Karnataka High Court
Channamallikarjuna Trust Committee vs Vishalaxamma on 15 July, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO. 1231 OF 2005(DEC & INJ)
BETWEEN:
1. SRI.CHANNAMALLIKARJUNA TRUST
COMMITTEE, GANGAVATI
(THROUGH THE GENERAL POWER OF
ATTORNEY HOLDER,
SRI.S.SANGAMESHWAR,
ADVOCATE, GANGAVATHI-583227
DIST: KOPPAL).
(THROUGH TRUSTEE SRI.HOSALLI
DODDARAMALINGAPPA S/O JAMBANNA
OF GANGAVATHI)
2. SRI.SANGAMESHWAR
S/O NOT KNOWN,
AGE: 50 YEARS, OCC: ADVOCATE
R/O GANGAVATHI-583227, DIST: KOPPAL
3. SRI.K.CHANNABASAYYA SWAMY,
S/O BASALINGAYYA SWAMY,
AGE: 57 YEARS, GANGAVATHI-583227
DIST: KOPAL
4. SRI.SHARANABASAVA SWAMY
S/O ADIVAYYA SWAMY HALMATH,
AGE: 45 YEARS, R/O AYODHYA VILLAGE,
TALUKA: GANGAVATHI-583227
DIST: KOPPAL.
2
5. SRI.B.MARIYAPPA S/O DODDABASAPA
AGE: 71 YEARS, DEAD, R/O KANAKAGIRI,
TALUKA: GANGAVATHI 583227
DIST: KOPPAL
6. SRI.KUSHTAGI BASANNA,
DEAD
S/O DODDABASAPPPA
AGE: 51 YEARS, R/O HIRE JANTIKAL,
TALUKA GANGAVATHI-583227,
DIST: KOPPAL
7. SRI.DODDA RAMALINGAPPA
S/O JAMBANNA HOSALLI
AGE: 50 YEARS, R/O GANGAVATHI-583227
DIST: KOPPAL
8. SRI.SIDDANAGOUDA
S/O SHANKARGOUDA PATIL,
AGE: 51 YEARS, OCC: ADVOCATE,
R/O GANGAVATHI-583227, DIST: KOPPAL.
9. ARALI NAGRAJ S/O AMARAPPA ARALI
AGE: 51 YEARS, OCC: ADVOCATE,
R/O GANGAVATHI-583227
DIST: KOPPAL
10. V.SUGURAPPA S/O AYYANNA
AGE: 59, OCC: BUSINESS,
R/O GANGAVATI
11. HOSALLI SHANKARAGOUDA
S/O DODDANAGOUDA
AGE: 55, OCC: AGRICULTURE,
R/O GANGAVATI.
12. NARSAPUR CHANDREGOUDA
S/O BASANAGOUDA
3
AGE: 58, OCC: LECTURER
R/O GANGAVATI.
13. K.M.VIJAYAMAHANTESH
S/O K.M.SHANMUKHAYYASWAMY,
AGE: 59 YEARS, OCC: ADVOCATE,
R/O GANGAVATI.
14. DR.G.SHASHIDHAR
S/O SIDDAPPA,
AGE: 50, OCC: MEDICAL PRACTITIONER,
R/O GANGAVATI.
...APPELLANTS
(BY SRI.MOHAN.S.SANKOLLI, ADVOCATE)
AND:
1. SMT. VISHALAKSHAMMA
W/O LATE GURAYYA SWAMY
SINCE DECEASED BY HER LRS
1A). SHRI CHANNASWAMY
S/O MURADAYYA SWAMY,
AGE: 61 YERS, OCC: PENSIONER,
R/O NEAR SHRI MALLIKARJUN MATH,
GANGAVATHI-583227, DIST: KOPPAL.
1B). SHRI.SHARANAYYA
S/O MURADAYYA SWAMY
AGE: 55 YEARS, OCC: BUSINESS
R/O NEAR SHRI MALLIKARJUN MATH,
GANGAVATHI-583227, DIST-KOPPAL
1C). SHRI.PACHAXARIYYASWAMY
S/O MURADAYYA SWAMY
AGE: 5 YEARS, OCC: AGRICULTURE,
R/O NEAR SHRI MALLIKARJUN MATH,
GANGAVATHI-583227, DIST: KOPPAL.
4
2. THE TOWN MUNICIPAL COUNCIL,
GANGAVATHI, THROUGH ITS CHIEF OFFICER
3. SMT. PARAMMA
D/O LATE GURAYYA SWAMY,
AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK,
R/O GANGAVATHI-583227, DIST: KOPPAL
(DEAD)
4. SRI.BASAPPA S/O AYYAPPA,
AGE: 33 YEARS, GANGAVATHI-583227
DIST: KOPPAL (DEAD)
...RESPONDENTS
(BY SRI.CHANDRASHEKHAR.R.HIREMATH, ADVOCATE FOR
R1(A TO C); R2 SERVED;
R1 IS LRS OF DECEASED R3; R4 DELETED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DTD: 16.03.2005
PASSED IN R.A.NO.147/2004 ON THE FILE OF THE ADDL.
DIST JUDGE AND PRESIDING OFFICER, FTC-III AT
RAICHUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 05.09.1990 PASSED
IN O.S.NO.84/90 ON THE FILE OF THE MUNSIFF,
RAICHUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.02.2022, COMING ON FOR
5
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This captioned second appeal is filed the appellants - defendants questioning the concurrent judgment and decree of the Courts below wherein the suit filed by the respondent No.1 - plaintiff seeking relief of declaration is decreed and both the Courts have declared that the order of the 6th respondent - Town Municipal Council dated 20.06.1977 as illegal and void and consequently, both the Courts have granted relief of injunction against the present appellants - defendants from interfering with the respondent - plaintiff's peaceful possession and enjoyment over the suit schedule property.
