Karnataka High Court
Mr. Abhay Kumar S/O Manikchand Mehta, vs City Municipal Council, on 4 February, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
R.F.A. No.3077/2011 (PAR)
BETWEEN:
1. MR.ABHAY KUMAR
S/O MANIKCHAND MEHTA,
AGE: 61 YEARS, OCC: BUSINESS,
R/O KOPPAL.
2. SMT.PREMALATA
W/O ABHAY KUMAR MEHTA,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O KOPPAL.
... APPELLANTS
(BY SRI.S.A.H.RAZVI & SRI.A.B.PATIL, ADVOCATE)
AND:
CITY MUNICIPAL COUNCIL,
KOPPAL
REP. BY ITS COMMISSIONER,
... RESPONDENT
(BY SRI.R.K.KULKARNI, ADVOCATE)
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THIS RFA IS FILED UNDER SECTION 96 READ
WITH ORDER 41 RULE 1 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 08.04.2011 PASSED
IN O.S.NO.18/2002 ON THE FILE OF THE SENIOR
CIVIL JUDGE AT KOPPAL, DISMISSING THE SUIT
FILED FOR COMPENSATION AND POSSESSION OF THE
VACANT SITE.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, N.KUMAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This is a plaintiffs appeal against the judgment and decree of the trial Court, which has dismissed the suit for damages and for restitution of the property.
2. For the purpose of convenience, the parties are referred to as they are refereed to in the original suit.
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3. The plaintiffs have filed the suit, claiming compensation in a sum of Rs.17,50,675/- and also the decree for possession of the vacant site to the west of the guttar of the Katharaki road upto the present building, Mahaveer Complex (Adarsh Lodge) measuring 93' (north-south) and 12' (east-west) towards northern end and 11' towards southern end, in all measuring 1000 sq. ft. approximately.
4. The case of the plaintiff is that before the abolition of Jagirs, Koppal was estate of Nawab Salar Jung in erst-while Hyderabad State. During the Jagir regime the site of the Mahaveer Complex was bearing plot No.24, measuring 508 sq. yds. extended up to Kataraki road towards east. These entries were made after survey and settlement conducted by the then Government and were entered in the survey records also and the said plots stood in the survey and other official records in the name of one Shri Hajarimal :4: Multanmal, who was the ancestor of plaintiff No.1. The Plot No.24 was situated in the immediate vicinity of clock tower. A road leading to the village Kataraki and popularly called as Kataraki road was constructed during the salarjung regime, which commenced from the clock tower and ran its south. This road was flanked on its east and west by a gutter (drain) form its inception and it marked the eastern and western extremities of the road, which was about 35 feet in width. The plot No.24 was adjacent to Kataraki road and was intervened only by the gutter, which was about 2 feet in width. The ancestors of plaintiffs had built non-residential building over the plot No.24 for commercial purposes upto the said gutter towards east. It was owned and possessed by their ancestors and was all along in their physical and actual possession and enjoyment. In course of time, they came to be acquired in their own right as absolute :5: owners thereof. The officials of the defendants have assigned to different parts of the said building comprising shops M.B.Nos.1-1-80 upto 1-1-89. This building was in existence till 15 years ago and from inception till its demolition had all along been in lawful and defacto possession and enjoyment of the predecessors-in-interest of the plaintiffs and thereafter in their lawful and effective possession.
