The City Municipal Council Vs Sri. K. Alnantharaju

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.09.2014 PASSED IN R.A NO.82/2013 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.03.2013 PASSED IN O.S NO.184/2007 ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC., KOLAR.

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

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

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 27.09.2014 passed in R.A.No.82/2013 by the learned II Additional Senior Civil Judge, Kolar.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant and the respondent was the plaintiff.

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

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The plaintiff filed a suit against the defendant for permanent injunction. It is the case of plaintiff that plaintiff is the absolute owner and in possession of the suit property measuring East to West- 66 ft;

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North to South- 42 ft and adjoining bit of site measuring East to West - 8 ft and North to South-80 feet, situated at ward No.7, Gulpet, Kolar. It is the case of the plaintiff that the defendant agreed to sell the suit property for consideration of ₹1,000/- and

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the plaintiff agreed to purchase the same for the said consideration. It is contended that the plaintiff owns property the bearing assessment No.667, measuring 80X60 feet towards the eastern side of the suit schedule property, which he had purchased from the defendant through a sale certificate dated 31.07.1963 in which he is running a workshop. To expand the same, the plaintiff purchased the suit property. The defendant in their Council meeting dated 30.11.1966, passed a resolution to sell the plaint schedule property to the plaintiff for ₹1,000/and recommended to the Government and the permission was granted by the Government. The plaintiff paid ₹1,000/- and the possession of the suit

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property was delivered to the plaintiff. Thus, the plaintiff is in possession of the suit property. The defendant tried to illegally dispossess the plaintiff from the suit property. Hence, a cause of action arose for the plaintiff to file the instant suit. Accordingly, prays to decree the suit.

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Defendant filed a written statement denying the averments made in the plaint. It is contended that the plaintiff has furnished wrong boundaries and extent, of the plaint schedule property. It is contended that the plaintiff is not in possession of the suit property. It is contended that earlier there was a stone roofed house and subsequently the said property is used by public at large. The roof of the said building was in dilapidated condition, as such the stone roofed house was removed and now pakka building is being constructed by the municipality, to meet the needs of public at large of Kolar city. The plaintiff is an utter stranger to the suit property, and

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never in possession of the same. There is no cause of action to file the suit, hence, prays to dismiss the suit.

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

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1. Whether the plaintiff proves that he is in lawful possession and enjoyment of suit schedule property as on the date of the suit?

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2. Whether the defendant proves that the suit schedule property has been reserved for the purpose of tethering cattle as contended in para 10 of the written statement?

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3. Whether the plaintiff proves the alleged interference of the defendant?

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4. Whether the plaintiff is entitled for the relief as sought for?

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5. What order or decree?

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The plaintiff, in support of his case, examined his power of attorney holder as PW.1 and marked documents as Ex-P1 to P19. In rebuttal, the officer

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of the defendant examined as DW.1 and marked 13 documents as Ex.D1 to Ex.D13. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 3 and 4 in the negative, issue No.2 in the affirmative, and issue No.5 as per the final order. The suit of plaintiff was dismissed vide judgment dated 11.03.2013.

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The plaintiff, aggrieved by the judgment and decree dated 11.03.2013 passed in O.S.No.184/2007 preferred an appeal in R.A.No.82/2013 on the file of the learned III Addl. Senior Civil Judge, Kolar.

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9. 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 plaintiff has proved his possession to the schedule property with the probabilities?

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2. Whether the trial Court committed any error in holding that the plaintiff is not in possession of the schedule property ?

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3. Whether the judgment and decree of the trial Court needs interference?

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4. To what relief and decree the parties are entitled for?

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The First Appellate Court, after re-appreciating the entire evidence on record answered point Nos.1 to 3 in the affirmative, point No.4 as per final order. The appeal was allowed with costs through out. The judgment and decree passed in O.S.No.184/2007 was set aside vide judgment dated 27.09.2014 and decree the suit of the plaintiff. The defendant was restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property until evicting him with due process of law.

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The defendant, aggrieved by the judgment and decree dated 27.09.2014 passed in R.A.No.82/2013

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by the learned III Additional Senior Civil Judge, Kolar, preferred this Regular Second Appeal.

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Heard the learned counsel for the defendant and learned counsel for the plaintiff.

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Learned counsel for the defendant submits that the suit schedule property belongs to the defendant and defendant is in possession of the suit schedule property. The plaintiff is not in possession of the suitschedule property. The First Appellate Court, without considering the said aspect, has reversed the judgment and decree passed by the trial Court. He submits that Ex.P2 is only a recommendation made to the Government for allotment of the suit property in favour of the plaintiff. But the recommendation itself does not vest any right in favour of the plaintiff. He submitted that the suit property was earlier used for a cattle pound and later on it became a public gym. And now they are making the proposed construction in the suit schedule property by raising

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iron pillars. The trial Court has rightly held that the plaintiff has failed to prove his possession over the suit schedule property and dismissed the suit of plaintiff. The First Appellate Court has not properly appreciated the entire evidence on record and committed an error in decreeing the suit of the plaintiff. The judgment and decree passed by the First Appellate Court is arbitrary, erroneous and same is liable to be set aside. Hence, prays to allow the appeal.

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Per contra , learned counsel for the plaintiff submits that the defendant agreed to sell the suit schedule property and the plaintiff paid ₹1,000/-. After collecting the said upset price, the defendant did not execute a registered sale certificate in spite of the repeated demands made by the plaintiff. The defendant never objected to the possession of the plaintiff over the suit schedule property. He submitted that in a suit for permanent injunction, the

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court is required to see the possession and alleged interference. The plaintiff has produced the records to show that the plaintiff is in possession and enjoyment over the suit schedule property. The First Appellate Court has rightly re-appreciated the evidence and recorded its finding that the plaintiff is in peaceful possession and enjoyment of the suit schedule property. The judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference. Accordingly, prays to dismiss the appeal.

