Sri M L Gopal Setty Since Dead by Lrs Vs City Municipal Council

1(a) SRI M L GOPAL SETTY SINCE DEAD BY LRS M G SHANTHA KUMAR (DEAD) S/O LATE GOPAL SHETTY, AGED ABOUT 82 YEARS, R/O NO.125/A,10TH MAIN, I BLOCK,JAYANAGAR, BANGALORE - 560 011.

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1(b) R SUBHADRA

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D/O LATE GOPALA SHETTY AGED ABOUT 79 YEARS, R/O SUBHADRALAYA, PRESIDENT,RAGHAVAN STREET, SEVARANAPURI, SALEM, TAMIL NADU - 636 004.

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Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA

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1(c)(a) M G JAGADISH, SINCE DEAD BY LRS M J VIJAYALAKSHMI, W/O LATE M G JAGADISH, D/O LATE GOPALA SHETTY, AGED ABOUT 65 YEARS R/O NO. 1486, 24TH MAIN,27TH CROSS, BANASHANKARI II STAGE, BANGALORE - 560 070.

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1(c)(b) VINAYAKUMAR

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S/O LATE M G JAGADISH, R/O NO.1486, 24TH MAIN,27TH CROSS, BANASHANKARI II STAGE, BANGALORE-560 070.

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1(c)(c) AKHILA

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W/O ANANTHARAM, D/O LATE M G JAGADISH,

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AGED 35 YEARS, R/O "BRINDA" NO.125C,7TH MAIN, 9TH CROSS,GOKULA III STAGE, MYSORE-570 002.

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HC-KAR

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1(d) M G CHANDRAMOHAN AGED ABOUT 72 YEARS, R/O NO.125/A,10TH MAIN, I BLOCK,JAYANAGAR, BANGALORE-560 011.

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1(e)(a) M G NAGENDRA DEAD BY LR'S SMT.M.N.RAMOLA AGED ABOUT 63 YEARS W/O LATE M.G. NAGENDRA

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b) SRI.SUNIL NAGENDRA MYSORE,

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AGED ABOUT 43 YEARS S/O LATE.M.G.NAGENDRA

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BOTH ARE RESIDING AT NO.9, 15^TH CROSS, 6^TH PHASE, J.P.NAGAR, BANGALORE - 560078.

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1(f) M G JAYARAM

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AGED ABOUT 68 YEARS,

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R/O NO.176/1,I BLOCK-EAST,PAVILION ROAD, JAYANAGAR, BANGALORE - 560 011.

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1(g) UMADEVI

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AGED ABOUT 66 YEARS, R/O KORI BUILDING, TANK MOHALLA, SHIMOGA-577 201.

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1(h) M G RAMESH

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AGED ABOUT 64 YEARS, R/O NO.137/8,II CROSS, ELEPHANT ROCK ROAD, III BLOCK,JAYANAGAR, BANGALORE - 560 011.

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1(i) RUKMINI SUKUMAR

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AGED ABOUT 62 YEARS, R/O NO.80/A,BAZULLA ROAD, T NAGAR,CHENNAI-600 017.

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1(j) M G DATTATHREYA AGED ABOUT 58 YEARS,

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HC-KAR

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R/O 69,MOUNTAIN ROAD, BLOCK-EAST,JAYANAGAR,

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BANGALORE-560 011.

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1(k) GAYATHRI KISHORE AGED ABOUT 56 YEARS, R/O NO.14,P & T COLONY, CONTONMENT, SECUNDERABAD-500 009.

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…APPELLANTS

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(BY SMT.H.C.LOKESHWARI, ADV SRI.A.RAVISHANKAR, ADV FOR APPELLANTS)

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AND:

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CITY MUNICIPAL COUNCIL CHICKMAGALUR-577 101, REP BY ITS COMMISSIONER.

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THE SECRETARY SRI BHARATH RATHNA, DR B R AMBEDKAR SOCIO-ECONOMIC AND CULTURAL CENTER, SHETTAR BEEDHI, CHIKMAGALUR-577 101.

