Karnataka High Court
S M Manjappa vs Suresh Basavaraj Bandammanavar on 26 July, 2012
Author: H.S.Kempanna
Bench: H. S. Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26 T H DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
REGULAR SECOND APPEAL NO.140/2007
BETWEEN:
S. M. MANJAPPA
S/O. ANANDAPPA
AGED ABOUT 49 YEARS
OCC: BUSINESS
R/AT VAGESH NAGAR,
6TH CROSS, MADLERI ROAD
RANEBENNUR. ... APPELLANT
(BY SRI. B. D. HIREMATH, ADV.,)
AND
1. SURESH BASAVARAJ BANDAMMANAVAR
AGE: MAJOR
OCC: SERVICE AND AGRICULTURE
R/AT AREMALLAPUR,
TQ. RANEBENNUR
NOW AT SHIMOGA.
2. CHANDRASHEKARAPPA
S/O CHANNAVEERAPPA MUNDASAD
AGE: MAJOR,
OCC: PRINTING PRESS
R/AT 7TH CROSS,
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VAGESH NAGAR
RANEBENNUR.
3. ASSISTANT DIRECTOR OF TOWN PLANNING
VAGESH NAGAR
3RD CROSS
RANEBENNUR.
3. THE COMMISSIONER
RANEBENNUR C.M.C.
RANEBENNUR
DIST. HAVERI. ... RESPONDENTS
(BY SRI. GURURAJ R.TURAMARI, ADV., FOR
SRI. LAXMAN. T. MANTAGANI. ADV., FOR R1)
RSA FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND
DECREE DT.7.12.2006 PASSED IN R.A.NO.26/2005 ON THE FILE
OF THE CIVIL JUDGE (SR.DN) AND PRL. JMFC, RANEBENNUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DT.11.1.2005 PASSED IN O.S.NO.134/98 ON THE
FILE OFTHE PRL. CIVIL JUDGE (JR.DN) AND ADDL. JMFC,
RANEBENNUR.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
Though this matter is listed for admission, as the appeal is of the year 2007, it is taken up for final disposal with consent of the learned counsel appearing for the parties.
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2. This is first defendant's appeal directed against the judgment and decree passed in R.A.No.26/2005 by the Civil Judge (Sr.Dn.), Ranebennur, reversing the judgment and decree dated 11.01.2005 passed in O.S.No.134/1998 by the Civil Judge (Jr.Dn.), Ranebennur, who had dismissed the suit of the plaintiff.
3. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the Trial Court.
4. The plaintiff instituted the suit against the defendants' seeking the relief of declaration, possession and injunction in respect of the suit schedule property.
5. The suit schedule property is to the extent of 34' X 2' ft., situated on the northern side of plot :4: No.45 carved out in Sy.No.792/3 situated within the limits of Ranebennur City Municipal Council and other item is to the extent of 6' X 2' ft., situated to the north-eastern side of Plot No.45 aforementioned, which is more fully described in the schedule annexed to the plaint.
