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2016 DIGILAW 228 (KAR)

Mohammed Haji v. Managing Director, NEKRTC Central Office, Kalaburagi

2016-03-02

K.N.PHANEENDRA

body2016
JUDGMENT : K.N. Phaneendra, J. The appellant is the plaintiff in O.S. No. 402/2011 to file a suit for injunction against the respondent-the Managing Director, NEKRTC in respect of suit schedule property claiming that he is a lessee of the suit schedule property and he should not be dispossessed until he dispossessed by due process of law. The said suit came to be decreed vide judgment dated 04.09.2014. Aggrieved by the said judgment and decree the defendant has preferred an appeal before the Principal Senior Civil Judge and CJM, Kalaburagi in R.A. No. 49/2014. The appellate Court has allowed the appeal and consequently dismissed the suit of the plaintiff on the ground that though the appellant has proved his possession over the suit schedule property, but failed to prove the interference by the defendant, Against which judgment, the present appeal is preferred. 2. After hearing both parties, this Court as early on 25.04.2015 framed the following sub-stantial question of law; "Whether the First Appellate Court has mis-directed itself and committed serious legal error in reversing the judgment of the Trial Court when the plaintiff has proved his possession and that he is not entitled or injunction on the basis of want of cause of action." 3. On perusal of the Trial Court judgment and the First Appellate Court judgment, it is dear from the pleadings of the parties that the plaintiff has claimed to be a lessee of the suit schedule property having taken the same from City Corporation and he has put up tin shed got installed ice candy machinery, with due permission from the competent authority. The plaintiff has been carrying on Small Scale Industrial Establishment in the suit property. It is alleged that during August 2008, the City Corporation at the instigation of Government officials alleging encroachment, started dismantling the buildings. Therefore, apprehending demolition, the plaintiff approached the Court for grant of appropriate relief. 4. That the defendant's plea before the Trial Court discloses that the defendant has denied the plaint allegations and also the description and existence of suit property and the leasehold rights of defendant. Even the plaintiff's possession over the suit property is also denied. Therefore, apprehending demolition, the plaintiff approached the Court for grant of appropriate relief. 4. That the defendant's plea before the Trial Court discloses that the defendant has denied the plaint allegations and also the description and existence of suit property and the leasehold rights of defendant. Even the plaintiff's possession over the suit property is also denied. After going through the oral and documentary evidence on record, the Trial Court gave a finding that the plaintiff has established that he is in possession and enjoyment of the property on the basis of lease and accordingly it decreed the suit. 5. The First Appellate Court has mainly concentrated with regard to cause of action and also interference by the defendant. The First Appellate Court has formulated three points for consideration; (i) Whether the plaintiff proves his possession over the suit schedule property as on the date of the suit. (ii) Whether the plaintiff further proves the alleged interference by the defendant in respect of the suit schedule property. (iii) Whether the judgment and decree passed by the Court below requires interference. (iv) What order. 6. In fact after considering the entire evidence on record, the Appellate Court has given affirmative findings so far as 1st point is concerned holding that the plaintiff has been in possession of suit schedule property. When once possession of the property is proved, the contention taken by the defendant ought to have been properly considered and appreciated by the Trial Court. When the defendant has denied the possession of the plaintiff an also leasehold rights of the plaintiff and created counter plea, then it virtually amounts interference in law so far as possession and enjoyment of the property by the plaintiff is concerned. Therefore, in my opinion the First Appellate Court has committed serious error when it specifically held that the plaintiff has been in possession and enjoyment of the suit schedule property, which should have been protected by means of granting injunction in favour of plaintiff. Under the above said circumstances, the substantial question of law formulated by this Court is answered in the affirmative and consequently the judgment and decree passed by the First Appellate Court is hereby set aside in reversing the judgment and decree passed by the Trial Court. Consequently the Judgment and decree passed by the Trial Court in O.S. No. 402/2011 is restored and confirmed. Consequently the Judgment and decree passed by the Trial Court in O.S. No. 402/2011 is restored and confirmed. Accordingly the appeal is disposed of. I.A. No. 2/2015 is also dismissed as does not survive for consideration. Order accordingly.