5. In the year 1988, the plaintiffs planned to demolish the said building and construct a new building on its site. Therefore, in complance with the provisions of the Karnataka Municipalities Act, they sought defendant's permission for demolition by submitting a sketch map of the building referred to above. In that map, it was expressly shown that the building existed upto the Katarki road (gutter inclusive) towards east. The officials approved the said map after the verification of the spot and accorded :6: permission for the demolition. In pursuance thereof the plaintiffs demolished the entire old building. Thereafter, the plaintiffs applied for permission to construct the aforesaid Mahaveer Complex on the said site and submitted the necessary site plan, for defendant's approval. In the said building, on the ground floor the plaintiffs proposed to construct a shopping complex and for that reason they left space of 03 feet approximately towards Kataraki road to serve as means for access to the said shopping complex, permission for construction was duly accorded to the plaintiffs. Accordingly, they constructed the ground floor of Mahaveer Complex (Adarsh Lodge) strictly in conformity with the approved map. Later on the plaintiffs constructed first floor and second floor of the said building after obtaining permission from the defendant as per the approved map. After the completion of construction, :7: the defendant's officials assessed the said building to Municipal Property Tax and also assigned to different parts of its first floor. M.B.Nos.1-1-95 upto 1-1-201 stand in the name of plaintiff No.2 and M.B.Nos.1-2- 102 to 1-2-204 stand in the name of plaintiff No.1, in the relevant municipal records. After construction of first and second floor of Mahaveer Complex (Adarsh Lodge) they were assigned the M.B.Nos.1-2-101/1 and 1-2-101/2 respectively and stand jointly in the names of plaintiffs in relevant records. Thus, the plaintiffs have all along been in defacto possession and enjoyment of the said building and its site upto the gutter (drain) towards its east in their own right as absolute owners thereof. The width of Kataraki road is east-west direction has never been more than 35 ft. right from its inception as stated above.
6. In the month of January 2001 a notice was received by the plaintiff No.2 from the office of the :8: defendant to effect that it was going to conduct survey of Jawahar road, Koppal only with the object of widening it. But called upon the plaintiffs to produce title deeds relating only to M.B.Nos.1-1-95 up to 1-2- 201, such as mutation order, property tax paid receipts etc., However, no notice was sent to the plaintiff No.1 nor in respect of this property, M.B. numbers shown in the notice were situate at Kataraki road and since other M.B. numbers comprised in Mahaveer complex were not shown, the plaintiff No.2 believed in good faith that, the notice has been sent due to oversight or confusion. Hence, she sent reply to the notice intimating the defendant that her building was not on Jawahar road. She did not produce the title deeds apprehending that they might be not relevant and would be misplaced in the records of Jawahar road. Thereafter, the plaintiffs received no notice and hence they thought that the matter stood :9: dropped. Subsequently they learnt that the owners of the building on Jawahar road and Kataraki road, received notice that their title deeds were not accepted by the defendant and they had been asked to remove their structure, which came within 30 ft. from the center of the road. At the same time, the plaintiff came to know that a letter had been sent by defendant by speed post only in 2nd plaintiff's name, which could not be received by her as she was not in town at that time. Since, the defendant had absolutely no valid reason to reject the title deeds of the building owners and had no iota of evidence or any scrap of the paper showing that the building or the portion thereof existing by the side of Kataraki road and Jawahar road coming within 30 ft. from center of the said road belongs to it. The owners made repeated requests to hold enquiry and offered to substantiate their lawful title and possession over them. No enquiry : 10 : was conducted, the building owners made a written representation to the authorities and the plaintiffs also joined with them. They called upon the authorities to hold enquiries before proceeding with the matter. The said request was also not exceeded to. On the contrary by beat of drums, on 17.03.2001, and 18.03.2001 it was proclaimed that they are going to demolish the building abutting the Jawahar road and specifically mentioning building Mahaveer complex (Adarsh Lodge). This irrational attitude on the part of the defendant officials created a panic among the members of the public including the plaintiffs. Therefore, the plaintiffs were constrained to file the suit in O.S.No.34/2001 on the file of the Civil Judge (Jr.Dn.) at Koppal on 19.03.2001, seeking the injunction, restraining the defendants from illegally demolishing their building or any portion thereof. : 11 :
7. On the date of the suit itself, the officials illegally and wantonly started the demolition of Adarsh Lodge. Injunction order was not granted. The defendant's officials hurriedly demoshed the eastern portion of Mahaveer Complex (Adarsh Lodge) by adopting the most crude and unscientific method of building cutting. By this method, the officials have in the process of demolition totally damaged rolling shutters, brick masonry, partition walls, pillars and seriously damaged the front portion facing Kataraki road right from the ground level upto terrace i.e., to the 2nd floor of the building besides whole of staircase.