6. It is the case of the plaintiff that he is the owner in possession of Plot bearing No.45 measuring 68' x 40' ft., carved out in Sy.No.792/3 situated at Ranebennur Town. It is his ancestral property. Towards North of this suit property is Plot bearing No.44/2 measuring 34' x 40' ft., which belongs to defendant No.1. Towards East of his property is the property of defendant No.2, which measures about 60' x 50' ft., formed in the same Sy.No.792/3. It is his further case that defendant No.1 has constructed his house illegally by encroaching 34' x 2' ft., of his :5: property on the northern side, which is shown in the letters EFGH in the sketch annexed to the plaint. It is also his case that defendant No.2 has constructed a toilet and compound wall encroaching upon his plot on the north-eastern side to an extent of 6' x 2' ft., which is shown in the letters HJLD in the sketch annexed to the plaint. The plaintiff approached defendant Nos.1 and 2 and requested them not to construct the house, toilet and compound wall by encroaching his property. His request was not acceded to. Therefore, he got issued a legal notice to defendant Nos.1 to 4 through his counsel on 5.6.1998 and 4.6.1998 respectively. Defendant Nos.1 and 2 got issued a reply to the notice denying the allegations made by him. Defendant No.3 sent a legal notice to defendant No.1 on 6.6.1998, as it was found that he is constructing the building in violation of building rules and asked him to stop the :6: construction of the building and to produce all the relevant documents before them. In spite of service of notice, defendant No.1 did not stop the construction work but continued the construction. Defendant No.4 did not take any legal action against defendant No.1. Defendant No.2 did not issue any reply to the legal notice issued by defendant No.3. As per the building by-laws of the Town Municipal By-law of 1967, if any person is intended to construct a building in the site situated within the Town Municipal area, he is required to construct only in 2/3 r d portion of the plot and leave at least 1.5 mtrs., space between the adjacent house as set backs. Defendant No.1 has not taken any permission for construction of the building and he has also not left the set back of 1.5 mtrs., as per by-laws. On the other hand, he has encroached the area of 34' x 2' ft., and has fixed two windows facing towards northern :7: portion of the plaintiff's plot. Defendant No.3 is a Government employee. Therefore, he got issued a notice under Section 80 of C.P.C. prior to two months of institution of the suit. As the plaintiff did not accede to his request of stopping the construction, he was constrained to file the suit against the defendants praying for the relief as set out above.
After service of suit summons, defendants' appeared before the Court through their respective counsel and filed their written statements.
Defendant No.1 contended that the toilet is situated towards eastern portion of his house and the portion EFGH, which the plaintiff claims, as the encroached portion belongs to him and he is the owner in possession of the suit property. He has laid the foundation a year back and completed within eight months without any obstruction from the :8: plaintiff. Defendant Nos.3 and 4 are not necessary parties to the suit. If he has violated any building by-laws, the plaintiff has no right to claim the demolition at the belated stage, as defendant Nos.3 and 4 have not taken any action against him. He contended that the Court has no jurisdiction to try the suit and the Court fee paid is not correct. He has constructed the building in the alleged encroached area after obtaining valid building permission. The plaintiff has got issued legal notice after completion of the construction of his house and has filed suit in order to harass him. There is no cause of action for the suit, accordingly, he prayed for dismissal of the suit.
Defendant No.2 in his written statement inter alia among other things contended that he has constructed toilet and compound wall about sixteen :9: years back with the knowledge of the plaintiff and he is enjoying the same as an owner in possession. Therefore, the question of encroachment or demolition does not arise. He has constructed his building in year 1983 by taking valid permission from the concerned authorities. At that time, the plaintiff did not raise any objection. He has not challenged the said encroachment within 12 years. Therefore, the plaintiff has no manner of right for the relief of declaration, injunction and possession. The suit is barred by limitation. Accordingly, he prayed for dismissal of the suit.
Defendant No.3 contended that the suit filed by the plaintiff is bad for non-joinder of necessary parties. Defendant No.3 got issued a legal notice to defendant No.1, but he did not respond to it. Defendant No.3 is having the authority over the town : 10 : planning area after 27.1.1996. Defendant Nos.1 and 2 have constructed the building prior to 27.1.1996. Therefore, they contended to delete them from the suit.
Defendant No.4 contended that the suit is not maintainable against them and there is no cause of action for the suit. He has nothing to do with the encroachment between the plaintiff and defendant Nos.1 and 2. By virtue of Section 34 of the Specific Relief Act, the suit filed by the plaintiff is not maintainable. Therefore, suit against them be dismissed.
On the basis of the above pleadings, the trial Court framed the following the issues:-
ISSUES
1. Whether plaintiff proves that, def endant has encroached in his suit plot : 11 : No.45 to the extent of 34 f t. x 2 f t., and constructed a building in a red portion marked with letters EFGH in a hand sketch map appended to the plaint, illegally and f ixed two windows in the F.G.-Wall?
2. Whether plaintiff proves that, def endant No.2 has encroached upon his plot No.45 to the extent of 6 f t., x 2 f t., i.e., blue portion marked with letters GH IJ in the hand sketch map appended to the plaint illegally?
