Karnataka High Court
Smt Kamalamma W/O Late Muniyappa vs The Commissioner Bangalore Mahanagara ... on 5 December, 2022
Author: V Srishananda
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.2202 OF 2006
BETWEEN:
SMT. KAMALAMMA
AGED ABOUT 57 YEARS,
W/O. LATE MUNIYAPPA,
RESIDING AT NO.84
2ND CROSS, SRINIVASA LAYOUT,
LINGRAJAPURAM,
BANGALORE-560 084.
...APPELLANT
(BY SRI. K.NARASIMHA MURTHY, ADVOCATE)
AND:
1. THE COMMISSIONER,
BANGALORE MAHANAGARA PALIKE,
BANGALROE-560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER,
SARWAGNA NAGAR,
SUB-DIVISION,
BANGALORE MAHANAGARA PALIKE,
BANGALORE-560042.
...RESPONDENTS.
(BY SRI. PAVAN KUMAR, ADVOCATE FOR
SRI. H.DEVENDRAPPA, ADVOCATE FOR R1 AND R2)
THIS RFA FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 15.06.2006 PASSED IN
OS.NO.4630/2004 ON THE FILE OF THE IX ADDL. CITY CIVIL
JUDGE, BANGALORE, CCH.NO.10, DISMISSING THE SUIT FOR
PERPECTUAL INJUCTION AND ETC.,
2
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard, Sri. Narasimha Murthy, learned counsel for the appellant, Sri. Pavan kumar, learned counsel for Sri. H.Devendarappa, learned counsel for respondent Nos.1 and 2.
2. Present appeal is directed against judgment and decree passed in OS.No.4630/2004 dated 15.06.2006 whereby the suit of the plaintiff came to be rejected.
3. Brief facts which are necessary for the disposal of the appeal are as under:
"a) The plaintiff filed a suit for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit Schedule-A and B properties and also by demolishing the existing building.
b) That the appellant herein is the absolute owner of the House property bearing V.P.Khatha No.350/A formed out of the land bearing Sy.No.121/1, situated at Lingarajapuram, Bangalore, more fully described as Schedule-A property to the plaint, having purchased the same under a registered sale deed Dt.31-7-1975. The appellant's vendor has offered to sell Northern portion of the Schedule-A 3 property measuring 14 feet x 16 feet to the appellant herein under G.P.A. and agreement of sale, is morefuly described as Schedule-B to the plaint.
c) The appellant after purchase, has constructed a house adjoining the earlier house and got the khatha transferred in her name in the records of the village panchayath, Lingarajapuram, Bangalore.
d) The appellant submits, after constructing the house in Schedule-B property, the area was included in the Bangalore Mahanagara Palike, Ward No:87 was formed.
e) The appellant has contended, she was in peaceful possession and enjoyment of the suit schedule properties, from the date of purchase and residing therein from the date of putting up residential premises in Schedule-A and Schedule-B property.
f) The appellant has leased out the said residential premises to one Smt.Rathnamma and she along with her family members is occupying the said house.
g) The official of the first and second respondent came near the Schedule-A and B properties on 18-
6-2004 to demolish the existing building built by the appellant, the appellant's tenants were at the schedule-A and B properties have resisted the same and enquired why they have come to demolish the 4 building to which they have said, complaint was received by them to demolish the building constructed in Schedule-A and B.
h) The appellant has contended that, she has put up residential premises in the year 1975 & 1980 when the area was under the village Panchayath, Governed by Karnataka Village Panchayath Act, thereafter the area where the suit schedule properties are situated are included in Bangalore Mahanagara Palike. The respondents thereby have no right over the suit schedule A & B properties and are not entitled to enter upon the same and demolish the existing building constructed by the appellant 30 years back, with out due process of law.
j) The respondent have contended before the trial court, they have issued the notice to the appellant, if she is aggrieved, she can file an appeal before the Karnataka Appellate Tribunal by challenging the provisional notice, and they have denied the plaint allegations.
k) The appellant submits, the respondents has admitted in their written statement, the appellant has put up construction in Schedule-A property in the year 1975 and in schedule-B property in the year 1980. The respondent further contended it is road portion, the same was denied by the appellant. The appellant submits, alleged, after inspection of the spot, it was noticed that the appellant put up 5 construction unauthorisedly upon the suit properties, they have passed provisional order on 17-5-2004 directing her to stop further construction and to demolish the unauthorized construction and to show cause. The said order was confirmed under Sec 321(3) of the K.M.C Act 1976 and same was served on appellant on 29-6-2004. the respondents have taken steps in accordance with law against the appellant herein."
