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Town Planning Municipal Council vs Rajappa & Anr on 10 January, 2008

Town Planning Municipal Council vs Rajappa & Anr on 10 January, 2008
Author: . A Pasayat
Bench: . A Pasayat, P Sathasivam

CASE NO.:

Appeal (civil) 2836 of 2001

PETITIONER:Town Planning Municipal Council

RESPONDENT:Rajappa & Anr.

DATE OF JUDGMENT: 10/01/2008

Bench:

Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT:

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the learned Single Judge of the Karnataka High Court allowing the second appeal filed by the respondent under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). The respondent no.1 had filed a suit in respect of 3 acres 22 guntas of land in Survey no.393/Aa (Paiki) situated in Yadgir-B, Taluk Yadgir. Plaintiff claimed property to be ancestral property.

2. The defendants resisted the suit contending that the suit land being shown as Sega Local Fund property since 1954, it is the property belonging to the Town Municipal Council, Vadgir as such it has every right to deal with in accordance with the Municipal Laws and that the plaintiff cannot prevent lawful action of the defendants by way of such suit. It was further contended that the plaintiff if not at all in possession of the suit land and that they have issued notification as required under the Municipal Law to provide sites to houseless persons and the plaintiff, winning over the village Accountant, got his name entered in the column of cultivator without any right and, therefore, the suit of the plaintiff is not at all maintainable. With these contentions, the defendants prayed for dismissal of the suit.

3. The Trial Court framed the issues and came to hold that under Section 284(1) of the Karnataka Municipalities Act, (in short the Act) previous notice for the suits is mandatory and there was no compliance with the said requirement and, therefore, the suit was liable to be dismissed in limine. It was also pointed out that entry in the Khasra Pahani and R.O.R. right from 1954-55 indicated the suit land as Sega Local Fund and the same was not challenged by the plaintiff or his ancestors.

4. The Trial Court and the First Appellate Court found that there was no merit in the suit and accordingly the suit was dismissed by the Trial Court and the First Appellate Court upheld it. The High Court, as noted above, reversed the findings and allowed the second appeal.

5. At the outset it is to be indicated that the Second Appeal was allowed without framing a question of law which is clearly contrary to the mandate of Section 100. This position has been highlighted in several decisions. (See Gian Dass v. Panchayat, Village Sunner Kalan & Ors. (JT 2006 (7) SC 102), Joseph Severane and Ors. v. Benny Mathew and Ors. (JT 2005 (8) SC 509), Sasikumar and Ors. v Kunnath Chellappan Nair and Ors. (JT 2005 (9) SC 171), Chadat Singh v. Bahadur Ram and Ors. (JT 2004 (6) SC 296) and Kanhaiyalal v. Anupkumar (JT 2002 (10) SC 98).

6. Apart from that it is noted that the judgment of the learned Single Judge is practically non-reasoned. The High Court in second appeal interfered with the findings of facts. Therefore, since the judgment is practically non-reasoned, it is not possible to find out as to what weighed with the High Court to upset the concurrent findings of fact recorded by the Trial Court and the First Appellate Court. We remit the matter to the High Court for fresh consideration keeping in view parameters of Section 100 CPC.

7. The appeal is allowed. No costs.

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