3. Whether the valuation made and Court fee paid is correct?
4. Whether suit is barred by limitation as against def endant No.27?
5. Whether plaintiff is entitled f or the relief of mandatory injunction No.2?
6. What order or decree?: 12 :
ADD IT IONAL ISSUES
1. Whether the suit is5 not maintainable for not issuing the notice as required under Section 284 of Karn ataka Muncipalities Act, 1964?
2. Whether the suit is bad f or mis-joinder of parties?
3. Whether Court f ee is proper and correct fee?
4. Whether suit suf fers f or mis-joinder of def endant Nos.3 and 4 ?
5. Whether suit is maintain able under law?
The plaintiff in order to establish his case got himself examined as PW.1 and two more witnesses as PWs.2 and 3. He produced in all twenty-five : 13 : documents, which came to be marked as Exs.P.1 to P.25. Among the defendants in support of their case defendant Nos.1 and 2 got themselves examined as DWs.1 and 2 and an official witness-Nagarajappa Mundasad as DW.3. They produced in all six documents, which came to be marked as Exs.D.1 to D.6. Apart from this, the Court Commissioner who had been appointed came to be examined as CW.1 and the documents produced through him came to be marked as Exs.C.1 to C.5.
The trial Court on going through the evidence and documents placed on record held that the plaintiff has failed to prove that the defendant Nos.1 and 2 have encroached upon the suit property. It further held that the valuation and Court fee paid is proper and correct. It also held that the suit as against Defendant No.2 is barred by time and the : 14 : plaintiff is not entitled to the relief as prayed for. Further it held that the suit was not maintainable for not issuing notice contemplated under Section 284 of the Town Municipalities Act, 1964, and the suit is bad for mis-joinder of parties and the suit is maintainable under law and accordingly, by the judgment and decree dated 11.1.2005 dismissed the suit of the plaintiff.
Aggrieved by the judgment and decree the plaintiff preferred R.A. No.26/2005 on the file of the Civil Judge (Sr.Dn.), Ranebennur. Learned Judge after issuing notice to the respondents'/defendants' and after going through the records called for in this case by his judgment and decree dated 7.12.2006 reversed the judgment and decree of the trial Court and decreed the suit of the plaintiff as prayed for. : 15 :
7. Defendant No.1 being aggrieved by the said judgment and decree is in appeal before this Court.
8. Learned counsel for the appellant/Defendant No.1 contended that the Appellate Court has erred in not appreciating the evidence on record in its right perspective, more particularly, that of the Commissioner's report and the sketch prepared by the Commissioner, which discloses that there is no encroachment at all made by defendant No.1 as alleged by the plaintiff. In this connection, he contended that in the absence of PT sheet and KGP-the measurement made by the Commissioner on the basis of the actual possession of the suit property is not correct. In this connection, he also submitted that the evidence on record does not disclose that defendant No.1 has encroached upon the plaintiff's property to an extent : 16 : of 34' x 2' ft., as alleged. Since the evidence on record clearly goes to show that he had constructed the building in his own property after complying with the formalities by taking permission from the concerned authorities and as he is in possession of the same, the Appellate Court has committed an error in reversing the findings of the trial Court and decreeing the suit of the plaintiff, which cannot be sustained and therefore, it be set aside and the judgment and decree of the Appellate Court be restored.
9. Per contra, learned counsel for the contesting plaintiff supporting the impugned judgment and decree of the Appellate Court contended that as defendant No.2 against whom the suit filed has been decreed as per the judgment of the Appellate Court, has not preferred any appeal and as : 17 : the report of the Commissioner which is supported by the evidence of the plaintiff and his witness clinchingly establishes that defendant No.1 has made encroachment as claimed by him, the impugned judgment and decree of the Appellate Court does not call for any interference and therefore, it be dismissed.
10. Taking the rival submission, evidence and documents on record, the points that arise for consideration are:-
1. Whether the plaintiff has established that def endant No.1 has encroached to an extent of 34' x 2' f t., on the northern side of his Plot No.45 situated within the limits of Ranebennur City Municpal Council.
