Karnataka High Court
I K Nanaiah By His Legal Representatives vs The State Of Karnataka on 6 August, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06th DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No. 372 OF 2010
BETWEEN:
Sri. I.K. Nanaiah,
By his legal representatives,
1. Smt. Gangamma Nanaiah Iynanda,
Wife of Late Sri. I.K. Nanaiah,
Aged about 60 years,
2. Sri. I.N. Subaiah,
Aged about 38 years,
3. Sri. I.N. Nachappa,
Aged about 35 years,
The parties 2 and 3 are
Both sons of Late I.K.Nanaiah
And all parties are residing at
Apartment No.102, 85,
Amelie Apartments,
Benson Road Cross,
Benson Town,
2
Bangalore - 560 046. ...APPELLANTS
(By Shri. Ganesh N.M., Advocate)
AND:
1. The State of Karnataka,
By its Revenue Secretary,
Revenue Department,
M.S.Building,
Bangalore - 560 001.
2. The Commissioner,
Bangalore Mahanagara Palike,
Bangalore.
3. The Revenue Officer,
Bangalore Mahanagara Palike,
Jayanagar Shopping Complex,
Marenahalli Division,
Jayanagar,
Bangalore - 560 011.
4. The Deputy Commissioner,
(Development) J.C.Road,
Bangalore Mahanagara Palike,
Bangalore.
5. The Deputy Commissioner (Revenue),
Bangalore Mahanagara Palike,
J.C.Road,
Bangalore - 560 002. ...RESPONDENTS
(By Shri. Gopal Bilalmane, Government Pleader for Respondent
No.1
3
Shri. I.G. Gachchinamath, Advocate for Respondent Nos. 2 to 5)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 30.11.2009 passed in O.S.No.8832/2000 on the file of the
IX Additional City Civil and Sessions Judge, Bangalore,
dismissing the suit for declaration and mandatory injunction.
This appeal coming on for Hearing this day, the Court made
the following:
JUDGMENT
Heard the learned Counsel for the appellant. The appellant was the plaintiff before the trial court. The suit was one for mandatory injunction and for issuance of khata. It was the plaintiff's case that the suit property was gifted to him on the 28th year of independence of India by the Block Development Officer (BDO), Bangalore, vide Hakku Patra dated 22.12.1979 and that the site, which was granted to him, was assessed to tax and he was put in possession of the suit property and he had been paying taxes. Since he wanted to construct a house, he had applied for sanction of plan, but the same was rejected by the second 4 defendant namely, the Commissioner, Bruhat Bengaluru Mahanagara Palike with an endorsement that there were writ petitions pending in respect of the land in survey No.18 of Marenahalli, out of which, the suit property was culled out. The defendants claimed that the land in survey No.18 had vested with the State and therefore the issuance of khata stood revoked. The government had requisitioned all papers pertaining to the aid survey number from the BDO in the year 1995. During this process, it is stated that the Deputy Commissioner had misplaced all the documents pertaining to land in Survey No.18 and there was an inquiry initiated and was pending before the Corps of Detectives. The first defendant therefore refused to issue khata in respect of the suit property, whereas such khata was issued to other similarly placed persons, who had been granted such sites and the appellant therefore had approached this Court in its writ jurisdiction claiming that there was discrimination insofar as the appellant was concerned. This court, in its writ jurisdiction, had remanded the matter directing the State to reconsider the case of 5 the petitioners. In the meanwhile, he had constructed a shed and had put up a compound wall in respect of the site which was allotted to him in the first instance.
2. Notwithstanding that this court, in its writ jurisdiction, while remanding the matter, had extended the order of status- quo, it is alleged that the respondents had demolished the shed and removed the compound wall. Therefore, the appellant was compelled to initiate contempt proceedings before this court in CC No.2052/1999 . The said proceedings were dismissed on the ground that the appellant had not placed the particulars as regards the date on which the order of the court was disobeyed by the respondents. Thereafter, the present suit was filed by the appellant.
3. The plaintiff unfortunately died during the pendency of the suit and the legal representatives are now on record. However, defendants 2 to 5 contested the suit and the State Government remained ex-parte. The defendants claimed that 6 there was no cause of action. The plaintiff was not in possession of the suit property. There was no compliance with Section 482 of the Karnataka Municipal Corporations Act, 1976 and so on and so forth. It was pointed out that the property was worth Rs.10,00,000/- as on the date of the suit and the plaintiff had not paid the court fees on the same. It was also pointed out that the claim of the plaintiff that the BDO had gifted the suit property, was not tenable as the BDO had no authority to gift the suit property and hence the defendants sought dismissal of the suit. On the basis of the above pleadings, the following issues were framed by the trial court :
"1. Whether the plaintiff proves that the defendants are in due a sum of Rs.3,29,937.39 as on 9.3.2002 towards supply of materials to the defendants by the plaintiff?
2. Whether the plaintiff further proves that the defendants have failed to pay the said amount inspite of demand and issue of legal notice?7
3. Whether the defendants prove that the managing partner Mr.Thomas Mathew has received a sum of Rs.1,20,000/- on 5.7.2000 and also received Rs.20,000/- by the plaintiff through the managing partner and therefore they are in due in a sum of Rs.25,805.65 to the plaintiff?
4. Whether the plaintiff is entitled for the recovery of the suit claim as prayed for?
5. What decree or order?"
Except issue no.2, all the issues were answered in the negative. It is this which is under challenge in the present appeal.
As seen from the facts narrated hereinabove, the very basis of the plaintiff's case was doubtful, as it is not with reference to any legal provision that it is pointed out as to the plaintiff having been gifted the property by the BDO. There was no such authority as rightly pointed out by the respondents in the BDO to have gifted the property to the plaintiff in the first instance. In any event, for one reason or the other, the same having been divested, in the State having chosen to withdraw the land from such 8 allotment, and thereafter no further steps having been taken to reallot the plot to the plaintiff, or to provide any alternative site, the nebulous grant could not be established as conferring any right on the plaintiff and therefore, there is no foundation laid for the right claimed over the suit property.
In that view of the matter, there is no case made out and the appeal stands dismissed.
Sd/-
JUDGE nv