Karnataka High Court
The Secretary vs Smt M Adiseshamma on 12 October, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.1098/2006(INJ)
BETWEEN
1. THE SECRETARY
STATE OF KARNATAKA
REVENUE DEPARTMENT
M.S.BUILDING
BANGALORE - 560 001
2. THE DEPUTY COMMISSIONER
BANGALORE DIVISION
BANGALORE - 560 001
3. THE TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE - 560 009
4. THE REVENUE INSPECTOR
PEENYA DASARAHALLI
BANGALORE NORTH TALUK
BANGALORE - 560 038
...APPELLANTS
(BY SRI SHIVANANDA D.S., AGA)
AND
1. SMT. M. ADISESHAMMA
W/O. SHRI M. LAKSHMAIAH
RESIDING OPPOSITE TO
LISSY INDUSTRIES
2
JALAHALLI WEST
BANGALORE - 560 015
2. SMT. KAMALAKSHAMMA
W/O. LATE NARASIMHA SHETTY
NO.8384, PUSHKARANI ROAD
YELAHANKA
BANGALORE - 560 064
...RESPONDENTS
(BY SRI N.R.JAGADEESHWARA, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.09.2005 PASSED IN
O.S.NO.5540/1996 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Shivananda D.S., learned Additional Government Advocate appearing for the appellants and Sri N.R.Jagadeeshwara, learned counsel appearing for respondent Nos.1 and 2.
2. The present appeal is filed by the appellant- the Secretary of Revenue Department, challenging the 3 validity of the judgment and decree passed in O.S.No.5540/1996.
3. The parties are referred to as the plaintiffs and defendants for the sake of convenience as per their original ranking before the trial Court.
4. The plaintiff filed a suit in O.S.No.5540/1996 for the relief of permanent injunction against his vendor Smt. Kamalakshamma and the State of Karnataka, by its Secretary, Revenue Department.
5. Brief facts of the case are as under:
In respect of land in Sy.No.85 of Bagalagunte Village, Yashwanthapura Hobli, Bangalore North Taluk to the extent of 3 acres, occupancy rights were granted by the Special Deputy Commissioner exercising the power vested in him under the provisions of the Inams Abolition Act in favour of the first defendant-
Smt. Kamalakshamma.4
6. It is further contended that she formed a revenue layout in the said land as the land was not fit for agricultural purposes in view of the development in and around the area. The plaintiff has purchased the suit site bearing Sy.No.7 measuring 40 feet x 30 feet from the first defendant by paying sale consideration in a sum of Rs.40,000/-by entering into an agreement to sell at the first instance on 22.02.1995.
7. It is also contended that by way of part performance of the agreement, the plaintiff was put in possession of the suit property by the first defendant and the first defendant also executed a General Power of Attorney in favour of the plaintiff. Thereafter, the plaintiff constructed a house therein. On 28.07.1996, the second defendant attempted to demolish the structure in the suit property. The plaintiff approached the jurisdictional police but her complaint was not received by the police. Again on 03.08.1996, there was 5 an attempt to demolish the house of the plaintiff highhandedly. Apprehending the demolition, left with no alternate, the plaintiff approached the Civil Court with a prayer for grant of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.
8. After the service of notice of suit summons, the first defendant remained exparte and defendant Nos.2 to 5 filed a common written statement denying the plaint averments in toto. There was a specific contention taken by defendant Nos.2 to 5 that Sy.No.85 of Bagalakunte Village is a gomal land and the plaintiff filed a false suit concocting the documents to knock off the Government property and thus sought for dismissal of the suit.
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9. On the basis of the rival contention of the parties, the Trial Court raised the following issues in O.S.No.5540/1996:
1. "Whether the plaintiff proves her lawful possession of the suit property on the date of the suit?
2. Whether the plaintiff further proves alleged interference by the defendants?
3. Whether the plaintiff is entitled to a decree of permanent injunction as sought for?"
10. In order to discharge the burden cast on the plaintiff, the plaintiff got examined herself as PW.1. The plaintiff got examined Sri M.G.Manjunatha, the General Power of Attorney holder of the plaintiff and relied on 7 documents which were exhibited and marked as Ex.P1 to Ex.P7 comprising of sale agreement, the General Power of Attorney, affidavit of the first defendant, Tax paid receipt, Assessment Registrar Extract, Special power of attorney and a certified copy of the judgment in O.S.No.668/1992.
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11. PW.1 was cross examined by suggesting that the plaintiff is in illegal possession of the suit land. However, there is no contra evidence placed on record by the defendants to probabilise the case of the defendants that the suit site is part of Sy.No.35 which is gomal land.
12. On conclusion of the recording of evidence, the Trial Court on cumulative consideration of the material on record and in the light of the arguments putforth by the parties, decreed the suit of the plaintiff. However, it is also observed by the learned Trial Judge that if the plaintiff has been able to establish that she is in possession of the property, the defendants are at liberty to eject the plaintiff from the suit schedule property in accordance with law.
13. Subsequent thereto, it is submitted at the Bar that the first defendant-Smt. Kamalakshamma, who is 8 the vendor of the plaintiff, has filed a suit in O.S.No.5102/1999 for declaration and injunction, the same is decreed and it is now the subject matter of RFA.No.1724/2006.
14. Being aggrieved by the impugned judgment, the defendant Nos.2 to 5 have preferred this appeal on the following grounds:
1) "It is submitted that the suit itself is not maintainable for non-compliance of statutory notice under Section 80 of the Civil Procedure Code as per Judgment of Hon'ble Supreme Court of India reported in AIR 2005 SC page 1891.
