both the Courts have failed to properly appreciate the

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material evidence placed on record especially documents which were placed on record vide Ex.P.1 which is the grant certificate by Antharagange Group Panchayat and tax paid receipt vide Exs.P.2 and 3, P.7 and 13 and Patta Book vide Ex.P.4.

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It is also his contention that Learned Trial Judge was prejudiced with the written statement filed by the Mandal Panchayat and has accepted the same as gospel truth based on Ex.D.13 and D.15.

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He would further contend that when there was a grant of the suit property by Antharagange Group Panchayat, doubting the veracity of Ex.P.1 is incorrect and sought for admitting the appeal for further consideration.

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This Court perused the material on record in the light of the arguments put forth on behalf of the appellant.

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Admittedly, P.W.2 did not know what is the factual aspect of the matter at the time of filing the suit in view of the admissions made by him in his cross-

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examination that he has visited the suit property 10 to 12 years earlier to the date of cross-examination.

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So also, there is a clear admission that how Sheshamma, who is the mother of plaintiff derived the title to the suit property.

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Since the title of the suit property is under cloud and plaintiff being unable to establish that the plaintiff was in possession of the suit property, the remedy for the plaintiff lies elsewhere by filing appropriate proceedings.

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For the purpose of grant of injunction, what is to be looked into is the lawful position of the suit property by the plaintiff.

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Learned Trial Judge as well as the Learned Judge in the First Appellate Court have recorded a categorical finding, after considering the oral and documentary evidence on record, that the plaintiff failed to

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establish the lawful position of the suit property as on the date of the suit.

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On the contrary, in view of the admissions made by the plaintiff and P.W.2, an old school was demolished and a new school was sought to be constructed which is found from Ex.D.15 which is the estimation for construction of the school.

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Taking note of these aspects of the matter, findings recorded by both the Courts that plaintiff failed to establish lawful possession over the suit property is just and proper and therefore, dismissal of the suit does not require any further interference.

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