Planning Municipal Council Vs. Rajappa & Anr.  Insc 39 (10 January 2008)
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
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.
claimed property to be ancestral property.
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.
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.
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.
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).
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.
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
appeal is allowed. No costs.