Nagamma Koravar vs Raziyabegum and Others

S.N. Satyanarayana, J.

One of the legal heirs of sole defendant in O.S. No. 50/2007 on the file of Addl. Civil Judge (Jr.Dn.), Gangavati, has come up in this second appeal impugning the concurrent finding rendered by both the Courts below in decreeing the suit of plaintiff for the relief of possession.

This second appeal is at the stage of admission. In this appeal it is only 1st legal heir of original defendant in the original suit has come up in this second appeal, whereas the regular appeal was filed by him along with respondents 2 and 3 herein who are 2nd and 3rd legal heirs of original defendant. In this second appeal at the time of admission after hearing the counsel for the appellant for some time this Court felt Government is required to be arraigned as one of the respondents, since interest of the Government is also involved in this proceedings. Accordingly the State of Karnataka was arraigned as 4th respondent which is represented by the Secretary, Department of Municipal Administration, M.S. Building, Bengaluru, which is 4th respondent in this proceedings.

For the sake of admission notice was initially issued to only 1st respondent who is the plaintiff in the original suit. The Respondents 2 and 3 being defendants 2 and 3 in the original suit and appellants 2 and 3 in the lower appellate Court have not chosen to pursue the proceedings and hence they are arraigned as formal parties by the contesting 1st respondent who is 1st defendant in the original suit. Therefore notice to them can be considered only if this appeal is admitted.

Hence, heard the learned counsel Sri Mrutyunjay Tata Bangi who is appointed as Amicus Curiae on behalf of the party-in-person appellant and learned Government Pleader Smt.Veena Hegde appearing for respondent No. 4.

The brief facts leading to this second appeal are that the present appeal emerges from a suit filed seeking possession of residential plot No. 14 formed in Sy. No. 179 situated in Block No. 9 of Mahalaxmi Camp, Gangavati city measuring 20'' x 30''. The 1st respondent herein who is the plaintiff in the trial Court claim that the said property is allotted to her by the Chief Executive Officer, City Municipal Council, Gangagvati, in the year 1990 and subsequently a sale deed is executed in her favour on 8.5.1990 which is registered as document No. 246/1990-91 in the office of sub-registrar, Gangavati. It is stated that by virtue of the aforesaid sale deed she has become the absolute owner of suit property.

According to her, from the date of allotment and sale of suit property in her favour in the first half of 1990 till 2005 she was in vacant possession and enjoyment of the suit plot and it is only in the month of January 2005 i.e., on 15.1.2005 sole original defendant Smt. Nagamma Koravar forcibly entered into the suit property by putting up a temporary structure thereon which act of encroachment came to her knowledge on 20.1.2005 and it is also stated that on 20.1.2005 and also 20.12.2006 she personally went to the suit schedule property and requested the original defendant Smt.Nagamma Koravar to vacate and deliver vacant possession of the suit property. Since she failed to oblige, the suit for possession was filed by her on 12.7.2007 for recovery of possession of suit property based on the title i.e., sale deed dated 8.5.1990 which is executed by the Chief Executive Officer, City Municipal Council, Gangavati.

In the said suit after service of suit summons the original defendant Nagamma Koravar entered appearance, she took up a defence that the suit property could not have been sold by the Chief Executive Officer of City Municipal Council, Gangavati, who is not competent to execute the sale deed and that the property being sold for nominal consideration is not in accordance with the provisions of Karnataka Municipalities Act and hence does not convey any right, title, interest to the defendant Raziabegum in the suit schedule property. In the said suit another defence was raised to the effect that the defendant and her family is in possession of the suit property from 1976-77 when they were permitted by the Municipal authorities to occupy the suit property. At the same time several of their relatives and people of their community were also permitted to occupy different plots in the same locality, subsequently all those people were accommodated elsewhere and it is only the defendant Nagamma Koravar who was not given any other alternate place, hence she continued to live on the suit schedule property. It is also stated, she was assured that the said plot would be given to her before the suit property was sold in favour of the plaintiff.