2. Whether the impugned judgment and decree of the Appellate Court calls f or any interf erence?: 18 :
11. Re-Point No.1:-
The admitted facts are; the plaintiff is the owner in possession of Plot No.45; defendant Nos.1 and 2 are the owners in possession of Plot No.44/2 and Plot No.22 measuring 68' x 40' ft., 34' x 40' ft., and 60' x 50' ft., respectively, which have been carved out in Sy.Nos.792/3 and 792/4 situated within the limits of Ranebennur City Municipal Council.
It is the case of the plaintiff that defendant No.1 has encroached to an extent of 34' x 2' ft., on the northern side of his property and defendant No.2 has encroached to an extent of 6' x 2' ft., on the north- eastern side of his property. It is also his case that they have constructed the building on the said encroached portion including their buildings in gross violation of Municipal by laws. In order to establish that the defendants have encroached upon the suit : 19 : property he has got himself examined as PWs.1 and two more witnesses as PWs.2 and 3. Apart from this, at his instance Court Commissioner was appointed to measure the suit property, who has been examined as CW.1. The evidence of the plaintiff coupled with his witnesses and the Court Commissioner reveals that there is an encroachment made by defendant No.1 and defendant No.2 on the northern side and northeastern side of his property respectively. It was vehemently contended by Sri.B.D.Hiremath, learned counsel appearing for the appellant that the measurement that has been done by the Court Commissioner is not with reference to PT sheet and KGP. Further PT sheet that has been prepared by the Court Commissioner discloses the encroachment that has been made by defendant No.1 is only to an extent of 34' x 1' ft., and not 34' x 2' ft. The Lower Appellate Court without appreciating this fact has come to a : 20 : wrong conclusion that defendant No.1 has encroached to an extent of 34' x 2' ft., on the northern side of the plaintiff's property i.e., the suit property.
A perusal of the evidence of the Court Commissioner coupled with the evidence of PW.1 and his witnesses go to show that the encroachment made by defendant No.1 is to the extent of 34' x 2' ft. He has also not responded to the notice issued to defendant No.3 i.e., the Assistant Director of Town Planning, Ranebennur asking him to produce relevant documents to show the exact measurement of his site and the construction he has put up on that site. If according to defendant No.1 he has not encroached upon the suit property as alleged by the plaintiff and he had put up construction as claimed in his property, he should have responded to the : 21 : notice issued by defendant No.3 and should have produce the documents. Apart from this, the by laws of Ranebennur Town Municipal Council clearly reveals that they should have put up construction leaving proper set backs in the sites owned by them.
A perusal of the photographs on record discloses that no set backs have been left at all. The construction made by defendant No.1 is up to the property of the plaintiff. In this connection also, it has to be held that there is violation of by laws in the construction of the building made by defendant No.1. Apart from this, the evidence and documents on record clearly go to show that defendant No.1 has encroached to an extent of 34' x 2' ft., on the southern portion of Plot No.44/2 and northern portion of Plot bearing No.45 belonging to the plaintiff. The Trial Court without appreciating this : 22 : material on record has come to a wrong conclusion that the plaintiff has failed to prove the encroachment as alleged. The other factor, which goes against defendant No.1 is, defendant No.2 as against whom the Appellate Court has granted a decree, has not preferred any appeal. He is acquiesced of the same. If that is also taken into consideration, the case of the plaintiff that defendant No.2 has also encroached upon the suit property, gets fortified. Therefore, the evidence and documents on record clearly establishes that defendant No.1 has encroached upon the suit property as alleged by the plaintiff.
12. Re-point No.2:
For the reasons adverted to above, taking from any angle, in my view, there is no infirmity or illegality committed by the Appellate Court in : 23 : reversing the findings of the trial Court and decreeing the suit of the plaintiff, which is based on the facts and legal evidence justifiable in law calling for interference in this appeal. Apart from this, no substantial question of law also arises for consideration. Accordingly, the appeal stands dismissed.
Parties to bear their own costs.
Sd/-
JUDGE SA