Karnataka High Court
The State Of Karnataka vs Arani Rudresh S/O Arani on 20 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.S.A.No.256/2008
BETWEEN:
1 . THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
DR. AMBEDKAR STREET
BANGALORE - 560 001.
2 . THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE - 577 001.
3 . THE CHAIRMAN
ASHRAYA COMMITTEE
OFFICE OF THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE - 577 001.
....APPELLANTS
(BY SMT. M GEETHA, HCGP)
AND:
ARANI RUDRESH
S/O ARANI, KOTRAPPA
AGED 45 YEARS
BUSINESS MAN DOOR No.788,
VIJAYALAXMI ROAD
DAVANAGERE CITY - 577 001. ....RESPONDENT
(BY SRI PAWATE SANTOSH CHANNABASAPPA, ADVOCATE)
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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 28.8.2006 PASSED IN
R.A.No.58/2005 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE(SR.DN), DAVANAGERE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
16.11.2004 PASSED IN O.S.No.175/2002 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN), DAVANAGERE.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is directed against the judgment and decree dated 28.08.2009 passed in R.A.NO.58/2005 by the learned Principal Civil Judge (Sr.Dn) Davanagere, wherein, the appeal and I.A.No.3 is dismissed confirming the judgment and decree dated 16.11.2004 passed in O.S.No.175/2002 by the learned Principal Civil Judge (Jr.Dn) Davanagere. Further, it is ordered that Plaintiff/respondent is at liberty to remove the entire construction put up in the suit schedule property at the cost of the appellants/defendants.
2. Being aggrieved by the same, the appellants/defendants are in appeal before this Court. 3
3. The appeal came to be admitted on 10.10.2014 for considering the following substantial questions of law:
(i) Whether the courts below committed an error in not noticing issuance of notice under Section 80 of CPC as the other party is the government?
(ii) Whether the courts below were justified in granting mandatory injunction without seeking for a declaration and possession of the schedule properties?
4. However, framing of following additional substantial questions of law becomes necessary at this stage:
(i) Whether in the facts and circumstances of the case the application filed under Order 41 Rule 27 CPC by the appellants-Government could have been adjudicated along with the judgment when it came to be rejected?
(ii) Whether the records or documents filed along with the application under order 41 Rule 27 CPC have to be looked into to know a material 4 question is involved and matter requires deeper investigation may be in a trial?
5. In order to avoid confusion and overlapping the parties are addressed in accordance with the nomenclature held by them before the trial court.
6. In the beginning, O.S.No.175/2002 was one simplicitor for permanent and mandatory injunction filed by the plaintiff- Arani Rudresh S/o Arani Kotrappa, 45 years, Businessman, D.No.788, Vijayalaxmi Road, Davanagee City against the defendants, viz., (1) State of Karnataka by its Chief Secretary, Vidhana Soudha, Dr. Ambedkar Street, Bangalore; (2) The Deputy Commissioner, Davanagere District, Davanagere and (3) The Chairman, Ashraya Committee, Office of the Deputy Commissioner, Davanagere District, Davanagere.
The relief sought for by the plaintiff is for permanent injunction restraining the defendants, from interfering with the peaceful possession and enjoyment of the suit schedule property which forms two items of 5 land and property, namely: (1) Agricultural land bearing Re.Sy.No.145/1P, measuring 1 acre 34 guntas on the eastern side of 2 acres 39 guntas, and (2) Agricultural land bearing Re.Sy.No.145/1P, measuring 1 acre 34 guntas, situated at Davanagere.
7. The case of the plaintiff is that, he is an Agriculturist and Businessman and resident of Davanagere city. He purchased suit schedule properties under two different sale deeds. It is stated that, one Sri. Nanjappa s/o Basappa was the owner in possession of the agricultural land bearing R.Sy.No.145/1B measuring 2 acres 39 guntas of Davanagere and he sold 1 acre 34 guntas on the eastern side to the plaintiff for the consideration of Rs.1,85,000/- under the registered sale deed dated 4.11.1999 and possession was delivered to him on the same day. Similarly, plaintiff purchased another item of property from one Smt. Basamma w/o Sanna Maharudrappa i.e. in R.Sy.No.145/1B measuring 1 acre 6 guntas on 4.11.1999 itself for Rs.1,15,000/- 6 and delivered the possession. Thus, having entered into possession over the schedule properties under the registered sale deeds, he has been enjoying the same and all the records pertaining to the said properties are in his name. It is further contended that the defendant Nos. 2 and 3 have no right in the schedule properties. Inspite of that, defendant No.3 has taken the consent deed from Smt. Basamma and Nanjappa on 8.10.2001 stating that they have agreed to sell the schedule properties with other properties belonging to them at Rs.3,25,000/- per acre. Both of them have no right to enter into any agreement with the defendants. On the basis of the said deed, defendant Nos. 2 and 3 are illegally putting up construction. It is further contended that subsequent to the suit, during the subsistence of order of status quo, defendants have put up the constructions in the said properties. 7
8. Defendants entered appearance. Defendant No.2 filed the written statement and defendant Nos. 1 and 3 adopted the same.