Based on the aforesaid pleadings the following issues were framed by the trial Court for its consideration.

ISSUES

(i) Whether the plaintiff proves that, she is an absolute owner and possessor of the suit schedule plot since the date of purchase from the Municipal Council, Gangavathi under registered sale deed dated 8.5.1990 and she was put in actual possession of the same and she was enjoyed till the date of dispossession by the defendant as pleaded in the plaint?

(ii) Further the plaintiff proves that, the defendant trespassed into the suit schedule plot on 15.01.2005 and erected a small temporary shed over the suit plot without any lawful right in the suit property and same was came to the knowledge of the plaintiff on 20.01.2005?

(iii) Whether the defendant proves that, the Municipal Authorities have her into Mahalaxmi layout in the year 1976-77 as such, the defendant is in possession over the suit schedule plot as contended in para 8 of the written statement?

(iv) Whether the defendant proves that, the suit is barred by law of limitation?

(v) Whether the defendant proves that, the suit is bad for non-joinder of necessary parties?

(vi) Is the plaintiff entitled for relief of recovery of possession of the suit schedule property as claimed in the pliant?

(vii) What order?

The plaintiff adduced evidence through her husband who is her power of attorney holder in the said proceedings. It is stated that G. Mehaboobsab the power of attorney holder of plaintiff, who is also her husband was an employee of Municipal Council, Gangavati at the relevant point of time when the suit property was sold in favour of the plaintiff for a nominal consideration of Rs. 300/-. In the said proceedings he produced and got marked in all 19 documents as Exs. P. 1 to P. 19 by himself and also through other two witnesses who are Mehaboobpasha PW. 2 and another Ningappa PW. 3.

PW. 2 who is examined as plaintiff''s witness is also a resident of the same camp would speak about the sale deed executed by the municipality in respect of the suit property in favour of the plaintiff, she being put in possession of the suit property and also regarding alleged encroachment by the defendant on 15.1.2005 and also regarding the plaintiff approaching the defendant to seek vacant possession along with them on 20.12.2006. So far as PW. 3 is concerned, he is Commissioner of City Municipal Council, Gangavati and claim that on the instruction of administrator of Municipal Council he has executed and got registered conveyance deed of suit plot in favour of plaintiff after collecting Rs. 300/- as sale consideration. He also claim that municipality has delivered vacant possession of the suit property in favour of the plaintiff.

In the said proceedings by then, original defendant Nagamma Koravar died and her two sons and one grandson had already come on record as defendants 1 to 3. Out of that the 1st legal representative Gunavantha who is appellant herein adduced evidence as DW. 1. His evidence is nothing but reiteration of whatever was stated in the written statement. In support of his case he has produced and got marked 15 documents as Exs. D. 1 to D. 15. Out of that the Ex. D. 1 is requisition given to the Municipal Council, Gangavati and Exs. D. 2 to 11 are tax paid receipts, D. 12 and 13 are notarized election ID cards, D. 14 is the residential certificate and D. 15 is the endorsement.

With reference to the documents of plaintiff are concerned, Ex. P. 1 is the general power of attorney, P. 2 is the sale deed, P. 3 is the mutation order P. 4 and 5 are tax paid receipts, P. 6 is the licence for construction, P. 7 is approved plan and P. 8, 9, 17 and 18 are demand register extracts, P. 10 to 15 are tax paid receipts, P. 16 is the letter from municipality and P. 19 is the certified copy of the allotment register.

The trial Court based on the evidence available on record proceeded to answer issues which were framed regarding sale made in favour of the plaintiff dated 8.5.1990 in the affirmative, alleged trespass on 15.1.2005 and plaintiff coming to know of the same on 20.1.2005 in the affirmative and so far as issues 3 to 5 regarding their defence that they were permitted to occupy the suit plot by the municipal administration authority in the year 1976-77 and with reference to limitation in filing the suit and the suit being bad for non joinder of necessary parties are answered in the negative against the defendant, and by answering issue regarding plaintiff''s right to seek recovery of possession in affirmative the suit of the plaintiff is decreed.

