Karnataka High Court
Sri D N Sangappa vs The City Corporation on 9 November, 2023
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NC: 2023:KHC:40176
RSA No. 198 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.198 OF 2012 (INJ)
BETWEEN:
1. D.N. SANGAPPA,
S/O. DEVARAMANE NEELAKANTAPPA,
AGED ABOUT 48 YEARS.
2. D.N. BASAVARAJ,
S/O. DEVARAMANE NEELAKANTAPPA,
AGED ABOUT 42 YEARS,
BOTH ARE RESIDING AT
NO. 684/6, NARASARAJ ROAD,
DAVANAGERE - 577 004.
...APPELLANTS
Digitally signed
by R DEEPA (BY SRI. A. R. HOLLA, ADVOCATE)
Location: High
AND:
Court of
Karnataka
THE CITY CORPORATION,
DAVANAGERE - 577 001.
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENT
(BY SRI. S. MAHESH, ADVOCATE)
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NC: 2023:KHC:40176
RSA No. 198 of 2012
THIS REGULAR SECOND APPEAL IS FILED UNDER
SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 10.10.2011 PASSED IN R.A.NO.33/2010 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE, DAVANGERE, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED: 6.3.2010 PASSED IN O.S.NO.87/2007 ON THE FILE OF
THE ADDL. CIVIL JUDGE (JR.DN), DAVANAGERE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants challenging the common judgment and decree dated 10.10.2011 passed in R.A. No.33/2010 by the Principal Civil Judge (Sr. Dn), Davangere.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiff Nos.2 and 3 and respondent is the defendant.
3. The brief facts leading rise to filing of this appeal are as under:
Plaintiffs filed a suit for permanent injunction against the defendant. It is the case of the plaintiffs that one -3- NC: 2023:KHC:40176 RSA No. 198 of 2012 Devaramane Neelakantappa i.e., plaintiff No.1 was the owner of site No.351 situated at M.C.C. 'A' Block, Davangere. In lieu of acquisition, the defendant allotted item No.1 of suit schedule properties in favour of Devaramane Neelakantappa by collecting difference in price worth Rs.32/- (Rupees Thirty two only) per square feet. In pursuance of the said allotment the defendant issued sale certificate as well as delivered the possession in favour of Devaramane Neelakantappa on 18.12.1969, and item No.2 of suit properties was also allotted to the plaintiff No.1 under the sale certificate dated 27.12.1974 for Rs.6,000/- (Rupees Six Thousand only). Since there was a mistake in the sale certificate insofar as ward number is concerned, a rectification deed was executed by the defendant in favour of plaintiff No.1 on 07.01.1975. In pursuance of the sale certificate, Devaramane Neelakantappa was put in actual possession of item No.2 of suit schedule properties also. Plaintiffs are paying Kandham. There is a passage between item Nos.1 and 2 of the schedule properties running from North to South, -4- NC: 2023:KHC:40176 RSA No. 198 of 2012 which is 3 feet width and the same was also conveyed by the defendant in favour of Devaramane Neelakantappa as per the sale certificate dated 03.03.1992. The properties allotted to Sri. Devaramane Neelakantappa is abutting to old Santhe Maidhana on the Northern side and Devaramane Neelakantappa took up construction of a Commercial complex and a dwelling house and completed the same comprising of a compound wall in the rear portion of the house property constructed over item No.1 of the schedule and the said compound wall was extended up to item No.2 of the suit properties. The Devaramane Neelakantappa i.e., father of plaintiffs became old and as such, the plaintiff No.2 was looking after the affairs of the properties. Towards the northern side of the schedule properties, there was an old santhe maidhana belonging to the defendant, later which was also called as Hullina santhe maidhana. Later defendant constructed several Malige premises taking the support of the compound wall constructed by the father of plaintiff Nos.2 and 3 and formed the bus stand on the Eastern edge of Santhe -5- NC: 2023:KHC:40176 RSA No. 198 of 2012 Maidhana called as Jagalur bus stand abutting to K.R. road. It is stated that there is a space maintained by the plaintiffs and other adjacent owners between the compound wall and buildings and the said passage has been using by the plaintiffs and other adjacent owners since more than 30 years. The defendant never raised any objections for the use of passage as well as the construction of Anjaneya temple which was constructed by an organization. It is contended that the suit schedule properties and the said passage and compound wall are shown in the rough sketch at points 'ABCDEFGHIJ' which extends to 'BCDE' passage and 'CD' compound wall as shown in the rough sketch.