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…RESPONDENTS

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(BY SRI.KISHOR B.M., ADV SRI.A.NAGARAJAPPA ADV FOR R1)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.7.2013 PASSED IN R.A.NO.59/2007 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 22.9.2007 PASSED IN O.S.NO.31/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHIKMAGALUR.TRIAL COURT DECREED THE SUIT, APPELLATE COURT ALLOWED THE APPEAL.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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NC: 2025:KHC:24353 RSA No. 1454 of 2013

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HC-KAR

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 23.07.2013, passed in R.A.No.59/2007 by the Principal District Judge, Chikmagalur.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs and the respondents were the defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The Plaintiffs filed a suit against the defendants for a permanent injunction, restraining the defendants from trespassing, digging or laying any foundation, causing acts of waste and damage, regarding the suit schedule property. It is the case of the plaintiffs that the suit schedule property originally belonged to the joint family of

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HC-KAR

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M.Lachaiah Setty and sons and the same was allotted to him under a registered partition deed dated 06.01.1968. Ever since the partition, the plaintiff and his family members are in actual physical possession of the suit schedule property. It is contended that defendant Nos.2 and 3 claim to have secured the suit schedule property from defendant No.1 by way of grant. The properties of defendant Nos.2 and 3 were adjacent to the property of the plaintiffs and in the guise of raising a structure, defendant Nos. 2 and 3 are making hectic attempts to encroach on the southern half portion of the plaintiffs’ suit schedule property and the vacant site belonging to one Sri. M.L.Keshava Murthy’s family, which is situated on the southern side of the plaint schedule property. Hence, prays to decree the suit.

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In response to the summons, Defendant Nos.1 and 2 appeared through their counsel wherein a memo was filed by plaintiff to effect the suit against defendant

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HC-KAR

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No.3 as not pressed. Hence, suit against defendant No.3 is dismissed.

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Defendant No.1 filed a written statement

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denying the averments made in the plaint. It is contended that before granting the property to defendant No.2, they have made necessary publication in the newspaper, calling for objections from the general public and thereafter granted site to defendant No.2. Defendant No.2 has invested huge sums of money on the granted property and the plaintiffs without title deeds to the schedule property, is causing hardship to defendant No.2. Hence, it is contended that defendant No.2 is in possession and enjoyment of the suit schedule property. It is further contended that the suit is bad for misjoinder of parties. Hence, prays to dismiss the suit.

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Defendant No.2 filed a written statement

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denying the averments made in the plaint and it is contended that the Government of Karnataka has granted a site to defendant No.2 for construction of Dr.Ambedkar

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Bhavan as per the order and the assessment dated 12.03.1998 and the resolution was passed and the same was recommended to the government. Defendant No.1 executed a registered sale deed in favour of defendant No.2 on 17.04.1998 and as per the sale deed, Katha was changed in the name of defendant No.2 and defendant No.2 became the absolute owner of the suit schedule property. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues.

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1. Whether the plaintiff proves that he is in lawful possession of suit schedule property?

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2. Whether the plaintiff proves that defendants are interfering with schedule property?

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3. What decree or order?

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The plaintiffs, to substantiate their case, plaintiff No.1(e) was examined as PW1 and marked 9 documents as Ex.P1 to Ex.P9. The defendants examined 3 witnesses as DW1 to DW3 and marked 6 documents as

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Ex.D1 to Ex.D6. The sketch prepared by the Court Commissioner was marked as Ex.C1.

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The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative and issue No.3 as per the final order. The suit of the plaintiffs was decreed and the defendants, their men, agents, servants etc., were restrained by way of permanent injunction from trespassing, digging or laying any foundation or otherwise causing acts of waste and damages in any manner by interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs.

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Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.31/1999, preferred an appeal in R.A.No.59/2007 on the file of the learned Principal District Judge, Chikkamagalur.

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HC-KAR

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The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

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1. Whether the 1^st defendant/appellant has made out a case so as to interfere with the judgment and decree of the trial Court?

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2. To what Order?

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The first appellate Court, after re-assessing the verbal and documentary evidence, answered point No.1 in the affirmative. Point No.2 as per the final order. Consequently, the appeal was allowed. The judgment and decree passed in O.S.No.31/1999 was set aside and the suit of the plaintiffs was dismissed vide judgment dated 23.07.2013. The plaintiffs, aggrieved by the judgment and decree passed in R.A.No.59/2007, filed this Regular Second Appeal.