2. Facts leading to the case are as follows; Respondent No.1 - plaintiff filed a suit for declaration questioning the mutation order passed by 6 the 6th respondent - Town Municipal Council and consequently, sought for perpetual injunction. The plaintiff claimed that the suit schedule properties which are shops were exclusively owned by late Gurayya Swamy s/o Shivayya Swamy. The respondent
- plaintiff claims to be the daughter of the said Gurayya Swamy. The respondent - plaintiff has claimed that her father namely late Gurayya Swamy was Shisya of one Channabasava Swamy of Gangavathi, who established a Channamallikarjuna Mutt at Gangavathi about 40 years ago. The plaintiff also claimed that Mutt is also known as Sri.Channamallikarjuna Mutt. The respondent - plaintiff further claimed that her father was appointed as a Sarva Adhikari of the said Mutt and was entrusted the duty of carrying out religious function. The respondent - plaintiff claimed that Channabasava Swamy bequeathed the present suit schedule 7 properties, which are situated adjacent to the mutt building on the northern side. The respondent - plaintiff has further claimed that the suit schedule shops were originally an open space when a bequeath was made in favour of plaintiff's father by Channabasava Swamy. The plaintiff further contended that the property bequeath has been mentioned an open space and accordingly, her father Gurayya Swamy has constructed suit shops out of his own funds and accordingly, plaintiff's father name was duly mutated in the municipal records and during his life, late Gurayya Swamy has paid property tax to the suit schedule properties.
3. The respondent - plaintiff has further contended that late Gurayya Swamy died intestate and after his death, the present plaintiff being the daughter submitted an application to the 6th respondent - Town Municipal Council to effect 8 mutation to the suit schedule shops in her name. It was at this juncture the present appellant No.2 - defendant No.2 in the capacity of Pradhan Sanchalak of 1st appellant - defendant No.1 - Trust filed objections and contested the mutation proceedings. The plaintiff claims that the 6th respondent, without following procedures and without affording opportunities to the respondent - plaintiff, illegally rejected their application and consequently, ordered to effect mutation in the name of the appellant No.1 - defendant No.1 - Trust relating to the suit shops. The plaintiff also claims that feeling aggrieved by order of the 6th respondent - Town Municipal Council, an appeal was preferred against the order of rejection, which also came to be rejected. The grievance of the plaintiff is that on the strength of the mutation and consequent rejection by the Appellate Authority, the present appellant - defendant taking undue 9 advantage, started interfering with the peaceful possession and enjoyment over the suit shops and therefore, the present suit is instituted seeking relief of declaration to declare the order of the 6th respondent - Town Municipal Corporation dated 20.06.1997 passed in file No.TMT/MTN/29/77-78 as illegal and void and liable to be rejected and as such, consequently sought perpetual injunction against the appellants by asserting that she is in lawful possession over the suit shops.
4. On receipt of summons, the appellant Nos.2 to 4 contested the proceedings and stoutly denied the entire averments made in the plaint. The present appellants - defendants claimed that the plaintiff's father was authorized to manage the properties of the 1st defendant's trust and therefore, he cannot assert exclusive ownership over the suit shops, which are owned by the 1st defendant's trust. The appellants - 10 defendants partially admitting the Will, specifically contended that the plaintiff's father under the Will was allotted one shop and a godown and therefore, the appellants - defendants claimed that the respondent - plaintiff is high handedly asserting right over the remaining suit shops, which were never bequeathed by the plaintiff's of 1st defendant's trust under the disputed will vide Ex.P.1. The defendants also contended that the respondent - plaintiff without seeking appropriate remedy either by way of an appeal or revision against the order of 6th respondent
- Town Municipal Council has instituted the present suit, which is not maintainable. The defendants also claimed that under the Will, Gurayya Swamy succeeded only to one shop and abutting godown and therefore, the respondent - plaintiff is not at all in possession of the remaining shops and hence, prayed for dismissal of the suit.
11
5. The plaintiff and defendants in support of their contentions lead in ocular and documentary evidence. The trial Court having assessed ocular and documentary evidence, answered issue Nos.1 to 4 and 6 in the affirmative and thereby recorded a finding that the respondent - plaintiff has succeeded in establishing her lawful possession over the suit shops. While dealing with issue No.4, the Trial Court has embarked upon deciding the validity of the order passed by the 6th respondent - Town Municipal Council and consequently, the Trial Court answered issue No.4 in the affirmative and also held that the mutation is bad in law and therefore, declared it as illegal and void. While dealing with issue No.5, the Trial Court answered the same in negative by recording a finding that the defendants have failed to prove that the plaintiff of 1st defendant trust has 12 bequeathed only one shop and godown and consequently, the suit came to be decreed declaring the mutation dated 20.06.1997 passed by the 6th respondent as illegal and void and consequently, the appellants - defendants are restrained by way of permanent injunction from interfering with the respondent - plaintiff's possession.
6. Feeling aggrieved by the judgment and decree of the Trial Court, the present appellants - defendants preferred an appeal before the lower appellate court in RA No.147/2004. The Appellate Court having re-assessed the ocular and documentary evidence answered the points formulated against the present appellants - defendants and consequently, dismissed the appeal thereby concurred with the findings and conclusions arrived at by the Trial Court. It is against this concurrent judgment and decree of the Courts below, the present second appeal is filed 13 by the appellants - defendants. This Court vide order dated 21.07.2006 admitted the captioned appeal and has formulated following substantial questions of law and same are culled out as under:-
1. Whether the judgments and decree passed by the Courts below are legal, particularly for the prayer of declaration that the resolution passed by the Town Municipal Council, Gangavathi in File No.TMC/MTN/29/77-78 dated 20.06.1977 is illegal and void independent of a declaratory relief in respect of the subject matter of the resolution viz., Maliges and Godowns in property bearing No.3-2-87/6 to 3-3-87/9?
2. Whether such a suit for declaration was maintainable under Section 34 of the Specific Relief Act?
3. Whether the Courts below are justified in granting a declaratory relief and 14 injunction when the defendant trustees have specifically contended that the properties suit item Nos.1 to 1 are the trust properties and they are not the properties bequeathed under Ex.P.4 by Channabasava Swamy to Guruubasayya Swamy, the father of the plaintiffs?
4. Whether the Courts below are justified in granting an order of permanent injunction when the question arose as to whether the occupation by the tenants of the suit Malgis namely 1 to 11 was on behalf of the Trust?
5. Whether the Courts below are justified that the constructive possession of late Gurayya Swamy in respect of suit schedule properties in his individual right or on behalf of the trust?
