Karnataka High Court
Lakshminarayanaswamy vs The Commr. B.C.C. B'Lore on 5 March, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIs THE 05%DAY OF MARCH 2012
BEFORE:
THE HON'BLE MR. JUSTICE ANA-ND B.Y'iRARE',iDD_'I{ A A
REGULAR FIRST AIp>I>EA'L_Ng$.V20 oI~'- .l9*9..8_
BETWEEN:
Sri. Lakshniinarayanaswainiy Ch'aritiees;<
No.324,Thirnmaiah Road'; is 9'
Near Miller's Tank Bund, " _
Bangalore~560Up52, I «._.;;AI>I>ELLANT
(By Shri. l\lI;"\/iiai"i§_L1.Cl2c"-';'2'i51'_.,iAClX{bCaI€'l
Commissioiaer, -- V
Bangalore"C_ity VCorporatioir,. 9
Bangalore. " ...RESPONDENT
9 9 " (.Biy"'Slhr'ii';}Tf'Jayapral{ash, Advocate for Caveator / Respondent) >l¢>'I<>l<>i<>l< T_his=Rlegular First Appeal is filed under 96 of Code of Civil Procedure, 1908, against the judgment and decree dated 4.9.1997 HO.S.No.6lO8/1980 on the file of the X Additional City Civil " Jiidge, Mayo Hall, Bangalore (CCH -- 20) dismissing the suit for in junction.
9 8 I\) This R.F.A. having been heard and reserved on fl3'.{ll";2rOl2 and coming on for pronouncement of orders this djay,"the.._iCou__rtp_ delivered the following:--
JUDGMEflImpb Heard the learned counsel for-the appie'3.l£il:IV'1'tl'antd."the'g respondent.
2. The parties are'refen'e<-ll to'. tl_1e:i'rA.rank before the trial court for the sake of conven.ienC'e. ' -. at
3.Tlugappeflantfivasthejflannfiflxfibrethetnalcoun;'The plaintiff vwafls~Aa;"Charitable'trust. li"l't"'was a suit for a permanent injunction, T he p]ai1';vtisffiiSv«ejasei was as follows:
The prope.rtyi"vwa'si a portion of land bearing Survey Thimmaiah"iRioad, near Miller Tank Bund, formerly Garden, Bilekahalli. It was kharab land.
4 The 'total..__'eXte«ht of land was 1 acre and l0 gunts. The plaintiff elaimed i""that this property originally belonged to one .i Vevnkataswamappa and that he had bequeathed the suit property 3» 3 to R.Narayanaswamy under a will dated lO.ly2.19_4__l and Narayanaswamy had created a public trust on 24.lO:l95t6:ha:n§l'~t4he suit schedule property was given to the plaintiff ~ trust.. V" i It was further contended that suit. "'V'3_Si""i'n the 7 possession and enjoyment of 3/enkataswiamappa.511 till ihis'--.d"eath...p Thereafter, it had devolved on 'till created a trust. The plaintiff had;::..be*en "the property through its trustees of the same by virtue of as It was further claimed-that obtained a licence from the erstwhile for constructing a building in a portion ofltheiland: in Nos.l8 and 25, but the building was notiEcon--s.trucAted iand~-after his death, the entire land was being a.:l'a_te Narayanaswamy till he made it over to the It was further claimed that Narayanaswamy had .applied..to the concerned authorities in the year 1946, calling upon i to fix the boundaries of land in Survey Nos.l6, l8 and 25.
if is therefore claimed that by virtue of the proceedings dated 3 4.6.1946 and 12.4.1946, the boundaries were and that Narayanaswamy had obtained sanction _frorrii=the=f.ei'stwhile., Municipality as also from the ldiefendant,2_l3aln'gaIo're_ Qity Corporation in the year 1953, for the cor1s.tructioi<1'VVof..;a.building a portion of the subject land. of theapprovefd plan was said to have been enclosediito ._Qn.i1.At'.,1\_Izarayanaswamy had even laid foundation to construction had not progressed authority to acquire the land. ____ using stone pillars and barbediivwiret the Wfence could be seen in the photographs" encl.os'c.d.to'~theap1aint. Narayanaswamy had also construed a shed" forthe use of the watchman in a portion of the
1. "land.{He'had.ppformeduprivate roads in the suit land. He had laid a through the land in Survey No.25 leading up "to pvreinisies no.324, Thimrnaiah Road, which was situate in land in"Survey No.18. The plaintiff, therefore, had applied to the 1 2defen'dant -- Corporation for modification of the approved plan, __which however, was not acted upon, as there was a proposal for 3 6 It was on these assertions that the plaintiff claimed as iabso_lute owner of the property and complained that Corporation was trying to form a road__ in_'lithie"
without any acquisition proceedings: pr.eceding- the hence, claimed that it would be put: "to iireparablepinjuryi and loss if the defendant was not"~restraAinedi_:'froin_ interfe1'in"g with the plaintiff' s possession.
