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2019 DIGILAW 1262 (KAR)

Susheela S. v. Lakshmana

2019-06-14

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. This appeal is filed challenging the judgment and decree of dismissal of the suit in O.S.No.5827/1998 on the file of the XVI Additional City Civil and Sessions Judge, Bengaluru, (CCH-12) dated 26.02.2005. 2. The brief facts of the case are that; the plaintiff/appellant has filed the suit against the defendants seeking the relief of permanent injunction restraining the defendants or anybody claiming through them from illegally dispossessing the plaintiff from the schedule property or any portion thereof and to grant such other relief as the Court deems fit in the circumstances of the case. 3. The plaintiff has contended in the plaint that he is the absolute owner of the schedule property having derived the title by way of Hakku Patra issued by the Government of Karnataka on the occasion of 28th Annual Function of Independence dated 25.05.1984, and subsequently the plaintiff has applied for change of katha in her name and the Sarakki Group Panchayat has issued khata endorsement. Further, it is the case of the plaintiff that defendant Nos.1 and 2 in collusion with defendant No.3 who are the utter strangers to the plaintiff, came near the suit schedule property on 27.07.1998 and made attempts to interfere with her peaceful possession and enjoyment of the schedule property by digging foundation to erect compound wall. The plaintiff with great difficulty resisted the illegal acts of the defendants. The defendants have threatened that they would come again in large numbers and dispossess the plaintiff. Hence, the plaintiff, without any other option, has approached the Court by filing the suit. 4. The defendant Nos.1 and 2 did not contest the matter and defendant No.3 has filed written statement by denying the ownership of the plaintiff over the schedule property and defendant No.3 also contended that Hakku Patra issued in favour of the plaintiff has been cancelled by the Government on the ground that the allotment of sites to plaintiff and other 79 persons was illegal and same was obtained by playing fraud. Hence, some of the grantees have approached this Court against the cancellation of grant of sites. This Court has remanded the matter to the Deputy Commissioner to decide the correctness of the allotment of sites including the site of the plaintiff, which is pending for consideration. Hence, some of the grantees have approached this Court against the cancellation of grant of sites. This Court has remanded the matter to the Deputy Commissioner to decide the correctness of the allotment of sites including the site of the plaintiff, which is pending for consideration. The defendants have been entrusted with the work of taking over of schedule site and other sites by the Government and entire land is vacant till today. It is further contended that the construction of compound wall has been completed prior to the filing of the suit. Hence, the present suit is not maintainable. The plaintiff has filed the suit with malafide intention to knock off the public property. 5. The Court below having considered the pleadings of the plaintiff as well as defendant No.3 has framed the following issues. 1. Whether the plaintiff proves her alleged lawful possession of the suit schedule property, as on the date of the suit? 2. Whether the plaintiff further proves the alleged interference and obstructions by the defendants? 3. Whether the plaintiff is entitled to the suit relief’s sought against the defendants? 4. What order or Decree? 6. The plaintiff, in order to substantiate his claim, has examined her husband as General Power of Attorney Holder as P.W.1 and got marked documents as Ex.P.1 to 5. On behalf of 3rd defendant, Ramakrishna, Commissioner of City Municipal Council, Bommanahalli has been examined as D.W.1 and no documents are marked. The Court below after having considered the evidence and also arguments of both the parties, answered all the issues in the negative and dismissed the suit. 7. Being aggrieved by the judgment of dismissal of the suit, the appellant has preferred this appeal and in the grounds of appeal, it is contended that though the plaintiff has deposed before the Court to the effect that the respondents have no manner of right, title and interest whatsoever over the schedule site by producing the Hakku Patra, katha extracts, tax paid receipts and order of the Deputy Commissioner confirming in unequivocal terms that the appellant is one of the allottee of free sites. Despite the same, the Court below dismissed the suit without applying its mind in a proper manner. 8. The very finding of the Court below is nothing but non-application of mind and erred in dismissing the suit. Despite the same, the Court below dismissed the suit without applying its mind in a proper manner. 8. The very finding of the Court below is nothing but non-application of mind and erred in dismissing the suit. The Court below failed to take note of the fact that Hakku Patra was issued in favour of the appellant/plaintiff and the plaintiff has produced the order of the Deputy Commissioner regarding the cancellation of sites only in respect of sites allotted for the cost but not in respect of free sites. The order dated 11.08.2003 passed by the Deputy Commissioner in case No.RHS No.279/1985-86 in favour of the appellant in which the Deputy Commissioner clearly held that those who are allotted free sites shall be regularized and confirmed. Accordingly, 22 persons including the appellant are benefited in terms of the said order. The appellant comes under the allotment made in the category of free of cost and the Deputy Commissioner has clearly held that sites which are allotted free of cost are confirmed and in spite of it, the learned trial Judge has committed an error in dismissing the suit. The trial Judge has erroneously made an observation that the said document has not been marked and hence, the counsel for the appellant in his argument also contended that the judgment and decree may be set-aside and the matter may be remanded to the Court below to consider the order of the Deputy Commissioner and plaintiff may be permitted to mark the said document and prove his case. 9. Though respondent No.3 is represented through counsel, did not choose to appear and argue the matter before this Court and this Court has taken as no arguments and after having heard the arguments of appellant's counsel, the matter is reserved for judgment. 