6. Whether the interpretation given by the Courts below in regard to Ex.P.4 and 15 the intention of testators under Ex.P.1 and P4 being crystal clear?
7. Whether the Courts below are justified in permitting oral evidence to prove intention of the testator?
7. The matter is taken up for final hearing. The learned counsel appearing for the appellants - defendants reiterating the grounds urged in the second appeal and also referring to the substantial question of law framed by this Court would vehemently argue and contend before this Court that the judgment and decree of the Courts below suffer from serious perversity and the judgment rendered by the Courts below is a nonest and the same is barred under Section 9 of the Civil Procedure Code. The learned counsel referring to the substantial question of law framed by this Court would strenuously argue and contend before this Court the Courts below erred in 16 granting a declaratory relief thereby declaring the mutation effected by the 6th respondent - Town Municipal Council as null and void. He would point out that such a declaratory relief could not have been granted by the Courts below and therefore, he would contend that both the Courts have not at all examined the primary objection in regard to the maintainability of the suit as the relief of declaration questioning an order passed by a competent local authority under the provisions of the Karnataka Municipal Act could not have been tested before a competent Civil Courts of law and therefore, he would contend that the judgment and decree of the Courts below are liable to be set aside by this Court on that sole count.
8. To buttress his arguments, the learned counsel appearing for the appellants - defendants would contend that the suit challenging mutation order is not at all maintainable and the said issue is no 17 more res-integra. Placing reliance on the judgment of privy council rendered in the case of NIRMAN SINGH AND OTHERS VS. LAL RUBRA PARTAB NARAIN SINGH AND OTHERS reported in AIR 1926 PC 100 would contend that the order made in mutation proceedings is not a judicial determination of a title and therefore, he would contend that the suit was not at all maintainable. He would also place reliance on the judgment rendered by this Court in the case of H.K.DASAPPA SETTY AND OTHERS vs. K.N.TAMMANNA GOWDA AND ANOTHER reported AIR 1984 KAR 153 and contend that the plaintiff cannot approach a competent Civil Court seeking review of the orders passed by the Revenue Authorities or Local Authorities. Referring to Sections 111 to 113 of the Karnataka Municipalities Act, 1964, learned counsel would point out that the mutations maintained in the register by the Competent Local 18 Bodies is in relation to the entry in the Register is essentially physical entry. Placing reliance on the judgment rendered by the Co-ordinate Bench of this Court in the case of SYED SHAHA FATHUALLAH ALVI VS. CITY MUNICIPAL COUNCIL, BIDAR reported in ILR 2000 KAR 2400 would contend that the entry in the register would not confer or extinguish title and therefore, he would contend that since the title of the respondent - plaintiff is stoutly denied, the respondent - plaintiff was required to seek relief of declaration of title based on the Will vide Ex.P.1.
9. The learned counsel would further canvas his arguments in regard to the interpretation of the Will vide Ex.P.1. Taking this Court through the recitals of Ex.P.1, he would refer to the provisions under Sections 74 to 112 of the Indian Succession Act, 1975 and contend that the true intention of the Testator 19 had to be given primary importance and therefore, he would contend that the intention of the Testator has to be gathered from the language employed in the Will. Referring to para No.4 of the Will, the learned counsel appearing for the appellants - defendants would contend the that original plaintiff Channabasava Swamy has bequeathed a portion of the property over which the plaintiff's father Gurayya Swamy had already constructed a shop and a godown. Referring to the recitals in the Will, he would contend that the Testator has clearly indicated that the legatee has already constructed a suit shop and a godown abutting to it and therefore, in view of service rendered by the plaintiff's father Gurayya Swamy, the Testator reciprocally to acknowledge the service rendered by the plaintiff's father has bequeathed a godown and a shop. He would further contend that there is absolutely no ambiguity in the recitals and 20 what was bequeathed is a shop and a godown and therefore, the respondent - plaintiff cannot falsely assert and claim title over the remaining suit shops, which are admittedly owned by the 1st defendant Trust. On these set of grounds, he would contend that the judgment and decree of the Courts below suffers from serious infirmities, perversities and therefore, would warrant interference at the hands of this Court. He would further submit to this Court that in the light of the materials, which is placed on record, would request this Court to answer substantial questions of law in favour of the appellants - defendants and dismiss the suit.
10. Per contra, the learned counsel appearing for the respondent No.1 - plaintiff would, however, counter the contentions canvassed by the learned counsel appearing for the appellants - defendants. Referring to the recitals in Ex.P.1, the learned counsel 21 appearing for the respondent - plaintiff would contend that the 1st defendant's Trust acknowledging the service rendered by the plaintiff's father to the Mutt has bequeathed the property, which was adjacent to the Mutt building towards northern side. He would further contend that the entire northern portion of the Mutt was originally an open space. Referring to the recitals in Ex.P.1, he would contend that there were godown and maligaes as well as open space available on the date when a bequeath was made by the plaintiff defendant No.1's Trust. Referring to the over open space used in the Will, he would contend that the Testator has clearly referred to the existence of an open space and therefore, the bequeath is not only confined to one suit shop and a godown but also includes open space. He would further contend that it was plaintiff's father Gurayya Swamy who later constructed the suit shops and therefore, he would 22 contend that the plaintiff's father was absolute owner not only of one suit shop and a godown but also present suit schedule properties, which comprises totally 14 shops. The learned counsel appearing for the respondent - plaintiff would further bank on the boundaries referred to in a Will vide Ex.P.1. By taking this Court through the original Will from the lower court records, he would contend that the combined reading of the recitals of the Will vide Ex.P.1, the same would indicate that the bequeath made by the original pointiff are in two parts. Referring to the recitals, he would contend that the plaintiff authorized the plaintiff's father to maintain and look after the affairs of the defendant No.1 trust, while in the second part of the Will, there is a bequeath in regard to ownership of suit shops as well as an open space. In regard to the maintainability of the suit, he would contend that since the appellants - defendants started 23 interfering with the plaintiff's peaceful possession on the strength of an illegal order passed by the respondent No.6 - Town Municipal Council, the respondent - plaintiff was virtually compelled to approach the competent civil court and therefore, it was well within the respondent's - plaintiff's right to seek appropriate relief and therefore, he would contend that the suit instituted by the respondent - plaintiff in the present form is maintainable and therefore, he would request this Court to dismiss the second appeal, which does not give rise to any substantial question of law and substantial questions of law framed by this Court are to be answered in favour of the respondent - plaintiff and consequently, the appeal is liable to be dismissed.