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Heard the learned counsel for the plaintiffs and the learned counsel for defendant No.1

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Learned counsel for the plaintiffs submits that, the plaintiffs and defendant No.2 have jointly filed a memo before the trial Court stating that the plaintiffs have no objections for defendant No.2 to start construction in his land after excluding the suit schedule property and defendant No.2 shall not make any construction within the suit schedule property or commit any acts of waste and damages to the same as written in the sketch filed by the Court Commissioner.

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Though the first appellate Court has recorded a finding regarding the joint memo filed by the plaintiffs and defendant No.2, it dismissed the suit on the ground that no notice was issued to defendant No.1 and also the plaintiffs' have failed to prove their title and possession over the suit schedule property. She submits that in a suit for bare injunction, the Court is required to consider whether the plaintiff has proved the possession as on the date of the suit and the question of title would not arise for consideration.

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She submits that the first appellate Court failed to consider the observation made by this Court in MSA.No.281/2011 and passed the impugned judgment. The impugned judgment passed by the first appellate Court is contrary to the observation made by this Court in MSA.No.281/2011 disposed of on 16.08.2012. Hence, on these grounds, she prays to allow the appeal.

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Per contra, learned counsel for defendant No.1 supported the impugned judgment and prays to dismiss the appeal.

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This Court vide order dated 24.09.2013 framed the following substantial questions of law.

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1. Whether the Appellate Court set aside the judgment of the Trial Court and by order of remand directs the court subordinate to it to decide the issue by re-framing it or order for fresh enquiry on any of the issues, can the Court below ignoring the directions in the remand order dispose of the suit recording its independent finding?

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2. When the Appellate Court has taken into consideration the material proposition and the proposition of the law on any point in dispute records its finding, is it open to the court below to determine such questions on law and fact after remand of the case ignoring order of demand?

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3. Is the judgment of the Appellate Court sustainable as it appears the finding recorded by this Court in an earlier appeal action that suit was not impacted for non-issuance of statutory notice under Section 284 of KMC act has been ignored?

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4. Is the judgment of the First Appellate Court sustainable as it appears it embarked on the determination of the question of title which has been given finality by this Court in appeal between the same parties?

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Regarding Substantial Questions of Law Nos. 1 to

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4:

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Substantial question Nos.1 to 4 are

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interlinked and are taken up for common discussion, to avoid the repetition of facts.

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HC-KAR

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The plaintiffs filed a suit against the defendants

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for relief of a permanent injunction, restraining the defendants from taking, laying foundation etc., in the suit schedule property. It is the case of the plaintiffs that the plaintiffs are the owners and in possession of the suit schedule property. The defendants tried to encroach upon the suit schedule property. The plaintiffs, to substantiate their case, power of attorney holder of the original plaintiff i.e., plaintiff No.1(e) was examined as PW1. He has reiterated the plaint averments in the examination-in - chief and marked the documents.

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Ex.P1 is the special power of attorney which discloses that the original plaintiff executed a power of attorney in favour of plaintiff No.1(e) to depose on behalf of him and on behalf of the other legal heirs.

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Ex.P2 is the partition deed dated, 06.01.1968, executed between the original plaintiff and his brothers

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HC-KAR

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Ex.P3 to Ex.P5 are the assessment extracts which disclose the name of the original plaintiff as a owner, in possession of the suit schedule property.

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Ex.P6 to Ex.P9 are the kandaya receipts which disclose that the plaintiffs are paying the tax on the suit schedule property.

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On the other hand, secretary of defendant No.2 was examined as DW1, he has reiterated the written statement averments in the examination-in-chief and he has deposed that, defendant No.2 is proceeding and held with the construction of Dr.Ambedkar Bhavan by excluding the disputed area and further the Assistant Engineer working for Town Municipality, Chikkamagaluru was examined as DW3. He has deposed regarding the grant of land to the Dr.Ambedkar Bhavan by defendant No.1.

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During the pendency of the suit, the Court Commissioner was appointed and the Court Commissioner submitted the report before the trial Court. Neither of the

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parties has filed the objections to the Court

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Commissioner's report.