Defendants denied the plaint averments and contended that defendant Nos. 2 and 3 decided to form the houses under Ashraya Yojane Scheme to grant the houses for the houseless people and they have acquired the land measuring 77 acres 38 guntas of Davanagere and Doddabudihal village and they have taken possession and defendant No.2 handed over the property to KLAC. The houses were constructed and it was completed before filing the suit and it is not in possession of the plaintiff and therefore, he is entitled for compensation. The plaintiff can seek compensation before the Ashraya Yojane, Davanagere and suit is not maintainable for want of proper notice under Section 80 of CPC and he is not entitled for mandatory injunction. 8
9. On the basis of the pleadings and contentions of the parties, the trial court framed totally six issues for consideration.
10. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 6 and documentary evidence of Exs.P1 to P44 on behalf of the plaintiff. No witnesses were examined on behalf of the defendants. However, they got marked Ex.D1.
11. Thus, the core issue in the trial Court is the ownership, possession, obstruction or interference, removal of structures. The learned trial Judge considering the oral and documentary evidence on both sides, partly decreed the suit of the plaintiff permanently restraining the defendants from interfering into the peaceful possession and enjoyment of the schedule properties by the plaintiff and also directed the defendants to remove the entire construction put up in the schedule properties by way of mandatory injunction and if the defendants fails to remove the construction 9 put up in the schedule properties, liberty is reserved to the plaintiff to remove the entire construction at the cost of defendants. However, the suit relating to restraining the defendants from putting up any construction in the schedule properties and restraining from disbursing any amount to Sri. Nanjappa and Basamma for the schedule properties is dismissed.
12. Against the said judgment and decree, defendants preferred an appeal court in R.A.No.58/2005 which came to be dismissed on 28-08-2006 with costs as stated above. Against which, defendants preferred this appeal.
13. Smt. N. Geetha, learned Government Pleader appearing for the defendants/appellants would submit that, the appellants could have been given reasonable opportunity before the trial court to substantiate their defence in the light of the documents which were of evidence for the said matter and rightlessness of the plaintiff.
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14. Learned Government Pleader would further submit that the application filed by the appellants for production of additional evidence was not considered. More particularly, it was not rejected in advance. On the other hand, the appellate judge chose to adjudicate the same along with the appeal and the rejection of application came to the knowledge of the appellants only on the date of passing of the judgment.
15. Learned Government Pleader for appellants would further submit that, before this court also, I.A.No.1/2017 is filed by the appellants under order 41 Rule 27 CPC along with the documents.
16. Sri. Pawate Santhosh Channabasappa, appearing for plaintiff would submit that this case is a best example as to how adjournments are obtained from the side of Government to frustrate the rights of the innocent litigant. In this case, before the trial court the written statement was not filed in time. Thus, the matter came to be adjudicated by the learned trial 11 Judge and the learned first appellate judge reckoned the rights of the plaintiff over the suit schedule property by considering the registered sale deed Exs. P1 and 2, Exs.P6 and 7, Mutation extracts, Exs.P6 and 7- Pahani.
17. The contention of 2nd defendant has been that, suit was not maintainable and liable to be dismissed as the land in question was acquired for construction of houses under Ashraya scheme. Thus, the land that was proposed to have been acquired was sold by the previous vendor. However, the fact of acquisition and construction was suppressed by the plaintiff.
18. The details of para 8 and 8(a) in the written statement filed by the defendant No.2-Deputy Commissioner in the case is as under:
"8. The substance of defence of this defendant is as follows:
a) The defendant No.3 and this defendant decided to form the housing for the houseless people under Ashraya on 8.10.2001 and totally 12 measuring 77 acres, 3 guntas of Davanagere and Dodda Budhihal village is acquired under the Ashraya scheme they have taken the possession under No.Ashraya/CR/97/2001-2002 dated 11.12.2001 and this defendant has handed over the property to KLAC under order No.Cr./372/01-
02 dated 15.2.2002 and houses are constructed for the houseless and the same is allotted to them. The constructions of the houses was completed before filing the suit. Hence, the plaintiff is not in possession of the property. Hence, he is not entitled for any possession of the property and he can entitled only for compensation and he can move only for the same."