In the defence it was also taken that the suit of the plaintiff is barred by limitation in as much as there is admission, on the ground that the plaintiff has lost title to the suit property, as the suit is filed beyond the period of limitation and as well as the suit is bad for non arraigning the municipality as party to the proceedings.

The defendants 1 to 3 who are legal heirs of original defendant Nagamma Koravar preferred an appeal in R.A. No. 17/2012 challenging the judgment and decree dated 29.2.2012 passed by the Court of Addl. Civil Judge (Jr.Dn.), Gangavati in decreeing the suit O.S. No. 50/2007. The grounds on which the appeal was filed in the lower appellate Court is that the trial Court has not properly appreciated the pleadings and evidence available on record.

It is the case of the appellant that the trial Court has not properly appreciated the defence that the sale deed which is executed in favour of the plaintiff by the Chief Executive Officer, City Municipal Council, Gangavathi is not supported by order of competent authority namely the State Government and that in respect of there being admission in the plaintiff''s evidence that in the year 1990 itself she has requested the defendant to vacate the suit property and has subsequently filed the suit in the year 2007 claiming that alleged encroachment has taken place in the year 2005 is only to save limitation, otherwise the suit is barred by law of limitation which is not looked into by the trial Court and that the continuous possession of appellant on the suit property from 1976-77 to till the date of filing of the suit with the consent of the municipal administration authorities is completely ignored by the trial Court. Therefore the judgment and decree of the trial Court is required to be set aside. In addition to that several other grounds were also urged.

The lower appellate Court on going through the grounds of appeal with reference to the pleadings, oral and documentary evidence available on record proceeded to frame the following points for consideration.

POINTS

(i) Whether plaintiff proved that she is absolute owner of suit schedule property by virtue of registered sale deed dated 12.4.1990 and she was put in possession by TMC, Gangavathi on 20.4.1990?

(ii) Whether plaintiff proved that the defendant taking undue advantage of absence of plaintiff in the suit property, trespassed into the same on 15.1.2005 and put up temporary shed therein?

(iii) Whether defendants proved that they are in settled possession of suit schedule property since last 28 years, as such they have right to continue in possession of suit schedule property?

(iv) Whether appellants have made out case to issue commission for spot inspection?

(v) Whether suit is barred by limitation?

(vi) Whether suit is bad for non-joinder of necessary parties?

(vii) Whether judgment and decree passed by the trial judge is perverse, capricious or arbitrary and calls for interference of this Court?

(viii) What order or decree?

After hearing the parties the lower appellate Court answered the said points for consideration on the same lines in which the issues were answered for the reason that the points for consideration were also on the same lines as issues that were framed in the trial Court except for point for consideration No. 4 as to whether appellants have made out case to issue commission for spot inspection. By filing an application, in respect of which one point for consideration was framed, answered in favour of the plaintiff in the original suit who is respondent in the lower appellate Court and consequently dismissed the appeal filed by defendants 1 to 3 in the trial Court.

As against the concurrent finding rendered by the lower appellate Court, it is only the defendant No. 1 who is one of the legal heirs of original defendant Nagamma Koravar has come up in this second appeal. So far as other two defendants are concerned, they have accepted the concurrent finding of both the Courts below and as such stayed away, this appeal is filed on the grounds which are more or less similar to the grounds urged in the lower appellate Court.

When this matter was taken up for admission, this Court felt that in the light of the objection raised by the defendants regarding sale deed of suit property is executed by the Chief Executive Officer of City Municipal Council, Gangavati without obtaining Government sanction/approval as contemplated under Section 72 of the Karnataka Municipalities Act, this Court felt the Government should be made as a party and should verify whether really there is lapse in the procedure required to be followed while selling the suit property in favour of the respondent/plaintiff in the original suit.

