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Judgment
Mrs. Rathnakala, J.—This appeal is directed against the order dated 13.1.2009 passed by the learned Single Judge in Writ Petition No.8536/2006 (GM-PP).
The writ petitioner/respondent herein filed a petition before the learned Single Judge challenging the order passed by the District Judge in M.A.No.73/2000 whereby his appeal challenging the order passed by the competent Authority under the provisions of the Karnataka Public Premises Eviction of Unauthorised Occupants Act, 1974 (�the Act� for brevity) came to be rejected.
The learned Single Judge, after giving audience to both parties has passed the following orher:
(a) Petition stands allowed.
(b) The impugned orders at Annexures �S� and �P� passed by the Estate Officer as well as the learned District Judge are quashed.
(c) Parties are at liberty to have their dispute resolved in an appropriate forum.
(d) Any observation made by this Court during the course of this order is only for the purpose of disposal of this petition and shall not weigh with the Civil Court if, any proceedings are instituted by either of the parties.
To epitomise the history of the case, the father of the respondent herein purchased the property bearing Municipal Khata old No.1-A, New No.2, Davis Road, measuring 182 feet x 121 feet under a registered sale-deed dated 31.3.1969. The B.B.M.P. (�the Corporation� for brevity) claiming title over the property started interfering with his possession. Hence, his father filed a civil suit in O.S.No.88/1976. The then Corporation contested the suit inter alia asserting their title to the property. The suit was decreed vide judgment and decree dated 28.9.1991. In the said judgment, the learned Trial Court during the course of discussion recorded a finding that though the father of the respondent was in possession of the property, the appellant/Corporation does not have title to the property. Against the said observation while the Corporation filed appeal in R.F. A.No. 150/1992, aggrieved respondent''s father preferred appeal in R.F.A.No.714/1995. The appeal filed by the Corporation was dismissed and in the appeal preferred by respondent�s father, the observation made supra by the Trial Court was deleted and the Corporation challenged the judgment of the Appellate Court before the Apex Court. The Apex Court disposed of the Special Leave to Appeal by observing thus:
"Firstly, it may be noted that the suit was for perpetual injunction alone. Secondly, the deletion of the said observation of the Trial Court by the High Court does not mean that either the High Court or the Trial Court has rejected or affirmed the title of the plaintiff. In the circumstances, it is enough to clarify that in any other proceedings taken by the parties OR in any future proceedings that may be taken by them, neither the aforesaid observation of the Trial Court nor the deletion of the said observation by the High Court shall be construed as recording any finding on the question of the plaintiff�s title and any claims and contentions raised by them in those proceedings shall be decided on their own merits".
Thereafter the Corporation issued a show cause notice to the respondent, which was replied by the father of the respondent. Not being satisfied with his reply, the Estate Officer of the Corporation ordered eviction. On the death of the father, the respondent continued to prosecute the case and filed an appeal before the District Judge challenging the order of the Estate Officer. The learned District Judge rejected the appeal by upholding the order of the Estate Officer.
Sri. S.N. Prashanth Chandra, learned Counsel appearing for the appellants/Corporation submits, Sy.No.66 of Doddikunta Village measuring 4 acres 36 guntas was acquired by the erstwhile Civil Station and Municipality for the formation of Layout. Accordingly, a Layout with four Blocks-1, 2, 3 and 4, each consisting of 32, 28, 28 and 29 sites was formed. Except site Nos. 7 and 8 in Block No.4, other sites were sold by the erstwhile City Municipality. Site Nos. 7 and 8 supra continued in the ownership of the City Municipality. Thus, they vest with the appellants. In the original suit filed by Sri.Hanumantha Rao/father of the respondent, which was one for permanent injunction against the appellant, the suit was partially decreed holding that the plaintiff is in lawful possession of the property and his possession should not be interfered with, otherwise than in due course of law. In response to the notice given by the Estate Officer under the Act, he was called upon to appear before the competent authority and adduce evidence. A perusal of the documents produced by the father of the respondent disclosed that they had purchased site Nos. 7 and 8 in Block No. 1 and not in Block No.4. After giving audience to the father of the respondent and on consideration of the materials placed by him, the Estate Officer vide his order dated 13.7.2000 has held that the property is a public premises and he is in unauthorized occupation of the same. The Misc.Appeal No.73/2000 preferred by him was rejected. The said order was under challenge before the learned Single Judge. The learned Single Judge has held that the matter has to be decided in the competent Civil Court on an assumption that over passage of time, the title to the property is lost. But the contentious issue between the parties in the writ petition was the applicability of the provisions of the Act. Without addressing the said factor, which was germane to the dispute, allowing the petition was erroneous. When there was a concurrent finding of the competent Authority under the Act and the Appellate Authority/District Court holding that property is a public premises, as per the provisions of the Act, without touching upon the said aspect of the matter, the learned Single Judge has allowed the petition. The impugned order is contrary to the observation made by the Apex Court in Special Leave Petition No. 13349/1996, hence, the same requires to be set aside.
5A. Sri. Ashok B. Patil, learned Counsel appearing for the respondent while substantiating the impugned order submits, the learned Single Judge having observed that the basic dispute between the parties was about the location and identity of the property has rightly addressed the crux of the matter, that since the earlier suit was one for bare injunction, the factual aspect of the matter is required to be decided by the Civil Court. If the identity and location of the property is established and if it is found that the respondent is in unauthorized occupation, then the operation of the Public Premises Act would come into play and can be made applicable. Without firstly ascertaining the very identity of the property, the Estate Officer cannot direct the respondent to vacate the premises in question. The impugned order is well reasoned not calling for interference.
We have given our audience to Sri. T. Rajaram, learned Counsel appearing for the impleading applicant. According to him, the impleading applicant one R. Sabhapathy is in possession of the property in question and so far all the orders are passed without notice to him. Said application is opposed by the respondent.
On hearing the rival submissions and also on perusal of the impugned order, it emerges that the appellant in the earlier round of litigation was contesting the legal possession of the respondent over the property in question h is only after respondent�s father produced his documents before the competent Authority, they have started questioning the identity of the property, which is admittedly in the possession of the respondent presently. Whether the sites in question formed in Block No. 1 or Block No.4 that can never be ascertained under the writ jurisdiction but needs a full fledged investigation and enquiry. If it is found that the respondent is ascertaining his title over a wrong property, definitely the things will automatically fall in line allowing the appellants to exercise right under the provisions of the Act. The order of the learned Single Judge reserving liberty to have the dispute resolved before the appropriate forum is supported with sound reasoning and does not call for interference. Since we are not proposing to disturb the order of the learned Single Judge, we feel it appropriate that the impleading applicant can also work out his remedy before the appropriate forum.
The appeal is dismissed, while confirming the order passed by the learned Single Judge, all the contentions are kept open to all the concerned parties, if any proceedings is contemplated by the appellants herein before proper forum.
In view of the disposal of the main appeal, Misc. W. 2723/2011 filed seeking for impleading the applicant as respondent and I.A.No. 1/2015 filed seeking production of additional documents, do not survive for consideration. Hence, they stand disposed of.
Registry is directed to return the additional documents produced by the appellants along with I.A. No. 1/2015.