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During the pendency of the suit, the plaintiff and defendant No.2 filed a Joint memo which reads as follows:

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1. The court commissioner has inspected the plaint/suit schedule property after notice to the parties. The Court Commissioner has demarcated the suit schedule property owned by the plaintiff and the court commissioner has also filed a sketch showing the suit schedule property and the one owned by defendant No.2

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2. The plaintiff has no objection for defendant No.2 to start construction activities in its land, after excluding the suit schedule property. The defendant No.2 shall not make any construction within the suit schedule property or commit any acts of waste and damage to the same, as detailed in the sketch filed by the Court Commissioner till the disposal of IA.No.1.

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3. By consent and agreement of both the parties, as the order may be passed or modified in terms of the joint memo and the sketch filed by the court Commissioner."

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The dispute is only between the original plaintiff and the defendants regarding the suit schedule property as the original plaintiff has filed a memo stating that he has no grievance against defendant No.1 and the suit may be dismissed against the defendant No.1 by reserving the liberty to file a suit in case, if defendant No.1 tried to interfere into the peaceful possession and enjoyment of the suit schedule property.

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The first appellate Court, though recorded its finding on the joint memo without considering the said aspect has allowed the appeal and set aside the judgment and decree passed by the trial Court on the ground that the original plaintiff has not issued a notice to defendant No.1 before the filing of a suit and he has failed to establish the title over the suit schedule property. As observed above, defendant No.2 has admitted the title of the original plaintiff over the suit schedule property.

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HC-KAR

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It is settled law that in a suit for injunction, the

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plaintiff is required to prove the possession and interference and not over the title deed. Further, this Court in MSA.No.281/2011, filed by the original plaintiff against the defendants, has recorded its finding which reads as follows"

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" ….. It could be seen the trial court has besbowed its concern to all the aspects and has applied evidence in the correct perspective. The said order is well reasoned but the appellate court has interfered only on the ground that the plaintiff had not served statutory notice as required under Section 284 of the Municipalities Act upon the officers of the Corporation. As such a defence was not taken in the written statement at the earlier point of time, the proposition laid down by this Court in the case of 1996 (2) Kar.L.J.365 (Anantha Ramrao v. Town Municipal Council, Devadurga, District Raichur and Another) would squarely apply to the facts of this case... There is a dispute as to which property was allotted to the defendant No.2, besides the question of title was also an incidental issue…."

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HC-KAR

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The trial Court has embarked upon all the aspects. The first appellate Court, without considering the observation made by this Court in MSA.No.281/2011 and also a joint memo, filed by the plaintiffs and defendant No.2, has passed the impugned judgment. The first appellate Court has not properly considered the entire evidence placed on record by the parties to the suit and also the observation made by this suit in MSA.No.281/2011. Thus, the first appellate Court has committed an error in setting aside the judgment and decree passed by the trial Court.

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In sofar as substantial question Nos.1 and 2 are concerned, the order of remand was already set aside by this Court in M.S.A.No.281/2011 dated 16.08.2022. In view of the order passed in M.S.A.No.281/2011, substantial question Nos.1 and 2 do not arise for consideration.

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Substantial Question No.3: As the plaintiff has

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filed a memo to dismiss the suit against defendant No.1, In view of the same, substantial question No.3 does not arise for consideration.

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Substantial Question No.4: In view of the above discussions, I answer substantial question No.4 in the negative.

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Accordingly, I proceed to pass the following order:

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ORDER

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The Appeal is allowed-in-part.

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The judgment and decree passed in

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R.A.No.59/2007 dated 23.07.2017 by the Principal

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District Judge, Chikmagalur, is set aside.

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The suit of the plaintiffs is partly decreed.

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Defendant No.2, their men, agents are

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hereby restrained by way of permanent injunction

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from interfering the peaceful possession of the plaintiffs over the suit property. Defendant No.2 is restrained from making any construction within the suit schedule property as per the joint memo filed by the parties dated 12.03.1999.

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Sd/- (ASHOK S.KINAGI) JUDGE

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RCK List No.: 1 Sl No.: 10

Sri M L Gopal Setty Since Dead by Lrs v. City Municipal Council

Case brief

What is this about?

What did the court decide?

Sri M L Gopal Setty Since Dead by Lrs v. City Municipal Council

Case brief

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What the court decided

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