PRESENT THE HON'BLE MR. N v. ANJARIA, CHIEF JUSTICE AND THE HON'BLE
Case Details
- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE K. V. ARAVIND WRIT APPEAL No.8/2024 (LB-RES) BETWEEN: CHURCH OF SOUTH INDIA TRUST ASSOCIATION, A COMPANY REGISTERED UNDER INDIAN COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT No. 5, WHITES ROAD, ROYAPETTAH, CHENNAI - 600 017. REPRESENTED BY ITS DULY CONSTITUTED REPRESENTATIVE AND POWER OF ATTORNEY HOLDERS. 1 . MR. VIJAYKUMAR DANDIN, HON. SECRETARY, KARNATAKA NORTHERN DIOCESE, ALL SAINTS' CHURCH COMPOUND, HALIYAL ROAD, DHARWAD - 580 001. 2 . REV. SATYA BABU SAMUEL TREASURER KARNATAKA NORTHERN DIOCESE ALL SAINTS' CHURCH COMPOUND, HALIYAL ROAD, DHARWAD - 580001. (BY SRI D.R. RAVISHANKAR, SENIOR ADVOCATE A/W SRI PAWAN KUMAR, M.N., ADVOCATE FOR SRI SOURABH R. K., ADVOCATE) ...APPELLANTS - 2 - AND: 1 . 2 . 3 . 4 . 5 . 6 . 7. 8 . THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU - 560001, BY ITS PRINCIPAL SECRETARY. THE DEPUTY COMMISSIONER, SHIMOGA DISTRICT, SHIMOGA - 577 201. THE COMMISSIONER, SHIMOGA MAHANAGARA PALIKE, SHIMOGA - 577 201.
Legal Reasoning
SHIMOGA INSTITUTE OF MEDICAL SCIENCES, SAGAR ROAD, SHIMOGA - 577 401, REPRESENTED BY ITS DIRECTOR, MR. O. S. SIDDAPPA . THE REGIONAL COMMISSIONER AND REVIEWING AUTHORITY, BENGALURU DIVISION, BENGALURU - 560 027. THE DEPUTY COMMISSIONER, SHIMOGA DISTRICT, SHIMOGA - 577 201. THE COMMISSIONER, SHIMOGA MAHANAGARA PALIKE, SHIMOGA - 577 201. MR. YESUDAS, FATHER'S NAME NOT KNOWN, AGE MAJOR, PRESIDENT, CHRIST UNION, SHIMOGA - 577 201. DELETED AS PER COURT ORDER DATED 03.12.2024 - 3 - 9. L. ADISHESHA, FATHER'S NAME NOT KNOWN, AGE MAJOR, EX-MEMBER, TOWN MUNICIPALITY, 6TH CROSS ROAD, HOSAMANE, SHIMOGA - 577 201. DELETED AS PER COURT ORDER DATED 03.12.2024 …RESPONDENTS (BY SRI SHASHI KIRAN SHETTY, ADVOCATE GENERAL A/W SMT. NILOUFER AKBAR, AGA FOR R1, R2 & R6; SRI A.V. GANGADHARAPPA, ADVOCATE FOR R3 & R7; SRI S.B. TOTAD, ADVOCATE FOR C/R-4 & R5; VIDE ORDER DATED 03.12.2024, R8 & R9 ARE DELETED; SRI UDAY HOLLA, SENIOR ADVOCATE FOR SMT. K. SHOBHA, ADVOCATE FOR IMPLEADING APPLICANT IN I.A.No.7/2024) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT PRAYING TO SET ASIDE THE COMMON ORDER DATED 31.10.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP No. 16857/2022 AND WP No. 16866/2022 ON THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA AND ALLOW THE SAID WRIT PETITIONS IN WP No. 16857/2022 AND WP No. 16866/2022 FILED BY THE APPELLANT. THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS PRONOUNCED AS UNDER: - 4 - CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA and HON'BLE MR. JUSTICE K. V. ARAVIND C.A.V. JUDGMENT (PER: HON'BLE MR. JUSTICE K. V. ARAVIND) Heard learned Senior Advocate Shri D.R.Ravishankar, assisted by learned Advocate Shri Pawan Kumar M.N. for the appellant, learned Advocate General Shri Shashi Kiran Shetty, assisted by learned Additional Government Advocate Smt.Niloufer Akbar for respondent Nos.1, 2 and 6, learned Advocate Shri A.V.Gangadharappa for respondent Nos.3 and 7, learned Advocate Shri S.B.Totad for caveator/respondent Nos.4 and 5 and learned Senior Advocate Shri Udaya Holla, assisted by learned advocate Smt.K.Shobha, for the impleading applicants. 2. This intra-court appeal under Section 4 of the Karnataka High Courts Act, 1961 by the petitioners in W.P.No.16857 of 2022 and W.P.No.16866 of 2022 is against the common order dated 31.10.2023, passed by the learned Single Judge dismissing the writ petitions. 2.1 The prayer in the writ petition was to set aside order dated 16th July 2022 passed by the Commissioner, Shivamogga Mahanagara Palike, which confirmed the order of Deputy - 5 - Commissioner, Shivamogga. It was directed that land in question situated in Ward No.31, Nileghatta Gramatana, admeasuring 2 acres 35 guntas of Kasaba Hobli, Shivamoga Taluka, which was in custody of the Mahanagara Palike to hand over the same to the Director, SIMS, Medical Education Autonomous Body, Shivamogga, for the purpose of construction of hospital, on condition of post facto approval by the State Government. 2.2 Against the aforesaid order, the appellant-Church of South India Trust Association filed petitions which resulted into the judgment and order impugned in this appeal whereby the petitions were dismissed by learned Single Judge and the following order was passed,