11. To buttress his arguments, he has placed reliance on the following citations.
24
1. Laxman Bisan Uke and others vs. Ashok Ishwar Shinde and another in Second Appeal No.379/2016.
2. In the case of Ramji Rai and Another vs. Jagdish Mallah (Dead) through L.Rs and another reported in AIR 2007 SC 900.
3. Himmatlal Patel s/o Late Kanji Bhai Patel and others vs. Smt.Neeta Ben and others in Second Appeal No.472/2009.
4. T.V.Ramakrishna Reddy vs. M.Mallappa and another reported in Civil Appeal No.5577/2021
5. Lisamma Antony and another vs. Karthiyayani and another in Civil Appeal Nos.3066-3067/2015.
6. A.Subramanian and another vs. R.Pannerselvam in Civil Appeal No.9472/2010.
25
7. Jharkhand State Housing Board vs. Didar Singh and another in Civil Appeal No.8241/2009.
8. Gnanambal Ammal vs. T.Raju Ayyar and others reported in 1951 AIR 103.
9. Ramachandra Shenoy and another vs. Mrs.Hilda Brite and others reported in 1964 AIR 1323.
10. Chhed Ram and another vs. Budhvantin and others in Second Appeal No.420/2003.
11. Kayalulla Parambath Moidu Haji vs. Namboodiyil Vinodan reported in Civil Appeal Nos.5575-5576/2021.
12. Ratan Garai vs. Hiralal Ram (dead) by his Lrs., and others in Second Appeal No.251/1997.
26
12. Heard learned counsel appearing for the appellants - defendants and learned counsel appearing for the respondent No.1 - plaintiff.
13. The present suit is filed by the respondent No.1 - plaintiff questioning the mutation order passed by the respondent No.6 - Town Municipal Council on the ground that her father has acquired absolute right over the suit shops pursuant to the Will executed by the plaintiffs - appellant No.1 - defendant No.1 Trust. It would be useful for this Court to cull out the prayer sought in the instant suit, which reads as under;
i). The suit of the plaintiffs may be decreed with costs against the defendants granting a decree declaring that the order of Town Municipality Gangavathi dated 20.06.1977 passed in file No.TMC/MTN/29- 77-78 in respect of the suit schedule properties is illegal and void and;
27
ii) A decree of permanent injunction restraining the defendant Nos.1 to 5 from interfering and causing obstructions in peaceful possession and enjoyment of the suit properties by the plaintiffs may be granted.
iii). An other relief suitable under the circumstances of the case may also be granted.
14. The Trial Court while examining the issue No.4, answered in the affirmative and has recorded a categorical finding that the mutation order passed by the respondent No.6 is not at all sustainable and the same is declared to be illegal and void. This Court has formulated the substantial question of law in the light of the concurrent findings recorded by the Courts below on issue No.4. The substantial question of law formulated at point Nos.1 to 3 has to be examined in the context of the prayer sought in the plaint and the 28 decree granted by the Courts below. The operative portion of the decree reads as under.
"It is ordered and decreed that, the suit of the plaintiff is decreed.
For Mutation order of T.M.C. Gangavati dated 20.06.1977 is declared as null and void and not binding on the plaintiff.
Further the defendants or any one are hereby restrained by way of permanent injunction from interfering and causing obstruction in the peaceful possession and enjoyment over the suit schedule properties by the plaintiff.
And it is further ordered and decreed that, under the peculiar circumstances of the case, I make no order as to costs."
15. On plain reading of prayer sought in the instant suit and the decree granted by both the Courts below needs to be examined in the background of Section 9 of the Civil Procedure Code. It is more than 29 a trite that jurisdiction of the Civil Courts remains in all matters not falling within exclusive jurisdiction of rent, revenue courts as well as the local bodies, where a statute creates a new right and not existing at a common law and specify a particular mode in which it has to be enforced. It bars by implication, the jurisdiction of the Civil Courts. Therefore, the controversy in regard to examining the validity of the mutation orders passed by the Competent Authorities by the Civil Court is no more res-integra and the Civil Courts cannot to be said to have powers to examine the validity of the impugned mutation order passed by respondent No.6 - Town Municipal Council under the provisions of the Karnataka Municipalities Act. It would be useful for this Court to refer to the specific provision under the provisions of the Karnataka Municipalities Act. Coming now to the specific provision, the relevant parts thereof, which may be 30 read at the very outset as under Sections 111, 112 and 113 of the Karnataka Municipalities Act, 1964, which read as under.
111. Notice to be given to municipal council of all transfers of title by persons primarily liable to payment of 1[property tax]1.--(1) Whenever the title of any person primarily liable for the payment of a tax imposed on any premises in the form of a rate on buildings, or lands or both, is transferred, the person whose title is transferred and the person to whom the same is transferred shall, within three months after the execution of the instrument of transfer or after registration if it be registered or after transfer is effected, if no instrument is executed, give notice of such transfer in writing to the 1[Municipal Commissioner or the Chief Officer]1.
31
2) In the event of the death of any person primarily liable as aforesaid, the person on whom the title of the deceased devolves, shall give notice of such devolution to the 1[Municipal Commissioner or the Chief Officer]1 within six months from the date of death of the deceased.
112. Form of notice.--(1) The notice to be given under section 111 shall be in the form either of Schedule VIII or Schedule IX, as the case may be, and shall state clearly and correctly all the particulars required by the said form.
113. Name of transferee to be entered in property tax register.-
Whenever such transfer comes to
the knowledge of the Municipal
Commissioner or Chief Officer
through such notice the name of
32
the transferee shall be entered in the
property tax register.
