Karnataka High Court
Ms.Arihant Agencies vs Swastik Sizing And Wrapping Industry on 28 May, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28TH DAY OF MAY, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
RSA No.7138/2010
A/W
MISC.CVL.No.151419/2010
BETWEEN:
MS. ARIHANT AGENCIES
REGISTERED PARTNERSHIP FIRM
THROUGH ITS MANAGING PARTNER
SRI MANILAL, S/O PREMAJIBHAI SHAH
AGE: 61 YARS, OCC: BUSINESS
R/O MANILAL SHAH & CO.
CHARTED ACCOUNTANTS
1ST FLOOR, FORT ROAD
GULBARGA-585102
... APPELLANT
(BY SRI SHIVAYOGIMATH ASSOCIATES, ADVOCATES)
AND:
SWASTIK SIZING AND WRAPPING INDUSTRY
GULBARGA, A PARTNERSHIP FIRM
THROUGH ITS PARTNER
SUBASH, S/O VITHALRAO SUTRAVE
AGE: 38 YEARS, OCC: BUSINESS
R/O GULBARGA-585102
... RESPONDENT
(BY SRI ASHOK S. KINAGI, ADVOCATE)
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THIS REGULAR SECOND APPEAL FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED
8.12.2009 PASSED IN R.A. NO.558/2004 ON THE FILE OF THE
FAST TRACK COURT-I, GULBARGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
15.9.2000 PASSED IN O.S.NO.221/1980 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR. DN.) GULBARGA.
MISC.CVL.No.151419/2010 IS FILED UNDER ORDER 41
RULE 5 R/W SECTION 151 OF CPC PRAYING TO STAY ALL
FURTHER PROCEEDINGS IN PURSUANCE OF THE IMPUGNED
JUDGMENT AND DECREE DATED 08.12.2009 PASSED BY THE
FAST TRACK COURT-I, GULBARGA, THEREBY CONFIRMING
THE JUDGMENT AND DECREE DATED 15.09.2000 PASSED BY
THE LEARNED PRL. CIVIL JUDGE (JR. DN.), GULBARGA IN
O.S.No.221/1980.
THIS REGULAR SECOND APPEAL ALONG WITH MISC.CVL.
COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Defendants in O.S.No.221/1980 along with their alienee, on the file of Principal Civil Judge (Junior Division) at Gulbarga aggrieved by the judgment and decree dated 15.09.2000, instituted R.A.No.558/2004, which when rejected by order dated 08.12.2009 of the Fast Track Court-I at Gulbarga, the alienee has preferred this second appeal.
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2. Respondent instituted O.S.No.221/1980 on 09.06.1980 for possession and injunction arraigning the alienors of the appellant, as defendant Nos.1 and 2, contending that Handloom Weaver Co-operative Society, the owner in possession of the land in survey No.126/4 of Kapnoor village, Gulbarga Taluk, secured necessary permission from the Special Deputy Commissioner and the Town Planning Authority as well as the Deputy Registrar of Co-operative Society for formation of a layout of sites and put up for auction whence the plaintiff's bid for plot Nos.1, 2, 7, 8 and 9 was accepted. The Deputy Commissioner, it is said, exempted the alienation of the plots on 28.07.1978 and consequently, the President of Handloom Weavers Co-operative Society Limited on 02.09.1978 executed and lodged for registration the sale deeds conveying the said plots and put the plaintiff in possession of the said plots. According to the plaintiff, the said society having sold all the remaining plots in the approved layout had no more -4- interest in the said lands. It was alleged that defendant No.2 none other than the proprietor of defendant No.1, encroached upon plot No.9, started construction of building illegally and unauthorizedly while also encroaching the park and road and dug a bore-well on the road lying between plot Nos.8 and 9. In opposition, it is said, the defendants, contended that first defendant purchased the said area from the society on 19.01.1979 in terms of a revised plan approved by the Town Planning Authority followed by the execution of sale deeds dated 19.01.1979. Hence, the suit to declare the plaintiff as the owner of plot No.9 in survey No.126/4 measuring 80 feet by 120 feet as shown in the sketch map enclosed to the plaint and decree for possession of plot No.9 as well as mandatory injunction to dismantle the bore well and the construction on the road portion and in the park area as also for perpetual injunction. -5-
3. The suit was opposed by filing written statement of the defendants denying the plaintiff's claim while admitting that the Handloom Weaver Co-operative Society was the owner in possession of land in survey No.126/4. It was admitted that layout formed as per sanction accorded by the Town Planning Authority on 19.04.1977, the sites therein were sold in public auction and the plaintiff was the highest bidder for plot Nos.1, 2, 7, 8 and 9, while not denying the conveyance of plot No.9 in favour of the plaintiff. Defendants denied the allegations of encroachment of plot No.9 and construction having been done illegally in the area reserved for park and road. It asserted that Town Planning Authority on 18.01.1979 approved the revised layout plan whereafter the plots when auctioned on 18.01.1979 plot Nos.18, 19, 20, 21 and 22 formed in terms of the revised plan put to public auction, were purchased by the defendants and after securing -6- necessary permission from the village panchayat put up construction thereon.