4. On 01.03.2007 at about 08:00 am, the defendant along with some of their Henchmen claiming to be the employees of the defendant, came near the schedule properties and tried to demolish the maliges as well as the CD compound wall constructed by the plaintiffs and maliges constructed over the said passage abutting to -6- NC: 2023:KHC:40176 RSA No. 198 of 2012 the Northern wall of the building of the plaintiffs passage and demolished the Western wall of the compound shown at point DE in the rough sketch. The plaintiffs requested the officials of the defendant not to demolish the compound wall. Officials of the defendant did not give any heed to the request made by the plaintiffs. Hence, cause of action arose for the plaintiffs to file the suit for injunction.
5. Defendant filed written statement denying the averments of the plaint. It is contended that the plaintiffs without complying the requirements as under Section 482 of the Karnataka Municipal Corporation Act, the plaint is liable to be rejected and it is contended that the notice issued under Section 284(2) of City Municipality Act is not applicable as the office of the defendant is upgraded as Municipal Corporation. It is further contended that the suit filed by the plaintiffs is bad for non-joinder of necessary parties and it is contended that the suit for bare injunction without seeking for the relief of declaration is not -7- NC: 2023:KHC:40176 RSA No. 198 of 2012 maintainable. On these grounds, he sought for dismissal of the suit.
6. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1) Whether the plaintiffs prove that they are in possession of suit 'ABCDEFGH' position?
2) Whether the plaintiffs further prove that the defendant is trying to demolish CD compound and constructions over passage 'BCDE'?
3) Whether the plaintiffs prove the alleged acts of defendant would cause hindrance to them?
4) Whether suit is maintainable under Section 482 of Karnataka Municipal Corporation Act?
5) What order and decree?
7. In order to prove the case of the plaintiffs, plaintiff No.2 examined himself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 16 documents as Exs-P1 to P16. The defendant had not adduced any oral and documentary evidence. The trial Court as assessment of oral and documentary evidence of the plaintiffs, answered issue Nos.1 to 4 in the affirmative -8- NC: 2023:KHC:40176 RSA No. 198 of 2012 and issue No.5 as per the final order and consequently decreed the suit of the plaintiffs and restrained the defendant by way of decree for permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule 'ABCDEFGH' properties and also restrained from putting up any sort of construction over the passage shown at point BCDE in the annexed rough sketch by demolishing the CD compound wall towards the northern side of the plaintiffs' building.
8. The defendant aggrieved by the judgments and decrees passed in the instant suit and in O.S. Nos.93/2007 and 123/2007 dated 06.03.2010, filed an appeal in R.A.No.33/2010 and other connected matters before the Court of Prl. Civil Judge (Sr. Dn), Davanagere. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1) Whether the plaintiffs prove that the suit B property shown by letters BCEF is passage, they are using same?
2) Whether the plaintiffs prove that the defendant has demolished EF compound to -9- NC: 2023:KHC:40176 RSA No. 198 of 2012 construct complex in suit B property and it would cause hindrance to use of their property?
3) Whether suit is maintainable under Sec.482 of Karnataka Municipal Corporation Act?
4) What order and decree ?
Additional Issue No.1: Whether the plaintiff is entitled for mandatory injunction as prayed?
9. The First Appellate Court on re-assessment of the oral and documentary evidence, clubbed all the appeals and passed the common judgment wherein the appeal filed by the defendant was allowed and the judgment and decree passed in O.S. No.87/2007 was set aside and consequently dismissed the suit filed by the plaintiffs. The plaintiffs aggrieved by the judgment and decree passed by the First Appellate Court in RA No.33/2010, has filed this second appeal.
10. This Court admitted the appeal on the following substantial questions of law:
1) Whether the First Appellate Court failed to consider that the plaintiffs had placed on record Ex-P12, P13 and P14, which indicated that the
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NC: 2023:KHC:40176 RSA No. 198 of 2012 plaintiffs were put in possession of the suit property and therefore, a suit for bare injunction was maintainable?
2) Whether the First Appellate Court committed an error in reversing the judgment and decree of the trial Court?