16. The judgments, which are cited by the learned counsel appearing for the appellants - defendants are squarely applicable to the present case on hand. The Co-ordinate Bench of this Court in the case of SYED SHAHA FATHUALLAH ALVI VS. THE CITY MUNICIPAL COUNCIL, BIDAR AND OTHERS reported in ILR 2000 KAR 2400. While examining the scope and effect of mutations effected under the provisions of the Karnataka Municipalities Act, 1964 and while referring to Sections 111, 112 and 113 of the above said act has rightly held that the orders in mutation proceedings cannot be questioned before a Civil Court. The Co-ordinate Bench of this Court was of the view that object underlying making of entries is to identify the persons liable to pay the taxes in respect of the property transfer. Therefore, the 33 Co-ordinate Bench of this Court was of the view that entry in the registry cannot either confer or extinguish the title. Therefore, a civil action before the competent court alone could resolve the controversy regarding the title to the property.
17. If the principles laid down by the Co-ordinate Bench of this Court in the judgments referred supra is meticulously examined, this Court is of the view that the instant suit is filed on two counts. The tenor of the written statement clearly reveals that the appellants - defendants are seriously disputing the title of the respondent - plaintiff over the suit shops bearing Nos.1 to 11. The defendants who have also placed reliance on the very Will vide Ex.P.1 on which the respondent - plaintiff has placed reliance, have specifically stated what was bequeathed in favour of the plaintiff's father was only a shop and a 34 godown, which are assigned numbers 12 to 14 and there is no quarrel or dispute in regard to the title of the respondent - plaintiff insofar as suit item Nos.12 to 14 are concerned. At the same time, the appellants
- defendants have stoutly denied the claim of the respondent - plaintiff in regard to suit shops bearing Nos.1 to 11. It is in this background this Court has to examine as to whether the respondent - plaintiff was justified in instituting the suit in the present form. Therefore, the question that would arise before this Court is whether such a relief could have been claimed by the respondent - plaintiff without seeking relief of declaration of title based on a Will vide Ex.P.1.
18. This Court would find that though no relief of declaration of title is sought by the respondent No.1
- plaintiff based on a Will, but respondent No.1 - plaintiff has lead in ocular evidence exhaustively and 35 respondent No.1 - plaintiff has banked heavily on the recitals in the Will and has tried to make out a case and has tried to highlight the intention of a testator indicating that what was bequeathed was not only one shop and a godown but entire open space towards northern side of the compound wall of the defendant No.1 - trust and all this exercise is in absence of relief of declaration of title.
19. What the Courts have lost sight is that though the respondent No.1 - plaintiff has lead in volumness evidence in support of her claim and title based on a Will, however, no foundation is laid in the plaint and no declaratory relief of title is sought in the instant suit.
20. What does appear to be plain on principle and statutory provisions and in view of exclusion of 36 the jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code, the said issue is equally dealt by the privy council in the case of Secretary of State vs. Mask and Company reported in AIR 1940 PC 105. Their lordship were examining a similar exclusive provision in Section 188 of the Civil Customs Act, 1978 and held that the Section of the above said act are self contained code and all remedies are provided under the very Act, which is created by the statute itself and it enables the aggrieved party to ventilate their grievance under the Act itself. Therefore, the above said principles would clearly indicate that it would be quite difficult to conceive what further challenge to the mutation order clearly stands excluded and the same cannot be challenged before a Civil Court and on the same line similar observations were made by the Hon'ble Apex Court in regard to exclusion of jurisdiction of the Civil Court in 37 the case of Dula Bai vs. State of Madya Pradesh reported in AIR 1969 SC 1978. The Apex Court was of the view that where a statue gives a finality to the orders passed by the Special Tribunals, Revenue Courts as well as local authorities, the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.
21. In the present case on hand, the respondent
- plaintiff has specifically stated that feeling aggrieved by the mutation order in favour of the appellant No.1
- defendant No.1 Trust, she preferred an appeal before the Appellate Authority, which also came to be rejected. If Appellate Authority had rejected the appeal filed by the respondent - plaintiff, then it was incumbent on the part of the respondent - plaintiff to approach the Writ Court and seek redressal of her grievance. Instead of seeking redressal of the 38 grievance before the Writ Court, the respondent - plaintiff has virtually ventured into in filing present suit questioning the mutation order, which is exclusively barred under Section 9 of CPC., The dictum and principles laid down by the Hon'ble Apex Court and privy council would clearly indicate that the relief of declaration sought in the instant suit would not have been entertained by the both Courts below and therefore, the decree granting relief of declaration thereby declaring the mutation order dated 20.06.1977 passed in file No.TMT/MTN/29/77-78 as illegal and void is without jurisdiction and therefore, the judgment and decree of the Courts below in granting relief of declaration is palpably erroneous and therefore, the concurrent decrees of the Courts below is not at all sustainable. The judgments cited by the learned counsel appearing for the appellants - defendants are squarely applicable to the present case 39 on hand. In that view of the matter, the substantial questions of law formulated at point Nos.1 to 3 are accordingly answered in the Negative. This Court having examined the ratio laid down by the privy council and the Hon'ble Apex Court as well as the judgments rendered by the Co-ordinate Bench of this Court in the case of SYED SHAHA FATHUALLAH ALVI (as cited supra) is of the view that both the Courts erred in declaring the above said mutation as illegal and void. This Court is also of the view that suit for declaration in the manner which it sought in the present suit is not maintainable under Section 34 of the Specific Relief Act.
