Karnataka High Court

M V Raju Since Dead By Lrs vs N G Kotrabasappa on 4 January, 2022

Bench: N S Gowda

                          1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4TH DAY OF JANUARY, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

           R.S.A.No.2549 OF 2006 (INJ)

BETWEEN:

      M.V.RAJU SINCE DEAD BY LRs.,

1.    JAYASHEELA,
      W/O M.V.RAJU,
      AGED 39 YEARS,
      R/AT 2ND CROSS,
      BHARATH COLONY,
      (GANGA RICE MILL BACK SIDE)
      DAVANAGERE - 57701.

2.    KAVITHA
      D/O M.V.RAJU,
      AGED 20 YEARS,
      R/AT 2ND CROSS,
      BHARATH COLONGY,
      (GANGA RICE MILL BACK SIDE)
      DAVANAGERE - 57701.

3.    MANJUNATHA,
      S/O M.V.RAJU,
      AGED 19 YEARS,
      R/AT 2ND CROSS,
      BHARATH COLONGY,
      (GANGA RICE MILL BACK SIDE)
      DAVANAGERE - 57701.
                          2
4.   MADHU KUMAR,
     S/O M.V.RAJU,
     AGED 18 YEARS,
     R/AT 2ND CROSS,
     BHARATH COLONGY,
     (GANGA RICE MILL BACK SIDE)
     DAVANAGERE - 57701.
                                   ... APPELLANTS
(BY SRI. SANATH KUMAR SHETTY AND
    SMT. JAYALAKSHMI, ADVS.)

AND:
1    N.G.KOTRABASAPPA,
     SINCE DEAD BY LRs

1(a) SATHISH.N.G.,
     AGED ABOUT 50 YEARS,

1(b) SURESH N.K.,
     AGED ABOUT 44 YEARS,

1(c) PRAKASH.N.K,
     AGED ABOUT 42 YEARS,

     R-1(a) TO R-1(c) ARE THE
     CHILDREN OF LATE N.G.KOTRABASAPPA,
     R/AT HANAGODU HOBLI,
     NERLIGE GRAMA,
     DAVANAGERE TALUK - 577 566.
                                 ... RESPONDENTS
(RESPONDENTS SERVED AND UNREPRESENTED)

      THIS APPEAL IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.07.2006
PASSED IN RA.No.68/2003 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (SR.DN), DAVANAGERE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 28.02.2003 PASSED IN O.S.No.186/1998 ON THE
FILE OF THE ADDL. CIVIL JUDGE (JR.DN), DAVANAGERE.
                                  3
     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

1. This is a second appeal filed by the LR's of the

deceased defendant Sri.M.V.Raju.

2. The respondent - plaintiff ie., N.G.Kotrabasappa

instituted a suit seeking for a decree of injunction to

restrain the appellant - defendant Sri.M.V.Raju from

putting up any sort of construction over the suit property.

The said suit was filed on 06.04.1998. Subsequently, an

amendment application was filed and the said application

was allowed on 03.09.1998. By virtue of the said

amendment, the plaintiff sought for a decree of mandatory

injunction to direct the defendant to demolish the

construction put up in the suit schedule property, failing

which the plaintiff should be permitted to get the building

constructed by the defendant demolished through a

Commissioner.

3. By way of the abovementioned amendment, it was

also pleaded that despite an order of temporary injunction

granted by the trial Court, which was to the knowledge of

the defendant, the defendant had proceeded with the

construction and therefore, the said construction was

illegal.

4. It was the case of the plaintiff that he owned site

No.3 measuring 30 ft x 30 ft which was the suit property.

It may be pertinent to state here that according to the suit

schedule, to the North of site No.3, lay the defendant's

property ie., site No.4. Thus, the plaintiff did not dispute

that to the North of his property, the defendant's property

ie., site No.4 was situated.

5. It was the plaintiff's case that the defendant was

attempting to put up construction on his site No.3. This

suit was contested by the defendant principally on the

ground that the defendant was putting up construction on

his site and not on the plaintiff's site. In fact, it was

admitted by the defendant that his site was situated

towards the South of the plaintiff's site ie., site No.3.