2) The judgment and decree passed by the Court below is erroneous and contrary to the judgment of this Hon'ble Court reported in ILR 2002 KAR page 287.
3) Admittedly, the suit property belongs to the State Government. Therefore, notice under Sec. 80 of the Civil Procedure Code is required to be issued as a condition precedent for a suit for injunction against the State Government as per judgment of the Hon'ble Supreme Court of India reported in AIR 1969 SC page 1068.
4) A trespasser cannot be granted an order of injunction against the true owner.9
Therefore, the judgment and decree passed by the Court below is erroneous in law and the same is liable to be set aside.
5) It is submitted that for obtaining an order of injunction against the public authority in respect of land or structure, the plaintiff has to show clear title and rights in respect of the property, as a condition precedent. Therefore, the Trial Court has failed to follow the judgment of the Hon'ble Court reported in ILR 1995 Karnataka page 3579.
6) It is submitted that the defendants have raised a specific plea that no notice has been issued under Sec. 80 of CPC. In spite of that, the learned Judge has not framed any issues regarding maintainability for non-compliance under Sec. 80 of Civil Procedure Code and the same has resulted in miscarriage of justice.
7) The Trial Court has come to a wrong conclusion which is opposed to the materials placed before the Trial Court and the evidence on record. Hence, the same liable to be set aside."
15. Reiterating the grounds urged in the appeal memorandum, Sri Shivananda D.S., learned Additional Government Advocate for the appellant vehemently contended that the plaintiff's possession of the suit schedule property was illegal inasmuch as 10 Smt. Kamalakshamma did not possess any right to enter into an agreement with the plaintiff for the sale of site No.7 in Sy.No.85 of the Bagalakunte Village inasmuch the said land could not have been granted to Smt. Kamalakshamma inasmuch as the said land is a gomal land.
16. It is further contended by the learned Additional Government Advocate that the documents that are relied on by the plaintiff are concocted documents. Therefore, the possession of the plaintiff is per se illegal and therefore, decreeing the suit of the plaintiff is incorrect and sought for allowing the appeal.
17. Per contra, Sri N.R.Jagadeeshwara, learned counsel representing the respondents, vehemently contended that the suggestions made to PW.1 that the plaintiff is in possession of the property may be for the purpose of argument if treated as illegal, then also, the 11 plaintiff is to be evicted from the suit land with the process known to law. He further contended that the suit filed by the first defendant - Smt. Kamalakshamma in O.S.No.5102/1999 being decreed and being the subject matter of RFA.No.1724/2006 which is pending before the Division Bench of this Court, the contention on behalf of the appellant cannot be countenanced in law and therefore, he sought for dismissal of the appeal.
18. In view of the rival contentions of the parties, the following points that would arise for consideration are:
1. "Whether the plaintiff has been successful in establishing that she is in possession of the suit schedule property?
2. Whether the impugned judgment is suffering from legal infirmities and perversity and thus calls for interference?
3. What order?"
19. In the case on hand, in order to prove the plaint averments, the Power of Attorney holder of the 12 plaintiff, which is marked at Ex.P6 has entered into the witness box and reiterated the contents of the plaint. The agreement to sell executed by the first defendant Smt.Kamalakshamma in favour of the plaintiff and also general power of attorney executed by the first defendant in favour of plaintiff, are marked as Ex.P1 and P2. In the cross-examination of PW.1, suggestion made to him itself establishes that the plaintiff is in possession of the suit property. Whether the plaintiff is in lawful possession or unlawful possession is a matter that has been considered by the trial Court . Admittedly, the suggestion would go to show that the plaintiff is in possession of the property. According to the defendant, the land in Sy.No.85 of Bagalakunte Village is gomal land. To substantiate the same, there is no oral or documentary evidence on record placed on behalf of the appellants who are defendant Nos.2 to 5. Nothing 13 prevented the defendants from leading the evidence before the trial Court.
20. Be it what it may, the fact remains that the plaintiff is in possession of the suit property. According to the plaintiff, she is in possession of the property by virtue of Ex.P1 and Ex.P2. If at all, Smt. Kamalakshamma did not have any right over the suit property, then the appellants are at liberty to take possession of the suit schedule property from the plaintiff in accordance with law and the same has been observed by the learned trial Judge in the impugned judgment itself.
21. Further to that, Smt. Kamalakshamma has filed a suit for declaration stating that Sy.No.85 was granted to her by the Special Deputy Commissioner exercising the power vested in him under the provisions of the Inams Abolition Act and the suit of 14 Smt. Kamalakshamma in O.S.No.1502/1999 has been decreed against which the Government has filed an appeal in RFA.No.1724/2006, which is pending before the Division Bench. Unless, there is a clear finding that Smt. Kamalakshamma did not have any right whatsoever to form the layout in the reconveyed land in Sy.No.85 of Bagalakunte Village, the plaintiff cannot be disturbed from her possession over the suit schedule property.
22. It is settled principles of law that even assuming that the person in possession of the property does not have proper title to establish, such person is dispossessed by the concerned Authority only by a process known to law and illegal dispossession is impermissible. Therefore, subject to result of the pending litigation in RFA.No.1724/2006, the possession of the plaintiff is to be protected. Accordingly, this Court is of the considered opinion that no grounds are made 15 out by the learned AGA for appellants to interfere with the order. Further, it is always open for the appellants to take action in accordance with law, if there is a changed circumstance or if there is a finding in favour of the appellants in the pending RFA.No.1724/2006.
With these observations, the points are answered in the affirmative and in the negative respectively and following order is passed:
ORDER Appeal sans merits and is hereby dismissed.
Sd/-
JUDGE KTY