Karnataka High Court
H. R. Prasanna Kumar vs Y. C. Dasaraj Urs on 23 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:28814
RSA No. 818 of 2019
C/W RSA No. 815 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 818 OF 2019 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 815 OF 2019 (DEC/INJ)
IN REGULAR SECOND APPEAL NO. 818 OF 2019:
BETWEEN:
1. H.R.PRASANNA KUMAR
S/O RAJGOPAL
AGED ABOUT 55 YEARS
RESIDING AT NO.110,
DAYA MARG, 1ST STAGE,
SIDDARTHA LAYOUT
MYSORE-570011.
...APPELLANT
(BY SRI MOHAN B.K., ADVOCATE)
AND:
Digitally signed 1. Y.C.DASARAJ URS
by DEVIKA M
S/O D. CHANNARAJE URS
Location: HIGH
COURT OF AGED ABOUT 67 YEARS
KARNATAKA R/AT #1893, K BLOCK
PLACHE RASTHE, ERD CROSS,
KUVEMPU NAGAR
MYSORE 570 007.
2. MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B. ROAD, MYSORE-570005
REP. BY ITS COMMISSIONER
...RESPONDENTS
(BY SRI. K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE FOR C/R1;
SRI G.B.SHARATH GOWDA, ADVOCATE FOR R2)
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NC: 2024:KHC:28814
RSA No. 818 of 2019
C/W RSA No. 815 of 2019
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 04.02.2019
PASSED IN R.A.NO.429/2016 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 16.11.2015 PASSED IN O.S.NO.540/1996 ON THE FILE
OF THE II ADDITIONAL I CIVIL JUDGE AND JMFC, MYSURU.
IN REGULAR SECOND APPEAL NO. 815 OF 2019:
BETWEEN:
1. H.R.PRASANNA KUMAR
S/O RAJGOPAL
AGED ABOUT 55 YEARS
RESIDING AT NO.110,
DAYA MARG, 1ST STAGE,
SIDDARTHA LAYOUT
MYSORE-570011.
...APPELLANT
(BY SRI MOHAN B.K., ADVOCATE)
AND:
1. Y.C.DASARAJ URS
S/O D. CHANNARAJE URS
AGED ABOUT 67 YEARS
R/AT #1893, K BLOCK
PLACHE RASTHE, ERD CROSS,
KUVEMPU NAGAR
MYSORE 570 007.
2. MYSORE URBAN DEVELOPMENT AUTHORITY
J.L.B. ROAD, MYSORE-570005
REP. BY ITS COMMISSIONER
...RESPONDENTS
(BY SRI. K.N.NITISH, ADVOCATE FOR
SRI K.V.NARASIMHAN, ADVOCATE FOR C/R1;
SRI G.B.SHARATH GOWDA, ADVOCATE FOR R2)
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NC: 2024:KHC:28814
RSA No. 818 of 2019
C/W RSA No. 815 of 2019
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 04.02.2019
PASSED IN R.A.NO.134/2017 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.02.2016 PASSED IN O.S.NO.779/2007 ON THE FILE
OF THE IV ADDITIONAL FIRST CIVIL JUDGE, MYSORE..
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
(PER: THE HON'BLE MR JUSTICE H.P.SANDESH) The appeal in R.S.A.No.818/2019 is filed by the appellant/plaintiff questioning the judgment and decree passed in O.S.No.540/1996, wherein the Trial Court dismissed the suit filed by the plaintiff for the relief of declaration and the same was affirmed by the First Appellate Court.
2. The appeal in R.S.A.No.815/2019 is also filed by the appellant/plaintiff questioning the judgment and decree passed in O.S.No.779/2007 filed for the relief of declaration, mandatory injunction and permanent injunction which was partly decreed declaring that the plaintiff is the absolute owner of the suit schedule property and it is also declared that suit schedule property is part and parcel of Door No.1893 and the -4- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 relief in respect of mandatory injunction sought by the plaintiff is rejected and the defendant is restrained by way of permanent injunction from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property. The same was affirmed by the First Appellate Court.
