Town Municipal Council vs Nagamma

A.V. Chandrashekara, J.—Present appeal is filed by the sole defendant of an original suit bearing O.S. 119/1995 which was pending on the file of Court of the Munsiff and JMFC, Hunsur. Respondent herein was the plaintiff in the said suit. Divergent Judgment of the first appellant is called in question by the appellant-defendant. Parties will be referred to plaintiff and defendant as per their ranking in the Trial Court.

Plaintiff chose to file a suit for bare injunction in respect of vacant space measuring 10 ft. x 45 ft. as described in the schedule appended to the plaint. According to the plaintiff, land measuring 10'' x 45'' feet abutting her house is the property belonging to defendant-Town Municipal Council, Hunsur (for short "TMC"). Eastern side of the house is being purchased by the plaintiff under a registered sale deed dated 27.4.1993 from one Ramasetty. The said house measures East-West-18'' and North-South-50''. The plaintiff is in lawful possession of the said house since 1993. Schedule property is beneficial to the plaintiff and hence she had submitted an application on 20.3.1994 to the defendant-TMC requesting to grant or allot the same in her favour. The elected body of the defendant had resolved to grant the space to the plaintiff as per the resolution dated 24.6.1994 at the rate of Rs. 10/- per sqft. Therefore, a sum of Rs. 4,500/- was deposited by the plaintiff with the defendant vide receipt dated 1.7.1994. Later on, defendant sent the entire records to the Deputy Commissioner for obtaining his consent to allot the said suit property in favour of the plaintiff. Later on plaintiff was intimated that prevailing rate is Rs. 11.27/- per sqft and was asked to deposit the remaining amount of Rs. 585/- and same was deposited on 15.3.1995.

The plaintiff is stated to be in lawful possession of the suit schedule property and is stated to have put up fence covering this schedule property also. On 30.9.1995, plaintiff was intimated that her application was still pending. Since certain persons were bent upon for getting this in their name, plaintiff chose to file a suit for permanent injunction with a request to restrain the defendant from alienating her share to any person other than the plaintiff.

Defendant has chosen to file a detailed written statement. Plaintiff has been called upon to prove the contents of the plaint. Since Deputy Commissioner directed defendant-TMC vide 20.9.1995 to retain the schedule property as Municipal property, same was intimated to the plaintiff and therefore suit is not maintainable. With these pleadings, defendant has requested the court to dismiss the suit.

On the basis of the above pleadings of the parties, following issues came to be framed by the Trial Court:

1) Whether the plaintiff proves that her vendor H.M. Ramasetty was in possession of the suit property and after purchase the plaintiff is in possession of the suit property?

2) Whether the defendant proves that the resolution passed by the Town Municipality is not accepted by the competent authorities in granting site to the plaintiff?

3) Whether the plaintiff is entitled for the relief of permanent injunction?

4) To what decree or order?

On behalf of the plaintiff, husband of the plaintiff is examined as PW-1 and 10 documents have been marked as Exs.P-1 to 10. On behalf of the defendant, one Thangavelu Setty, Chief Officer of the Council is examined as DW-1 and has produced and got marked 4 documents as Exs.D-1 to 4. Ultimately, the learned Judge of the Trial Court has chosen to answer issues 1 and 2 in the affirmative and issue 3 in the negative and consequently dismissed the suit vide order dated 31.10.1997. As against which, an appeal was filed under Section 96 of CPC in R.A. 1/1998. The learned Judge of the First Appellate Court has framed following five points for consideration:

1) Whether plaintiff-appellant has established her possession over the suit schedule property as on the date of suit?

2) Whether findings given on issue Nos. 1 and 3 are correct?

3) Whether plaintiff-appellant is entitled for the relief injunction?

4) Whether judgment and decree of the Trial Court need to be interfered with?

5) What order?

The learned Judge of the First Appellate Court has answered points 1 and 2 in the negative and points 3 and 4 in the affirmative. Ultimately, the said appeal has been allowed vide order dated 13.7.2006 and suit has been decreed as prayed for restraining the defendant from dispossessing the plaintiff from the suit schedule property except in accordance with due process of law. It is this divergent finding, which is called in question on various grounds as set out in the appeal memo.

The present appeal has been admitted on 8.3.2010 by framing following substantial question of law for consideration:

a) Whether the First Appellate Court was justified in reversing the fining of the Trial Court, in the absence of any pleadings to support the contention that the plaintiff was claiming to have perfected the title by adverse possession?

b) Whether the First Appellate Court was justified in granting the relief of injunction restraining the appellant, a statutory body, in performing its duties?

Heard the learned counsel for the parties and perused the records.

The learned Judge of the First Appellate Court has referred to Sections 81 and 82 of Karnataka Municipalities Act on the ground that defendant has failed to establish that the property belongs to Town Municipal Council, Hunsur. What is held by the First Appellate Court is that plaintiff chose to make an application for allotment under the impression that the property in question belonged to Municipality. Therefore, it is observed in paragraph 14 of its judgment that application so filed by the plaintiff seeking allotment of suit property does not clothe the defendant with the title so as to deal with it. In this regard, the learned Judge of the First Appellate Court has held that DW-1 has no personal knowledge about the factum of possession, and therefore, the positive evidence of PW-1 regarding factum of possession as on the date of suit over the suit schedule property could not have been negatived by the Trial Court.