22. Now coming to the substantial question of law framed at point Nos.4 and 5 are concerned, both the Courts are proceeded on an assumption that the plaintiff's father acquired right and title pursuant to the will executed by the plaintiffs - 1st appellant - 40 Trust. Though this court cannot examine the recitals in the Will, however to determine the possessory rights of the respondent - plaintiff over the suit shops for limited extent, this Court would deem it fit to examine the recitals in the Will vide Ex.P.1. Due execution of the Will is not at all in dispute, both the parties admit the recitals in the Will. However, the controversy revolves around the interpretation of the Will. The respondent - plaintiff claims that the plaintiff of 1st defendant's Trust acknowledging the service rendered by the plaintiff's father has bequeathed one shop and a godown and open space abutting to the northern side of the compound wall of the defendant No.1 - Trust. Therefore, it would be necessary for this Court to cull out the Will, which is produced at Ex.P.1, which reads as under;
TYPED COPY OF Ex.P.1
॥ ೕ ಚನ ಮ ಾಜು ನ ಪ ಸನ 1
41
ಶPÉ 1867 ಾ ವ ಾಮ ಸಂವತ ರ C²éÃd ಶು| ೧೦ AiÀÄ®Äè ಾಂ ¬Ä ಾ ಾ ! ಾ
"ಾಯಚೂರ %ಾಲು' ಗಂ)ಾವ*ಯ +ರುವ ೕ ಚನ ಮ ಾಜು ನ ಮ,ಾ-ೕಶ.ರ ಾದ 0ೆ|| ೕ
ವ3ೕ4 ೕ ಚನ ಬಸವ6ಾ.7 "ಾ8ಾ9, :ೕರ;ೈವ =ೇ ಕ ?ಾಮ@Aಾದ ವAಾ ೯೫ ಾನು
§gÀ¹PÉÆqÀĪÀ ªÀ²ÃAiÀÄvï£ÁªÀiÁ AiÉÄãÀAzÉæ
£Á£ÀÄ ªÉÊgÁUÀå §zsÀ£ÁV
ಆAಾEತ0ಾ4ದFರೂ ಯ ಾ ಾ*ಯ, ಭ ಾHIಗಳK ತಮ)ೆ ¬ÄºÀ ಪರ ¸ÀÄRUÀ¼ÉgÀqÀgÀ
ಫಲವ ಾ ೇMN ದನ OಾನP ಧನ ಭೂ7 Rದ ಾದ ಪ=ಾಥ ಗಳನೂ ಆ)ಾ)ೆT ಭUHಪVವ ಕ0ಾ4 ನನ)ೆ =ಾನ0ಾ4 ೊWXದF9ಂದ ಈ ಧನದ ಸZಾಯIಂದ +=ೇ )ಾ ಮದ ೕ ಚನ ಮ ಾಜು ನ ಮoÀವನು ಕWXN ¬Äದರ ೕ ಚನ ಮ ಾಜು ನ 6ಾ.7ಯನು ಪ *[\N ಪV ಾ Rದ ಾದ :-
:]ತ ಆಚರ^ೆಯನು _ಾ`ಸು%ಾH ಬಂIದFಲ=ೆ ಈ ಮಠವನು ಮತುH ಚರ Nbರ ಆNHಗಳನು ನನ ಸ.ಂತ 6ಾ.-ೕನ ಅನುಭವದ +ಟುX ೊಂಡು ಮತುH ಈ ಮಠ ೆ' ದಯ _ಾ`Nದ ೕ ವ3ೕ4 ºÁUÀÆ Cwy ಅ8ಾPಗತರನು ಅ ೊ ೕದಕIಂದ ಸಂತ ¥ÀÛ)ೊfN=ಾF+ತು. ¬Äನು ಮುಂ=ೆ +=ೇ 9ೕ*Aಾ4 ಾಯ ವನು ೆರ0ೇ9ಸಲು ನನ)ೆ ಮು?ಾPವ9NದF9ಂದ ನನ ಪ;ಾhತ ಈ ಮಠದ AಾವತುH ಾಯ 8ಾರ ನiೆಯತಕ' :ವರ:
1. ಈ ಮಠದ ಪದj*ಯ ಪ ಾರ ೆ' ವಶರಣರ ಸಮಂಧ ಾಯ ಗಳK ನiೆಯ ೇಕು ಮತುH ೕ ಚನ ಮ ಾಜು ನನ ತP ಪV ಾ ಧೂಪ ೈ0ೆದP ನiೆಸ ೇಕು. ಾವl ಂ)ೈಕP0ಾದ ಬfಕ ನಮm ಸ_ಾ-ಯನು ಸI ಾಲ.ರ ªÀಪn4ಯ ಪ ಾರ ಮಂಟಪವನು ಕWXN ತP ಪV ಾ ೈ0ೇzÀå ನಂ=ಾIೕಪವನು ನiೆಸತಕ'ದುF. ಮಠ ೆ' ಬಂದ ಅ* ಅ8ಾPಗತರನು ಅದರ ಸvÁÌರವನು _ಾಡತಕ'ದುF,
2. ಈ ಮಠದ ಸ0ಾ - ಾ9 ಗುರುಭPÀÛ ೇಶ9ಯಂದು ಲಬF ಪ *[\*)ೆ 3ೕUÀå ಾದ ಗುರಯP ವ|| ವಯP ಮತುH ಪಂಚರು (೧) ವlರುಕುಂಡಯP ವ|| ಸಂಗಯP ವ ೨) ಸಂ)ಾಪVರದ ಮಠದ ಬಸವಯP ವ ೩) =ಾFಪVರ "ಾಚಪn ವ ೪) ಗುಂಜfs "ಾಜಪn ವ 5) AಾತಲI , +ಶ.ರಪn ವ ೬) ೋeÁ ಪಂಪಣ ವ| ಾಗಪn ವ ೭) _ಾಡ4ೕರ ಜಗ=ೇವಪn ವ 8) ಅಪ ಾ9 0ೆಂಕನ)ೌqÀÄæ ವ ೯) "ಾಜಪn ಸುಗಂ- ವ ೧೦) ಮಸೂರ ಸು4Tರಪn ಪ ೧೧) ಮುದಗಲ :ೕರಭದ ಪn 6ಾ|| ಗಂ)ಾವ* ವ ೧೨) ಹಣ0ಾಳ ಂಗಣx ವ|| :ೕರಭದ ಪn ಈ ]ರಜಂತುಗಲ ವ ೧೩) ಶರಬನ ಾಟ 4 ವ ೧೪) ಆರf ಅಮರ ಗುಂಡಪn, 6ಾºÀÄ 6ಾ|| PÁlðV ªÀ ೧೫) ಮರಕುಂy ಪಂಪನ)ೌಡ ªÀ|| ಹನುಮನ)ೌಡ 6ಾ|| Zೇರೂರ ಮುಂ=ೆ ಈ ಪಂಚರು ಕ`z ಆದ ಸಂಚರ ಾ 9ಸುವ ಅ- ಾರವl ಸದರ ಪಂಚ9)ೆ +ರುತH=ೆ.
