Karnataka High Court
M L Gopala Setty Since Dead By Lrs vs City Municipal Council on 16 August, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
M.S.A. NO. 281/2011
BETWEEN:
1. M.L.GOPALA SETTY SINCE
DEAD OF L.Rs.
1(a) R.SUBHADRA,
AGED ABOUT 78 YEARS
R/O SUBHADRALAYA
PRESIDENT RAGHAVAN STREET
SEVARANAPURI,
SALEM,
TAMILNADU - 636 004
1(b) M.G.JAGADISH
DEAD BY legal heirs
1(b)(i) M.J.VIJAYALAKSHMI
W/O LATE M.G.JAGADISH
AGED ABOUT 64 YEARS
1(b)(ii) VINAYAKUMAR
S/O LATE M.G.JAGADISH
AGED ABOUT 39 YEARS
Sl. No. 1(b) (i) and 1(b)(ii) ARE
PRESENTLY RESIDENT OF
NO.369, 8TH CROSS,10TH MAIN,
1ST BLOCK, JAYANAGAR,
BANGALORE - 560 011
2
1(b)(iii) AKHILA
D/O LATE M.G.JAGADISH
W/O ANANTHRAM
AGED ABOUT 34 YEARS
RESIDENT OF 'BRINDA' NO.125C,
7TH MAIN, 9TH CROSS,
GOKULA III STAGE,
MYSORE - 2
1(c) M.G.CHANDRAMOHAN
AGED ABOUT 71 YEARS
PRESENTLY R/O NO.444, MANONIDHI,
9TH CROSS, I BLOCK, JAYANAGAR,
BANGALORE - 560 011
1(d) M.G.NAGENDRA
AGED ABOUT 68 YEARS,
R/O NO.9, 15TH CROSS,
6TH PHASE, J.P.NAGAR,
BANGALORE - 560 078
1(e) M.G.JAYARAM,
AGED ABOUT 67 YEARS,
PRESENTLY R/O NO.1002, 10TH FLOOR,
C BLOCK STERLING TERRACE APTS,
100 FT RING ROAD, BSK III STAGE,
BANGALORE - 560 085
1(f) UMADEVI,
AGED ABOUT 65 YEARS,
PRESENTLY R/O NO.HIG 47, HUDCO COLONY,
KALHALLI, VINOBHA NAGAR,
SHIMOGA - 577 204
1(g) M.G.RAMESH,
AGED ABOUT 63 YEARS
3RD FLOOR, 15TH CROSS,
GIRINAGAR, II PHASE,
BANGALORE - 560 085
3
1(h) RUKMINI SUKUMAR
AGED ABOUT 67 YEARS
R/O NO.80/A BAZULLA ROAD,
T.NAGAR, CHENNAI - 17
1(i) M.G.DATTATHREYA
AGED ABOUT 57 YEARS,
PRESENTLY R/O NO.146, 5TH CROSS,
8TH MAIN, II BLOCK,
JAYANAGAR, BANGALORE - 560 011
1(j) GAYATHRI KISHORE
AGED ABOUT 55 YEARS
PRESENTLY R/O 4, STAFF ROAD,
P & T COLONY,
CANTONMENT,
SECUNDERABAD - 09
... APPELLANTS
(BY SRI A.RAVISHANKAR, ADV.,)
AND:
1. CITY MUNICIPAL COUNCIL
CHIKMAGALUR - 577101
REPRESENTED BY
ITS COMMISSIONER
2. THE SECRETARY,
SRI BHARATHNA RATHNA,
DR.B.R.AMBEDKAR SOCIO
ECONOMIC AND CULTURAL CENTER,
SHETTAR BEEDHI,
CHIKMAGALUR - 577 101
NOTE:
1. THE RESPONDENT NO.1(a)
M.G.SHANTHAKUMAR WAS A
BACHELOR AND DIED ON 1.08.2011
THE OTHER APPELLANTS HEREIN ARE
HIS LEGAL REPRESENTATIVES. THE DEATH
4
CERTIFICATE IS PRODUCED
2. THE SUIT AGAINST THE 3RD
DEFENDANT BEFORE THE TRIAL COURT
WAS DISMISSED AS NOT PRESSED
ON 10.03.99. THEREFORE, THE
3RD DEFENDANT BEFORE THE TRIAL COURT
IS NOT MADE A PARTY TO THE ABOVE
PROCEEDINGS
... RESPONDENTS
(BY SRI A.NAGARAJAPPA & ASSOCIATES)
THIS MSA FILED UNDER SECTION 43.RULE-1(u) OF
CPC, AGAINST THE JUDGMENT AND AWARD DATED
20.10.2011 PASSED IN R.A.59/2007 ON THE FILE OF THE
PRL. DISTRICT JUDGE, CHIKMAGALUR, ALLOWING THE
APPEAL SETTING ASIDE THE ORDER DATED 22.09.2007
PASSED IN O.S 31/1999 ON THE FILE OF THE CIVIL JUDGE
(SR.DN), CHIKMAGALUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is by the plaintiff against the order of remand in R.A.59/07 on the file of Principal District Judge, Chikkamagalur.
