Karnataka High Court
The Chief Administrative Officer vs Smt K Malliga on 3 July, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.838 OF 2010
BETWEEN:
The Chief Administrative Officer,
Legal and Estate,
Hindustan Aeronautics Limited,
Bangalore Complex,
Bangalore - 560 017. ....APPELLANT
(By Shri. S.V. Shastri, Advocate)
AND:
Smt. K. Malliga,
Aged about 53 years,
Daughter of P. Kannan,
Wife of K. Shanmugham,
Residing at No.G/569,
6th Cross Road,
New Township,
HAL Colony,
Marathahalli,
Bangalore - 560 037. ....RESPONDENT
( By Shri. V.F. Kumbar, Advocate)
2
This Regular First Appeal filed under Order XLI Rule 1
read with Section 96 of the Code of Civil Procedure, 1908, against
the judgment and decree dated 5.12.2009 in O.S.No.15010 of
2005 on the file of the XIII Additional City Civil Judge, Mayo
Hall Unit, Bangalore City (CCH-22), decreeing the suit for
permanent injunction.
This appeal coming on for Final Hearing this day, the Court
made the following:
JUDGMENT
Heard the learned Counsel for the appellant and the learned Counsel for the respondent.
2. The appellant was the defendant before the trial court. It was the plaintiff's case that the plaintiff had acquired a site formed in survey no.181/2 of Vibhuthipura Village, Krishnarajapuram Hobli, Bangalore, under a General Power of Attorney dated 15.12.1980 from one Annayappa, son of Gurappa. It was assessed to tax by the Hindustan Aeronautics Sanitary Board (Hereinafter referred to as the 'Board', for brevity)as the property bearing khata No.265/1 of Vibhuthipura village and the 3 khata certificate bearing No.261/1 was issued in the name of the plaintiff insofar as land in survey No.181/2, which is shown as the suit schedule property. In the year 1984, the Board is said to have permitted the plaintiff to construct a house according to the plan, which was sanctioned and the plaintiff has constructed a residential house and has been paying taxes to the said authority. The tax paid receipts are produced and therefore, the plaintiff has established possession over the suit property as on the date of the suit.
It transpires that on 26.11.1987, the defendant had issued a notice to the plaintiff for removal of the building materials that were stored on land in survey no.180 of Vibhutipura. This was at a time when the construction material was stored on the said site and the notice was replied to by the plaintiff, conveying her intention to construct a house and that was on land in survey no.181/2 and not on land in Survey No.180, which was said to be the property belonging to the defendant. Notice was again 4 repeated by the defendant alleging that the plaintiff was unauthorisedly constructing over the land belonging to the defendant and called upon the plaintiff to remove all such unauthorised construction or otherwise action would be taken under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (Hereinafter referred to as the Act', for brevity) and accordingly followed up with a case for eviction before the Estate Officer, Hindustan Aeronautics Limited under Section 5 of the Act.
The proceedings were contested and the Estate Officer passed an order dated 5.3.1994, directing the plaintiff to vacate and demolish the construction within 15 days from the date of the order. That was promptly challenged by the respondent in appeal before the City Civil Court, in Case No.M.A.19/1994. It was contended that there was a serious dispute about the identity of the property, in that, the defendant was proceeding on the basis that there was encroachment of land in Survey No.180, whereas 5 there was no such encroachment and the construction that was put up was on the land in Survey No.181/2. On this contention, the appellate court had remanded the matter directing that the land be surveyed through the Deputy Director of Land Records (DDLR). Pursuant to which, the Assistant Director of Land Records (ADLR), is said to have conducted a survey and furnished a report along with a rough sketch, to indicate that there was no encroachment on the part of the respondent. It is on this basis that the court below has decreed the suit in favour of the respondent. It is this which is under challenge in the present appeal.
3. The learned Counsel for the appellant Shri S.V.Shastry, would submit that the survey should have been conducted by the DDLR and not the ADLR. The suit itself was not maintainable, as it is evident that the plaintiff was claiming as a General Power of Attorney holder under a Power of Attorney dated 15.12.1980 and that the executant had died in 1996 and the present suit was 6 filed in the year 2005 and therefore, the authority, under which the suit was filed, was non-existent as the power of attorney would have died along with the executant and hence would submit that the very basis on which the respondent was claiming was not tenable.
Secondly, he would insist that there was clear encroachment on the property of the defendant. The direction to have the land surveyed, in order to address the encroachment, was to be through a superior officer, namely, DDLR and the survey admittedly having been conducted by the ADLR has lead to a miscarriage of justice. In that, there is an inaccurate survey report and it was required to have been conducted only through the DDLR and hence, there was a clear violation of the express direction by the appellate court and on that ground as well, the judgment and decree of the trial court would have to be set aside.
4. While the learned Counsel for the respondent would point out that insofar as the dispute as to whether there was 7 encroachment at all, has been answered by the survey report. The fact whether the DDLR should have conducted a survey or whether there is any invalidity in the ADLR having submitted his report falls into insignificance. Incidentally, it is pointed out that the letter of the Estate Officer, Exhibit D.4, would clearly indicate that the request was made, in fact, to depute a surveyor to conduct the survey and the survey having been conducted by the ADLR cannot be said to be irregular or invalid. The ADLR is no junior officer and the insistence that it is only the DDLR, who was competent to conduct a survey is, therefore, a misplaced argument and untenable. The finding being clearly in favour of the plaintiff, it would matter little to the defendant that the plaintiff was without title or was claiming under an invalid power of attorney when there is no encroachment on the property of the defendant.
5. Given the above rival contentions, insofar as the finding of fact that there was no encroachment is evident from the report 8 of the ADLR at Exhibit P.9. That has been accepted by the trial court and there is no error committed thereby. The contention that the report should have been submitted by the DDLR and not the ADLR is an objection, which falls into insignificance when there is no report by a competent officer and the purpose of the survey is served. Therefore, there is no fault committed by the trial court in accepting such a finding, holding that there is no encroachment whatsoever. And the possession by the respondent over several years having been established, it would also be irrelevant for the defendant as to whether the plaintiff has actual title to the property or otherwise, if the construction that has been put up is outside the property of the defendant.
Consequently, the appeal stands dismissed.
Sd/-
JUDGE nv