3. The factual matrix of the case of the plaintiff in O.S.No.540/1996 before the Trial Court is that suit schedule house property bearing Door No.1877 is built on Site No.1877 measuring east to west 40 feet, north to south 30 feet and bounded on east by Door No.1893, west by Road, south by Door No.1876, North by Door No.1878. It is contended that suit schedule property was purchased by the plaintiff under the registered sale deed dated 19.02.1992 from Sri M.R. Srinivasa Murthy and he has been in possession of the suit schedule property. The plaintiff has mortgaged the suit schedule property in favour of one U. Vrushabendrappa and the schedule property is in his possession and enjoyment. The plaintiff has purchased a constructed house by the plaintiff's vendor as per the sanctioned plan. The vendor of the plaintiff has left the setback of 3 feet in the hind portion of the schedule property. The schedule property was constructed by the plaintiff's vendor -5- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 in the year 1989. The Mysore City Corporation has issued the completion report vide their letter No. LW 2186/91-92 dated 30.10.1991. The schedule property has two windows on the eastern side wall. The defendant is the owner of the house bearing No.1893, situated on the south-east corner of the schedule property and had constructed house No.1893 as per the plan sanctioned in his favour. The defendant taking advantage of the absence of the plaintiff and his family members in the suit schedule property, has encroached and constructed 3x4 feet on the south-east corner of the plaint schedule property. After such encroachment, the defendant has fixed a window on the northern side of the set back area of the schedule property. The defendant has no manner of right, title or interest over the encroached 3x4 feet space belonging to the suit schedule property. Now, the defendant is trying to encroach another 3x4 feet on the south-east corner i.e., the space lying on the north of the encroached portion without any right or interest over the same.
4. The plaintiff coming to know of the fact of encroachment by the defendant for which he is not the absolute owner or otherwise has demanded the defendant to refrain -6- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 from such illegal activity of putting up an illegal construction encroaching the property of this plaintiff. But the defendant has not heeded to the plaintiff's request nor the demand. The Site bearing No.1893, was allotted to the defendant by then CITB, Mysuru dated 13.05.1984 and subsequently, a bit of land adjacent to the west Site No.1893 in favour of the defendant dated 12.05.1992. The plaintiff further submits that there is no bit of land as stated by the defendant belonging to the CITB on the eastern side of the schedule property and towards western side of the defendant's property. There are two windows fixed on the eastern side of the schedule property and now, the defendant is trying to further encroach 8x4 feet setback area of the schedule property. Hence, sought for the relief of declaration that the plaintiff is owner of the setback area 3x4 feet towards eastern side and for the relief of mandatory injunction to demolish the encroached portion of 3x4 feet and also for the relief of permanent injunction restraining the defendant from putting up any construction on the setback area on the eastern side of the schedule property.
5. The defendant appeared and filed the written statement claiming that he is the owner of the said Site -7- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 No.1893 and also putforth the contention that Mysore Urban Development Authority ('MUDA' for short) had executed a sale deed in respect of bit of land adjacent to the above site property towards the west measuring 0.90x6.0 meters east to west 3 feet and north to south 20 feet belonging to the MUDA, Mysuru. The defendant encroached upon this bit of vacant property and applied to the MUDA, Mysuru for regularization of the same. The MUDA regularized the encroachment and after collecting penalty, sanctioned the same in favour of the defendant on 31.03.1991 and subsequently gave possession certificate on 12.05.1992. The property possessed by the defendant measures east to west 33 feet and north to south 20 feet. The defendant further submitted that before the bit of land was allotted in favour of the defendant, the defendant and the plaintiff's vendor M.S. Srinivasa Murthy were in cordial terms. The said M.S. Srinivasa Murthy had constructed the schedule house on site measuring 40x30 feet. On his eastern side, without leaving set back, he had raised the wall up to the eastern boundary and as such, not even one inch was left. He ought to have left setback of 3 feet and raised the eastern wall. He had also put up a window on the south eastern corner of his -8- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 house. That bit of land 3 feet wide east to west was not yet allotted to the defendant when the said M.S. Srinivasa Murthy sold his house in favour of the plaintiff. The plaintiff's vendor has promised to close the window on the eastern wall of his house in case the bit of land measuring east to west 3 feet and north to south 20 feet is sanctioned to the defendant.