19. In the circumstances, additional written statement was filed by the defendant No.2 in view of the amendment of the prayer by the plaintiff. Thus, the suit that was for permanent injunction at the commencement became one for mandatory injunction as well. Such being the facts, application came to be filed before the first appellate court by the appellants on 23.3.2006 under order 41 Rule 27 CPC seeking permission to produce acquisition order and gazette published on 10.3.2005 as additional documents. However, those documents were not seen in the records. 13
20. The learned Government Pleader for appellants would submit that an application in I.A.NO.1/2017 is filed before this court along with four documents, namely:
"Document No.1 - Copy of Final Notification No.LAQ:CR:119:04-05 dated 03-04-2006 acquiring dry land bearing Sy.No.145/1P-1 and 145/1-P3 measuring in all 3 acres of Davanagere, Kasaba Hobli, Davanagere Taluk belonging to respondent:
Document No.2 - Copy of Award dated 31.10.2006 passed by the Assistant Commissioner and Land Acquisition Officer, Davanagere Sub-
Division, Davanagere, awarding compensation of Rs.19,46,605/-;
Document No.3 - Copy of order dated 05-02- 2009 passed in W.P.No.15721/2006 (LA-RES) of the learned single Judge allowing the writ petition and thereby quashing the preliminary as well as final notification;
Document No.4 - Copy of order dated 2.2.2012 passed in W.A.No.1773/2010 by the Division bench allowing the writ appeal and quashing the order passé dint he writ petition and thereby upholding the acquisition of the land in question i.e. suit schedule property. Thus, as stated above full documents were not available before the first appellate court. 14
21. However, the learned first appellate Judge in para 17 of the judgment appears to have gone through the documents filed, wherein the comparison is made between the written statement and the documents filed. However, the said application came to be rejected along with the main appeal.
22. It is in this area, learned first appellate judge committed gross error. When the documents are brought to the notice of the court (when full documents were not called for) the court was at liberty to ask for producing the full documents that are described in the application. Thus, the nature of objections that was taken by the government/defendants should have been given serious look as it pertains to acquisition of entire schedule property along with 77 acres 38 guntas of land in and around Davanagere. It is the further contention of the appellants that the possession was handed over to the Chairman, Ashraya Scheme Committee and that construction was in progress. As a matter of fact, the 15 stand of the plaintiff also confirms the same, as the plaintiff claims that the defendants are going ahead with the constructions.
23. In the overall circumstances of the case, the reasons ascribed on I.A. No.3 gives details of the objection and finally, learned Judge in his wisdom has rejected the same. This is a case wherein public property is involved. Courts are supposed to have given meticulous interest in looking to the documents and far reach consequences of the public money. The documents that are filed contending acquisition, taking over the possession, entrusting the same to the land army for construction, part construction being commenced and escalation in price of construction materials among the others and construction is in progress and now it is stated by learned counsel for plaintiff that construction is almost completed.
24. The learned Government Pleader would submit that compensation amount is also deposited and 16 in this area there is a difference, as the learned counsel for plaintiff would submit that officials are unnecessarily dodging the matter and whenever approached they say that the acquisition is not effected. Whatever may be the circumstances, when once the land is acquired for a specific purpose by the Government, the further formalities and the fixing compensation, reference and related are almost natural consequences. Insofar as genuineness of documents have been tested and the veracity should have been considered, as the learned first appellate Judge has failed to give an opportunity to the appellants/defendants to produce those documents. I find the judgment and decree sans complete, particularly, in the ends of principles of natural justice to the appellants. Invariably, the appeal is liable to be allowed and the judgment and decree is to be set aside and matter requires reconsideration afresh by the trial court.
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25. In the result, the appeal is allowed. Judgment and decree dated 28.08.2009 passed in R.A.NO.58/2005 by the learned Principal Civil Judge (Sr.Dn) Davanagere, confirming the judgment and decree dated 16-11-2004 passed in O.S.NO.175/2002 by the learned Principal Civil Judge (Jr.Dn) Davanagere is hereby set aside.
Matter is remanded to the trial court for fresh adjudication with a direction to consider the evidentiary value of the documents filed along with application filed under order 41 Rule 27 CPC in I.A.NO.1/2017 after giving an opportunity to both the parties to file their pleadings and to examine the witnesses if they chose to do so.
Considering the age and stage of the case, the matter be dispose within six months from the date of first appearance.
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In order to avoid wastage of judicial time, the parties are directed to appear before the trial court on 24/03/2020 without waiting for summons.
Office to send back the records to the trial court. Despite the disposal of the case and remanding the matter, negligence and lack of interest in representing the case by the Government officials as come to notice of the court and for such depleting approach, court expresses its displeasure.
Copy of this judgment and decree be sent to the Chief Secretary, Government of Karnataka.
Sd/-
JUDGE tsn*