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Judgment
B.V. Nagarathna, J.—1. Though the appeal is listed for admission, with the consent of learned counsel for the parties it is heard finally.
This is plaintiffs'' second appeal. He has assailed judgment and decree dated 19.06.2008 passed in R.A. No. 164/2001 by the First Additional Civil Judge (Sr. Dn.), Hubli, by which, judgment and decree of the First Additional Civil Judge (Jr. Dn.), Hubli, in O.S. No. 274/1997 dated 25.08.2001 has been confirmed.
For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.
The appellant-plaintiffs filed the suit seeking a declaration that the construction put up by defendant Nos. 1 to 3 consisting of a Clinic, grocery shop (kirana shop) and residential accommodation in the suit schedule property is illegal and he sought for demolition of the same by seeking a decree of mandatory injunction and further relief of permanent injunction as against the said defendants. According to the plaintiffs plot No. 60A and 60B are the subject matter of the suit measuring 11 guntas 13 3/4 annas and 6 guntas 7 1/2 annas respectively. They are all carved out of 606B situated at Unkal village area (Mathapati Extension), near Basaveshwar Nagar, Gokul Road, Hubli. According to the plaintiffs they are the absolute and lawful owner of the suit schedule property, that earlier Sy. No. 606/B measuring 6 acres. Plaintiff No. 1 got the said area converted for non-agricultural use and the Special Deputy Commissioner, Dharwad, by order dated 12.12.1973 had converted the said land for non-agricultural purposes. The plaintiff No. 1 thereafter formed a layout having several plots. The plaintiffs have paid the charges for construction of drainage and fully developed the layout. Plaintiff No. 1 sold the plots to different persons who have purchased it. For the purpose of establishing a kindergarten he retained the suit schedule plots by putting up a barbed wire and stone fencing around it.
The plaintiffs are residing in Deenabandhu Colony, Hubli, which is at a distance from the suit plots. Taking advantage of this fact, the defendants in collusion with each other illegally and unauthorizedly constructed Hanuman temple in the suit plot in the year 1990. Thereafter the defendants trespassed into the suit plots and constructed a shed type structure where defendant No. 1 is illegally and unauthorizedly running his Clinic under the name and style of "Prasanna Clinic". Defendant No. 5, posing himself to be a Poojari of the temple, has occupied substantial portion of the suit plots and using it for residential purposes. He is also carrying on Kirana business (sale of grocery through defendant No. 6) under the name and style of ''Sri Renuka General Stores''. That defendant Nos. 1, 5 and 6 are trespassers using the suit plots belonging to the plaintiffs for their personal use. That on 18.08.1996 plaintiff Nos. 1 and 2 visited the house of defendant No. 3 with regard to requesting amounts towards sale consideration pertaining to one Sri B.S. Chauhan. At that time plaintiff became aware of the unauthorized construction put up by defendant Nos. 1, 5 and 6. Plaintiff Nos. 1 and 2 asked defendant No. 3 about the construction. He gave evasive and conflicting answers. On the request made by the plaintiffs, defendant Nos. 1 to 3 agreed to remove the illegal construction but they did not do so. As the defendants have interfered with the actual possession and enjoyment in the suit plots, though they do not belong to them, plaintiffs got issued a notice in ''Samyuktha Karnataka'' Kannada Daily Newspaper dated 12.01.1997 stating that defendants have no right, title or interest in any portion of the suit property and that they are liable for removal of the entire unauthorized construction.
According to the plaintiffs they are also entitled to damages and mesne profits from defendant Nos. 1 to 6 for having earned income from illegal and unauthorized structures using the same for medical practice, grocery business and residential accommodation, at the rate of Rs. 1,000/- per month from the Clinic, Rs. 1,000/- per month from the grocery shop and Rs. 500/- from the residential accommodation. As the defendant Nos. 1 to 6 have misused plaintiffs'' property, plaintiffs filed the suit seeking mandatory injunction and other reliefs referred to above.
On service of suit summons and Court notices defendant Nos. 1 to 6 appeared through their Advocate. Defendant No. 1 filed his written statement. Defendant Nos. 3 to 6 filed a memo adopting the written statement of defendant No. 1. Defendant No. 2 has not filed any memo or filed a written statement.