6. The Trial Court having note of the pleadings of the parties, framed the issues and allowed the parties to lead evidence and the plaintiff examined himself as P.W.1 and one witness as P.W.2 and got marked the documents as Exs.P1 to P5. On the other hand, the defendant No.1 examined himself as D.W.1 and got marked the documents as Exs.D1 to D24.
7. The Trial Court having considered both oral and documentary evidence placed on record, answered the issues as 'negative' with regard to the claim made by the plaintiff and dismissed the suit. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.429/2016.
8. The other suit in O.S.No.779/2007 is filed by the defendant in O.S.No.540/1996, wherein he has sought for the -9- NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 relief of declaration, mandatory injunction and permanent injunction in respect of the suit schedule property. In the said suit, the plaintiff has contended that he is the absolute owner of the property bearing No.1893 measuring east to west 33 feet and north to south 20 feet. It is also his case that property measuring 30x20 feet was allotted to the plaintiff by the then CITB and possession was given on 28.04.1984. There was a bit of land adjacent to the above property towards western side, measuring east to west 3 feet and north to south 20 feet which belonged to MUDA and similar pleading was made in this suit also as contended in the written statement in the other suit. It is contended that MUDA had collected Rs.312.75 per meter and granted bit of land i.e., 0.90x6.0 i.e., 5.47 meters and total amount of Rs.1,710.75/- and allotted the same in favour of plaintiff on 07.02.1992. The lease agreement was entered with MUDA and MUDA also issued title deed in respect of bit of land. While issuing title deed in respect of suit schedule property, western boundary was wrongly mentioned. Hence, on 07.06.2007, the title deed dated 23.08.1992 was rectified and amended title deed was issued to the plaintiff.
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019
9. It is further contended that now the measurement of Door No.1893 is east to west 33 feet which includes suit schedule property and north to south 20 feet. It is also contended that the defendant's property bearing No.1877 is situated on the south east corner of the plaintiff's house. The defendant purchased the said property from one M.R. Srinivasa Murthy and reiterated the averments of the plaint and contended in the suit that the defendant is the owner of Door No.1877 and specific allegation is made that without leaving any setback, he has raised eastern wall and also put up a window on the south eastern corner of his house. When the plaintiff questioned the act of defendant's vendor, the defendant's vendor promised to close the window on the eastern wall of his house, in case bit of land is allotted. But unfortunately before granting bit of land in favour of Srinivasa Murthy, sold his house in favour of defendant and left the Mysore City. Hence, sought for the relief of mandatory injunction, apart from declaring him as absolute owner of the suit schedule property and grant the relief of permanent injunction.
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019
10. The defendant in O.S.No.779/2007, who is the plaintiff in the other suit in O.S.No.540/1996 appeared and filed the written statement in line with the averments made in the plaint. Taking note of the pleadings of the respective parties, issues were framed and the Trial Court having considered the pleadings and also the evidence i.e., the evidence of P.W.1, who is the plaintiff and also considering the documents of Exs.P1 to P44 and also the evidence of defendant, who has been examined as D.W.1 and the documents of Exs.D1 to D7, comes to the conclusion that the plaintiff has proved that bit of land was allotted in his favour and further comes to the conclusion that suit schedule property is part and parcel of Door No.1893. But mandatory injunction was not granted and only granted the relief of permanent injunction and comes to the conclusion that the plaintiff is the owner of the property.
