Sangawwa vs Pattan Panchayat

A.V. Chandrashekara, J.—The plaintiffs in an original suit bearing O.S. 225/2001 which was pending on the file of Court of Principal Civil Judge (Jr. Dn.), Gadag are before this Court as they are aggrieved by the divergent judgment passed by the Court of Civil Judge (Sr. Dn.) and CJM, Gadag in R.A. 169/2006.

The suit filed for the relief of permanent injunction by the plaintiffs against the defendant Pattan Panchayat had been decreed on 25.11.2004 restraining the defendant from removing fire wood stored in the open space bearing TMC No. 1475 of Mulgund. The said open space is said to be abutting the plaintiff''s house and the road. At the same time, operative portion of the judgment dated 25.11.2004 discloses that defendant has been permitted to protect the property on the ground that judgment will not come in its way.

The defendant, being aggrieved by the said judgment and decree had appealed u/s 96 of CPC and the appeal bearing R.A. 169/2006 filed before the Court of Civil Judge, (Sr. Dn.) &n CJM Gadag has been allowed and judgment of the trial Court is set aside and consequently suit is dismissed. Hence, the plaintiffs aggrieved by the said divergent finding, have presented the present appeal.

Perused the records of both the Courts.

The judgment of the trial Court discloses that the property in question abutting the house of the plaintiff also abuts the main road in Mulgund town. It is also held that property in question is a part and parcel of the property bearing TMC No. 1475. The Pattan Panchayat has been in possession of the same since several years. Anyhow, the suit was for injunction only. The defendant-Panchayat had specifically denied the title set up made by the plaintiff. Under the circumstances, the plaintiff was expected to file a suit seeking relief of declaration also.

As per the principles laid down by the Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , whenever, title of open space is emphatically denied, the very suit for injunction will not be maintainable. Under such circumstances, a comprehensive suit has to be filed for declaration of title with consequential relief of injunction or possession, as the case may be. Specific observations made by the trial Court in so far it relates to Panchayat to protect its property, is concerned, the same is not challenged by the plaintiffs. The records would also go to show that the defendant initiated proceedings against the plaintiffs under the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 because of injunction granted by the trial Court. Panchayat infact has not proceeded. If the Pattan Panchayat is of the opinion that property in question absolutely, belongs to it, nothing comes in the way to take the possession in accordance with law by initiating proceedings under the above Act or invoking any other provisions of law which it deems proper.

The appeal has been dismissed mainly on the ground that measurements are not being mentioned and identity is not being properly made out. The fact that there is an open space abutting the house of plaintiffs and main road is not seriously disputed. The fact that plaintiffs have been running a fire wood depot from several years is not disputed.

In the light of the same, the entire focus of the First Appellate Court is in regard to identity being in dispute and proper measurements and boundaries being not mentioned. Hence, approach adopted by the First Appellate Court cannot be found fault with in any manner. There are no good grounds to interfere with the judgment of the First Appellate Court. Notwithstanding the dismissal of the appeal, nothing comes in the way of Panchayat initiating proceedings in accordance with law so as to take possession of the space where fire wood depot is running. Nothing comes in the way of plaintiffs to raise or agitate before the authorities, if they have title in respect of property.

Even otherwise plaintiffs are at liberty to file a comprehensive suit seeking relief of declaration and necessary consequential relief in accordance with principles laid down in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, .

ORDER

Appeal filed u/s 100 CPC is dismissed as unfit for admission with the above observation. There is no order as to costs.