11. Heard learned counsel for the plaintiffs and learned counsel for the defendant.
12. Learned counsel for the plaintiffs submits that the defendant has sold the suit schedule properties in favour of father of the plaintiffs i.e., plaintiff No.1 under sale certificates dated 18.12.1969 and 27.12.1974 for consideration of Rs.6,000/- (Rupees Six Thousand only) and he further submits that there was a mistake in the sale certificate dated 27.12.1974 insofar as ward number is concerned. The defendant executed the rectification deed in favour of plaintiff No.1 on 07.01.1975. He submits that the father of the plaintiffs was in possession of the suit schedule properties till his death. After his demise, the plaintiffs came in possession of the suit schedule
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NC: 2023:KHC:40176 RSA No. 198 of 2012 properties. He contends that the plaintiffs have constructed the Commercial complex, dwelling house and a compound wall in item No.1 and extending up to item No.2 of the suit schedule properties. He submits that the defendant without issuing a notice came to the spot and tried to demolish the compound wall. He submits that insofar as passage between item Nos.1 and 2 of the suit properties is concerned, the defendant has already executed the sale certificate in favour of father of the plaintiff Nos.2 and 3. He submits that the plaintiffs are the owners of the alleged suit passage. He submits that the defendant high handedly demolished the compound wall and making an attempt to construct a malige abutting to the compound wall. He also submits that the First Appellate Court has committed an error in passing the impugned judgment. He submits that the First Appellate Court has dismissed the suit solely on the ground that the plaintiffs have not obtained the permission for constructing the compound wall. Hence, on these grounds, he prays to allow the appeal.
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NC: 2023:KHC:40176 RSA No. 198 of 2012
13. Per contra, learned counsel for the defendant supports the impugned judgment and prays to dismiss the appeal.
14. Perused the records and considered the submissions of learned counsel for the parties.
15. SUBSTANTIAL QUESTION NO.1: The plaintiffs in order to prove the case, plaintiff No.2 was examined as PW-1. He has stated that the defendant has sold the suit scheduled properties in favour of father of the plaintiffs under the sale certificate dated 18.12.1969 insofar as suit item No.1 is concerned and suit item No.2 sale certificate dated 27.12.1974 for Rs.6,000/- (Rupees Six Thousand only). The defendant had delivered the possession of the suit schedule properties in favour of father of plaintiffs. The father of the plaintiffs became the absolute owner of the suit properties by virtue of sale certificates dated 18.12.1969 and 27.12.1974. There was a mistake in the sale certificate dated 27.12.1974 insofar as ward number is concerned. The defendant executed a rectification deed
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NC: 2023:KHC:40176 RSA No. 198 of 2012 dated 07.01.1975 in favour of plaintiff No.1. Though, there is a passage between the item Nos.1 and 2 of schedule properties running from North to South, which is 3 feet width, the same was also conveyed by the defendant in favour of father of plaintiff Nos.2 and 3 as per the sale certificate dated 03.03.1992 (Ex-P14). Further, the defendant had put the father of the plaintiffs in possession of the said suit passage. After execution of sale certificate in favour of father of plaintiff Nos.2 and 3, the father of the plaintiff Nos.2 and 3 constructed the compound wall in the rear portion of the house property, which was extended up to item No.2 of the suit properties.
16. The plaintiffs also produced the documents in support of their case. Ex-P1 is the property tax register extract in respect of suit properties and Ex-P2 to P10 are photographs and Ex-P2(a) to 10(a) are the negatives. Ex-P11 is the sanctioned letter wherein the defendant had granted and approved a sanctioned plan permitting the plaintiffs to construct a residential house. Ex-P12 is a sale
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NC: 2023:KHC:40176 RSA No. 198 of 2012 deed executed by the defendant in favour of father of plaintiff Nos.2 and 3 i.e., Devaramane Neelkantappa. Ex-P13 is the rectification deed, which discloses that the defendant executed rectification deed rectifying the mistake in ward number in the principal deed, i.e., the original sale deed. Ex-P14 is the sale certificate executed by the defendant in favour of father of plaintiff Nos.2 and 3 with regard to the passage wherein the defendant has sold the passage between item Nos.1 and 2 of suit properties, in favour of father of the plaintiff Nos.2 and 3 and Ex-P15 is the Voters list, which discloses that the father of the plaintiff Nos.2 and 3 constructed a house and also compound wall and the plaintiffs are residing in the said house and Ex-P16 is a copy of the complaint. Though in the course of cross examination, nothing has been elicited from the mouth of the witness and further the defendant has not denied the execution of Exs-P12 to P14. The defendant has admitted the execution of Exs-P12 to P14.
