M.K.RAJASHEKARAN Vs. CHIEF OFFICER, TOWN MUNICIPALITY

JUDGEMENT

(1.) Heard the learned counsel appearing for the appellant. This matter is listed for admission.

(2.) The factual matrix of the case of the plaintiff before the Trial Court that he is the absolute owner and in lawful possession of the 'B' schedule property. The plaintiff further contend that the defendant No.2 is illegally constructed the building in 'B' schedule property and so also the plaintiff he is entitled for mandatory injunction. The contention of the plaintiff that the defendants are interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The defendants also took the specific contention that the Court has no pecuniary jurisdiction to try the suit. Based on the pleading of the parties, the Trial Court framed the Issues and allowed the parties to lead their evidence. Thereafter, the Trial Court having considered the material on record answered the Issues framed in respect of plaintiff as negative since the title document has not produced before the Court except relying upon the Ex.P1 release deed and Ex.P2 endorsement as well as the letter received from TMC at Ex.P3 to 5 and approved layout plan at Ex.P6. Hence, the Trial Court comes to the conclusion that without producing any title deed, the question of declaring that the plaintiff is the owner of the suit 'b' schedule property does not arise. The Trial Court also taken note that the nature of the suit schedule property is a site and suit is not valued under Sec. 7 of KCF AND SV Act and comes to the conclusion that the suit schedule property is not an ancestral property, hence, question of invoking Sec. 7 does not arise when the suit property is a site and the same is not properly valued and answered the same as affirmative accepting the contention of the defendants and dismissed the suit of the plaintiff.

(3.) Being aggrieved the judgment and decree of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court also considering the grounds urged in the appeal memo comes to the conclusion that the appeal preferred by the plaintiff is not maintainable considering the Ss. 101 to 103 of the Indian Evidence Act since the burden is on the plaintiff to prove that he is the absolute owner and he is in peaceful possession and enjoyment of the suit schedule property. The Trial Court also taken note of the admission elicited from the mouth of PW1 wherein he categorically admitted that he has not obtained the modified layout plan of Ex.P6 from KDA, KGF and also admitted that the Electricity Department has not issued the document in his favour stating that the place which was used for passing the high tension wire is not required for this said department. The First Appellate Court also taken note of the fact that the application submitted before the Deputy Commissioner with respect to Ex.P13 came to be dismissed and he has filed an appeal before the High Court. In this regard, the question was put to PW1 that only the site shown at Ex.P6 belongs to him and rest of the place belongs to the Government and for that he answered that high tension line which was passing in the said sites are also belongs to him. The First Appellate Court also taken note of all these material on record. The First Appellate Court also taken note of the important document at Ex.D1 which is certified copy the order of Deputy Commissioner, Kolar discloses that the plaintiff had filed the appeal before the Deputy Commissioner challenging the resolution of defendant No.1-Municipality dtd. 29/4/1983 reserving the suit schedule property as park area. All these materials were taken note by the First Appellate Court and comes to the conclusion that the plaintiff has not placed any material to prove the ownership and dismissed the appeal of the plaintiff. Being aggrieved by the judgment and decree of both the Courts, the present appeal is filed before this Court by the plaintiff.