10. Having heard the arguments of appellant's counsel and also on perusal of the judgment of dismissal of the suit, this Court has to re-appreciate the evidence available on record. Since this Court is having power to consider both the facts as well as question of law, I frame the following point for consideration. Whether the Court below has committed an error in dismissing the suit in stead of granting the decree as prayed in the plaint ? 11. Since this Court is having power to consider both the facts as well as question of law, I frame the following point for consideration. Whether the Court below has committed an error in dismissing the suit in stead of granting the decree as prayed in the plaint ? 11. On perusal of the pleadings and also evidence adduced by respective parties, the plaintiff/appellant claims that defendant Nos.1 and 2 in collusion with defendant No.3 interfered with the possession of the plaintiff. The defendant Nos.1 and 2 did not choose to file the written statement and contest the matter. Defendant No.3 only filed the written statement. Defendant No.3 in the written statement would contend that the site which has been granted in favour of the plaintiff has been cancelled and hence, the plaintiff is not the owner and failed to prove the possession. The plaintiff, in order to prove his case, has examined the Power of Attorney Holder who is none other than the husband of the plaintiff and relied upon the Power of Attorney executed by the plaintiff in favour of the Power of Attorney Holder in terms of Ex.P.1. The plaintiff also relied upon Hakku Patra which is marked as Ex.P.2. On perusal of Ex.P.2, which is issued in respect of Bengaluru South Taluk of Jaraganahalli Village in Sy.No.72/1A, Sy.No.72/1B and Sy.No.73 and site number is mentioned as No.74 measuring 20 X 40 sq. ft. On perusal of Ex.P.2, it is mentioned that in terms of the letter of Deputy Commissioner DO No.LAQ(1)CR 493/1983-84 dated 10.05.1984. The said Hakku Patra was issued. It has to be noted that the plaintiff claims that he is the beneficiary of allotment of free site and the plaintiff did not produce the said allotment letter showing that the plaintiff is the allottee of the site and the said documents would have been the very basis to show that the plaintiff is the allottee. The said document is not placed before the Court, only relied upon the Hakku Patra and also produced the katha endorsement issued by Sarakki Group Panchayath dated 05.01.1993. The plaintiff also relied upon the document Ex.P.5- Tax Paid Receipt dated 05.01.1994 and tax of Rs.230.40 paise was paid. The suit was filed in the year 1998. The said document is not placed before the Court, only relied upon the Hakku Patra and also produced the katha endorsement issued by Sarakki Group Panchayath dated 05.01.1993. The plaintiff also relied upon the document Ex.P.5- Tax Paid Receipt dated 05.01.1994 and tax of Rs.230.40 paise was paid. The suit was filed in the year 1998. In order get the decree against the defendants, the plaintiff has to prove that as on the date of filing the suit, the plaintiff was in possession of the suit schedule property. In order to prove that as on the date of filing of suit, he was in possession, no document is produced before the Court except the katha endorsement dated 05.01.1993 and tax paid receipt dated 05.01.1994. No document is placed in respect of the year 1998 to show that the plaintiff has been in possession and except those three documents, no document is placed. It is further important to note that the plaintiff has produced the certified copy of the order passed by the Deputy Commissioner in RHS No.279/1985-86 and the said document is not marked. However, the trial Judge in his order in para No.9 of the judgment discussed in detail with regard to the documents produced by the plaintiff. The trial Judge has also observed that the said document is not marked for the reasons best known to the plaintiff. However, the trial Judge has verified the said order and further observed that the so-called grant or issuance of Hakku patra in favour of the plaintiff is not at all confirmed and even her name is not mentioned in the said order, as such, an inference can be drawn that the plaintiff is not telling the truth and has filed the suit by suppressing the material facts. Except the tax Paid receipts of the year 1994 and katha endorsement is of the year 1993, nothing on record to show that the plaintiff is in peaceful possession and enjoyment of the suit schedule property as on the date of the filing of the suit. The main contention of the learned counsel for appellant is that the matter may be remanded back to the Court below to mark the order passed by the Deputy Commissioner and no purpose would be served in remanding the matter to the lower Court. The main contention of the learned counsel for appellant is that the matter may be remanded back to the Court below to mark the order passed by the Deputy Commissioner and no purpose would be served in remanding the matter to the lower Court. Even though the document was not marked and the same has not been considered by the trial Judge and on perusal of the order of the Deputy Commissioner, it is rightly pointed out by the trial Court that the name of this appellant is not found in the order. Hence, the very contention that the Deputy Commissioner has confirmed the Hakku Patra in favour of the plaintiff cannot be accepted. Though learned counsel in his arguments contended that the Deputy Commissioner in his order mentioned the name of the plaintiff, I did not find any such reference and also no where the name of the plaintiff is found in the order. The main contention of the learned counsel is that free site is allotted in favour of the plaintiff. In order to prove the same, no document is produced and the Court cannot pass any decree on surmises and there must be evidence to show that the site has been allotted. In view of no reference in the order regarding confirmation of allotment of site in favour of the plaintiff-appellant, I do not find any reasons to interfere with the order of the trial Court. In view of above discussions, the appeal is dismissed.