Karnataka High Court
Shivaraj S/O Veershetty Patil vs The Commissioner, City Municipl ... on 20 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
REGULAR SECOND APPEAL No.200197 OF 2015
CONNECTED WITH
REGULAR SECOND APPEAL No.200198 OF 2015
IN RSA No.200197 OF 2015
BETWEEN:
SHIVARAJ,
S/O. VEERSHETTY PATIL,
AGE : 64 YEARS,
OCC: AGRICULTURE,
R/O. SHARAN NAGAR,
NEAR KEB, BIDAR.
... APPELLANT
(BY SRI. SHARANABASSAPPA K. BABSHETTY, ADVOCATE)
AND:
1. THE COMMISSIONER,
CITY MUNICIPAL COUNCIL,
BIDAR-585401.
2
2. VAIJINATH,
S/O. SANGRAMAPPA,
AGE: 75 YEARS,
OCC: PENSIONER,
R/O. BASAVAKALYAN,
NOW AT BANK COLONY,
BIDAR-585 401.
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DTD. 13.03.2015 PASSED IN R.A. NO.29/2010 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM
AT BIDAR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 24.02.2010
PASSED IN O.S. NO.226/2001 ON THE FILE OF THE IIND
ADDITIONAL CIVIL JUDTE (J.D.) AT BIDAR.
IN RSA No.2001978 OF 2015
BETWEEN:
SHIVARAJ,
S/O. VEERSHETTY PATIL,
AGE : 64 YEARS,
OCC: AGRICULTURE,
R/O. SHARAN NAGAR,
NEAR KEB, BIDAR.
... APPELLANT
(BY SRI. SHARANABASSAPPA K. BABSHETTY, ADVOCATE)
AND:
1. THE PRESIDENT,
N.G.O. CUM-ADMINISTRATOR OF
N.G.Os, C/O. ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETY IN
BIDAR DISTRICT, BIDAR-585 401.
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2. VAIJINATH,
S/O. SANGRAMAPPA,
AGE: 75 YEARS,
OCC: PENSIONER,
R/O. BASAVAKALYAN,
NOW AT BANK COLONY,
BIDAR-585 401.
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DTD. 13.03.2015 PASSED IN R.A. NO.30/2010 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM
AT BIDAR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 24.02.2010
PASSED IN O.S. NO.103/2002 ON THE FILE OF THE IIND
ADDITIONAL CIVIL JUDTE (J.D.) AT BIDAR.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant Sri. Sharanabassappa K. Babshetty. Perused the judgment of the Trial Court and the First Appellate Court.
These two appeals are arising out of the judgment and decree passed in O.S. No.226/2001 and O.S. No.103/2002 respectively passed by the II Additional 4 Civil Judge (Junior Division) at Bidar dated 24.02.2010 which were confirmed in the first appeals before the Additional Senior Civil Judge and CJM, Bidar in R.A. Nos.29/2010 and 30/2010, vide judgment dated 13.03.2015.
For the purpose of easy understanding, convenience and to avoid repetition of facts, the ranks of the parties as per their ranks before the Trial Court is retained.
The Trial Court has clubbed O.S. No.226/2001 and O.S. No.103/2002 and recorded the common evidence and rendered the common judgment.