8. The plaintiffs contends that the said acts of the defendant's are patently illegal, manifestly unfair and unauthorised besides being outrageous to the sense of the justice, equity and fair play. The defendant has no manner of right, title or interest over the site of the plaintiffs and building or any part : 12 : thereof to the west of the gutter (drain) abutting the Kataraki road and it was never in possession at any point of time. On the contrary, the property was on the physical possession of the plaintiffs. In the alternative, it was contended that even for the sake of arguments, the said property belongs to the defendants and was encroached upon by the predecessors of the plaintiffs, then also it is so called title over the side of demolished building upto the gutter (drain) of Kataraki road has once for all extinguished long ago as it has not at all taken any action to recover it from the plaintiffs or their predecessor within the time prescribed by law. It is crystal clear that, the defendant has committed misfeasance and actionable wrong, which is not at all warranted by any law in force and is manifestly unconstitutional and ultravires.
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9. The pecuniary loss caused to the plaintiffs due to demolition of front portion of the building is based on the revised plan of Adarsh Lodge approved by the defendant at the time of according permission of construction comes to Rs.10,98,267/-. In consequence of the illegal demolition the elevation had been completely destroyed and even the remaining eastern portion was rendered unfit for use. Hence, the plaintiffs were constrained to efect extensive repairs by way of elevation and face lift to consider the remaining building suitable for use and occupation by reconstructing columns and beams etc., at a cost of Rs.6,63,408/- approximately. Thus in all the plaintiffs are entitled to recover an aggregate sum of Rs.17,50,675/- towards damages from the defendant. The plaintiffs are also entitled to recover open site to the east-west of the gutter of Kataraki road up to the present building of Mahaveer complex : 14 : measuring 93' ft. as north-south and 12' ft. east-west (northern end), 11' ft. (southern end). In all measuring approximately 1,000 sq. fts. as they are entitled to immediate possession thereof. Therefore, they sought for the relief of damages and redelivery of possession of portion of the property.
10. After service of notice, the defendants have entered appearance. They have denied all the allegations in the plaint. They specifically pleaded that there was no Plot No.24 or any plot belongs to the plaintiffs adjacent to the alleged Kataraki road. There was gutter (drain) about two feet width intervening the alleged plot No.24. It is further false to contended that the ancestors of the plaintiffs had built non residential building over plot No.24 for commercial purposes up to the said gutter towards road. For this allegation the plaintiffs are strict poof of the same. In fact, neither the plaintiffs nor their ancestors are the : 15 : owners nor possessors of the non-residential building over plot No.24 for commercial purposes upto the said gutter towards east. They denied the assigning of new numbers to the property in question. They contend that the plaintiffs have not constructed the building as per the approved plan. It is false to contend that the defendant's were assigned to different parts of its first floor M.B. numbers in the name of the plaintiff No.2 in relevant records.
11. The plaintiffs, while constructing their buildings have encroached the public road area towards the western portion of the road i.e., eastern side of plaintiffs alleged building. Before demolition of the building, the office of defendant's has issued notice to the plaintiffs on 06.01.2000 and the same has been refused by plaintiff No.2 and thereafter the defendant's office has issued notice through post and the said notices were served upon the plaintiff No.2. : 16 : The defendant also issued another notice on 17.02.2000 to remove the encroached area of the road within 7 days from the date of notice. But the plaintiffs have refused to take notices issued by this defendant's office and later on the defendant has issued the notice through post and the same was served on the plaintiffs and the said notices postal acknowledgements were produced. Their specific case is the defendant office initiated the road widening proceedings as per the order passed by the Government of Karnataka, dated 25.11.1997 and also as per the order issued by the Koppal Urban Development Authority. In fact, the road, which runs north to south direction i.e., Kinnal village road to Gondabal village road, the said road called as Jawahar road, which is measuring 18 meters in width and 19.50 meters from the center of the road and further this defendant's office has acted as per the provisions : 17 : of the Municipality Act, 1964. The aforesaid authorities ought to have been joined in the suit and the suit is bad for non-joinder of necessary parties. Therefore, as the plaintiffs have no right to the property in question, they sought for dismissal of the suit.