6. It was also contended that he had commenced the

construction after obtaining permission from the

authorities, he had also got fixed the boundaries of his site

before obtaining the licence. The defendant pleaded that

he had not at all encroached upon the plaintiff's site and

was putting up the construction on his site ie., site No.4.

7. The trial Court after considering the evidence

adduced before it, came to the conclusion that the

defendant had already dispossessed the plaintiff before

filing of the suit and therefore, the suit could not be

maintained and it proceeded to dismiss the suit.

8. The plaintiff, being aggrieved, preferred an appeal.

9. The Appellate Court on re-appreciation of the

evidence, came to the conclusion that the endorsement

dated 01.07.1998 at Ex.P19 indicated that even as on

01.07.1998, no permission had been granted by the Town

Municipal Council for construction of the building and

therefore, the contention that the building was put up even

before the suit had been filed could not be accepted. The

Appellate Court took note of the fact that the defendant

had disobeyed the order of temporary injunction and had

proceeded with the construction and in that view of the

matter, the defendant could not avail of any protection for

his illegal actions. The Appellate Court accordingly allowed

the appeal and decreed the suit.

10. It is against this decree that the present appeal has

been filed.

11. This Court while admitting the second appeal

formulated the following substantial question of law.

"(a) Whether the lower Appellate Court is justified in granting relief of permanent injunction in favour of respondent- plaintiff without recording a finding that the appellant-defendant has constructed building on the suit schedule property viz., Site No.3 and not in Site No.4 which

is admittedly owned by the appellant- defendant?"

12. The Appellate Court while recording the finding

regarding construction has noticed that the plaintiff had

approached the police on 06.05.1998 with a complaint and

the police had issued an endorsement at Ex.P18 calling

upon the Commissioner, C.M.D., Davanagere to state as

to which site number, the licence had been given. The

Appellate Court also noticed that as per Ex.P19, the

endorsement dated 01.07.1998, the Commissioner of

Municipal Council, Davanagere had stated that the licence

had not yet been granted to the defendant for construction

of a building and it was therefore clear that no licence had

been issued to the defendant for construction of a house

on site No.4.

13. The Appellate Court also noticed that even in the

licence given subsequently, the boundaries of site No.4

was not mentioned. The Appellate Court, ultimately stated

as follows:

"No documents to show that regarding the boundaries of the properties in which he has constructed the building. He has completed the construction of the property before issuing the Ex.D.12 and D.13. DW 2 and 3 have stated in their evidence that the defendant has put up construction in his site. But it is not possible to believe that the defendant has constructed the building in his Site No.4 in the absence of documentary evidence to show that he has constructed the building within which boundaries. The defendant has failed to prove that he has constructed the building in his Site No.4. On the other hand, the facts and circumstances shows that he has constructed the building in Site No.3. The trial court while discussing issue No.1, 2 and 3 come to the conclusion that the defendant has put up construction in the suit schedule property. But while discussing issue No.8 come to the conclusion on the basis of Ex.P.12 and P.13 that the defendant has constructed the building in Site No.4, Door No.1224, but not in suit schedule property. It is relevant to sate that the trial court has not discussed Ex.D.12 and D.13 in detail and not observed

that when this document came into existence. The trial court has also not discussed anything on Ex.D.9 endorsement dt.29.11.1998 issued by the C.M.D., Davanagere. As I have already stated at one stretch, the trial court comes to the conclusion that the defendant has put up construction in the suit schedule property i.e., Site No.3. At another stretch come to the conclusion that he has put up construction in Site No.4. Considering all these facts, I do not agree with the view of the trial court that the defendant has put up construction in his Site No.4 only, and not put up construction in the Site No.3 i.e., suit schedule property. The plaintiff has put up the construction in the suit schedule property and not in Site No.4."

14. As could be noticed from the above, no specific

finding is given as to whether the construction has been

put up on site No.3 or on site No.4. It is also not clear as

to whether the building constructed existed on site No.3 or

on site No.4. If as a matter of fact, the construction has

been put up on site No.3, obviously, site No.4 should be

available.

15. It may also be possible that due to the

encroachment by the other site owners ie., site Nos.1 and

2, either site No.3 or site No.4 would have been diminished

in size or it may not even be in existence.

16. In the light of the above, it would be therefore