4. On the premise of the pleadings of the parties, the Trial Court framed the following issues:
1. Does plaintiff firm show that suit plot No.9 was delivered to it on 02.09.1978?
2. Does defendant firm show that the lay-out was revised and revised plot Nos.18 to 22 were delivered to iton or about 18-1-1979 and that since then the said plots are in its possession including old plot No.9?
3. Does plaintiff show that defendants have put up construction over plot No.9 and that it amounts to encroachment?
4. Is it further shown that defendants have made construction on the road and park left in the lay-out for the benefit of the residents?
5. Whether plaintiff is entitled for relief of mandatory injunction for removal of construction made by the defendants?-7-
6. Whether plaintiff firm is entitled for declaration of ownership to plot No.9 in Sy.No.126 Hissa No.4 of village Kapnoor?
7. Is it entitled for possession of plot No.9 and also decree for perpetual injunction as prayed for?
8. To what decree or what order?
5. Plaintiff examined five witnesses as PW1 to PW5 and marked Exs.P1 to P40 while for the defendants none were examined and three documents were confronted to PW1 were marked as Exs.D1 to D3. The Trial Court having regard to the pleadings, the material on record and the evidence both oral and documentary answered issue Nos.1 and 3 to 7 in the affirmative and issue No.2 in the negative and accordingly decreed the suit by the judgment and decree dated 15.09.2000. The Trial Court while answering issue No.2 observed that the defendants failed to adduce evidence both oral and documentary despite grant of sufficient time. In -8- addition, the Trial Court observed that defendants failed to establish their defence i.e., sanction/approval of the revised layout plan, the auction held subsequently, and the execution of sale deeds in respect of plot Nos.18 to
22.
6. The lower Appellate Court having re-appraised the evidence both oral and documentary and regard being had to the fact that the appellant failed to adduce evidence in support of its plea, concurred with the reasons, findings and conclusions arrived at by the Trial Court and accordingly, confirmed the same while dismissing the appeal.
7. There is no dispute that the appellant is the purchaser of immovable property from defendants under a sale deed dated 06.08.2008 and was permitted to come on record, as an assignee, on 09.07.2009 whence, the application was allowed by the lower Appellate Court.
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8. Although learned counsel for the appellant submits there was enough and more material to establish the fact that in the revised layout plan the plaintiff lost his right over site No.9 and therefore Courts below were not justified in decreeing the suit and dismissing the appeal, in the circumstances, is unacceptable. Admittedly, there is not a titter of evidence placed by the defendants in support of their plea, more particularly, over the approval of the revised layout plan by the Town Planning Authority whereunder site No.9 and the park area including the road is said to have been revised into site Nos.18 to 22. In addition, revised plan is neither placed on record nor marked in evidence, so also there was no evidence over the public auction in which the defendants participated and offered the highest bid, followed by the execution of sale deeds and putting them in possession of plot Nos.18 to
22. -10-
9. In the circumstances, no exception can be taken to the reasons, findings and conclusions arrived at by the Courts below in the judgment and decree impugned. In my considered opinion, since no substantial question of law arises for decision making the appeal is accordingly dismissed.
10. In view of the above, Misc.Cvl.No.151419/2010 does not survive for consideration and is accordingly rejected.
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JUDGE.
NB*