12. On the basis of the aforesaid pleadings, the trial Court framed the following issues and additional issues:
1) Whether the plaintiffs prove that they acquired title to the suit properties from their predecessors in interest with reference to suit schedule properties and came to defacto absolute owners in possession of the suit properties?
2) Whether the plaintiffs prove that they constructed new building demolishing the old structure situated on suit schedule plot, with lawful permission from the defendant Municipal Council?
3) Whether the plaintiffs prove that the width of the Katharki road in front of the : 18 : building does not exceed 35 ft. at any time after its inceptiion?
4) Whether plaintiffs prove that the
defendant's officials have hurriedly
demolished a potion of the building in a crude manner and reduced the residual life of plaintiff's entire structure?
5) Whether the plaintiffs prove that they are entitled for possession of entire site of the demolished building measuring approximately 1000 sq. ft.?
6) Whether the plaintiffs prove that by demotion of the part of the complex, the defendant has caused total loss of Rs.17,50,675-00 to the plaintiff?
7) Whether the plaintiffs prove that defendant is liable to pay compensation under Section 21 of Karnataka Court Fees and Suit Valuation Act, at Rs.17,50,675/-?
8) Whether the plaintiffs proves that the defendant's action is ultra virus and capricious and is an actionable wrong?: 19 :
9) Whether the defendant proves that plaintiff has not constructed the building as per approved plan map?
10) Whether the defendant proves that the plaintiff has not paid sufficient Court fee?
11) What decree, order the parties are
entitled?
ADDITIONAL ISSUE DATED 08/12/2009:
1) Whether the defendant proves that the
suit is hit by order II rule 2 of C.P.C.?
ADDITIONAL ISSUE DATED 08/12/2011:
2) Whether the defendant proves that the
plaintiffs have constructed their building by encroaching the road?
13. The plaintiffs in order to substantiate their claim, examined the first plaintiff as PW1 and two witnesses were examined as PW2 and PW3. They produced 62 documents, which came to be marked as Exs.P1 to P62. On behalf of the defendant, the Commissioner of C.M.C., Koppal was examined as : 20 : DW1 and produced 6 documents, which came to be marked as Exs.D1 to D6.
14. The trial Court on appreciation of the aforesaid oral and documentary evidence on record has categorically recorded a finding that the plaintiffs have failed to prove their title to the suit property and that they became defacto absolute owners in possession of the suit property. It also held that the plaintiffs have failed to prove that they constructed new building demolishing the old structure situated on suit schedule plot with lawful permission from the defendant Municipal Council. The plaintiffs have failed to establish that the width of the Katharki road in front of the building does not exceed 35 feet at any time after its inception. The plaintiffs have failed to prove that the defendant's officials have hurriedly demolished a portion of the building in a crude manner and reduced the residual life of plaintiffs' : 21 : entire structure. The plaintiffs have failed to prove that they are entitled for possession of entire site of the demolished building. The plaintiffs have failed to prove the amount of damage that they have claimed. The defendant's has proved that the plaintiffs have not constructed the building as per the approved plan map. Thus, the plaintiffs' suit came to be dismissed. Aggrieved by the said judgment and decree of the trial Court, the plaintiffs are in appeal.