4. Plaintiff claimed that she is the absolute owner of following properties:
"Schedule 'A' Property All the piece and parcel of the house. Built on site bearing V.P.Khatha No.350/A formed out of the land Sy.No.121/1, situated at Lingarajapuram, Bangalore, measuring East to West: 32 feet, North to South: 14 feet and bounded on:
East by: Munivenkatappa's Land
West by: Chinnappa's House
North by: Schedule 'B' property
South by: L.Muniswamappa's Land.
Schedule 'B' Property
All that piece and parcel of the House built on site bearing V.P.Khatha No.350/A, formed out of the land Sy.No.121/1, situated at Lingarajapuram, Bangalore 6 measuring East to West: 14 feet, North to South: 16 feet and bounded on the:
East by: Munivenkatappa's Land
West by: Road and Chinnappa's House
North by: Anthoniyappa's House
South by: Schedule 'A' property."
5. It is further contended by the plaintiff that after purchase of the property in the year 1975, she constructed a house in the year 1975-76.
6. It is the further case of the plaintiff that in the year 1980 plaintiff's vendor tried to sell the northern portion of 'A' schedule property measuring 14 feet X 16 feet to third party and thereby trying to close the road portion so as to deny the access to the suit property by the plaintiff. Therefore, the plaintiff approached the elders of the village and well wishers, the vendor of the plaintiff sold the said portion by a sale agreement and general power of attorney, the portion on the northern side measuring 14 feet x 16 feet and thereby plaintiff became the owner of both 'A' schedule and 'B' schedule properties. It is further contended that the plaintiff after purchase of the land, has put up a dwelling house on schedule properties by obtaining necessary permission from 7 Lingarajapuram Panchayat and property was also assessed and the plaintiff is paying the tax.
7. It is further contended that, on account of financial commitments, the property was leased to one Smt.Rathnamma and she is residing in the said property.
Plaintiff further contends that on 18.06.2004 some of the officials of the defendants came near the property and wanted to demolish the building. Members of the family of Rathnamma who are residing in the house, resisted the action and enquired the persons as to why they intend to demolish the building. At that juncture, family members of Rathnamma were informed that the building is built illegally and therefore action is initiated. On coming to know of the said fact, plaintiff approached the officers of the defendants and they informed the plaintiff that the construction is illegal and therefore, they are intending to demolish the building, which necessitated the plaintiff to file the suit seeking the relief of permanent injunction against the defendants.
8. Upon service of suit summons, defendants entered appearance and filed detailed written statement denying the averments which is specifically contended by the defendants 8 that the construction is on the road and the same is without any plan and license or permission from the defendants and therefore, sought for dismissal of the suit.
9. Based on rival contentions of the parties, the trial Court raised the following issues:
1. "Whether the plaintiff proves that she has put up the construction in the suit schedule properties in accordance with law and she is in lawful possession & enjoyment of the suit schedule properties as pleaded in the plaint?
2. Whether the plaintiff proves that the interference of the defendants with her possession of the suit schedule properties is unlawful and alleged in the plaint?
3. Whether the defendants prove that the suit is not maintainable in law and the same is liable to be dismissed for the reasons stated in the written statement?
4. Whether the plaintiff proves that she is entitled for the grant of permanent injunction against the defendants as sought for in the suit?
5. What Order or decree?"9
10. In order to prove the case of the plaintiff, plaintiff got examined herself as PW-1. In support of her case, she has relied on 9 documentary evidence which were exhibited and marked as EXs.P1 to P9. PW-1 was cross examined by defendant. However, defendant did not chose to examine or place any oral or documentary evidence on record. Thereafter, learned trial judge heard the parties and by impugned judgment dismissed the suit of the plaintiff.