Hence this Court by its order dated 10.2.2015 suo moto impleaded the State of Karnataka, Rep. by its Secretary, Department of Municipal Administration, Bengaluru, as 4th respondent and called upon the learned Government Pleader to take notice for 4th respondent and also to secure information regarding the requisite permission as contemplated under Section 72 of the Act is obtained before conveying the suit property in favour of the plaintiff in the original suit who is respondent herein. To the said query a communication which is sent by the Commissioner of Municipal Council, Gangavati and as well as Director of Municipal Administration is placed before this Court in the form of two communication which clearly indicate that there was no such prior permission by the Government for sale of suit plot in favour of the plaintiff in the original suit.

Incidentally in this proceedings though the respondent No. 1/plaintiff in the original suit is duly served, she has remained un-represented. Therefore this Court has taken up this matter for admission in the presence of learned counsel for the appellant and 4th respondent. After hearing them at length it is noticed that the suit of the plaintiff should fail for more than one reason.

The substantial questions of law that arise for consideration in this appeal are as under:

(i) Whether the sale deed which is executed by the Chief Executive Officer, City Municipal Council, Gangavati in favour of the plaintiff on 8.5.1990 would convey valid title to her in the suit property?

(ii) Whether the appellant who is claiming to be in possession of the suit property under the oral permission of the municipality authorities is entitled to seek dismissal of the original suit and consequently continue to be in possession of the suit property?

Since the learned counsel for appellant and as well as the Government Pleader were heard at length on these substantial questions of law, and the original records of both the Courts below being looked into, this Court proceed to dispose of the appeal on its merit by answering the aforesaid substantial questions of law i.e., the 1st substantial question of law in the affirmative holding that the sale deed dated 8.5.1990 executed by the Chief Executive Officer, City Municipal Council, Gangavathi does not convey valid title to the plaintiff in the original suit and the 2nd substantial question of law in the negative holding that the appellant herein who is one of the legal heir of original defendant and subsequently considered as 1st defendant in the original suit or his other brother and nephew are not entitled to be in possession of suit property pursuant to their claim that they are put in possession of the suit schedule property by the municipal authorities, for the following reasons.

REASONS

Admittedly Section 72 of Karnataka Municipalities Act deals with the manner in which the Government property will have to be disposed of by the municipalities. In the instant case the suit schedule plot, which is plot No. 14 situated in block No. 9 of Mahalaxmi Camp, Gangavati City is Government property is not in dispute. It is further not in dispute that the sale deed dated 8.5.1990 is not supported by any order of allotment issued subsequent to having secured permission by the competent authority namely the State of Karnataka under Section 72 of the Karnataka Municipalities Act whereunder prior to sale of Government properties the sanction shall be secured by the competent authority of the Government. Here such an order is not forth coming. Unfortunately both the Courts below have not looked into this though the original defendant has objected to title of the plaintiff. The same is ignored by both the Courts below.

Therefore this Court hold that the plaintiff is not entitled to be the owner of suit property more particularly for the reasons that the plaintiff is none other than the wife of PW. 1 G. Mehaboobsab an employee of Gangavati Municipality and sale said to have done is for valuable consideration of Rs. 300/- which is nominal consideration and far below the value for which the property could have been sold in her favour on that day. Considering the nature of property and its size and location, it appears that the said property is the property which probably is meant for allotment of weaker section of the society and the said apprehension of this Court is reflected in the sale deed also stating that the site is meant to be given to economically weaker section. If that is so, when plaintiff''s husband is an employee of Gangavati Municipal Council, how she can be considered as a person belonging to weaker section of the society is not supported by any evidence on record.

On the contrary, there is every possibility to presume that the husband of plaintiff by misusing his official capacity would have secured the sale deed in favour of his wife which is further supported by the evidence of PW. 3 who is none other than the Commissioner of City Municipal Council, Gangavati, who has stepped into the witness box to substantiate the allotment made by the Chief Executive Officer of Municipal Council. In that it is clearly seen as to how the official of municipality can abuse and misuse the process in knocking of the property of the municipality for the benefit of themselves.

