Town Planning Municipal Council v. Rajappa & Anr.

Dr. ARIJIT PASAYAT, J. 1. Challenge Iii this appeal Is to the judgment of the learned Single Judge of the Karnataka High Court allowing the second appeal flied by the respondent under ...... Section 100 of the Code of Civil Procedure, 1908 (In short 'CPC'). The respondent no.1 had flied a suit In respect of 3 acres 22 guntas of land In Survey no.393/Aa (Palkl) situated In Yadgir-8, Taluk Yadgir. Plaintiff claimed property to be ancestral property.

¶2The 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 1-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 ~hese contentions, the defendants prayed for dismissal of the suit.

¶3The Trial Court framed the issues and came to hold that under Section 284(1) of the Karnataka Municipalities Act, (in i 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 llmlne. It was also pointed out that entry In the Khasra Pahanl and R.O.R. right from 1954-55 Indicated the.suit land as "Sega Local Fund" and tne same was not challenged by the plaintiff or his ancestors.

¶4The Trial Court and the First Appellate Court found that --t· there was no merit In the suit and accordingly the suit was

Qismlssed by the Trial Court and the First Appellate Court upheld · It. Th~ High Court, as noted' above, reversed the findings and • allowed the second appeal. ·

¶5At 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. Parichayat, VIiiage Sunner Kalan & Ors. (JT ·2ooe (,7).SC 102), Joseph Severane and Ors. v. Benny Mathew and Ors. (JT 2005 (8) SC 509), Saslkumar and Ors. v Kunnath Che//appan Nair an.d Ors. (JT 2005 (9) SC 171 ), Chadat Singh v. Bahadur Ram and Ors. (JT 2004 (6) SC 296) and Kanhaiyala/ v. Anupkumar

(JT 2002 (10) SC 98).

¶6Apart 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.

¶7The appeal is allowed. No costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2836 of 2001.

From the final Order dat~d 12.1.1998 of the Hfgh Court of Karnataka at Bangalore In R.S.A. No. 359of1993. r

S. Nanda Kumar, Satlsh Kumar, Ananda Selvam and V.N. ....

Raghupathy for the Appellant.