Taluka Agricultural Produce Co-Operative Marketing Society vs Gita

A.N. Venugopal Gowda, J.—The appellant, as the plaintiff, had instituted O.S. No. 65/2003 against the respondent, in the Court of Civil Judge (Jr. Dn.) at Devadurga, to pass a decree of declaration and mandatory injunction. Written statement was not filed within the prescribed period by the defendant. Evidence of the plaintiff was recorded. Manager of the plaintiff deposed as PW. 1 and marked Ex. P. 1. The trial Judge raised a point for consideration and determination as to whether the plaintiff is entitled for the judgment and decree as prayed in the plaint. After appreciating the oral and documentary evidence, it was held that the plaintiff has failed to produce any material in proof of the suit property having been validly granted for upset price by the Municipality, by obtaining previous sanction of the Government. It was held, that except the area in which the plaintiff has constructed its godown, the remaining area granted earlier was allotted to the poor people like Harijans and Devadasis for construction of houses by the Municipality and that the beneficiaries have already constructed their houses in that area and as such the plaintiff cannot contend that it is the absolute owner and possessor of the area measuring 2578 square yards. Finding that the plaintiff has no title and possession, except the area in which it has constructed the godown and also taking into consideration the judgment and decree passed in O.S. No. 17/1999 on 19.07.2004, the point was answered against the plaintiff and the suit was dismissed.

Feeling aggrieved, R.A. No. 70/2006 was filed in the District Court at Raichur. The II Addl. Sessions Judge/Presiding Officer, FTC-II at Raichur, on independent appreciation of the evidence and by taking into consideration the record of the suit, raised the following points for consideration:

"1. Whether the trial court is justified in dismissing the suit?

Whether there are sufficient grounds to interfere with the impugned judgment and decree passed by the trial court?

What order?"

Upon independent assessment of the evidence and finding that the Municipal Council has no right to deal with the property contrary to Section 72 of the Karnataka Municipalities Act (for short ''the Act''), as the consideration payable by the plaintiff being more than Rs. 5,000/-, it was held that the allotment without prior sanction of the Government is not valid and that the plaintiff has no valid title. It was held that in the circumstances, the interpretation placed on Section 72 of the Act by the trial Court as justified and the points were answered against the plaintiff/appellant. Consequently, the appeal was dismissed.

Assailing the said judgments/decrees, this second appeal was filed.

Sri Amaresh S. Roja, learned advocate for the appellant contended that the Courts below have committed material error and illegality in denying relief to the appellant. He submitted that without examining the record, findings having been recorded and the same being erroneous, interference is warranted.

Perused the record and considered submissions made by Sri Amaresh S. Roja, learned advocate.

The trial Judge, upon detailed appreciation of evidence adduced through PW. 1 and Ex. P. 1, has found that there is failure to establish title to the plaint ''B'' schedule property, which was the property in dispute between the parties. Insofar as plaint ''A'' schedule property is concerned, the plaintiff having constructed godown, the same is in its possession and enjoyment. The dispute is only with regard to plaint ''B'' schedule property i.e., an area measuring east-west 20 feet and north-south 25 feet bounded east by open space, west by open space, north by open space of TAPCMS and south by open space. O.S. No. 17/99 filed by the plaintiff was dismissed and it was held that the plaintiff is not in possession of the property assessed in the Quibala. The Municipality has failed to obtain prior sanction of the Government with regard to the allotment of plaint ''B'' schedule property and the defendant having constructed a house by taking Hakku-Patra from Devadurga Municipality, in an area of 15 x 20 feet, the suit was dismissed. The appellate Judge on independent assessment of the evidence has held that the allotment, without prior sanction of the Government is not valid and hence, the plaintiff has failed to establish that it has valid title on the basis of a valid document i.e., in respect of the plaint ''B'' schedule property.

The concurrent findings recorded by the Courts below against the plaintiff were not shown to be either perverse or illegal by Sri Amaresh S. Roja. It is not the case of the appellant that there is either misreading of evidence or omission to consider the material evidence and thus, rendering the findings as vitiated. Since, the appellate Court is the final Court of fact and there being concurrent findings, there is no scope for reappreciation of evidence any further.

The impugned judgments have not given raise to any substantial question of law. In the absence of substantial question of law, the second appeal under Section 100 CPC is not maintainable.

In the result, the appeal stands rejected.