3. ಆNHಯ :ವರ ! ಾ "ಾಯಚೂರ %ಾ®ÆÌ ಗಂ)ಾವ*ಯ ಇರತಕ' ಮಠದ ಚಕಬಂI ಪVವ ೆ' "ಾ¸ÁÛ ಸರ ಾ9 6ೈ+ದ ನೂರ ಾ ಹು;ೇನ 6ಾ. %ೋಟ, ಪ hಮ ೆ' : ದುರಗಮmನ ಗು` ವ 42 8ಾ:, ಉತHರ ೆ': ಗುರAiÀÄåನ ಸ.ಂತ ಮಳ4 ವ )ೋ=ಾಮ, ದMಣ ೆ' : ಸರ ಾ9 6ಾ ವ ನುಜೂಲ ನಂಬರ (೨೧೫೨), ಪVವ ಪ hಮ ಗ ಾ ೧೬೦, ಉತHರ ದMಣ ಗ ಾ ೬೦, ಮತುH ಗಂ)ಾವ* %ಾ®ÆÌ ೈU R! ಅವ- Zೊ6ಾ )ಾ ಮದ +ರತ ೆ' ಎಂದು ಮಠ +ದರ ಸುತHಲೂ ಸರ ಾ9 ಾ)ಾ ಗಂ)ಾವ* %ಾ®ÆÌ ೈU R! ಆಚ ಾಪVರ ಅ`•ಯ +ರತ ೆ' 0ೆಂಕನ)ೌಡ Zೊ ಾ Zಾಗೂ ಮಠದ +ರತ ೆ' AಾವತೂH ಸ0ೆ ನಂಬರ ಯಕರ gÀÆ.
181/1 1/9 2-0
141/2 1|||2 2-0
242/3 2|||4 4
243 1||8 2|=
244 2-1 2|||0
ಾ* 6ಾ_ಾನಗಳK ªÀAದು R§tzÀ UÀqÉæ¸ÀÆ ವ +ಪnತುH ೨೦ ಆಕಳK, ಐದು ೫ Zೋ9, ಆರು ೬ ಯ7mಗಳK zೕ ೆ ಾ@Nದ AಾವತುH ಆNHಯನು ನನ ಪ;ಾPತ ಸ0ಾ - ಾ9 ವ ಪಂಚರ 6ಾ.-ೕನ +ಟುX ೊಂಡು, •ಕ"ಾ ವಂದರ ¬ÄgÀvÀPÀÌ AಾವತೂH AಾವತೂH ಮಠದ 0ೆªÀ¸ÁÜ ªÀ ಾಯ ಕ ಾಪಗಳK ೋಪ0ಾಗದಂ%ೆ ಆಚಂ=ಾ ಕ ದವ9)ೆ ನ`ಸ ೇಕು.
4. ಸ0ಾ - ಾ9 ಗುರಯP ªÀ|| ವಯP ಗಂ)ಾವ* ¬ÄÃತನು ಆI+ಂದ +ಂIನವ"ೆಗೂ ನ7ಂದ ಮಠದ ಸ0ಾ - ಾ9ಯನು ವ]N ವ ಂಚ ೆ+ಂದ ೆಲಸ _ಾ`ದF9ಂದ ಮಠದ ಉತHರ IU'ನ ಕಂƒಂ`ನ )ೋiೆ)ೆ ಹ*Hದ ¨ÉÊಲು ಆ ೕ0ಾ ದIಂದ ೊWXದುF ತನ ಸ.ಂತ ಖE ಂದ ಮಳ4 ವ )ೋ=ಾಮ ಕWXN ೊಂಡು +ರು%ಾH ೆ. +ವಗf)ೆ ¬ÄÃತ ೇ _ಾಲಕ ದುF, ಸದ9 ಮಠದ + ತರರ ಹಕು' +ರುವlIಲ, ¬ÄÃತನು ತನ !ೕವದ PÉÆ ಯವ9ಗೂ ಸ0ಾ - ಾರವನು _ಾಡತಕ'ದುF.
5. ಸದ9 ಚರ Nbರ ಆNH AಾವತHಕೂ' ನನ ರPÀÛ ಸಮಂzsÀ ಸಂತ*ಗೂ + ತರ ಜನಗfಗೂ AiÀiÁªÀ ತರಹದ ಹಕು' ಾಧP%ೆ +ರುªÀÅI ಾ ಈ ಪತ ದ +ರತ ೆ' AಾವvÀÄÛ ಾಯ ಕ ಮಗಳ† ಸ0ಾ - ಾರ ವ ಪಂಚರ ಅ- ಾರದ ಜರಗತಕ'ದುF +ದ ೆ' Aಾ"ಾದರೂ :"ೋಧ _ಾ`ದ"ೆ, +ಹ ಪರಗಳ ಅಪ"ಾ- Aಾಗುವlದಲ=ೆ ನರಕ ೆ' 8ಾ4ಗಳK ಆಗು%ಾH"ೆ ]ೕ)ೆಂದು ನನ Eತ ಶುIj+ಂದ ಸಂ%ೋಷ ಪVವ ಕ0ಾ4 ಬರNದ ವNಯತH ಾ_ಾ ಸ]. ಸದ9 ಆNHಯ UಮmತುH +ಪn%ೆˆದುನೂರು ರೂ ಾ+ Zಾ ಆಗುತH=ೆ. ¥sÀPÀÛ %ಾ|| £É _ಾºÉ ಸ.ಪ || 11-1-1355.43
+ Zೆಬ‰ರfನ ಗುತು ೕ ಚನಬಸವ 6ಾ.7
ಮ ಾಜು ನ ಮಠ+ವರ _ಾ`ದದ ೆ'
¸ÁQë
೧. Š.ಯು. ಚನ ಬಸವ;ಾN‹ ಅಂತ ಇ=ೆ ೧. ಮುದಗಲು =ೊಡ•ಪn ದ| ಕು
ಸ] ಕನ ಡದ ಸ] ಕನ ಡದ
೧.D.S. Yeshwanthrao ೧ ಬ ಂಗಪn
:ೕರ;ೆWX
೧ ಯ )ಾರ ಪಂಪಣx ೧ PÉlÎ
«gÀÄ¥ÀAt
೧ ಚ೦ದನ)ೌಡ PÉÆ|| ಾ|| ೧ ಕನ ಡದ ಸ]
೧ CAiÀÄßUËqÀ ೧ +|| || ಆರf
ಆಮರಪn
೧ CAUÀr PÀj«ÃgÀ¥Àà zÀ||PÀÄ _ಾ`ದ ೆ' y||§
೧ N Patrappa
೧ ಹಣ4 ದಸH4ೕರ6ಾಬ
೧ ಉzÀÄðದ ಸ]
೧ ಪl=ಾ9 ಗಂ)ಾವ*
y|| "ಾಮಭಟ ೋ
23. On plain reading of the Will vide Ex.P.1, this Court would find that the Testator having acknowledged the service rendered by the plaintiff's father - Gurayya Swamy bequeathed a portion of the property held by the 1st defendant Trust. On plain 44 reading of the para No.4 of the said Will, this Court would find that the original pointiff has taken note of the construction made by the father of the respondent
- plaintiff in the property held by the 1st defendant Trust. Para No.4 clearly indicates that the plaintiff's father had constructed one shop along with godown.