In that view of the matter this Court refuses to accept the title of the plaintiff to suit property. When once her title is not accepted, the question of accepting her right to secure possession also does not arise. In that view of the matter the judgment of both the Courts below are required to be set aside and the suit is required to be dismissed.

While doing so, for the sake of academic interest it is seen that the suit is not maintainable on the grounds of limitation, for the reason that in the evidence of PW. 1 he has stated that in the year 1990 itself he and his wife went and requested the defendant to vacate the suit schedule property in the year 1990 itself, after they secured the sale deed in their favour. However no date is mentioned as to on which day or which month in the year 1990 they went and requested the defendant. However there is an admission that immediately after the sale deed in the year 1990 they went and requested the defendant to vacate. When such admission is there, how the trial Court could believe the encroachment on 15.1.2005 and 20.12.2006, which does not stand to reason. Therefore on that ground itself the plaintiff has lost the suit for possession on the ground that the said suit is barred by limitation. Therefore even otherwise the suit of the plaintiff could not have been decreed.

So far as the possession of suit property by the defendant is concerned, the same is also required to be decided in this proceeding. Admittedly in the defence which is taken by the original defendant Nagamma Koravar, she has stated that she was put in possession of the said property in the year 1976-77 by the municipal administration and thereafter she has given several representations seeking conveyance of the suit property in her favour. Though such an averment is there, there is nothing on record to show that they have been in possession of the property from 1976-77 that too with the consent of municipality. The representations which are produced and marked by them are two in numbers are dated 13.8.1990 and 29.12.1990 i.e., subsequent to the sale deed executed in favour of the plaintiff by the municipality.

The defendants have not produced any document to substantiate that they were in possession prior to sale and there is nothing on record to demonstrate that their possession is adverse to the interest of municipal corporation for the reason that municipal corporation has come to know of possession of original defendant Nagamma Koravar and her legal heirs after the 4th defendant is arraigned as a party to this proceedings. Therefore the adverse possession which is claimed cannot be entertained. Even assuming that adverse possession is claimed, there is no prayer for declaration that they are in possession of the suit schedule property adverse to the interest of the original owner Gangavathi Municipal Council in the instant case since this Court has refused to accept the title in favour of the plaintiff Raziabegum. Therefore in the absence of any prayer regarding adverse possession, the minimum required period of possession as against the original owner not being proved, the said prayer also cannot be granted even assuming there is such a prayer.

In that view of the matter while allowing this appeal filed by one of the legal heirs of original defendant Nagamma Koravar, this Court set aside the concurrent finding of both the Courts below in accepting the title of the plaintiff Raziabegum to suit property and also accepting the sale deed executed in her favour dated 8.5.1990 as document without conveying valid title, since it is executed without securing prior permission of the Government as required under Section 72 of the Karnataka Municipalities Act. At the same time this Court also observe that the possession of appellant herein to the suit property cannot also be ignored and therefore while allowing this appeal and setting aside the sale deed executed in favour of the plaintiff this Court would direct the 4th respondent herein to instruct the Commissioner, City Municipal Council, Gangavati, to take immediate steps for removal of the appellant herein from the possession of suit property, since the said property is the Government property belonging to the municipality. Therefore allowing him to continue in the said property claiming that he is in possession of the same with the permission of the municipal administration cannot be accepted and entertained and accordingly with such direction to the 4th respondent this appeal is allowed.

Now coming to the order passed by this Court on 3.12.2014, the learned counsel Sri Mrutyunjay Tata Bangi has been appointed as Amicus Curiae, to assist this Court, as counsel for appellant. His remuneration is required to be fixed in this matter. Accordingly the same is fixed at Rs. 10,000/- which shall be paid by the legal service authority in his favour within two weeks from this day.