Karnataka High Court
Anand Education Trust(Regd) vs Sanju S/O Gemu Rathod on 12 April, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
RSA No.200205 OF 2018
BETWEEN
ANAND EDUCATION TRUST(REGD)
THROUGH ITS SECRETARY
ANAND
S/O MAHADEVAPPA PRASAD
AGED ABOUT 31 YEARS
OCC: SECRETARY OF TRUST
PLOT NO.94, BEHIND BADEPUR
HANUMAN TEMPLE, GUBBI COLONY
SEDAM ROAD, KALABURAGI
...APPELLANT
(BY SRI DEEPAK KUMAR G, ADVOCATE)
AND
SANJU
S/O GEMU RATHOD
AGED ABOUT 39 YEARS
OC: SOCIAL WORKER
R/O SIDDESHWAR NAGAR
KALABURAGI 585102.
...RESPONDENT
(BY SRI C B SHAPUR, ADVOCATE FOR C/RESPONDENT)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 05.06.2018 PASSED IN
R.A.No.15/2016 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE, AT KALABURAGI, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED-29.01.2016,
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PASSED IN O.S.NO.528/2014 ON THE FILE OF THE II ADDL.
CIVIL JUDGE AND JMFC, AT KALABURAGI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.02.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This second Appeal is filed by the Plaintiff under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') to set aside the judgment and decree dated 5.6.2018 passed in RA No.15/2016 by the III Additional Senior Civil Judge, Kalaburagi (hereinafter referred to as the 'first Appellate Court) and to restore the judgment and decree dated 29.1.2016 passed in OS.No.528/2014 by the Civil Judge (Jr.Divn.,), Kalaburagi (hereinafter referred to as the 'Trial Court').
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3
3. It is the case of the Plaintiff that it is an Education Trust carrying on social work giving education to needy students by opening schools. That the Plaintiff
- Trust was running a school in a rented house at Siddeshwar Colony, Gulbarga. That the Plaintiff made correspondence with the Education Department of the Government of Karnataka for allotment of a site to start a school. Accordingly, Plot No.1 in Sy.No.107/2 and 107/3 of Kusnoor village, Gulbarga Taluk and District (hereinafter referred to as the 'suit property'), was allotted, consequent to which the Plaintiff obtained permission from the respective authorities for construction of the school building to run the school and after getting due permission from the respective authorities, took up work of construction of school from 1st standard to 10th standard under the name and style of Anand Education Trust. That the Plaintiff was running the school peacefully without any interference from any one. That the Defendant upon instigation of certain 4 elements came to the construction spot and threatened the Plaintiff to stop construction over the suit property without any order from the Government and threatened the staff and students of facing unpleasant consequences if the construction work is not stopped. Despite requests by the Trustees of the Plaintiff and other persons, the Defendant has not heeded to their request and threatened to come with huge number of unsocial elements and use of force to dispossess the Plaintiff from the suit property and dismantle the school structure. Hence, the Plaintiff filed the suit seeking for a permanent injunction against the Defendant or anybody claiming through him, restraining them from damaging the school construction building.
4. The Defendant entered appearance and filed Written Statement denying the case of the Plaintiff. It is further contended by the Defendant that by manipulating the layout map of Sy.No.107/2/3 of 5 Kusnoon village and playing fraud on the Government, the Plaintiff created documents and filed the present suit. That the suit property is a garden land and not a Civic Amenity site (hereinafter referred to as the 'CA site') as alleged by the Plaintiff. That by misrepresenting the facts and manipulating the layout plan, the Plaintiff has managed to get construction permission over the suit property. That Sy.No.107/2/3 of Azadpur has no CA site as alleged by the Plaintiff. That the suit property is situated in a garden area and the same is for usage of the public of the said locality and needs to be protected by the general public. It is further contended that the Plaintiff is not in possession of the suit property and is trying to take forcible possession of the suit property and construct building over the suit property and it is not only the Defendant who has objected the activities of the Plaintiff but the entire public of the said locality have objected to the 6 Plaintiff taking forcible possession and put up construction. Hence, he sought for dismissal of the suit.
