Karnataka High Court
Badajana Kshemabhivrudhi Sangha ... vs Muddaiah on 10 September, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
R.S.A. NO.1921/2005
BETWEEN :
Badajana Kshemabhivrudhi
Sangha (Regd.),
No.19/2, 2nd Cross,
Gundappa Compound,
Chlurpalya, Magadi Road,
Mallige Thota,
Bangalore - 560 023,
Represented by its
President Sri.N.K.Krishnappa,
S/o.Kadappa,
Aged about 61 years. ...APPELLANTS
(By Sri.B.K.Chandrashekar &
Sri.N.Kempe Gowda, Adv. for
M/s.ACC Associates, Advs.)
AND :
1. Sri.Muddaiah,
S/o.Puttaiah,
Aged about 46 years,
2. Sri.Anjanappa,
S/o.Galappa,
Aged about 85 years,
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3. Sri.Chikkasiddappa,
S/o.Ramaiah,
Aged about 51 years,
4. Sri.Mylarappa
S/o.Neelappa,
Aged about 46 years,
5. Therappa,
S/o.Chikkasiddappa,
Aged about 56 years,
6. Smt.Huchamma,
W/o.Hanumanthappa,
Aged about 41 years,
7. Sri.Sugunachar @
Subbalingachari,
S/o.Honnappa @
Honnachari,
Aged about 56 years,
8. Smt.Jayamma,
W/o.late Hanumanthappa,
Since dead by L.Rs.
(a) Rajanna,
S/o.Late Hanumanthappa,
Aged about 40 years,
(b) Kullappa,
S/o.Late Hanumanthappa,
Aged about 35 years,
(c) Ramanjanappa,
S/o.Late Hanumanthappa,
Aged about 32 years,
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(d) Manjunatha,
S/o.Late Hanumanthappa,
Aged about 28 years,
9. Smt.Gangamma,
W/o.Late Venkatappa,
Aged about 31 years,
All are residents of
Kannahalli Village,
Yeshwanthapura Hobli,
Bangalore North Taluk. ...RESPONDENTS
(By Sri.Ravishankar K., Adv. for
Sri.M.Shivaprakash, Adv. for R1 to R6)
. . . .
This R.S.A. is filed under Section 100 of the Code
of Civil Procedure against the Judgment and Decree
dated 03.02.2005 passed in R.A.No.182/99 on the file of
the Prl. Civil Judge (Sr.Dn.), Bangalore Rural District,
Bangalore allowing the appeal and setting-aside the
Judgment and Decree dated 26.08.1999 passed in
O.S.No.320/1997 on the file of the Additional. Civil
Judge (Jr.Dn.), Bangalore Rural District, Bangalore.
This R.S.A. coming on for hearing, this day, the
Court delivered the following:
JUDGMENT
The plaintiff is in appeal. The suit is filed for bare injunction in respect of the suit schedule property. The learned Trial Judge decreed the suit. On appeal by the defendants, the learned Appellate Judge has reversed -4- the judgment and decree of the Trial Judge as against which, the plaintiff is before this Court.
2. The matter arises in the following manner:
During the course of this judgment, the parties would be referred to as per their ranking in the Trial Court.
The plaintiff is a registered Sangha and they have formed themselves into an association. The association is registered with the Competent Authority under the Karnataka Societies Registration Act, 1960. The case of the plaintiff is that each of the members of the Association has been allotted free sites measuring 30 ft X 40 ft. carved out of Sy.Nos. 95, 96 and 97. The said sites were allotted by the Government through the Competent Authority in the year 1985-86. The members of the plaintiff-association are also issued with the Possession Certificate in respect of each of the sites. Suffice it to note that it is the case of the plaintiffs that since the date of allotting the said site, they are in possession. The defendants, who are wholly -5- unconcerned with the sites in question started interfering with their possession on the ground that they have also been granted the said sites under the Ashraya Scheme and they have been conferred with Hakku patras. The plaintiff-Association was before this Court by way of a writ petition. The said writ petition was allowed by this Court observing that without canceling the grant made in favour of the members of the association, the question of interference does not arise. Hence, they are entitled for injunction.
3. The defendants entered appearance and filed their written statement inter alia contending that they have also been granted sites pursuant to Hakku patras and the said grant is much earlier to the grant made in favour of the plaintiffs. In the circumstances, the question of the plaintiffs being in possession does not arise. It is their case that they are, even as on that day in continuous uninterrupted lawful possession of the entire extent of land in Sy.Nos.95, 96 and 97 by virtue -6- of the grant made by the Competent Authorities in the year 1970. Thus, they are not entitled for injunction.
4. The appeal is admitted to consider the following substantial question of law:
"Whether the judgment and decree of the First Appellate Court is perverse and capricious in misreading the material on record, while reversing the judgment and decree of the Trial Court?"
5. Mr.B.K.Chandrashekar, learned counsel appearing for the plaintiff, in support of the substantial question of law submits that a finding is recorded by this Court in the writ petition that the plaintiff's possession shall not be disturbed. He further submits that the learned Appellate Judge was not justified in reversing the judgment and decree passed by the learned Trial Judge without considering the material on record.
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6. The learned counsel appearing for the defendant supports the judgment and decree of the learned Appellate Judge.
7. It is not in dispute that the plaintiff-association was before this Court by way of a writ petition. Indeed the subject matter of the said writ petition was in respect of disturbance of plaintiff's possession. This Court observed that without canceling the grant made in favour of the plaintiff, the question of interference does not arise.
8. Apparently, the learned Appellate Judge has reversed the judgment and decree passed by the learned Trial Judge on two grounds. One is that the defendants were not parties to the earlier proceedings. The learned Appellate Judge has taken into consideration the grants made in favour of the plaintiff as well as the defendants. The alleged grant made in favour of the plaintiffs is in the year 1985-86 whereas in favour of the defendants is 78-79. The said grant is evidenced by Ex.D3 to Ex.D8. -8- Indeed I am of the view that in a suit for injunction, the question of title of either of the parties need not be gone into. The dispute appears to be with respect to the sites, which are allotted to the defendants who are 16 in number. If at all there is overlapping of the grant of sites indeed the persons, who are aggrieved by such grant in favour of defendants 1 to 16 are required to file a suit for declaration of title. Indeed that is also the observation made by the learned Appellate Judge. It is no doubt true that the learned Appellate Judge has fleetingly observed that the suit itself is not maintainable. But however, has made an observation that it has not pronounced on the maintainability of the suit even though such a defence was taken by the defendants. He has also observed that the learned Trial Judge has not framed an issue on the question of maintainability.
9. Having said so, I am of the view that the Judgment and decree passed by the learned Appellate Judge cannot be faulted inasmuch as, it has met all the -9- reasoning given by the learned Trial Judge before reversing the judgment and decree. Having said so, the substantial question of law is answered accordingly.
(a) Appeal is dismissed.
(b) But however, liberty is reserved to the aggrieved members of the Society whose sites are overlapping with that of defendants 1 to 16 to initiate appropriate proceedings.
(c) The observations made by the learned Appellate Judge are only for the purpose of deciding as to, who is in possession and cannot be taken as decision rendered on the question of title.
SD/-
JUDGE SPS