Karnataka High Court
Smt. Vasanthamma D L vs City Municipal Council on 7 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:45013
RSA No. 979 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 979 OF 2013 (RES)
BETWEEN:
1. SMT. VASANTHAMMA D.L.,
W/O LATE VEERABHADRAIAH,
AGED ABOUT 74 YEARS,
2. SRI R.V.JAYARAJ,
S/O LATE VEERABHADRAIAH,
AGED ABOUT 53 YEARS,
3. SRI D.V.RAVISHANKAR,
S/O LATE VEERABHADRAIAH,
AGED ABOUT 46 YEARS,
4. SMT. D.V.VATHSALA,
D/O LATE VEERABHADRAIAH,
AGED ABOUT 43 YEARS,
5. SMT. SHASHIKALA,
Digitally signed by D/O LATE VEERABHADRAIAH,
ANUSHA V AGED ABOUT 46 YEARS,
Location: High
Court Of 6. SRI R.M.SHIVARUDRAPPA,
Karnataka S/O LATE MALLAIAH,
AGED ABOUT 78 YEARS,
7. SRI R.M.MAHESHA,
S/O LATE MALLAIAH,
AGED ABOUT 63 YEARS,
8. SRI MALLIKARJUNA M.,
S/O LATE MALLAIAH,
AGED ABOUT 64 YEARS,
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NC: 2024:KHC:45013
RSA No. 979 of 2013
9. SRI R.V.MALLESHA,
S/O LATE VEERAPPA,
AGED ABOUT 63 YEARS,
ALL ARE R/A ROJIPURA, 4TH WARD,
DODDABALLAPUR TOWN - 561 203.
...APPELLANTS
[BY SRI S.SIDDAPPA, ADVOCATE (ABSENT)]
AND:
CITY MUNICIPAL COUNCIL,
DODDABALLAPUR,
REP BY COMMISSIONER,
DODDABALLAPURA TOWN - 561 203.
...RESPONDENT
[BY SRI K.N.SRINIVASA, ADVOCATE (VC)]
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT & DECREE DATED 06.04.2013 PASSED IN
R.A.NO.02/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT, DODDABALLAPUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 20.10.2008 PASSED IN
O.S.NO.239/2001 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.)
AND JMFC, DODDABALLAPUR.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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NC: 2024:KHC:45013
RSA No. 979 of 2013
ORAL JUDGMENT
Challenging judgment and decree dated 06.04.2013 in R.A.no.02/2009 passed by Presiding Officer, Fast Track Court, Doddaballapur (hereinafter referred to as 'first appellate Court'), this appeal is filed.
2. Brief facts as stated are, appellants were plaintiffs in O.S.no.239/2001 filed for directing defendant to return suit property and revoke Gift Deed dated 04.08.1942 in favour of plaintiffs and for perpetual injunction restraining defendant from interfering with suit property. Suit claim was on premise that under registered Gift Deed dated 04.08.1942, executed by Late Veerappa, who was adopted son of Mariyappa @ Mallaiah along with his mother, land bearing Sy.no.116 of Rojipura Village, Kasaba Hobli, Doddaballapura Taluk, consisting of a stone building measuring East-West 60 Feet and North-South 58 Feet in addition to that to East of said chowltry, there is a vatara consisting of East-West 28 Feet and North-South 50 Feet and to its East-West 20 Feet, North-South - 58 Feet and 14 Ankanas of Stone Roofing Building and towards road side, a land measuring North-South 120 Feet and East-West 145 Feet vacant place, one stone revitted well and one peepal tree and -4- NC: 2024:KHC:45013 RSA No. 979 of 2013 also a vacant place around chowltry was stated to be schedule property (hereinafter referred to as 'suit property'). Suit property was gifted to defendant-City Municipal Corporation, Doddaballapura (hereinafter referred to as 'Corporation') for purpose of maintaining existing chowltry and to establish hostel for High School students to provide lodging and boarding of students in said hostel, etc.