In the written statement filed by defendant No. 1, while denying the plaint allegations, it is contended that defendant No. 1 is running his hospital from 08.11.1994 by constructing the structure on rental basis from Maruti Devasthana Trust Committee, Hubli, on a monthly rent of Rs. 400/-. Defendant No. 1 is not a necessary party to the suit. Therefore, the suit suffers from misjoinder of parties. Defendant No. 6 was running a grocery shop from 13.09.1994 on a monthly rent of Rs. 500/- under Hanuman Devasthana Trust Committee. That, six months'' prior thereto he has closed his business and handed over shop premises to the Trust. Defendant No. 5 is performing Pooja in the Maruti Temple. He is given the house for his residence. He is paid Rs. 500/- as salary for performing pooja in the temple and the Trust has given free accommodation to defendant No. 5 as he is performing pooja of the deity in the Maruthi temple. He is staying in the house since 15.02.1995. Therefore, defendant Nos. 5 and 6 are also not necessary parties to the suit. Defendant No. 5 is not concerned with the suit, as he is an employee of the HDMC, he owns a house in the layout. Earlier his father was performing Pooja in the temple but he died. Defendant No. 4 is also not concerned with the suit property. Defendant No. 3 is only a devotee of the temple and is not concerned with the suit property.
It is further averred that plaintiffs have handed over open space and playground to Hubli Dharwar Municipal Corporation (HDMC) on 09.12.1979 which is reserved for civic amenity purpose. Plaintiffs have no right, title or interest over the suit property and they have no locus standi to file the suit. Plaintiffs have no ownership of the property in question as it is with the HDMC. That plot No. 60 has been changed into 60A and 60B by the plaintiffs in collusion with HDMC. That on 09.12.1977 suit plots were handed over to HDMC and also roads in the layout in R.S. No. 606B of Unkal village as shown in the plaint sketch. That, under the provisions of Karnataka Urban Development Authorities Act, open space including parks, playgrounds reserved for schools, hospitals, roads, etc. have to be handed over to the local authority and in the present case it has been handed over to HDMC, Hubli. That the suit is bad for misjoinder of parties of defendant Nos. 1, 3 to 6 who are in no way concerned with the suit, Also the plaintiffs have not arrayed HDMC, Hubli and Maruti Devasthana Trust as parties to the suit. That the President of Sudarshan Sangh in Prasanna Colony, is authorized and empowered by HDMC to maintain the garden in a portion of plot No. 60, that the structure has been erected in the year 1990 and the suit is filed in the year 1997. Hence, suit is hit by Law of Limitation. Contending that the plaintiffs are not entitled to any relief the defendants sought dismissal of the suit.
On the basis of the aforesaid pleadings the trial Court framed the following issues for its consideration.
"1) Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit property, as owners?
2) Whether the plaintiffs prove that defendants 1 to 6 have put up structures illegally on suit property and they are trespassers?
3) Whether the plaintiffs prove that the defendants are causing obstruction to their peaceful possession and enjoyment of the suit property?
4) Whether the description of suit property is correct?
5) Whether the suit is bad for mis-joinder of parties and non-joinder of necessary parties?
6) Whether the suit is barred by limitation?
7) Whether the plaintiffs are entitled for mandatory injunction and permanent injunction as prayed for?
8) What order or decree?
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In support of their case, first plaintiff examined himself as P.W. 1. He relied upon 33 documents which are marked as Ex. P.1 to P.33. While defendant No. 1 examined himself as D.W. 1. He produced 18 documents which were marked as Ex. D.1 to 18. On the basis of the said evidence the trial Court answered issue Nos. 1 to 3, 6 and 7 in the negative and issue Nos. 4 and 5 in the affirmative and dismissed the suit by judgment and decree dated 25.08.2001.
Being aggrieved by the said judgment and decree of the trial Court the plaintiffs preferred R.A. No. 164/2001 before the first appellate Court which, on hearing the learned counsel for parties framed the following points for its consideration:
"1) Whether the lower Court is justified in holding that the plaintiffs have failed to prove that they are owners and possessors of the suit property and defendants 1 to 6 have put up structures and they are trespassers and not entitled to the relief of mandatory injunction and permanent injunction and suit is also barred by limitation by answering issues 1 to 3, 6 & 7 in the negative and proceeded to dismiss the suit?
2) Whether the lower Court is justified in holding that the description of the suit property stated by the plaintiffs is correct and suit is bad for mis-joinder of parties and non-joinder of necessary parties by answering issues 4 & 5 in the affirmative?
3) Whether the findings given by the lower court on all the issues is perverse, capricious, unreasonable and so passed without proper application of mind which warrants any interference by this Court?
4) Whether the appellants have made out sufficient grounds to remand the case to the trial Court for fresh hearing?
5) What order?
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It answered point Nos. 1 and 2 in the affirmative and 3 and 4 in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the judgment and decree of the first appellate Court dated 19.06.2008 the plaintiffs have preferred this second appeal.
