Karnataka High Court
Sri Alwyn Jayakar Menon vs The Commissioner on 11 December, 2023
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RSA No. 1065 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1065 OF 2020 (INJ)
BETWEEN:
SRI. ALWYN JAYAKAR MENON,
S/O DEVAPAL MENON,
AGED ABOUT 58 YEARS,
R/AT MENON COMPOUND,
NEAR SANGHANIKETANA,
MANNAGUDDA, GANDHINAGARA,
MANGALURU - 5750 03 (DK).
...APPELLANT
(BY SRI. M. SUDHAKAR PAI, ADVOCATE)
AND:
THE COMMISSIONER,
Digitally MANGALURU CITY CORPORATION,
signed by CORPORATION BUILDING,
ALBHAGYA LALBAGH, MANGALURU - 575 003,
Location: D.K. DISTRICT.
HIGH
COURT OF ...RESPONDENT
KARNATAKA (BY SRI. AJAY J.N, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.07.2020
PASSED IN RA.NO.54/2018 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND CJM, MANGALURU, D.K., DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
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RSA No. 1065 of 2020
DATED 17.04.2018 PASSED IN O.S.NO.485/2007 ON THE FILE
OF THE III ADDL. CIVIL JUDGE, AND JMFC, MANGALURU.D.K.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Second Appeal is filed by the
unsuccessful plaintiff feeling aggrieved by the concurrent
judgment and decree rendered by the Courts below
wherein the plaintiff's suit seeking relief of injunction
against the defendant-Corporation is dismissed by both
the Courts.
2. For the sake of brevity, the parties are referred
as they are ranked before the Trial Court.
3. The facts leading to the case are as under:
Plaintiff has filed the present suit for injunction
simpliciter against the defendant/Corporation. The
plaintiff claims to be the owner of the non-agricultural
property totally measuring 10 cents. The suit is filed by
the plaintiff feeling aggrieved by the acquisition of the land
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by the defendant/Corporation for forming water channel
by utilizing the plaintiff's property. Therefore, the plaintiff
issued a legal notice calling the defendant not to encroach
the suit schedule property. The present suit is filed
alleging that inspite of legal notice and repeated request,
the officials of the defendant/Corporation threatened the
plaintiff and entered into the suit schedule property and
tried to illegally construct revetment wall and laid cement
slab to the water channel/drain.
4. Defendants on receipt of summons, tendered
appearance and filed written statement and stoutly denied
the entire averments made in the plaint. The defendant
on the contrary claimed that it is not executing any work
of constructing revetment wall to the open drain. The
defendant further claimed that the project is being
implemented under M.L.A.'s fund by the Deputy
Commissioner through Nirmitha Kendra.
5. The plaintiff to substantiate his lawful
possession over the suit schedule property examined
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himself as PW.1 and examined five independent witnesses
as PWs.2 to 6. The plaintiff also produced documents
which were marked as Exs.P-1 to P-12. The defendant-
Corporation did not choose to lead any rebuttal evidence.
6. The trial Court taking cognizance of the
evidence of Surveyor examined by the plaintiff himself
found that the allegation of plaintiff that laying of a
drainage water channel is by utilizing plaintiff's property is
not substantiated. The trial Court held that alleged
encroachment as claimed by plaintiff is not proved and
therefore, in absence of interference by defendant-
Corporation, trial Court proceeded to dismiss the suit and
the same is confirmed by the appellate Court.
7. This Court vide order dated 14.09.2020 has
admitted the appeal on following substantial question of
law:
"Whether the First Appellate Court has
committed gross error in adjudicating the regular
appeal before it without considering
Commissioner's report, wherein it is stated that
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defendant has encroached portion of the suit
schedule property?"
8. Learned counsel appearing for the defendant-
Corporation while filing vacating application has placed on
record the preliminary notification issued by the State
under Section 4(1) resolving to utilize 1.417 cents of
portion of suit schedule property. The counsel has also
placed on record the final notification issued under Section
6(1). The copy of mahazar taking possession under
Section 16(2) and the award passed on 29.02.2008 is also
placed on record. Referring to these significant details,
the counsel appearing for the Corporation would point out
that relief sought in the present suit would not survive for
consideration as the State has resolved to acquire 1.417
cents of the suit property for laying a water channel.
These copies are served on the counsel appearing for the
appellant/plaintiff.
9. It is trite law that on account of subsequent
developments if the cause of action does not survive for
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consideration, this Court can take cognizance of the
subsequent developments and pass appropriate orders. If
an award is passed by the State, then the portion acquired
and indicated in the award copy stands vested with the
Government and therefore, the plaintiff's suit seeking
injunction simpliciter to an extent of 10 cents may not
survive in entirety.
10. Learned counsel appearing for the
defendant/Corporation referring to the award details would
point out that the defendant-Corporation intends to only
utilize 1.417 cents of total extent measuring 10 cents. If
these significant details are looked into, then this Court is
of the view that defendant-Corporation pursuant to
acquisition by the State intends to implement the project
by forming a water channel. If 1.417 cents is already
acquired by the State, the plaintiff cannot seek injunction
and injunct the local authority from implementing the
project. Equally, defendant-Corporation while
implementing the project under the garb of forming a
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water channel, cannot encroach over plaintiff's remaining
extent.
11. Since counsel appearing for the defendant-
Corporation, on instructions, has made a statement before
this Court that the defendant-Corporation will utilize only
that portion which is acquired and an award is passed, the
substantial question of law framed by this Court needs to
be answered partly in the affirmative. The plaintiff is
entitled for injunction to an extent measuring 8.583 cents.
The plaintiff's prayer seeking injunction in excess of 8.583
cents is denied. The defendant-Corporation is hereby
restrained from interfering with suit schedule property
measuring 8.583 cents.
12. It is made clear that before defendant-
Corporation proceeds to complete the project, it would be
incumbent on the part of the technical officials of the
defendant-Corporation to carve out the acquired portion
measuring 1.417 cents and after demarcating the acquired
portion, is at liberty to proceed and implement the project.
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13. Accordingly, I pass the following:
ORDER
(i) The second appeal is allowed in part;
(ii) The judgment and decree rendered by
the appellate Court in R.A.No.54/2018 and the
judgment and decree rendered by the trial
Court in O.S.No.485/2007 are set aside;
(iii) Defendant/Corporation is hereby
restrained by way of permanent injunction from
interfering with plaintiff's peaceful possession
over the suit schedule property measuring
8.583 cents. However, relief of injunction
sought in respect of remaining 1.417 cents is
concerned, suit is dismissed;
(iv) Draw decree accordingly;
(v) The pending interlocutory application,
if any, does not survive for consideration and
stands disposed of accordingly.
Sd/-
JUDGE
NSU,CA
List No.: 1 Sl No.: 46/CT: BHK