3. It was further stated that said conditions were incorporated as conditions in Gift Deed. It was further stated that though defendant had accepted Gift Deed with conditions. There was violation of conditions as suit property was let out for running match factory by M/s.Five Star Match Works Industries Association. Same was questioned in O.S.no.175/1979 filed for permanent injunction against said Industry. Though suit was dismissed, R.A.no.05/1981 filed before District Court, Bengaluru Rural District, Bengaluru, came to be allowed and injunction was granted. Consequently, running of Match Work factory in suit property was stopped. As a consequence, defendant-Corporation ought to have returned land to donor. Therefore, legal notice was issued on 14.10.1998. It was stated even earlier, notice dated -5- NC: 2024:KHC:45013 RSA No. 979 of 2013 06.12.1993, was issued. Since there was no response, suit was filed.
4. After receipt of suit summons, defendant entered appearance and filed written statement admitting Gift Deed dated 04.08.1942. Even averments about recitals in Gift Deed was admitted. It was stated that donee had carried out repairs and accommodated people to take shelter in chowltry for some time. But with passage of time, building became very old and would require huge investment for repairs. It was further stated, Corporation was making efforts to obtain grant from Government for construction, etc. Thus, defendant had not violated conditions of Gift Deed.
5. Based on pleadings, trial Court framed following issues:
"1. Whether the plaintiffs prove that the gift dated 04.08.1942 is a conditional gift?
2. Whether the plaintiffs prove that the defendant corporation has violated the condition of the gift?
3. Whether the plaintiffs prove that the gift dated 04.08.1942 has been revoked as stated in para 4 of the plaint?
4. What order or decree?"-6-
NC: 2024:KHC:45013 RSA No. 979 of 2013
6. Thereafter, plaintiffs examined three witnesses as PWs.1 to 3 and got marked Exs.P1 to P32. Defendant examined three witnesses and got marked Exs.D1 to D7. On consideration, trial Court decreed suit. Aggrieved, defendant preferred R.A.no.02/2009 on several grounds. Based on contentions urged, first appellate Court framed following points for consideration:
"1. Whether the judgment and decree under appeal is perverse, capricious and arbitrary and it calls for any interference by this court?
2. What order?"
Thereafter, it answered point no.1 in affirmative and point no.2 by allowing defendant's appeal, setting aside judgment and decree passed by trial Court and dismissing plaintiffs' suit with cost. Aggrieved, present appeal was filed.
7. Main contentions urged against impugned judgment and decree are that first appellate Court failed to appreciate material on record and evidence led by appellants-plaintiffs. There was failure to frame proper points for consideration and grant of decree of injunction against starting of M/s.Five Star Match Works Industries Association, by itself would substantiate violation of conditions of Gift Deed. Therefore, -7- NC: 2024:KHC:45013 RSA No. 979 of 2013 decree passed by trial Court was justified and reversal of same by first appellate Court was unjustified.
8. It was contended, no material was produced by defendant to indicate failure for violating wishes of donor as expressed in conditions. Therefore, judgment and decree passed by first appellate Court was perverse and seeks for restoration of judgment and decree passed by trial Court by answering proposed substantial question of law in favour of appellant, which reads as follows:
"Whether judgment and decree of first appellate Court is perverse and opposed to the well established principle of law?
9. On other hand, learned counsel for respondent would submit that trial Court had passed impugned judgment and decree based on photographs produced by plaintiffs as Exs.P13 to P31. Though building, which is already existing in suit property was admitted to be in a dilapidated condition, it was stated that Corporation had sought for Government grant for repair and construction of new building, etc. Since same required funds, it cannot be taken as violation. It was further submitted that at time of gift, though requirement of hostel to facilitate accommodation for students -8- NC: 2024:KHC:45013 RSA No. 979 of 2013 coming from rural areas to Doddaballapura for education was required, due to change in circumstances, wherein government schools established within respective places, influx of students for studying at Doddaballapura had receded. In any case, defendant had taken decision for maintaining purpose of gift. It was further submitted, before trial Court, PW.1 had admitted that there was no condition in gift for its cancellation in case of violation. Therefore, it was also admitted that after gift, Corporation used suit property for purpose for which it was gifted. Such being case, first appellate Court, after due appreciation of entire material on record, had rightly reversed trial Court's judgment and decree. Therefore, no substantial question of law as proposed arise for consideration and sought dismissal of appeal.