The case in O.S. NO.226/2001 was filed by one Sri. Shivaraj against the Commissioner, City Municipal Council, Bidar and Sri. Vaijinath S/o. Sangramappa wherein the same Sri. Shivaraj has also filed another suit in O.S. No.103/2002 against the President, NGO- 5 cum-Administrator of NGO's and Sri. Vaijinath S/o. Sangramappa. Both the suits were filed for perpetual injunction and also for declaration. The plaintiff by virtue of pleading pleaded that, he is the absolute owner and in exclusive possession and enjoyment of the plot bearing No.19 measuring 50' x 50' carved in land bearing Sy.Nos.33 and 39 of Gullarhaveli in Bidar, having specific boundaries on the East by : Plot No.20, West by : Open land, North by : Open land and on the South by : Part of Plot No.19,. The plaintiff claims that, the suit property being given to him by virtue of a Hakkupathra dated 24.11.1998 for consideration of Rs.25,000/- by NGO's Housing Co-operative Society, Bidar particularly by Defendant No.1 in O.S. No.103/2002. From the date of the said Hakku Pathra, he claims that he has been in exclusive possession and enjoyment of the said suit property as owner and he has been paying the municipal taxes etc., It is also his contention that, the plaintiff has approached the 6 Defendant No.1 (in O.S.No.226/2001) for change of mutation into his name and the same is pending. It is stated that the Defendant No.2 (Vaijinath) in both the cases has no right, title and interest over the property, but has started interfering with the plaintiff's possession and enjoyment of the property. It is also alleged that, the Defendant No.1 in O.S. No.226/2001 has also no right, title and interest or possession on the suit property. On the instigation of some mischievous person, he also started causing illegal interference to the plaintiff's possession and enjoyment of the property. The Defendant No.1 issued a Show cause notice and provisional order, directing the plaintiff to stop any construction in the said property and also interfered with the possession of the plaintiff.
2. It is the case of the plaintiff in O.S. No.103/2002 that, the Defendant No.2 Sri. Vaijinath is also claiming that, he is the owner in possession of the 7 said property having purchased the same from Defendant No.1. The Defendant No.2 falsely representing by its bogus representation before the CMC, Bidar got issued a false notice to the plaintiff on 01.01.2001. The defendant No.1 - Society appeared through its counsel and filed the written statement and in fact, denied the possession and ownership over the property by the plaintiff to the extent of 50' x 50' etc., The defendant No.1 in O.S. No.103/2002 i.e., the President of NGO's Society has stated that the defendant No.1 was the owner in possession of the suit plot which was allotted and sold to Defendant No.2. The plaintiff admittedly is an agriculturist and he is not a member of NGOs Housing Co-operative Society Limited. Therefore, the question of allotting the suit plot to the plaintiff does not arise. The defendant No.1 also denied the interference with the plaintiff's possession as the Defendant No.1 denied the possession of the plaintiff over the property.
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3. The defendant No.1 submits that the defendant No.2 is the allottee of Plot No.20 and defendant No.2 had purchased another open site lying behind Plot No.20 towards Western side numbered as Plot No.20(A), through a registered sale deed dated 08.01.2001. On the basis of the said sale deed, the defendant No.2 has become the actual owner of Plot Nos.20 and 20(A).
4. The defendant No.2 in both the cases, is the person who claimed the suit schedule property, also he has filed his written statement denying all the facts as stated by the plaintiff. He denied the title and possession of the plaintiff over Plot No.19. Apart from denying the case of the plaintiff, the Defendant No.2 has specifically stated that the Defendant No.2 is a member of the NGO Society/Defendant No.1 and it has allotted plot Nos.20 and 20(A) to Defendant No.2. The defendant No.2 is the owner and possessor of plot bearing No.20(A) 9 carved out of Sy.Nos.33 and 39. There was no interference and there is no plot as such in Plot No.19 in possession and enjoyment of the plaintiff. Therefore, he prayed for dismissal of the suit. The Trial Court, considering the contentious pleadings, has framed the following issues:
Issues in O.S. No.226/2001:
"1. Whether the plaintiff proves that he is the lawful possession of suit plot on the date of suit?
2. Whether the plaintiff further proves that the alleged obstruction, interference by the defendants?
3. Whether the plaintiff is entitled for relief of Perpetual Injunction as prayed?
4. What Order or Decree?
Issues in O.S. No.103/2002:
"1. Whether the plaintiff proves that he is the absolute owner and possessor of the suit plot as on the date of suit?10
2. Whether the plaintiff further proves that the registered sale deed dated 08.01.2001 executed in favour of defendant no.2 is null and void?
3. Whether the defendant no.1 proves that he was the owner and possessor of the suit plot before the execution of registered sale deed dated 08.01.2001 in favour of defendant no.2?
