Sri B.M. Venkataramanappa vs The Executive Officer and Sri. P. Shivanna

Ram Mohan Reddy

Suit in O.S.264/97 instituted by the petitioner arraigning the 2nd respondent as defendant No. 2 and the Thoradevandahalli Grama Panchayath, as defendant No. 1, was allowed by judgment and decree dt. 18/9/2000 of the Prl. Civil Judge (Jr.Dn.), Kolar, restraining the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property, being house property and vacant site bearing house demand register No. 90 and assessment register No. 115, situated at Beeramanahalli, within the limits of Thoradevandahalli, Kolar, bounded on the East by Chowdappa''s property, West by Government road and Rajakaluve, North by Krishnappa''s property and South by Gramathana. The issue No. 1 in that suit was, whether the plaintiff proves to be in exclusive, peaceful and lawful possession of the suit property on the date of suit? The 2nd defendant, none other than the 2nd respondent herein, advanced a plea that plaintiff''s property measured 90'' x 60'', which was denied by the plaintiff, while the 2nd defendant''s claim that his property measured 130'' x 70''. Returning a finding on the said issue, the trial court observed that there was no material to establish the case of the defendant that the suit schedule property measured 60'' x 90'' or that the defendant was the owner of property measuring 130'' x 70'' and that the plaintiff was in lawful possession of the suit property with its boundaries as set out in the plaint schedule. The Grama Panchayat though party defendant No. 1 in the said suit suffered the judgment and decree, nevertheless recorded in the tax assessment register that the 2nd respondent owned property measuring 130'' x 70'' vide M.R.No. 35/2000-01 dt. 29/9/2001. That entry when called in question by the petitioner in Appeal under Sec.269 of the Karnataka Panchayatraj Act, 1993, the Appellate Authority on an assumption that the judgment and decree in O.S.264/97 declared the petitioner''s property measured 90'' x 60'', accordingly rejected the appeal by order dt. 17/8/2005 - Annex.A. Hence this petition.

Learned Counsel for the petitioner is correct in his submission that the Appellate Authority without noticing the reasons, findings and conclusions arrived at by the trial court on Issue No. 1 in the judgment and decree in O.S.264/97 that the petitioner (plaintiff in the suit), was in possession of immovable property as described in the boundaries set out in the suit schedule and not measuring 60'' x 90'', fell in error in dismissing the appeal.

In the result this petition is allowed. The order dt. 17/8/2005 Annex.A in Appeal No. 76/2001-02 of the 1st respondent is quashed and the proceeding remitted for consideration afresh after extending reasonable opportunity of hearing to the parties concerned and to pass orders strictly in accordance with law and in the light of the observations supra.