Decision
"i) The writ Petitions stand dismissed reserving liberty to the petitioner to agitate their claims before the Court of Competent Civil jurisdiction by establishing their title to the properties. ii) If such a suit is filed, the court seized of the said suit to decide the matter on its own merits, uninfluenced by the observations made in the impugned orders as also this order." 3. The brief facts leading to this appeal are that the appellant claims absolute ownership of property bearing Khatha Nos.1781- 1939, 1776A-1941, 1782-1780-1942 and 1783-1781-1943, all properties abutting each other and situated in Ward No.31, Mission - 6 - Compound, Shivamogga. The property in question has several buildings, an educational society and a community hall. 4. The dispute that has brought the parties before this Court pertains to the ownership of the property. Respondent No.3, the Commissioner, Shivamogga Mahanagara Palike, asserts ownership over the property and has subsequently transferred it to the Shivamogga Institute of Medical Sciences (SIMS) for the establishment of a cancer hospital. 5. The appellant asserts ownership over the property based on a registered deed of transfer executed by the Wesleyan Methodist Missionary Trust Association (Wesleyan), a company incorporated under the English Companies Act, 1929, with its registered office in London. The transfer is claimed to have been effected through a registered deed dated 12.06.1963. It is further contended that the appellant has been exercising absolute ownership rights over the subject properties and has duly paid all municipal taxes to the Shivamogga Municipality up to date. 6. The appellant alleges that by order dated 16.07.2022, respondent No.3-Shivamogga Mahanagara Palike has assigned Khatha No.1159/159 (PID No.185828) and transferred the same to - 7 - SIMS-respondent No.4 by order of the Deputy Commissioner- respondent No.2. The order of the Deputy Commissioner dated 14.06.2022 was also challenged in the writ petitions where land measuring 2 acres 35 guntas claimed to be appellant's land was proposed to be transferred to SIMS. The order dated 13.07.2021 of the Regional Commissioner rejecting the review petition upholding the entries in favour of Shivamogga Mahanagara Palike is also challenged. 7. The learned Single Judge, considering that the facts giving rise to the impugned order in the writ petitions were more or less the same, heard the petitions together and passed a common order. The learned Single Judge dismissed the writ petitions and reserved liberty to the appellant to agitate it's claim before the Civil Court by establishing it's title to the property. 8. Learned Senior Advocate Shri D.R.Ravishankar, appearing for the appellant, submits that the properties in question were vested with the appellant under the registered transfer deed dated 12.06.1963. The erstwhile Town Municipal Council, Shivamogga, raised the title dispute on the portion of the property. The suit filed by the appellant in O.S.No.135 of 1959 was dismissed; however, in an appeal in R.A.No.101 of 1963, it was declared that Wesleyan - 8 - was the absolute owner of the scheduled properties therein. The said decree has reached finality. Therefore, the impugned order passed by the learned Single Judge is unsustainable. 8.1. Learned Senior Advocate further submits that the dispute was raised by Mr.Sampath claiming the properties in question. Then, the Municipal Council decided that the properties belonged to the appellant. 8.2. It is further submitted that Shri L. Adishesha filed a complaint with the Urban Development Department in 1991. Thereafter, the complaint was referred to the Corps of Detectives (COD). The COD submitted a report on 15.09.1994 endorsing the appellant's ownership of the property. 