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This court vide order dated 10.02.2016, admitted the appeal to consider the following substantial questions of law:

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1. Whether the lower appellate Court erred in reversing the judgment of the trial Court?

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1. Whether the finding of the lower appellate Court about question of possession of property is perverse?

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The substantial questions of law Nos.1 and 2 are interlinked and hence, they are taken together for consideration to avoid the repetition of facts.

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Reg. substantial question law Nos.1 and 2:

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The plaintiff to substantiate his case, examined his power of attorney holder as PW.1. He deposed that the plaintiff is the absolute owner and in possession of the suit schedule property. Originally, the property belonged to the defendant-Municipality where they had constructed a cow shed called 'Doddi', which were used for many years and the same were damaged. As such the defendant was unable to meet the repair costs and hence, decided to sell the suit schedule property for ₹1,000/- and accordingly the plaintiff paid a sum of ₹1,000/-. The plaintiff owns a property No.667 measuring 80x60 feet towards the eastern side of the suit schedule property which was purchased from the defendant under the sale certificate. In respect of the suit schedule property,

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the defendant in their council meeting, held on 30.11.1966, passed a resolution to sell the suit schedule property to the plaintiff for consideration of ₹1,000/- and recommended the same to the Government. They have secured permission from the Government and collected ₹1,000/- from the plaintiff on 09.12.1966. Since then the plaintiff is in possession of the same. The defendant tried illegally to dispossess the plaintiff from the suit property. The plaintiff, to substantiate his case, produced the documents Ex.P1 is the general power of attorney executed by the plaintiff in favour of PW.1, authorizing him to depose on behalf of the plaintiff. Ex.P2 is the certified copy of the resolution dated 30.11.1966, wherein the defendant resolved to allot the suit site in favour of the plaintiff, for consideration of ₹1,000/-. Ex.P3 to P7 are the tax paid receipts. Ex.P8 to P12 are the copies of selfassessment property. Ex.P13 is the cash receipt.

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Ex.P14 is the certified copy of the cash book dated 09.12.1966. Ex.P15 is the endorsement issued by the defendant- CMC dated 28.01.1984. Ex.P6 is the endorsement dated 06.05.1978 issued by the defendant-CMC. Ex.P17 and Ex.P18 are the requisitions. Ex.P19 is the requisition submitted by the plaintiff on 04.11.2009 to the defendant.

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In the cross examination, a photo was confronted to PW.1 and suggested that the property in the said photograph belongs to the defendant, the said suggestion was denied by PW.1. He admits regarding an old house shown in the photograph as his property by looking and the said photograph is marked as Ex.D1. By looking to the photograph, he admits that in the suit schedule property some iron pillars have been raised and his property is adjacent to the suit property in which iron pillars have been put to construct a building.

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The plaintiff also examined two witnesses as PW.2 and PW.3 to prove that the plaintiff is in possession of the suit schedule property. The plaintiff also examined witnesses as PW.3 and PW.4, who also deposed that the plaintiff is in possession of the suit property, as of the date of the suit.

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In rebuttal, the officer of the defendant was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and produced the documents marked as Ex.D1 to Ex.D13. During the cross examination, it was suggested to DW.1 that the plaintiff had purchased the suit schedule property for an upset price of ₹1,000/- which was paid by him through cheque which was also mentioned in Ex.P14 the certified copy of the cash book dated 09.12.1966 maintained by the defendant. The defendant has delivered the possession of the suit schedule property in favour of

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the plaintiff. The defendant has not denied the said suggestions.

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From the perusal of the cross examination of DW.1 and the documents produced by the plaintiff i.e., marked as Ex.P2 i.e. the copy of the resolution passed by the defendant, recommending for allotment of the suit site in favour of a plaintiff for consideration of ₹1,000/- and the Government has granted permission to allot the suit schedule property in favour of plaintiff. The plaintiff has produced Ex.P16 issued by the Chief Officer Municipality for having delivered the possession of the suit property in his favour, in pursuance of the resolution dated 30.11.1966 as per Ex.P2. The First Appellate Court considering Ex.P2 and Ex.P16 has recorded its finding that the plaintiff is in possession and enjoyment of the suit schedule property and the defendant has received the consideration of ₹1,000/- from the plaintiff and delivered the possession of the suit

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schedule property to the plaintiff. The defendant has

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not recalled the resolution, as per Ex.P2. On the basis of the resolution, the khata was not transferred in the name of the plaintiff. The plaintiff approached this Court in WP No. 18741 of 2014. This Court, vide

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Order dated 30.04.2014, permitted the plaintiff to submit an application for registration of khata of suit schedule property, in his name. The First Appellate Court considering the entire evidence on record and Ex.P2 and Ex.P16 has rightly recorded a finding that the plaintiff is in possession of the suit schedule property. If the defendant wants to take the possession of the suit schedule property from the plaintiff, the defendant has to evict the plaintiff by due process of law. It is the settled principle of law that in a suit for permanent injunction, the Court is required to consider the possession and alleged interference. It is also settled that a person, if he is

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in settled possession, he has to be evicted by due process of law.

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The First Appellate Court has already recorded a finding that the defendant can evict the plaintiff from the suit property with due process of law. The First Appellate court has rightly passed the impugned judgment. I do not find any error in the impugned judgment. In view of the above discussion, I answer the substantial questions of law Nos.1 and 2 in the negative.

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Accordingly, I proceed to pass the following order:

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ORDER

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i. The Regular Second Appeal is dismissed .

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ii. The judgment and decree passed in R.A. No.82 of 2013 dated 27.09.2014 by the learned III Additional Senior Civil Judge, Kolar, is hereby confirmed.

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