2. Prior notice of admission was issued to the respondents who are duly served. The appeal has been admitted and posted for final hearing. Even today, there is no representation on behalf of the 2nd respondent. 5
3. Heard Sri Ravishankar, learned counsel for the appellants. Perused records in supplementation thereto.
4. The records to which learned counsel has adverted to, and also the reasons assigned by the learned trial judge to dismiss the suit and the order of remand passed by the appellate court, reveals the following facts:
a) Plaintiff claims to have succeeded to the schedule property by virtue of a deed of partition dated 6.1.1968 entered into between the legal heirs of M.Lachaiah Setty (propositus) plaintiff's father. By virtue of the partition, he not only acaquired title, but his possession was confirmed.
The schedule property bears Khatha No.1534/1520 more fully described in the schedule to the plaint. There was a dilapidated structure which has since been demolished by the plaintiff and there is now only a vacant site.
b) He alleges defendants 1 and 2 who have no manner of right, title and interest claim to have acquired the property by grant from the 1st defendant and on that basis, tried to dispossess him. He alleged that the act of 6 the defendants is unwarranted. It amounts to infringement of his indefeasible right in respect of the property in question and thus, sought an injunctive order.
c) Defendant no.1-City Municipal Council, Chikkamagalur, denied the plaintiff's father was the owner of the property in question and it was divided under the partition deed dated 6.1.1968. However, it claimed it has no interest in the litigation. It denied the allegation in the plaint that it had donated the property to defendant no.2. However, in the second part of the written statement, a contention is taken that considering the larger interest of the general public, it granted a plot measuring 159' x 97' to the 2nd defendant for housing Dr.B.R.Ambedkar Socio, Economic and Cultural Center.
d) It averred, the 1st defendant has not acted in any manner adverse to the interest of the plaintiffs. It is further averred grant of land to the 2nd defendant was notified through newspapers calling for objections. Plaintiffs had full opportunity to file objections, but they did not. As there was no objection, 1st defendant has granted land to the 2nd 7 defendant.
e) The 2nd defendant took the contention that it has started erecting a building to construct Dr.B.R.Ambedkar Socio, Economic and Cultural Center to be used by the general public and thus, no action was tenable against them. It claims to be in possession of the property in question and sought dismissal of the suit.
f) Learned trial judge framed the following issues for consideration:
1. Whether the plaintiff proves that he is in lawful possession of suit schedule property?
2. Whether the plaintiff proves that interfering with schedule property?
3. What decree or order?
and applying the evidence tendered by the plaintiff as PW1 and placing reliance on 9 documents filed by him, decreed the suit as prayed for. Against it, the 1st defendant was in appeal in R.A.59/07.
g) In the appeal the legal heirs of the plaintiff were brought into the party array as by then the original plaintiff- 8 Gopal Setty was not alive. His legal heirs have continued to defend the appeal.
h) The learned appellate judge noticed 1st defendant is a statutory body and without issuing notice as contemplated under Section 284 of the Karnataka Municipal Corporations Act, the suit was not maintainable. The second circumstance noticed by the learned judge is, in the suit for injunction, plaintiff had to prove he was in lawful possession of the suit property and also to prove further that there was interference. On three counts, learned appellate judge held against the plaintiff, to remand the case to the trial court to conside the suit afresh and to dispose of the same in accordance with law.