Therefore, the Testator has bequeathed an already constructed shop and a godown by the plaintiff's father in his favour. Paragraph No.4 is in conflict with para No.3 of the said Will. When there is a conflict, it is always latter part of the Will which would prevail over, if it is inconsistent with the arrangement made in the preceding paragraph of the Will. Therefore, this Court is of the view that what was bequeathed in favour of the plaintiff's father was only one shop and a godown and nothing more than that. In the earlier part of the Will, the pontiff has also resolved to hand over actual management of the 1st defendant Trust. 45 Even if the plaintiff's father had inducted tenants in shop No.1 + 11 that itself would not create any right and title in favour of the respondent - plaintiff. Though volumeness ocular evidence is lead in by respondent - plaintiff by examining P.Ws.2 to P.W.5, the said evidence does not inspire any confidence of this Court and no credence can be attached to the ocular evidence of P.Ws.2 to 5. Similarly, no credence can be attached to the documents relating to induct tenancy as well as the documents relating to the payment of taxes. The tax paid receipts have come into existence only in the year 1977. The plaintiff, who is examined as P.W.1, has admitted in an unequivocal terms that her father was looking after the entire affairs of the 1st defendant - Mutt and it is also held in the evidence that the Testator never showed any keen interest in looking into the affairs of the Mutt. Therefore, the volumeness documents, 46 which are placed on record, would not indicate that the plaintiff's father Gurayya Swamy was in possession of the suit shops as absolute owner. On the contrary, in terms of the recitals in the Will, wherein the father of the plaintiff was in fact entrusted with management of the defendant No.1 Trust was in constructive possession and therefore, that itself would not create absolute right and title in favour of respondent - plaintiff's father and in turn in favour of the respondent - plaintiff. Exs.P.2 to 5 are admittedly not duly stand nor registered which are written on the white paper. These documents admittedly do not bear signature of the plaintiff's father Gurayya Swamy. Therefore, no prudence can be attached to Exs.P.2 to 5. Though volumenatory documentary evidence coupled with the ocular evidence of independent witness is placed on record by the respondent - plaintiff, however, they would not come to the aid of 47 the respondent - plaintiff in establishing that she is in lawful possession of suit shop Nos.1 to 11 as on the date of the filing of the suit. The respondent - plaintiff, though title has seriously disputed has not sought relief of declaration of her title based on the Will. Therefore, this Court is of the view that both the Courts have concurrently misread the entire evidence on record. The entire approach of both the Courts below is erroneous and same has resulted in miscarriage of justice. Both the Courts have misread the constructive possession of late Gurayya Swamy in respect of suit item Nos.1 to 11 as his individual right instead of reading it on behalf of Trust. Both the Courts have concurrently misread the recitals in the Will and therefore, the conclusions arrived at by both the courts are palpably erroneous and suffers from serious perversity. Both the Courts have laid more emphasis on the ocular evidence to gather intention of 48 the Testator, which was not at all permissible under law and therefore, the judgment and decree of the Courts in holding that the respondent - plaintiff is in lawful possession over the suit shops bearing Nos.1 to 11 is contrary to the evidence on record and therefore, the same is not at all sustainable.
24. For the reasons stated supra, this Court is of the view that both the Courts below erred in issuing granting relief of declaration declaring the resolution passed by the Town Municipal Counsel as illegal and void. The both Courts were not at all vested with jurisdiction to grant such relief of declaration. Therefore, this court is of the view that the respondent - plaintiff ought to have sought relief of declaration based on Will and the declaration sought in the present form under Section 34 is not at all maintainable. Accordingly, the substantial questions 49 of law framed at Sl. Nos.1 to 3 are accordingly answered in the negative.
25. The Court below erred in granting injunction. Both Courts below erred in granting perpetual injunction. When admittedly the occupancy of suit Malgis namely 1 to 11 was on behalf of Trust and not in the individual capacity of legatee namely late Gurayya Swamy. Therefore, the possession that was held by the late Gurayya Swamy was in the nature of constructive possession on behalf of Trust and not in his individual capacity based on the alleged Will. Therefore, this court is of the view that both the Courts have misread the contents of the Will and has also wrongly interpreted Ex.P.1, wherein the intention of the Testator was only to bequeath one shop and a godown and not adjoining vacant open space. 50 Therefore, the substantial questions of law framed at Sl. Nos.4 to 7 are answered in the Negative.
26. Though the learned counsel appearing for the respondent Nos.1(a) to 1(c) has cited several judgments, I am of the view that the above cited judgments are not applicable to the present case on hand.
27. In view of the aforesaid findings and conclusions, I pass the following ORDER The Regular Second Appeal is allowed and the judgment and decree dated 16.03.2005 of the First Appellate Court passed in RA No.147/2004 confirming the judgment and decree is set-aside and consequently, the suit filed by the respondent - plaintiff is dismissed.
51
In view of allowing the appeal, all pending interlocutory applications are disposed of.
Sd/-
JUDGE NBM