11. The same was challenged before the First Appellate Court in R.A.No.134/2017 and the First Appellate Court confirmed the judgment of the Trial Court on re-appreciation of both oral and documentary evidence placed on record. Hence, against the concurrent finding of both the Trial Court dismissing
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 both the suits which has been affirmed by the First Appellate Court, these two second appeals are filed before this Court.
12. The main contention before this Court in the second appeal by the appellant-plaintiff in O.S.No.540/1996 and the appellant-defendant in the O.S.No.779/2007 is that MUDA allotted site measuring 30x40 feet to the plaintiff and when he had left the setback area, in the said setback area, an attempt is made by the defendant to put up construction. Hence, he sought for the relief of declaration in respect of 3x30 feet in O.S.No.540/1996. On the other hand, it is the contention of the appellant-defendant in O.S.No.779/2007 that the plaintiff has not left any setback area and he had constructed building and not encroached upon any property of the plaintiff. The MUDA is party in both the suits and property is allotted in respect of respective plaintiffs in both the suits by MUDA is not in dispute. The plaintiff in O.S.No.779/2007 was originally allotted 30x20 feet and the plaintiff in O.S.No.540/1996 is allotted 30x40 feet.
13. It is also important to note that when the document was summoned before this Court by MUDA, in the original layout plan, there is no bit of land and report was also sought
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 from MUDA whether any bit of land is allotted by MUDA and except allotting bit of land in favour of owner of Door Nos.1893, 1869 and 1870, no other sale deeds are executed or bit of land is allotted in favour of any allottees of MUDA. However, report of the MUDA throughout states that there is a bit of land, but no steps are taken to allot the said bit of land in terms of the Zonal Regulations and only based on the application given by the owner of Door No.1893, bit of land was allotted. It is also important to note that both the plaintiffs have sought for the relief of declaration in respect of their respective properties.
14. Learned counsel for the appellant in both the appeals would vehemently contend that except site allotted in his favour i.e., 30x40 feet, he is not even claiming an inch of property of the defendant and even not claiming any right in respect of bit of land allotted in their favour, who is the owners in respect of site measuring 30x20 feet and additional 3x30 feet was allotted by MUDA. When dispute was between the parties with regard to actual measurement and construction, this Court while hearing the matter, raised the issue that it is the case of the MUDA that stray site between Site No.1877 and 1892/1893 was allotted to Y.C. Dasaraj Urs. The Court has
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 observed that, if bit of land was available between Site No.1877 and 1892/1893, then the bit of land should be available in the entire stretch of sites and the report is given that in the entire stretch, there is a bit of land.
15. When the report was given by MUDA, this Court was not satisfied with the same, since several reports were given by MUDA earlier also. Hence, with the consent of both the counsels, appointed the Commissioner, Mysore Mahanagara Palike to visit the spot and accordingly, the Commissioner Mysore Mahanagara Palike visited the spot and given the report along with sketch, wherein in the report it is stated that the owner of Site No.1893 i.e., the respondent in both the appeals had encroached to the extent of 0.36 square meters i.e., 3 feet 8 inches of the property of the appellant and also there is a reference that the appellant in R.S.A.No.818/2019 has encroached to the extent of 1 feet in respect of Site No.1892. The said report is disputed by the learned counsel for the respondent by filing statement of objection. With regard to the report filed by the MUDA, the appellant orally opposed the report contending that MUDA is also having nexus with the owner of Site No.1893, since they have executed the sale deed
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 in respect of bit of land in favour of owner of Site No.1893 and hence, the said report cannot be accepted.