5. The operative portion of the order of the appellate court reads thus:
ORDER The appeal is allowed.
The Judgement and decree dated 22.09.2007 passed by the Civil Judge (Sr.Dn) Chikmagalur in O.S.Nos.31/1999 is set aside and the matter is remitted Back to the trial court to dispose of the said suit as observed above.9
Send back the records to the lower court along with a copy of this judgment.
6. The question is, whether such order is permissible.
7. As referred to in paragraphs supra, plaintiff claims to be the absolute owner having succeeded to the property in question by virtue of the partition deed dated 6.1.1968. Defenant no.2 had taken the plea that it was the allottee of land by the 1st defendant and at no point of time, 1st defendant contended that the suit was not maintainable for want of statutory notice. The written statement is silent. It however did not accept the plaintiff's case that he was the owner of the property in question but the claim of the 1st defendant that it has donated the land to the 2nd defendant for construction of Dr.B.R.Ambedkar Bhavan itself indicates that the 1st defendant had dealt with the property of the plaintiff as if it belonged to the Municipality. Therefore, it was incumbent on the 1st defendant to establish that the property it claims to have allotted to the 2nd defendant is municipal property.
8. Plaintiff's contention is, there is land of the 10 Municipality adjoining his land which is described in the schedule to the plaint, and in such circumstances, we cannot accept claim of the 1st defendant that it was the owner of the property and also that the 2nd defenant was holding the property in the manner known to law. In the suit, 1st defendant has tendered evidence through DW2, Onkarmurthy who is the Revenue Inspector. He has furnished information about the measurement of the property and in cross-examination, plaintiff has elicited he does not know as to on what basis the measurement of 122' has been shown to be changed from 89' to 112'. Plaintiff has further relied on Exs.P4 and P5 and the evidence of DW2 to show he had admitted no order of the competent authority was passed to change the mesurement indicated in the present record. As a dispute was raised bout the identification of the property, it became incumbent on the 1st defendant to show which property belonged to it and which property was granted/allotted to the 2nd defendant. Plaintiff on his part had produced the partition deed evidencing division of property.
11
9. Be that as it may, the appellate court was bestowed with authority to analyze the evidence and take a final decision. Instead, it has remanded the matter to the trial court on the ground that the suit was filed without issuing statutory notice as required under Section 284 of the Municipalities Act. Even if it was so, the appellate court should have taken a final decision. There is no question of remanding the suit to the trial court. In fact from the discussion made in the ipugned judgment, it could be seen the trialcourt has besbowed its concern to all the aspects and has applied evidence in the correct perspective. The said order is well reasoned but the appellate court has interfered only on the ground that plaintiff had not served statutory notice as required under Section 284 of the Municipalities Act upon the officers of the Corporation. As such a defence was not taken in the written statement at the earlier point of time, the proposition laid down by this court in the case of 1996(2) Kar.L.J.365 (Anantha Ramrao v. Town municipal Council, Devadurga, District Raichur and Another) would squarely apply to the facts of this case. I 12 cannot summon myself to take a different view because it is the correct position of law.
10. So far as remand is concerned, it must be noticed unless circumstances referred to in Rules 23 and 23A and 24 of Order XLI, C.P.C. are made out, the order of remand under Order XLI is not justified. Conferment of appellate jurisdiction is for re-appraisal of evidence for correction of any error which the trial court might have inadvretently committed, but not to bring it ina narrow compass to reject all findings. In the present case, the fact is, there is a dispute as to which property was allotted to the 2nd defendant. Defenants 1 and 2 have failed to establish that the property in question is not the property which belonged to the plaintiffs' grandfather and therefore, that evidence has to be looked into. Besides, the question of title also was an incidental issue. The trial court has embarked upon all these aspects which, I feel, needs no interference.
11. In the result, the appeal succeeds. The order of remand passed by the apellate court in R.A.59/07 is set aside. The appeal is remanded to the appellate court to 13 hear the appeal and record a de novo finding and dispose of the appeal in accordance with law.
SD/-
JUDGE vgh*