15. The learned counsel appearing for the appellants assailing the impugned judgment and decree of the trial Court contended that admittedly, the plaintiffs put up a three storied building after obtaining the requisite sanction to the plan and after obtaining the licence. Admittedly, a portion of the plaintiffs' property is now demolished, possession taken and road is also formed. When the material on record discloses that the plaintiffs are the absolute : 22 : owners in possession of the property, the authorities had no right to take the possession of the property without initiating the acquisition proceedings. Under these circumstances, he submits that the finding recorded by the trial Court is contrary to the evidence on record. He also contended that the plaintiffs have proved their title to the property, the defendant without resorting to any legal recourse has taken law to his own hands and demolished the building and formed the road, which is illegal and liable to be set aside. The plaintiffs, by this illegal act has not only lost the portion of the building constructed, now they are trying to encroach upon the plaintiffs right to the property and even the existing building is seriously damaged and the plaintiffs have to incur an amount of roughly about Rs.6,00,000/- to repair the same. Unfortunately, the trial Court did not properly : 23 : appreciate the material on record and has dismissed the suit.
16. Per contra, the learned counsel appearing for the respondent submitted that the plaintiffs are not the owners of the property. The identity of the property in respect of which the claim is put forth is not clear. The plaintiffs have no right to the property and they are not entitled to any damages. Before demolition, notice has been issued to the plaintiffs, calling upon them to produce the documents, which they did not do so and therefore, it is not only the plaintiffs property, the property belonging to another 400 persons on either side of the road were demolished. None except the plaintiffs have put forth the claim and therefore, there is no merit in this case. : 24 :
17. In the light f the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
a) Whether the plaintiffs have made out a case for awarding of damages?
b) Whether the plaintiffs have made out a case for redelivery of the property as prayed for in the plaint?
18. POINT No.1: Damages in the vast majority of cases are the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at one time, unconditionally and in sterling. The object of an award of damages is to give the claimant compensation for the damage, loss or injury, he has suffered. Therefore, before the plaintiffs can complain that they have sustained a loss or injury on account of the act of the defendant, they must : 25 : establish their right, then only an injury to such right will give rise to the claim for damages. In the instant case, the plaintiffs have specifically pleaded that the property in dispute was inherited by them from ancestors from generations, they are in peaceful possession and enjoyment of the property. Earlier also they had put up a commercial complex, after demolition of the said complex, after obtaining the requisite permission and licence a commercial construction was put up consisting of ground floor and first and second floor, The Corporation assessed the property, gave separate property numbers, collected the taxe, made out katha in their names. Therefore, after all this without any enquiry, without sufficient notice, the defendant's took law to their own hands and demolished a portion of the building, which according to the defendant, they are constructed on the public road and contrary to the sanctioned plan. : 26 : The title of the plaintiffs is denied by the defendant, therefore before the plaintiff could comply with the injury, they must establish their title to the property.
19. The learned counsel for the plaintiffs submitted that the plaintiffs have produced several documents in proof of the plaintiffs' title is that documents are held to be insufficient to declare the plaintiffs as the owners of the property. Admittedly, the plaintiffs were in possession of the property, now by his illegal acts, they have been dispossessed, building is demolished and therefore, on the basis of the possessory title itself, the plaintiffs can claim damages from the defendants.
20. Before we go into this question, we wanted to know that what is the property involved in the site, what is property, in which the plaintiffs are claming title, either by way of inheritance or by way of : 27 : partition, what is the extent of property, which was held by them, what is the extent of property, which is now demolished, so that we could decide the issues involved in this case in one way or the other. In the plaint, the measurement of the property and the schedule to the property is not furnished. Even in the documents produced in this case, all that has been said is the property bearing Plot No.24, measuring 508 sq. yards, neither the measurement nor the boundaries are given, what is the effect.
21. Order 7 Rule 3 of CPC provides that what a plaint should contain and where the subject matter of the suit is immovable property, how it should be described. It provides that when the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or : 28 : survey, the plaint shall specify such boundaries or numbers. The word used is "shall contain".