The First Appellate Court dealing with an appeal under Section 96 of CPC is expected to reassess the entire evidence in right perspective. The First Appellate Court is the final court of facts as well as law as reiterated in the decision rendered by the Hon''ble Apex Court consisting of 3 Hon''ble Judges in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 . It is also further held in the said decision that if the First Appellate Court intends to upturn a well considered judgment of the Trial Court, the First Appellate Court has to come to the close quarters and assign its reasons as to where the Trial Court has gone wrong and what should be the proper approach.

On going through the entire contents of the plaint, it is clear that plaintiff has virtually admitted the title of the defendant and had made an application seeking allotment. On her application, the elected body of the Town Municipal Council had passed a resolution to allot the suit property at Rs. 10/- per sqft. Thereafter, the amount was revised to Rs. 11.27/- per sqft. On direction given by the Deputy Commissioner, Town Municipal Council had to retain the property and therefore, it did not chose to convey the property in favour of the plaintiff.

Infact, the plaintiff had deposited a sum of Rs. 4,500/- on 1.7.1994 and later on 15.3.1995, the plaintiff chose to deposit remaining amount of Rs. 585/- at the rate of Rs. 11.27/- per sqft. Just because, plaintiff has averred in her plaint that she has been enjoying the possession by putting up fence, no positive evidence is placed on record except the self servicing statement of PW-1. The Trial Court has given factual finding about the inability of the plaintiff to prove that she has been in possession of the property upto old post office road though there is recital in Ex. P-10. This factual finding is based on proper appreciation of evidence which is upturned by the First Appellate Court without reassign the entire evidence.

Admittedly, the property in question is a vacant space and the First Appellate Court has held that defendant has not been able to establish the prima facie case over the property. The learned Judge of the First Appellate Court has failed to note that the initial responsibility was on the plaintiff to discharge the burden and that is not effectively discharged. Unless the initial burden cast upon the plaintiff is effectively discharged, the onus does not shift on the other side. On the other hand, the defendant has furnished Ex. D-1, the intimation given to the defendant on 20.9.1995 by the Deputy Commissioner to retain the suit property by the Town Municipal Council itself. The property in respect of which allotment was sought is shown in dotted line vide Ex. D-4 sketch prepared by the Assistant Engineer attached to Town Municipal Council, Hunsur and it measures 10'' x 44'' feet abutting the old post office road on the western side. The Deputy Commissioner vide Ex. D-3 letter dated 24.9.1994 has directed the defendant to put the suit property for public auction. The endorsement given by the plaintiff on the Ex. D-2 dated 30.9.1995 is based on Ex. D-1 intimation given by the Deputy Commissioner to the Town Municipal Council. When plaintiff herself has admitted the possession and title of the defendant, it is ununderstandable as to how the First Appellate Court could come to a conclusion that the defendant has failed to make out a clear case. Contents of the plaint is clear admission in terms of Section 17 of Evidence Act.

In the case of HOLIYAVVA V. BASAVANEPPA AND OTHERS (MSA 652/2013 disposed of on 25.6.2014) reported in Holiyavva and Others Vs. Basavaneppa and Others, (2015) ILR (KA) 264 : (2015) 1 KCCR 761 and Holiyavva and Others Vs. Basavaneppa and Others, (2015) ILR (KA) 264 : (2015) 1 KCCR 761 this Court has held that though a property belongs to the municipality, it is held by the municipality as a trustee. Therefore, permission of Government is required whenever it is sought to be alienated either by way of sale or by way lease for a period beyond 5 years.

Land in question is a Municipal Road and no body can claim title over the said property. Just because the plaintiff has put up fence inclusive of this property, it does not cloth her with settled possession and deny the title of defendant. If this was the property of the vendor Ramashetty, she would not have requested the Town Municipal Council to allot this property to her share and she would have claimed title and permanent injunction on the basis of the registered sale deed contending that this was part and parcel of the property purchased by her from Ramashetty through a registered sale deed, on the ground that boundaries prevail over extent.

The whole approach adopted by the First Appellate Court is incorrect and improper. It has gone beyond pleadings to grant relief of injunction on the basis of the settled possession. Even if one were to accept that boundaries prevails over the extent, the same would not be applicable vacant sites conveyed with specific dimensions. Therefore, plaintiff cannot contend that property upto old post office road belonged to Ramashetty and hence she purchased the same. Infact that is not her case and she has admitted the title of the defendant while making an application to the Town Municipal Council.

Suffice to state that First Appellate Court has committed serious illegality by granting relief of injunction against a statutory body that too contrary to the contents of the very plaint. Accordingly, both the substantial questions of law are answered in the negative. Consequently, appeal will have to be allowed.

ORDER

Appeal filed under Section 100 of CPC is dismissed. The judgment of the First Appellate Court passed in R.A. 1/1998 is set aside. The judgment of the Trial Court passed in O.S. 119/1995 is restored.

Parties to bear their costs.