IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT REGULAR SECOND APPEAL NO. 1114 OF 2010 (DEC-INJ) BETWEEN:
SMT SHAHAJAJI W/O LATE GOUSPEER, AGED 67 YEARS R/AT NO.802 (NEWNO.C-92), WARD NO.19, DEVANAHALLI TOWN, BANGALORE RURAL DISTRICT.
(BY SRI. V F KUMBAR, ADVOCATE AND SRI. R P HEGDE, ADVOCATE) AND:
SRI. ASHWATHANARAYAN S/O LATE RAMANNA, MAJOR, COUNCILLOR, DEVANAHALLI MUNCIPAL COUNCIL, R/AT WARD NO.19, PUTTAPPANAGUDI ROAD, DEVANAHALLI, BANGALORE RURAL DISTRICT.
(SERVED) … APPELLANT … RESPONDENT THIS APPEAL IS FILED UNDER SECTION 100 OF THE CPC.,AGAINST THE JUDGMENT AND DECREE DATED 26.03.2010 PASSED IN R.A.NO.22/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, DEVANAHALLI,DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 26.03.2009 PASSED IN O.S.NO.337/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., DEVANAHALLI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT This Regular second Appeal by the plaintiff challenges the judgment & decree dated 26.03.3010 entered by the learned Fast Track Judge at Devanahalli, in R.A. No.22/2009 confirming the Judgment & Decree dated 26.03.2009 whereby the learned Principal Civil Judge (Jr.Dn.) at Devanahalli, decreed her suit in O.S.No.335/2005 partly.
2. The appellant had filed a civil suit in O.S.No.335/2005 seeking a decree for declaration of title, injunction & for mandatory injunction in respect of suit schedule property. The respondent having entered appearance had resisted the suit by filing the Written Statement. On the basis of pleadings of the parties and other material, the learned trial judge had framed five issues as under:
“1. Whether the plaintiff proves that ‘B’ schedule property is a part and parcel of ‘A’ schedule property?
2. Whether the plaintiff proves that she is in possession of the suit ‘B’ schedule property?
3. Whether the suit as brought is maintainable?
4. Whether the –plaintiff is entitled for the relief of permanent injunction in respect of ‘B’ Schedule property as prayed?
5. What order or decree?”
3. To prove the suit claim, the appellant got herself examined as PW1 and got marked as many as 27 documents as Exs. P1 to P27, which, inter alia, comprised of Hakku Pathra, Tax Paid Receipts and Widow’s Pension Card. From the side of the respondent, none was examined as a witness nor any document was got marked. The learned trial judge vide Judgment & Decree dated 26.03.2009 decreed the suit in part. The operative portion of the order reads as under:
“ORDER Suit of the plaintiff is decreed in part.
Plaintiff suit for mandatory injunction and for possession of ‘B’ schedule property and consequential relief sought for permanent injunction is hereby dismissed.
A decree for permanent injunction is granted restraining the defendant, his agents, servants or any body claiming under him permanently from interfering with plaintiffs possession over the house property by her in the portion of the ‘A’ schedule property.”
4. Not being happy with the grand of limited relief by the trial judge, the appellant preferred an appeal in RA No. 22/2009. The learned first appellate judge framed inter alia, the following issue:
“ªÁ¢AiÀÄÄ «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀàr¹zÀ ¤.¦.1 ªÀÄvÀÄÛ EvÀgÀ zÁR¯ÉUÀ¼À£ÀÄß zÁªÁ “©” C£ÀĸÀÆa D¹ÛUÉ ¸ÀA§A¢ü¹zÀAvÉ «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀÄ £ÁåAiÀĸÀªÀÄävÀªÁV ¥ÀjUÀt¹®è, EzÀjAzÀ zÁªÁ “©” C£ÀĸÀÆaAiÀÄ vÀ£Àß D¹Û ºÀQÌUÉ ZÀÄåw GAw΢AiÉÄAzÀÄ ªÉÄîä£À«zÁgÀ¼ÀÄ gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÉÃ? ”
5. The learned lower appellate judge by a reasoned decision, dismissed the appeal vide Judgment & Decree dated 26.03.2010, disagreeing with the contention of the appellant that the document at Ex. P1, namely the Hakku Pathra is a title deed and therefore, proves the grant. Both these judgments & decrees of the Courts below are put in challenge before this Court.
6. Learned counsel for the appellant has framed the following substantial questions of law:
“a. whether the document at Ex.p.1 produced by the plaintiff/Appellant will not prove the title of the Schedule ‘B’ property?
b. Whether the deletion of the Municipality is a fatal to the case and it amounts to claim made by the appellant is against a non-suited person?
c. Whether both the courts below are justified in holding that, when the schedule ‘A’ property granted to the plaintiff/Appellant, this, the Schedule ‘B’ property is a different property than the measurements mentioned in Ex.P.1?
d. Whether the judgment and decree passed by both the courts are justified in respect of Schedule ‘B’ property?”
7. Learned counsel for the appellant vehemently argues that the document at Ex. P1 which is the Hakku Pathra issued by the Chairman of the Town Municipal Council, Devanahalli, is a title deed; there are other documents 26 in number which read together would substantiate the said Hakku pathra being a title deed / Grant Certificate; this having not been done, the appellant has got a very good case on merits which gives raise to the above substantial questions of law.
8. Having heard the learned counsel for the appellant and having perused both the appeal papers and the LCR in original, the only question that falls for consideration of this Court is as to the nature of the document at Ex. P1 which is apparently the Hakku Pathra. It is very difficult to treat this document, even keeping in view the other documents on record as the title deed or the Grant Certificate; the Hakku Pathra does not bear the day, month & year; no resolution of the Town Municipal Council authorizing the issuance of the Hakku Pathra is produced nor any explanation is offered for non- production.
9. No provision of law is brought to the notice of the Court which authorizes grant of sites to the residents of the Municipal Council; all other documents such as the application for katha transfer, the self-declaration of assessment, NOC by the Town Municipal Council, the Tax Paid Receipts, etc., too do not much substantiate the title to the property, all they being collateral to the Hakku Pathra, which is not a document of title. Thus, the so called substantial questions of law framed by the appellant in the Appeal Memo are not the questions of law much less substantial questions of law, since answers to the same are to be found out from the record of the case and not by turning the statute book.
In the above circumstances, this appeal being devoid of merits, stands rejected.
However, this order would not come in the way of the appellant seeking katha transfer or the like from the jurisdictional Town Municipal Council, in accordance with law.
Sd/- JUDGE Bsv