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NC: 2023:KHC:40176 RSA No. 198 of 2012
17. Further, the defendant though filed a written statement, but in rebuttal, has not examined any witnesses. Officials have not entered into the witness box and have not produced any documentary evidence. The trial Court considering the oral and documentary evidence produced by the plaintiffs, held that the plaintiffs have constructed the compound wall within the area purchased by the father of the plaintiff Nos.2 and 3 and the said passage is purchased under the registered sale certificate as per Ex-P14, though the father of the plaintiff Nos.2 and 3 has not obtained license from the defendant to construct the compound wall. Admittedly, the suit property is situated within the Corporation limits. In order to consider the case in hand, it is necessary to examine Section 299 of the Karnataka Municipal Corporations Act, 1976, which reads as under:
"299. Application to construct or re-construct building.- (1) If any person intends to construct or re- construct a building, he shall send to the Commissioner an application in writing for permission to execute the work together with a site
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NC: 2023:KHC:40176 RSA No. 198 of 2012 plan of the land, ground-plan, elevations and sections of the building, a specification of the work and such other documents as may be prescribed. Explanation.-'Building' in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street.
(2) Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or bye-
laws."
18. From the above, it is clear that permission is required only if a building is erected. In the explanation, the expression 'building' used in Section 299 means construction of a house or something similar to a house and not a compound. The Concise Oxford Dictionary Fifth Edition defines 'compound' as enclosure in which house or factory stands. Thus, though in this country in which legislation is operative, building excludes a compound. The said aspect was not considered by the First Appellate Court. The First Appellate Court passed the impugned Judgment solely on the ground that the plaintiffs have not obtained the license for the construction of the compound
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NC: 2023:KHC:40176 RSA No. 198 of 2012 wall and dismissed the suit. The First Appellate Court has committed an error in passing an impugned judgment and the impugned judgment passed by the First Appellate Court is contrary to the law laid down by this Court in the case referred supra.
19. Further, there is no dispute in regard to the ownership of suit schedule properties. The plaintiffs have got the grievance against the defendant in regard to the demolition of the compound wall and also the defendant is making an attempt to construct malige in the suit passage. The suit filed by the plaintiffs for bare injunction is maintainable. In view of the above discussion, I answer substantial question No.1 in the affirmative.
20. SUBSTANTIAL QUESTION NO.2: The First Appellate Court has passed the impugned judgment only on the ground that the father of the plaintiff Nos.2 and 3 has not obtained the permission for the construction of the compound wall. The First Appellate Court without
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NC: 2023:KHC:40176 RSA No. 198 of 2012 considering Exs.P12 to P14 wherein the defendant has sold the suit schedule properties item Nos.1 and 2 in favour of father of plaintiff Nos.2 and 3 and also the defendant has put the father of the plaintiff Nos.2 and 3 in possession of the suit schedule properties by virtue of Exs-P12 to P14, and further, there is also recital in the Exs-P12 to P14 with regard to delivery of possession in favour of father of plaintiff Nos.2 and 3. The First Appellate Court has failed to consider Exs-P12 to P14 and passed the impugned judgment. As I have recorded a finding in substantial question No.1 that compound wall is excluded from building, in view of the same, the question of seeking a licence for construction of compound wall, would not arise. The judgment and decree passed by the First Appellate Court is arbitrary and perverse and the same is liable to be set aside. In view of the above discussion, I answer substantial question No.2 in the affirmative.
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NC: 2023:KHC:40176 RSA No. 198 of 2012
21. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment and decree dated 10.10.2011, passed in R.A.No.33/2010 by the Principal Civil Judge, (Sr.Dn), Davanagere, is set aside. The judgment and decree dated 06.03.2010, passed by the trial Court in O.S.No.87/2007 by the Additional Civil Judge (Jr. Dn), Davangere, is restored.
No order as to costs.
In view of the disposal of the appeal, IA.No.2/2012 does not survive for consideration and is accordingly disposed of.
Sd/-
JUDGE ABK