8.3. It is submitted that when the title disputes were already adjudicated, the action of the Municipal Authority in changing the Khatha and thereafter allotting the land to SIMS is not sustainable. It is the submission that when the decree of the Civil Court relating to the very same subject property has reached finality, the revisional authority relegating the appellant to civil suit is not sustainable. - 9 - 8.4. It is submitted that the appellant has been in continuous possession since the deed of transfer and the binding decree is sought to be overturned by allotting the land to SIMS. 9. Learned Advocate General Shri Shashi Kiran Shetty, submits that the properties Wesleyan transferred are sites, whereas the land transferred in favour of SIMS is different. The subject property was not the subject matter of the transfer deed. The decree in O.S.No.135 of 1959 and R.A.No.101 of 1963 was dealing with an ownership dispute of 8 ft. strip of land. The decree does not deal with the land in question. 9.1. Learned Advocate General further submits the layout has been formed and the property has been already sold to various persons. The land allotted to SIMS is different from the land claimed by the appellant. It is further submitted that the title regarding the land claimed by the appellant was not established. Hence, the revisional authority has rightly relegated the appellant for an appropriate remedy before the competent Civil Court. 10. Learned Advocate Shri A.V.Gangadharappa appearing for respondents No.3 and 7-Corporation, submits that the payment of taxes as claimed by the appellant are towards existing buildings - 10 - and the rights of the appellant are not disturbed under the impugned order. It is submitted that the land transferred to SIMS is a vacant property and the khatha numbers relied upon by the appellant relate to different properties. 11. Learned Advocate Shri S.B.Totad appearing for respondent No.4 -SIMS adopts the submission of the State. 12. We have heard learned Counsel for the parties and perused the record. 13. The dispute in the present case arises from the transfer of land measuring 2 acres and 35 guntas in Ward No. 31, Shivamogga, in favour of SIMS. The crux of the contention between the appellant and the respondent authorities pertains to the ownership and identification of the immovable property in question. The appellant claims that the land was lawfully transferred to it by Wesleyan under a registered deed of transfer dated 12.06.1963. In support of this claim, reliance is placed on proceedings conducted by the Municipal Corporation as well as the decree passed in R.A.No.101 of 1963 by the Civil Court, which are cited to establish ownership over the property. - 11 - 14. Learned Single Judge rightly reasoned with reference to the decree passed in R.A.No.101 of 1963, accepting the observations and findings from paragraph 24, "24. As referred to supra, the decree which had been passed in R.A.No.101/1963 was only for an extent of 8 feet strip. The enquiry conducted by TMC was as regards the different municipal numbers so also the enquiry conducted by COD was for a different survey number. Thus, these documents prima facie do not inspire any confidence to indicate that the petitioner is the owner of the land. There are various discrepancies both in terms of measurement, location and identity, which this Court cannot conduct a rowing enquiry to ascertain the veracity thereof. The same would have to be adjudicated before a Court of competent jurisdiction with documents being marked, witnesses being examined and cross examined and thereafter a decision being arrived at which cannot be so done in a Writ Petition." 15. Another aspect was noted in paragraph 25 by learned Single Judge which also was germained for observing that it has to be gone into only in a suit filed by the petitioner before the Civil Court. 