4. Whether the defendant no.2 proves that he is the owner and possessor of the suit plot under the registered sale deed dtd. 08.01.2001?
5. Whether the plaintiff is entitled for relief of Permanent Injunction as prayed for?
6. What Order or Decree?
Additional Issues :
"Whether the suit of the plaintiff is not maintainable in view of non-compliance of section 125 of Karnataka Co-operative Societies Act?"
5. The plaintiff in order to prove his case in O.S. No.226/2001, examined himself as PW-1 and one witness PW-2 and got marked 24 documents at Exs.P-1 11 to P-24. The defendant No.2 got examined himself as DW-1 and one witness as DW-2 and produced 18 documents at Exs.D-1 to D-18 (common evidence is recorded in the said case). The Trial Court after considering the oral and documentary evidence on record, answered Issue Nos.1 to 3 in O.S. No.226/2001 in the 'Negative' and issue Nos.1, 2, 5 and additional issue in O.S. No.103/2002 in the 'negative' and issue Nos.3 and 4 in the 'Affirmative' and ultimately dismissed the suit of the plaintiff.
6. Being aggrieved by the above said judgment and decree in both the cases, the plaintiff Sri. Shivaraj has preferred two appeals before the Additional Senior Civil Judge and CJM, Bidar in R.A. NOs.29/2010 and 30/2010 respectively.
7. The First Appellate Court has in fact, extracted the pleadings of the parties and as well as the issues framed by the Trial Court and considering the 12 grounds urged before the First Appellate Court, the First Appellate Court has formulated the following points for consideration:
"1. Whether plaintiff is owner of suit plot by virtue of Ex.P1/Hakupatra issued by NGO housing Society as alleged?
2. Whether plaintiff proves that he is in lawful possession and enjoyment of the suit plot as on the date of suits?
3. Whether defendant no.2 is the owner in possession of suit plot No.20/A by virtue of Ex.D2/registered sale deed dated 08.01.2001? If it is so, can the plaintiff establish that the said sale deed is null and void as asserted?
4. Whether plaintiff is entitled for declaratory relief as sought for?
5. Whether plaintiff is entitled for permanent injunction against defendants as prayed for?
6. Whether impugned common judgment and decree dismissing both suits of the plaintiff is erroneous and requires interference? If so, to what extent?13
8. The First Appellate Court again after considering the oral and documentary evidence placed on record in detail, has answered the points Nos.1, 2, 4 and 5 in the 'negative' and point Nos.3and 6 in the 'partly affirmative' and ultimately came to the same conclusion as that of the Trial Court and found no mistake or illegality committed by the Trial Court and confirmed the judgment and decree passed by the Trial Court and consequently dismissed the appeals.
9. The First Appellate Court and the Trial Court have in fact considered the oral and documentary evidence on record. Ex.P-18 is the main document relied upon by both the courts, which show that the layout was formed by the NGOs Housing Co-operative Society Limited, which was not disputed either by the plaintiff or by the defendants. It is the case of the plaintiff that the Society allotted Plot No.19 to him and the 2nd defendant claims that Plot Nos.20 and 20(A) have been 14 allotted to him. The allocation of sites has been considered by both the courts very specifically, as per the layout plan Ex.P-18. Accordingly, Plot Nos.19 and 20 are abutting to each other. Plot Nos.18 to 21 are existed in one row with same size and as per Ex.P-18 and Ex.D-11, the same has been clarified to show that the vendor of the plaintiff i.e. Society was in possession and thereafter the plaintiff became the owner of the property measuring 50' x 50'. He has not produced any material to show that he purchased the same by way of any registered document. The Appellate Court has observed, to the West of each plot Nos.18 to 21, some open space is undisputedly existed. The plaintiff claims that the Western open space is under his ownership and possession by virtue of document Ex.P-13. The said open space admittedly existed to the West of Plot No.20 which belongs to Defendant No.2 to the extent of 50' x 50' which exactly claimed by the plaintiff as if it was granted to him by way of Haku Pathra. Therefore, it 15 goes without saying that both the plaintiff and the Defendant No.2 are claiming right, title and interest over the said portion of 50' x 50' which is abutting to Plot No.20. Both the courts have categorically came to the conclusion that the NGOs Society has sold the said open area to the extent of 50' x 