16. Learned counsel for the respondent would vehemently contend that the appellant herein has constructed the building in respect of his entire site measuring 30x40 feet and not left any setback area and the same is also pleaded before the Trial Court. Having considered the said contention, there is no specific material before the Court whether the appellant has constructed the building leaving any setback area or not and at the same time, the report of the Commissioner, Mysore Mahanagara Palike is that there is an encroachment by the owner of Site No.1893 to the extent of 3 feet 8 inches and the said report is questioned before this Court. When such being the case and the same is objected, the examination of Commissioner, Mysore Mahanagara Palike, who had visited and given the report dated 17.02.2024 along with the sketch also to be considered. When such being the case, when the learned counsel for the appellant also contend that the appellant does not want an inch of land and except the site allotted in his favour, even if any construction is made by him beyond the measurement to the extent of 30x40 feet, he is ready to
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 demolish the same. But, learned counsel for the respondent disputes that his client has not encroached 3 feet and 8 inches in terms of the report given by the Commissioner, Mysore Mahanagara Palike.
17. Having perused the material on record, it clearly disclose that MUDA is the culprit in allotting bit of land only to three persons, even though in the report throughout contend that there is a bit of land, no procedure is followed in allotting the bit of land and MUDA is the architect for the dispute between the parties and allotted the bit of land without following any Zonal regulations and made the parties to litigate before the Court and ought to have followed the procedure while allotting the bit of land available between the site owners and the same has not been done. Having perused the report of the MUDA also, contra reports are given in terms of Ex.D14 and Ex.D23 and different version is given in Ex.D23 which is the report given by the MUDA themselves that owner of Site No.1877 is in possession of the property, but bit of land is allotted in favour of owner of site No.1893 as against their report and contra decision is taken against their own records.
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019
18. When such materials are available before the Court, and when the report of the Commissioner, Mysore Mahanagara Palike is disputed and the respondent also disputes with regard to the encroachment, the Commissioner of Mysore Mahanagara Palike requires to be examined before the Trial Court. The prayer of the appellant is also very clear that in the setback area of 3x30 feet, encroachment is made by the respondent. When such being the case, even the appellant to adduce evidence regarding actual construction made by him and a definite finding has to be given with regard to the encroachment is concerned i.e., whether Site No.1893 is allotted to the respondent is encroached as per the reports of the Commissioner and whether the appellant has left the setback area or not while constructing the building. All these issue have to be considered by the Trial Court and in view of the dispute and objections filed by the respondent, Commissioner, Mysore Mahanagara Palike has to be examined before the Trial Court with regard to the extent of construction made by the appellant and whether he had left setback area or not and whether respondent encroached as stated in the report of the Mahanagara Palike also to be considered and if need be,
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 additional evidence can be adduced before the Trial Court, in order to come to a conclusion. Hence, the judgment and decree passed by the Trial Court and the First Appellate Court in respect of both the suits are to be set aside and matter has to be remanded to the Trial Court to consider the matter afresh, keeping in view the pleadings of the respective parties and the observations made by this Court hereinabove.
19. In view of the discussions made above, I pass the following:
ORDER
(i) The regular second appeals are allowed. The impugned judgment and decree passed by the Trial Court in both the suits of the respective parties are set aside. Consequently, the judgment and decree passed by the First Appellate Court in both the regular appeals are set aside and matter is remanded to the Trial Court for considering the matter afresh, in view of the observations made by this Court, since there are contra reports before the Court.
(ii) The parties and their respective counsels are directed to appear before the Trial Court on
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NC: 2024:KHC:28814 RSA No. 818 of 2019 C/W RSA No. 815 of 2019 30.08.2024 without expecting any notice from the concerned Court.
(iii) The Trial Court is also directed to dispose of the matter within six months and both the parties as well as their respective counsels are directed to assist the Trial Court in disposal of the case within the stipulated period of six months.
(iv) The Registry is directed to transmit the records to the concerned Trial Court, forthwith to enable the Trial Court to take up the matter on 30.08.2024.
(v) The Trial Court is directed to give an opportunity to both the parties as observed hereinabove to substantiate their case.
Sd/-
(H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 69