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CASE NO.: Appeal (civil)  2836 of 2001

PETITIONER: Town Planning Municipal Council

RESPONDENT: Rajappa & Anr.

DATE OF JUDGMENT: 10/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      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 \021CPC\022).  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.   Plaintiff claimed property to be ancestral property.    2.      The defendants resisted the suit contending that the suit  land being shown as \021Sega Local Fund\022 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.

3.      The Trial Court framed the issues and came to hold that  under Section 284(1) of the Karnataka Municipalities Act, (in  short the \021Act\022) 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 \023Sega Local  Fund\024 and the same was not challenged by the plaintiff or his  ancestors.     4.      The 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.      

5.      At 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

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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).   

6.      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.   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.              7.      The appeal is allowed.  No costs.