5. Upon the pleadings of the parties, the Trial Court framed 4 issues. The Secretary of the Plaintiff - Trust was examined as PW.1 and Exs.P1 to P11 were marked in evidence. The Defendant examined himself as DW.1 and Exs.D1 and D2 were marked in evidence. The Trial Court, upon an appreciation of the oral and documentary evidence on record decreed the suit. Being aggrieved, the Defendant filed RA No.15/2016. The Plaintiff entered appearance in the said Appeal and contested the same. The first Appellate Court upon a re-appreciation of the oral and documentary evidence on record allowed the appeal filed by the Defendant and set aside the judgment and decree passed by the Trial Court and dismissed the suit filed by the Plaintiff. Being aggrieved, the present second Appeal is filed. 7
6. This Court, vide order dated 4.2.2021 admitted the above appeal and framed the following substantial questions of law for consideration:
"1. Whether the First Appellate Court justified in reversing the judgment and decree of the Trial Court?
2. Whether the First Appellate Court justified in holding that plaintiff is not in peaceful possession and enjoyment of the suit property as on the date of filing of the suit?
3. Whether the First Appellate Court justified in holding that plaintiff has no legal right over the suit schedule property as per Ex.P11?"
7. The learned Counsel for the Appellant/Plaintiff assailing the judgment of the first Appellate Court has contended:
i) that the Defendant is a stranger to the suit property and he is not a rival claimant to the property of the Plaintiff;
ii) that no action has been taken by the Government or any other statutory authority and it is only the Defendant who was a stranger was interfering with the construction activities of the Plaintiff; 8
iii) that the Plaintiff had put up construction as per the plan/sketch approved by the Gram Panchayath, Kusnoon, which is approved on 7.4.2014 and marked as Ex.P9;
iv) that the layout plan issued by the Gram Panchayat, Kusnoon and marked as Ex.P10 shows the existence of a CA site in which the Plaintiff was carrying on construction activity which is permissible in law;
v) that the Plaintiff has also produced letter dated 14.2.2014 (Ex.P11) evidencing the lease of 60 years of the CA site in favour of the Plaintiff granted by the Gram Panchayath;
vi) that the Trial Court has appreciated the facts of the case in the right perspective and decreed the suit;
vii) that the first Appellate Court, erroneously without re-appreciating the material on record in the right perspective, allowed the Appeal filed by the Defendant and dismissed the suit filed by the Plaintiff. 9
Hence, he seeks for allowing of the above appeal and granting the relief sought for.
8. Although the Respondent is represented by a Counsel, the Respondent has remained unrepresented on many hearing dates. On 13.2.2023 this Court heard the submissions of the learned Counsel for the Appellant and since the Respondent was unrepresented, adjourned the matter to 15.2.2023 for submissions of the learned Counsel for the Respondent. On 15.2.2023 although the learned Counsel for the Appellant was present, since the Respondent was unrepresented, in order to afford another opportunity, the matter was posted on 22.2.2023. On 22.2.2023 the learned Counsel for the Appellant was present and there was no representation on behalf of the Respondent. Hence, the above Appeal was reserved for judgment.
9. The Trial Court upon the pleadings of the parties framed the following issues:
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"1. Whether the Plaintiff proves that, the suit schedule property has been allotted by Education Department to construct school building as alleged and it has been in peaceful possession and enjoyment of plaintiff?
2. Whether there is alleged interference by the defendant?
3. Whether Plaintiff trust is entitled for the relief sought for?
4. What order or Decree? "
10. While decreeing the suit of the Plaintiff, the Trial Court has recorded the following findings:
i) The Defendant has not examined any witness in support of his case that the area is reserved for garden only;
ii) On over all reading of the evidence of DW.1 it appears that the Defendant alone is causing interference to the possession of the Plaintiff over the suit property;
iii) If at all there is any irregularity while sanctioning the allotment or any mischief done by the 11 Plaintiff, the same has to be challenged by seeking appropriate remedy;
iv) The Defendant is not making any rival claim over the suit property.
11. The first Appellate Court while considering the Appeal filed by the Defendant has framed the following points for consideration:
"1. Whether the judgment and decree dated 29.1.2016 passed by the II Addl. Civil Judge (Jr.Divn.) Kalaburagi in OS.No.528/2014 is contrary to law, facts and evidence?