16. The submission of the learned Senior Counsel for the appellant that the Commissioner, Shivamogga Bhadravathi Mahanagara Palike, Shivamogga has declared the appellant as owner of the subject property, is not acceptable. A bare perusal of the order dated 21.01.1993 by the Commissioner would prima facie shows that the property subject matter of proceedings dated 21.01.1993 and the property subject matter of this appeal are different. - 12 - 17. Similarly, the enquiry by the COD is relating to other properties. The conclusion as to the identification of the properties which are subject matter of COD enquiry and the proceedings before the Commissioner, can be reached only after a detailed enquiry and evidence of the parties claiming rights, is recorded by the competent Civil Court. 18. Heavy reliance is placed by the learned Senior Counsel for the appellant on the transfer deed dated 12.06.1963. The sale deed would establish the ownership and description of the properties. The identification of the properties which are the subject matter of the transfer deed has to be made based on the description and boundaries. The parties are in dispute on the identification of the properties. Prima face, it appears that there is no much dispute on the ownership. The process of identification requires recording of evidence, examination of documents and if required, the assistance of the competent authorities. This exercise cannot be undertaken in this appeal. 19. The learned Senior Counsel for the appellant has placed reliance on the Google maps and persuaded this Court to identify the property subject matter of this appeal. The manner in which - 13 - identification of property was attempted by the learned Senior Counsel for the appellant was seriously objected by the learned Advocate General. Again as observed earlier, this involves a process of enquiry and recording of evidence. 20. The learned Single Judge, after examining the brief history of the land in dispute with reference to the deed of transfer, held that the properties covered under the transfer deeds comprised sites, whereas the land forming the subject matter of the impugned order is distinct. Furthermore, it has been recorded that the survey sketch submitted by the appellant does not correspond with the sites claimed by it. The Court also held that R.A.No.101 of 1963 pertained solely to an 8-ft. strip of land and did not relate to the subject property. Additionally, it was held that the enquiry conducted by the COD pertained to different properties and was not concerned with the land in question. 21. The learned Single Judge, upon consideration of the rival contentions and the dispute raised by the parties, held that significant discrepancies exist with respect to the measurement, location and identity of the properties. Accordingly, it was concluded that the resolution of these issues falls within the jurisdiction of the competent Civil Court. - 14 - 22. Upon perusal of the various contentions and the nature of the dispute brought in appeal, this Court is in complete agreement with the findings and conclusions arrived at by the learned Single Judge. An examination of the documents placed on record reveals discrepancies concerning the measurement, location, and identity of the properties. The material on record clearly indicates that a detailed enquiry, involving the recording of evidence and examination of documents is essential for the proper adjudication of the dispute. Such an exercise, however, falls beyond the scope of this Court’s jurisdiction under Article 226 of the Constitution and therefore, cannot be undertaken in these proceedings. 23. When there are several aspects on facts are involved, the determination of which would only require leading of evidence, and when the same are in the nature of civil rights rivalry claimed, and also that the rights sought to be agitated are in the realm of titular rights, learned Single Judge was eminently justified in not granting relief to the petitioner to relegate the petitioner to the Civil Court and to establish its title to the property. 24. In view of the foregoing, the reasons assigned by the learned Single Judge are well-founded and substantiated. The order of the - 15 - learned Single Judge does not suffer from any infirmity warranting interference by this Court. 25. Hence, the appeal is devoid of merit and it is accordingly dismissed. Sd/- (N. V. ANJARIA) CHIEF JUSTICE Sd/- (K. V. ARAVIND) JUDGE yn