10. Heard learned counsel and perused impugned judgment and decree and record.
11. From above, it is seen that this is plaintiffs' appeal challenging judgment and decree passed by first appellate Court. Claim of plaintiffs before trial Court was that adopted son of Mariyappa @ Mallaiah, one Late Veerappa along with his mother had gifted suit property to Doddaballapur Municipal -9- NC: 2024:KHC:45013 RSA No. 979 of 2013 Corporation for maintaining chowltry in it, get it repaired and to construct hostel to provide lodging and boarding for students studying in Government High School.
12. It is case of plaintiffs that after acceptance of gift deed, defendant had sought to allot same for running of match factory by M/s.Five Star Match Works Industries Association, in violation of conditions of gift. Plaintiffs had filed a suit against defendant and M/s.Five Star Match Works Industries Association and succeeded in obtaining order of injunction. Same would per se establish violation of conditions of gift deed. It is further stated that photographs produced would indicate that property was not properly maintained and therefore, purpose of gift was violated. Consequently, plaintiffs were entitled for cancellation of gift and return of property. To substantiate entitlement of relief, plaintiffs led evidence of three witnesses. PW.1 was plaintiff no.2. It is seen that during his cross-examination, he admitted that after gift, property was used for purpose it was gifted. He also admitted that nowadays, students were not coming to Doddaballapura as villages had high schools. PW.1 further admitted that there was no condition in gift deed providing for revocation, in case of violation and
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NC: 2024:KHC:45013 RSA No. 979 of 2013 about not issuing notice for revocation of gift. PW.2, a resident of Doddaballapur town, though stated that defendant had violated conditions of gift deed as property was let out for M/s.Five Star Match Works Industries Association, admitted during cross-examination that he had not seen gift deed. PW.3, another resident of Doddaballapur town, who deposed likewise, admitted that he does not know conditions in gift deed.
13. Materials sought to be relied upon by plaintiffs are legal notice dated 14.10.1998, certified copy of judgment in RA no.05/1981, index of land, record of rights, gift deed and photographs with negatives. While passing impugned judgment and decree, trial Court extracted recitals from gift deed and by referring to conditions of gift and grant of injunction, proceeded to hold that there was violation of gift deed by defendant and decreed suit.
14. First appellate Court, passed judgment and decree after re-appreciation of entire material on record, taking note of admissions by plaintiffs' witnesses and evidence of defendant, wherein it stated that property was used for purpose of gift and since, it was in dilapidated condition, there were proposals for reconstruction for which they were in process of arranging
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NC: 2024:KHC:45013 RSA No. 979 of 2013 fund. It noted that even DWs.2 and 3 stated about said proposals. Materials produced by defendant including Exs.D4 and 5-plans; D6-cost estimate; D7-resolution passed by defendant for construction of new building would substantiate case of defendant that property was being used for purpose for which it was gifted.
15. In view of fact that there is admission that there was no condition in gift deed for revocation of gift and circumstances under which certain conditions were incorporated had changed, first appellate Court was justified in reversing judgment and decree passed by trial Court. Same is after due re-appreciation of entire material on record and conclusions arrived are based on material and cannot be stated to be perverse. No substantial question of law would arise for consideration.
Appeal is dismissed at stage of admission.
No order as to costs.
Sd/-
(RAVI V HOSMANI) JUDGE AV List No.: 1 Sl No.: 31