22. Rule 11 of the Karnataka Civil Rules of Practice, 1967 deals with Proceedings in respect of immovable property provides that.- In proceedings in respect of an immovable property, every plaint and original petition, in which the relief is sought with respect to immovable property shall contain a description of the property in such detail as to clearly identify the property. Therefore, the Court and the rules framed thereunder makes it mandatory for the plaintiffs to give that description of the property, which is the subject matter of the suit. Admittedly, in the plaint, the description of the property, in respect of which the plaintiffs are claiming title, in respect of which the plaintiffs are seeking for the delivery of possession, in respect of which the plaintiffs are seeking damages by way of compensation are not : 29 : setout. The result is, we are unable to find out what is the extent of the property belonging to the plaintiffs, without which it cannot be held, whether the property, which is now demolished, is the property of the plaintiffs or it belongs to the defendant or the property, which is a public property. Though the plaintiffs claim title through ancestors, the khata has been made out in the name of plaintiffs on the basis of the partition deed. For the reasons best known to the plaintiffs, the said partition deed is not produced before the Court. The said partition deed, would have given the description of the property, the boundaries of the properties and the measurement, it is not forthcoming. Therefore, the best evidence has been withheld from the Court. It is the plaintiffs, who have come to Court seeking the relief, their claim is denied. Therefore, the burden of proving the case of the plaintiffs are squarely on the plaintiffs. : 30 :
23. The learned counsel for the plaintiffs have relied on the Section 110 of the Indian Evidence Act, 1872 to contend that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person, who affirms that he is not the owner. Section 110 of the Act deals with the burden of proving as to ownership. It is one thing to say on whom the burden lies but it is totally different, thing to say is whether the burden is discharged and the title is proved. Even the defendant in the instant case failed to prove that they are the owners of the property that would not confer the title of the property on the plaintiffs. The plaintiffs have come to Court, the plaintiffs have to prove their title to the property. Mere possession by the plaintiff on the property would not confer title on them. Assuming that the plaintiffs have not proved their title. The defendant also has not : 31 : proved his title, what should happen is contained under Section 102 of the Indian Evidence Act. It provides that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Therefore, when both the parties have not adduced evidence to prove their title when the burden of proving the title is on the plaintiffs, in the suit, the plaintiffs have to fail. Therefore, in the instant case, the plaintiffs have failed to prove their title to the property in dispute. Several documents were produced, they are in the nature of sanctioned plan, licence, katha endorsement, report of the surveyor and tax paid receipts. What is surprising to note is in none of these documents, the measurement of the property to which the title is claimed by the plaintiffs is mentioned. Now admittedly, what the defendants have done is to demolish the frontage of the plaintiffs property, which : 32 : is facing main road. What they have to demolish is a very small portion, which according to them is an illegal construction put up by the plaintiffs, contrary to the sanctioned plan and the said construction was put up in the public road. In order to appreciate this contention, both the parties have not adduced any evidence before the plaintiff could succeed in claiming compensation for the damages sustained. The plaintiff ought to given the measurements of the property, boundaries of the property and then prove that the plaintiffs are the owners of the property, which is within that boundaries and with that measurement and if a portion of that property if taken away by the defendant's, the compensation would be given in respect of that portion, which is demolished and the possession is taken. In the absence of any evidence on record regarding boundaries, measurement and location of the property, it is not possible to hold that : 33 : the plaintiffs right to any property is infringed, resulting in injury to the plaintiffs and consequently, the plaintiffs are entitled to compensation for the said injury sustained by them. Therefore, the trial Court was justified in not decreeing the suit of the plaintiffs. The said finding is based on the legal evidence.
24. POINT No.2: The plaintiffs have sought for delivery of possession of a portion of the property measuring 12 feet East-West and 93 feet North- South. Before the plaintiffs could seek delivery of possession, the plaintiffs have to prove that they are the owners of the said property.
25. In view of our findings on point No.1 that the plaintiffs have miserably failed to prove their title to the property, which is in dispute, the plaintiffs would not be entitled to the relief of possession also. : 34 : Therefore, the plaintiffs are not entitled to a decree for delivery of possession.
26. For the aforesaid reasons, we do not find any justification to interfere with the well-considered order passed by the trial Court.
No merit. Dismissed.
SD/-
JUDGE SD/-
JUDGE Vnp* / kmv