I have heard learned counsel for the appellants, learned counsel for respondent Nos. 1 to 4, so also learned counsel for respondent No. 7. As far as respondent Nos. 5 and 6 are concerned, this Court has held that service of notice on them as sufficient.
Learned counsel for the appellants contended that the Courts below were not justified in dismissing suit of the appellant-plaintiffs. He contended that the first plaintiff was instrumental in formation of the layout in Unakal village which is called Mathapati Extension now a part of Hubli. That sy. No. 606 was agricultural land. The said land was converted for non-agricultural purposes. Thereafter a residential layout was formed by the first plaintiff. He sold several plots to various purchasers, plot No. 60A and 60B has not been alienated by the plaintiffs, they were retained by plaintiff No. 1 so that he could commence a nursery school and have a playground. That on the enforcement of Urban Land Ceiling Act, 1976, a declaration was made by plaintiff No. 1, and certain plots were surrendered to the State Government. Thereafter an order was passed as per Ex. P.3 dated 09.01.1992 by which the plots which were surrendered by plaintiff No. 1 which were in turn granted to HDMC were taken back from HDMC and possession of the said plots were given back to plaintiff No. 1. At any rate, the plot numbers mentioned in Ex. P.3 have nothing to do with the suit schedule plot Nos. 60A and 60B. He contended that the trial Court and the first appellate Court have not appreciated the facts in their proper perspective, they have misdirected themselves and they have dismissed suit of the plaintiffs by holding that the suit plot Nos. 60A and 60B were given to HDMC for the purpose of utilizing them for civic amenity purpose. The finding that there is no illegality in the construction put up by the defendants is erroneous.
With regard to the defendants in the suit he contended that they claimed to have occupied the suit plots as tenants of a trust which is running Maruti Devastan Trust in the said plot. The defendants neither examined the trustees of the temple who are stated to be their lessors nor have they produced any documents to show as to in what capacity they have occupied the suit plots. On one hand, defendants have stated that trust was their lessor. But H.D.M.C. states that it is the owner in possession of the suit plots. One of the reasons for dismissal of the suit was for non arraying of H.D.M.C. as a party in the suit. Before the first appellate Court, H.D.M.C. was arrayed as respondent. But, H.D.M.C. did not file its written statement and stand of the H.D.M.C. is not known till today. In the circumstances, plaintiffs sought remand of the matter to the trial Court but the first appellate Court did not agree to the submission of the appellant-plaintiffs herein and it simply confirmed the judgment and decree of the trial Court. He contended that the Courts below could not have dismissed the suit of the plaintiffs without there being any categorical contention raised on behalf of the H.D.M.C. and consequently without there being any evidence let in by the defendants as to the relationship of the defendants vis-�-vis the trust. He contended that judgment and decree of the Courts below give rise to substantial questions of law and the appeal may be admitted for a detailed hearing.
Per contra, learned counsel for respondent Nos. 1 to 4 supporting the judgment and decree of the Courts below contended that before plaintiff No. 1 formed the layout, approval had to be taken from the authorities. The approval of the layout would have been given subject to certain areas being relinquished for the purpose of formation of civic amenity sites, that suit schedule plots have been relinquished by the plaintiff No. 1 in favour of HDUDA which authority would have in turn handed over the suit plots to 7th respondent-H.D.M.C. that the H.D.M.C. has permitted the trust to operate in the suit plots and that the respondent Nos. 1 to 6 who are the defendants in the suit are lessees of the said trust. He contended that the plaintiffs have not proved their right, title and interest in respect of the suit plots and therefore the Courts below were justified in dismissing their suit, that the appeal does not give rise to any substantial questions of law and prayed for dismiss the appeal, in limine.
Learned counsel for respondent No. 7-HDMC while supporting the submission made on behalf of the respondent Nos. 1 to 6 also contended that although HDMC was arrayed as respondent before the first appellate Court but no written statement was filed on behalf of the HDMC, that if an opportunity is given then they would file their written statement, then the true facts could be revealed and therefore this Court would grant an opportunity to HDMC to file its written statement.
Having heard learned counsel for the parties and on perusal of the material on record, I am of the view that the appeal would have to be admitted to consider the following substantial questions of law.
"1) Whether the Courts below were justified in dismissing the suit of the plaintiffs, without giving a categorical finding that the suit plots did not belong to the plaintiffs and that possession of the said plots were handed over to H.D.M.C?
2) Whether the first appellate Court was right in dismissing the appeal filed by the plaintiffs after H.D.M.C. was arrayed as respondent in the said appeal when the plaintiff sought for remand of the matter to the trial Court so that H.D.M.C. could let in its evidence in the matter?"
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Appeal is admitted to consider the above said substantial questions of law.