11. Being aggrieved by the dismissal of the suit, the plaintiff is in appeal on the following grounds:
"i) The impugned Judgment and Decree are erroneous and unsustainable both in law and on facts and the same is liable to be set aside.
ii) The court below gravely erred in dismissing the suit even though the plaintiff has contended, building was constructed 30 years ago when the area was in Grama Panchayath Jurisdiction.
iii) The court below has failed to appreciate, the residential building was constructed by the appellant, when the suit schedule-A in the year 1975 and B properties in the year 1980 was with in jurisdiction of Grama Panchayath, thereafter it was included in Bangalore Mahanagara Palike.10
iv) The trial court has wrongly come to the conclusion, the plaintiff has not obtained plan and licence to put up residential building in the suit schedule-A and B properties.
v) The court below has wrongly come to the conclusion, the appellant has put up unauthorized construction in the Road portion, the respondent have failed to produce any oral or documentary proof.
vi) The trial court has failed to appreciate the documentary and oral evidence produced by the appellant before the court. The Ex.P4 and Ex.P5 clearly demonstrate; the appellant has put up construction when the area was with in the jurisdiction of Grama Panchayath. Subsequently, the area where the suit schedule-A & B properties are situated was included in Bangalore Mahanagara Palike after formation of ward No.87."
12. Sri Narasimha Murthy, learned counsel representing the appellant contended that the action of the defendant needs time to demolish the suit property as it is highly illegal and as much, the defendants are required to take action in accordance with law. He also contended that the construction have been completed in the year 1980, and there afterwards, Smt.Rathnamma is intended as the tenant in the suit property. 11 The defendant ought not to have proceeded to demolish the building high handedly and sought for dismissal of appeal.
13. Per contra Sri. Pavan Kumar, learned counsel representing Sri.Veerendrappa appearing for the respondents, supported the impugned judgment by contending that the suit property is built on the road without having any approved plan and license and therefore, it is illegal.
14. In view of the rival contentions, this Court perused the materials on record and on such perusal, following points would arise of consideration:
"i) Whether the plaintiff has proved that she is in lawful possession in respect of suit schedule 'A' and 'B' properties ?
ii) Whether the plaintiff establish that there is an illegal interference by the defendants?
iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference ?"
15. In the case on hand, in order to prove the case of plaintiff, plaintiff got examined herself as PW-1 and she has 12 relied on 9 documents which were exhibited and marked as Exhibits PW-1 to PW-9. Among the documentary evidence that is placed on record, Ex.P1 is a registered sale deed executed by the vendor of the plaintiff in favour of the plaintiff in the year 1975. Ex.P2 is a general power of attorney. Ex.P3 is the affidavit of Neelakantappa who is the vendor of the plaintiff. Ex.P4 is the Demand Registrar Extract and Ex.P5 is tax paid receipts Ex.P6 and Ex.P7 are the photographs of the suit property Ex.P8 is the office copy of the statutory notice issued by the defendants and to the plaintiffs. Ex.P9 is the endorsement.
16. The oral evidence which is placed on record by the plaintiff is the replica of the plaint averments.
17. In her cross examination, PW1 has specifically admitted that in suit 'A' schedule property, there is a road on the northern side. She also admits that a notice came to be issued by the defendant under Section 321(3) of Karnataka Municipal Corporations, Act, 1976. She admits that the same is received by one Sri. Ramakrishnappa alias Venkatamunni who is none other than her brother. She admits that she has received the confirmation order from Corporation as there was no objection filed to the statutory notice. 13
18. She further admits in her cross examination that she has not put up a new building in suit schedule 'A' and 'B' properties without obtaining any license or approved plan from the Bangalore City Corporation. As such, there was no necessity for the defendant to place any oral and documentary evidence on record.
19. Admittedly the plaintiff has put up construction on road without obtaining any plan and license, the corporation was constrained to issue notice under Section 321(3) of Karnataka Municipal Corporations, Act, 1976. Objections were not filed within the prescribed time by the plaintiff to the said notice. Therefore, the corporation proceeded to pass the final order.
20. When such is the factual aspect of the matter, the alleged construction over the suit property by the plaintiff is to be held as illegal. Therefore, the defendants were justified in initiating the action against the plaintiff for the removal of the illegal structure which is situated on the public road.
21. Accordingly, from the above discussion, this Court is of the considered opinion that the plaintiff has failed to make out a case that she is in lawful possession of the suit property and illegal interference by the defendants. 14
22. On the contrary, the defendant has proceeded to take action against the plaintiff in accordance with law by issuing necessary notice and passing final order under the provision of Karnataka Municipal Corporations, Act, 1976. The learned trial judge has rightly appreciated these aspects of the matter and dismissed the suit of the plaintiff by assigning appropriate, logical and sound reasons to arrive at a finding that it is not the case for grant of injunction.
23. Accordingly, points No.1 to 3 are answered in Negative.
ORDER The Appeal sans merit and hereby dismissed. No orders as to costs.
Sd/-
JUDGE PK