4. The"si1i.t res.i_s_ted.._by" the Corporation. It was denied that thetvsuit--.pir(;pert'y; bei'on'g.edto*~Narayanaswarny, after the death of its original owner"\Ze'nl§ataswamappa. In fact, Narayanaswarny had no rightl"inVrespectlo_f the land and therefore, creation of a trust V' gn(i».ifian'ding..overi themproperty in favour of the plaintiff did not a1:i_se.p' lclaiiried that the land in Survey Nos.l8 and 25 had been by the then Municipality and the present defendant being its successor--in~interest, had acquired the 'properties and the defendant had been in possession and V Wenjoyment of the suit property. But, Narayanaswamy was never negative' ~ 7 in possession of the suit property and the alleged or a private water line in the suit property was_deni_:e'd,l arse denied that the boundaries werelifixedeipp i authorities. The allegation that't_he_vdefeind.alnt hadliiillejgalylpy gralntetilt. the lands to M./s Continental FsxpoA1ter's_._vwas.ld'erliedJns incorrect and the filing of a civil 'Was not relevant and hence, claimfid. "V the basis of the pleadings, ilfrarned two issues namely, in lawful possession of the suitlproperty plaintiff was entitled to an order of temporary ._inj'unction and answered bothethe issues in the
5._ court below has taken note of the title suits pendihg'_i'in respect of land in Survey Nos.16,l8, and 25 in civil sauitsi-'in QSA10591/1.980 and o.s.2399/1980 against the defendant pg Corporation and therefore, has not chosen to discuss the merits and demerits of the title to the gt and has only addressed the that the property belonged to one a_nd_ihad bequeathed the properties to Narayanaswarny, the_fat'he.r who in turn, had created a trust',--~.,,f,(.1VTf1=d,er which,"wl?ihI1diii"rrieiasuring acre 20 guntas in Survey' No.25l'was,_:'deliveredltotheigtrust. The creation of the trust, thoiugh_"wias, the court, the question whether.:the_ from the year 1956 was basis the plaint allegations itself, itvqwas_evideii-t;;,:that«..tlie::ilkihata,pfithe suit property was not in the nan}? of and the defendant had created a lease in ifavourgiof Exporters, in respect of a portion" of the' Survey No.25 and the plaintiff had that._ in a separate suit and the defendant having leased to M/s Continental Exporters, is also a fact which is-.i:r1.o't 'denied by the defendant. It was also observed by the in below that Survey No.19 is the Millers Tank land and a i"por't1'on of Survey No.25 was acquired for the purpose of ""ei(tension of Millers Tank. Therefore, it was held that the plaintiff concedes that the Government has acquired some land in Survey t 10 No.25. PW.1 however, has not spelt out the extent"so,'uacquired. It was also noticed that PW.1 had declared that .insp~ite' an of temporary injunction, the defendant had «-proceeded'.t0_plform:'a road over the suit property, thoughbthensaid wlitness hiad'<no't., explained as to which portion olf"t'the» property 'had blieenlllulsed for forming the road. Hence, concluded that the plaintiff had failed to proye possession of the entire suit relief would itself be infructudus the suit. It is that which isthe'tsubjjectifmattier of the "present appeal.
7. «Apart judgment of the court below on various grounds," into ll8 paragraphs in 25 closely typed gages, one ofthe grounds urged is that the title suit in respect of pending before the very court, which has renderedgtheil.impugned judgment, and that was decreed in favour ofthte plaintiff. Whereas the present suit for bare injunction has been dismissed and therefore, would require reconsideration. As 8 ll seen from the body of the judgment, the court below has expressed that insofar as the title to the property is concerne~d,i*as it is the subject matter of independent suits, it wouldinotij to address the title with reference to the'"various_idocuments,iwhichi ' are the subject matter of the other iwasfpeinding proceeded to address the questionof' lawful physical possession of the suit property by the frorrithe bare facts narrated in the plaint 'evidence of PW.l, the court " conclusion that the plaintiff the suit property on the adnntted the I suit for injunction having been rejected on"-that short cannot be assailed. 1/ ln'c.identallyi,iiinsofar as the judgment and decree not in s...faV'-Cur p'ies'ent plaintiff, but, in favour of one other, and an appeal having been preferred against the judgment and decree in if if 059l/1982 by the defendant ~ Bangalore City Corporation in No. RFA 820/ 1997, which has been separately disposed of S l2 by this bench, allowing the appeal and negating the elain:1--._to title by the plaintiffs therein. Therefore, the above is possibly the only ground which can be Case, is to be held against the appe1llanti.i_i' oit'her 'e_o.nt'entio'ns T raised in the appeal may not warrant c'onsi'deratioi5. Ahavingfregardrg to the facts and circumstances Case. 2 T-h_ere'lforé:', the appeal stands dismissed.
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