50' to the respective owners. Accordingly, defendant No.2 has purchased the suit plot, which is admittedly existed to the West of his plot no.20 which is called as Site No.20(A) under a registered sale deed. The plaintiff claims that the same portion (styled as plot No.19) on the basis of a Hakku Pathra issued by the President of NGO Housing Co- operative Society Limited i.e. PW-2 examined before the Trial Court and the defendant No.2 denies the said document as one created and fabricated. Both the Courts have categorically appreciated the documents i.e. the Hakku Pathra dated 24.11.1998 relied upon by the plaintiff marked at Ex.P-1 and the sale deed executed by NGOs Society in favour of Defendant No.2, 16 after the Resolution being passed in the Society and also a Sketch Map Ex.P-10, and after considering the Hakku Pathra as against the sale deed of Defendant No.2, the Trial Court and the First Appellate Court have come to the conclusion that, the plaintiff has not acquired any right, title and interest over the said portion of the property which is situated abutting to Site No.20 which is sold by the NGOs Society in favour of Defendant No.2 by virtue of the registered sale deed. The Courts have held that no right, title and interest has been passed on to the plaintiff by way of said Hakku Pathra.
10. Even before this Court, the Court has raised a query to the learned counsel for the appellant as to how the NGOs Co-operative Society Limited can issue a Hakku Pathra transferring the right, title or interest over the site formed by it in a layout without following the procedure contemplated under the Transfer of 17 Property Act to sell the property conveying right, title and interest in favour of the plaintiff, whether any special provisions are there under the Co-operative Society's Act or any law for the time being in force empowering the Defendant No.1/Society to issue Hakku Pathra and by way of such Hakku Pathra whether they can convey any right, title and interest over the property worth more than Rs.100/- in favour of the plaintiff. The learned counsel inspite of granting time, did not produce any material before this Court or any law for the time being in force showing that the defendant No.1/Society has got such power to convey right, title and interest over the property bye-passing the Transfer of Property Act. Therefore it goes without saying that the plaintiff has not established any right, title and interest over the said property by virtue of Hakku Pathra relied upon by him at Ex.P-1. 18
11. On the other hand, it is not disputed by the plaintiff that, the same property which is named as Plot No.19 is a site which is abutting to Plot No.20 measuring 50' x 50' which is in dispute has been sold by the Defendant No.1/Society in favour of Defendant No.2 by virtue of a registered sale deed. The said sale ahas also been fully supported by a resolution passed by the Society/Defendant No.1 and also the sale deed Ex.D-2 marked before the Trial Court by Defendant No.2. The Trial Court and the Appellate Court have after considering oral evidence and documents produced by the defendants, by virtue of the said sale deed and also the map prepared, Assessment List and also Ex.D-11 certified copy of the sale deed, Mutation Orders and the tax paid receipt, have come to the conclusion that the plaintiff has not established his right, title and interest or possession over the said open space.
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12. The Trial Court and the First Appellate Court have considered both the oral and documentary evidence on record and came to a correct finding on facts with reference to the disputed property. None of the Courts have framed any question of law raised by any of the parties, in fact, no legal question has been raised and answered by both the Courts. Before this Court also, in my opinion, when both the Courts have appreciated the factual aspects on the oral and documentary evidence adduced by the parties, no substantial question of law arises for consideration by this Court.
13. Under the above facts and circumstances, I am of the opinion that, no question of interference with the factual consideration by the Courts below and giving finding on the basis of appreciation of facts.
14. Hence, I pass the following:
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ORDER Both the appeals are devoid of merits as no substantial question of law arises for consideration of this Court. Hence, both the appeals are hereby dismissed.
Under the peculiar circumstances, there is no order as to cost.
Sd/-
JUDGE snc