From the material on record it is noted that the plaintiffs have sought a declaratory as well as a mandatory relief based on the premise that plaintiff No. 1 is the owner in possession of the suit plots bearing No. 60A and 60B. According to the plaintiffs, the said plots were retained by them for the purpose of commencing a nursery school and using it as a playground. That in Sy. No. 606/B after conversion of the said land for non-agricultural use Mathapati extension was formed as a layout. Plaintiff No. 1 had disposed several plots to various purchasers, that as far as the suit plots are concerned they were trespassed by defendants who had put up illegal construction thereon. According to the plaintiffs, suit plots were never a subject matter of any proceeding under Urban Land Ceiling Act, 1976. But the contention of the HDMC is that when the approval of the plan for formation of the layout was granted by HDUDA, which is a Development Authority, certain areas would have been relinquished for the purpose of formation of civic amenity sites to be utilized for the said purpose and the suit plots were relinquished by plaintiff No. 1 for that purpose and thereafter HDMC has been handed over possession of the suit plots and that HDMC has been in possession of the suit plots. On the other hand, a contrary stand has been taken by defendant Nos. 1 to 6 by contending that, in the suit plots a temple has been constructed, the Trust is looked after the temple, that these defendants are lessees of the said Trust and the plaintiffs have no right, title or interest in respect of the suit plots.
In the light of the above facts, the Courts below have not answered the question as to whether the suit plots, which originally belonged to plaintiff No. 1, were handed over to the Development Authority after formation of the layout by relinquishing his rights in the said plots to the Development Authority to be utilized as civic amenity sites. Further, defendant No. 1-4 who contended that they were lessees of the Trust did not let in any evidence to show landlord and tenant relationship between the trust and them, no trustee was examined in that behalf. In what capacity the defendant No. 1-4 had occupied the suit plots and constructed shops and a small house therein, were not brought before the Court. In the absence of there being any evidence on the aforesaid aspects the trial Court and the first appellate Court could not have dismissed suit of the plaintiffs. Therefore, substantial question of law No. 1 has to be answered in favour of the appellant-plaintiffs by holding that the Courts below were not justified in dismissing the suit of the plaintiffs without giving a categorical finding on the aforesaid aspects.
That apart the trial Court had dismissed the suit for the reason that there has been non-joinder of necessary party, i.e., H.D.M.C, was not arrayed as party which was supposed to have been in possession of the suit plots which had been received from the Development Authority as it is now contended that plaintiff No. 1 had relinquished all right, title and interest in the suit plots to Development Authority. But H.D.M.C. was arrayed as party before the first appellate Court. Unfortunately, H.D.M.C. did not file its written statement and the stand of the Corporation was not made known to the first appellate Court. But, before this Court it is the case of H.D.M.C. that the suit plots are in its possession having received the same from HDUDA. When the defect pointed out by the trial Court with regard to non-array of H.D.M.C. as defendant was cured by the plaintiffs in the first appellate Court, by arraying HDMC as respondent No. 7, the first appellate Court could have remanded the matter to the trial Court for the purpose of giving an opportunity to HDMC to file its written statement and thereafter allowing the parties to let in their evidence. Not having done so and simply confirming the judgment and decree of the trial Court was not justified by the first appellate Court. In the circumstances, the second substantial question of law is also answered in favour of the appellants. Consequently, judgments and decrees of the Courts below are set aside.
The matter is remanded to the trial Court in order to enable the respondent No. 7 herein, namely, H.D.M.C. to file its written statement. It is expected that respondent No. 7 would be responsible enough to respond to the suit filed by the plaintiffs and make their stand clear vis-�-vis suit schedule plots. The written statement of H.D.M.C. to be filed on or before 11.04.2016. This direction is issued to H.D.M.C. as it has been remiss in not filing the written statement before the first appellate Court.
Defendant Nos. 1 to 6 are also permitted to let in evidence of the trustee under whom they claim to be lessees. The appellant-plaintiffs are also at liberty to array any other party as a defendant in the suit. All parties are permitted to let in additional evidence in case they think it proper.
As the appellants and respondent Nos. 1 to 4 and 7 are represented before this Court, they are directed to appear before the concerned trial Court on 09.03.2016 without expecting any separate notices from that Court. Learned counsel for respondent Nos. 1 to 4 submits that respondent Nos. 5 and 6 would be informed about the appearance before the Court on that day. In case the said respondents do not appear on that day, then the trial Court to issue notices to them and thereafter to dispose of the suit in accordance with law, having regard to the observations made above.
As the suit is of the year 1997, the trial Court is requested to dispose of the suit expeditiously.
Office to transmit the lower Court records to the concerned trial Court, forthwith.