2. Whether the impugned judgment and decree call for the interference by this Court?
3. What Order or Decree?"
12. The first Appellate Court, while allowing the Appeal filed by the Defendant has recorded the following findings:
i) The Plaintiff has not examined any competent authority to prove that there is a CA site reserved in the layout plan ;
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ii) The Plaintiff has not shown description and schedule of the suit property in the pleadings;
iii) The Plaintiff pleaded in one place that the suit property is given by the Education Department and in another place he has stated that the Gram Panchayath has given the suit property under the lease for a period of 60 years. Hence, there is variance between the pleading and evidence of the Plaintiff;
iv) That the Plaintiff has not placed any sufficient material to prove issue No.1;
v) The Defendant and other general public of layout have every right to use the garden area which is meant for the purpose of garden only;
13. It is forthcoming from the case putforth by the respective parties that the Plaintiff is putting up construction for the purpose of running a school in the suit property and to evidence the fact that construction 13 is being put up in a CA site he has produced Ex.P9, the proposed plan for construction which has been approved by the Gram Panchayath, Kusnoor. Ex.P10 is the layout plan of the Gulbarga University Employees Housing Cooperative Society situated in Sy.No.107/2 and 107/3 of Azadpur village, Kalaburagi, which shows the existence of a CA site as part of the said layout. It is forthcoming from Ex.P11 - allotment letter dated 14.2.2014 that the CA site has been leased to the Plaintiff - Trust for the purpose of running an educational institute.
14. The Defendant apart from examining himself as DW.1 has produced a layout sketch which has already been produced as Ex.P10 by the Plaintiff and Ex.D2 is a copy of the complaint lodged by the Defendant.
15. It is clear and forthcoming that the Defendant is not a rival claimant to the suit property. The Plaintiff - Trust is putting up construction pursuant 14 to the permissions granted in its favour. No material is placed on record by the Defendant to demonstrate that any of the statutory authorities are objecting or have questioned the Plaintiff with regard to its activities of running the school or putting up construction on the suit property. The first Appellate Court has held that the suit property is a garden land and not a CA site as contended by the Plaintiff. However, there is no material on record on the basis of which the said finding is recorded.
16. It is clear from the material on record that since the Defendant has interfered with the construction work which the Plaintiff was putting up the suit has been filed for permanent injunction. No material is placed by the Defendant to demonstrate that he has complained to the relevant statutory authorities with regard to any illegal activities of the Plaintiff and any of the authorities had taken cognizance of the said fact and has initiated 15 action against the Plaintiff for putting up unauthorized construction.
17. The first Appellate Court has proceeded to consider the case of the parties as if the Defendant was a rival claimant to the title of the suit property of the Plaintiff. The Defendant being a stranger and having regard to the interference caused in the construction, the Plaintiff was constrained to file the suit for injunction. The Plaintiff has placed sufficient material on record as noticed supra, that it is putting up construction pursuant to valid sanction/approval granted by the relevant statutory authorities. On the contrary, it is the Defendant who has not demonstrated that the construction put up by the Plaintiff is in any manner illegal or contrary to any law. No material is also placed on record by the Defendant to demonstrate that the relevant statutory authorities have initiated any action against the Plaintiff. If the relevant statutory authorities 16 have failed to initiate action against the Plaintiff for any alleged illegal activity, the Defendant is required to take recourse under law and not in the manner as is sought to be done in the present case.
18. Having regard to the aformentioned, the first Appellate Court was not justified in interfering with the finding of fact recorded by the Trial Court and there is no basis for the first Appellate Court to set aside the findings recorded by the Trial Court. Accordingly, the substantial questions of law framed are answered in the negative, in favour of the Plaintiff and against the Defendant.
19. Hence, I pass the following:
ORDER i. The above appeal is allowed;
ii. The judgment and decree dated 5.6.2018 passed in RA No.15/2016 by the III Additional Senior Civil Judge, Kalaburagi, is set aside; 17 iii. The judgment and decree dated 29.1.2016 passed in OS.No.528/2014 by the Civil Judge (Jr.Divn.,), Kalaburagi, is affirmed.
No costs.
SD/-
JUDGE nd