The Vijaya Bank Employees House ... vs Smt Teresa Mendonca W/O Late Shri ...
2023 Latest Caselaw 446 Kant

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                                                  RFA No. 1450 of 2006




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 6TH DAY OF JANUARY, 2023

                                      BEFORE
                    THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                  REGULAR FIRST APPEAL NO. 1450 OF 2006 (MON)


             BETWEEN:

             1.    THE VIJAYA BANK EMPLOYEES
                   HOUSE BUILDING
                   CO-OPERATIVE SOCIETY LTD.,
                   NO.116/1, 5TH MAIN,
                   11TH CROSS, S.R.S. NAGAR,
                   BILEKAHALLI,
                   BANGALORE - 560 078.
                   REPRESENTED BY ITS PRESIDENT
                   MR.NAVEEN BHANDARI.

                                                          ...APPELLANT

             (BY SMT.LATHA SHETTY, ADVOCATE FOR
                 M/S SHETTY & HEGDE ASSTS.,ADVOCATE)

             AND:
Digitally
signed by    1.     SMT. TERESA MENDONCA,
PANKAJA S           W/O LATE SHRI. VINCENT MENDONCA,
Location:
HIGH COURT          AGED ABOUT    YEARS
OF
KARNATAKA           SINCE DECEASED
                    REPRSENTED BY LRS

             1(a) LAWRENCE MOENDONCA,
                  S/O LATE VINCENT MENDONCA,
                  AGED ABOUT 72 YEARS,
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                                      RFA No. 1450 of 2006




       R/AT NO.585, MENDONIR HOUSE,
       DOMLUR LAYOUT,
       BENGALURU - 560 071.

1(b) DIANA FERNANDES,
     W/O JOSEPH FERNANDES,
     AGED ABOUT 64 YEARS,
     KOPPALA HOUSE, TENKA,
     BELLUR POST, BANTWAL TALUK,
     D.K. DISTRICT - 571 418.

1(c)   HELEN PREIRA,
       W/O MAURICE PEREIRA,
       AGED ABOUT 65 YEARS,
       R/O NO.226, 1ST CROSS,
       F.R.ULLASAPPA ROAD,
       KAMMANAHALLI,
       BENGALURU - 560084.

1(d) NELLY PRICHARD,
     W/O MELWYN PRICHARD,
     AGE MAJOR,
     CHETHAN MANSION, NO.21,
     ME9 COLONY, JAIBHACATI NAGAR,
     BENGALURU - 560033.

2.     SHRI.ALWYN MENDONCA,
       S/O LATE SHRI VINCENT MENDONCA,
       AGED ABOUT 42 YEARS,
       BOTH R/A BILEKAHALLI VILLAGE,
       BANNERGHATTA ROAD,
       BANGALORE - 86.

                                          ...RESPONDENTS

(BY SRI. VINAY HEGDE, ADVOCATE FOR
    SRI.S.V.SHASTRI, ADVOCATE)
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                                      RFA No. 1450 of 2006




     THIS RFA IS FILED U/S.96 R/W O 41 R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.1.2005
PASSED IN O.S.NO.8996/98 ON THE FILE OF THE XXVII ADDL.
CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT
FOR RECOVERY OF MONEY.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                        JUDGMENT

1. This appeal is by the defendant, which is a Housing

Co-operative Society.

2. On 19.10.1992, plaintiffs - Smt.Teresa Mendonea

and Sri.Alwyn Mendona instituted a suit for recovery of

sum of Rs.3,37,000/- with costs and interest @ 18% p.a.

It was their case that they were running a poultry farm in

the name and style of "M/s Teresa Poultry Farm" and had

constructed three sheds for this purpose on the land

bearing Sy.Nos.115/5A and 115/1.

3. They contended that they had taken this property on

lease from one Sri.V.Sreenivas and had also raised a loan

of Rs.55,000/- from Vijaya Bank. It was stated that on

20.10.1989, the Society demolished the poultry farm by

RFA No. 1450 of 2006

use of bulldozers and nearly 6000 chickens, poultry

equipments, electrical equipments, furniture and fixture

were damaged and the complaint was also lodged to the

police contending that they had sustained loss of

Rs.3,37,000/-.

4. They also contended that they had sent a legal notice

dated 07.10.1992 to the defendant, calling upon them to

pay a sum of Rs.3,37,000/- and despite this legal notice,

there was no response and they were consequently forced

to institute a suit.

5. The appellant - defendant entered appearance, but

chose not to file a written statement. The second plaintiff

was examined as PW1 and 30 documents were exhibited.

The second plaintiff was not cross examined by the

defendant - Society.

6. The Trial Court, on consideration of the evidence,

came to the conclusion that the plaintiffs' structures had

RFA No. 1450 of 2006

been illegally demolished by the Society and they had

suffered damages on that account. The Trial Court

quantified the damages as Rs.1,25,000/- and decreed the

suit for the said sum and also awarded interest at the rate

of 6% per annum on the said sum. As against the said

judgment, the present appeal has been filed.

7. Learned counsel for the appellant contended that

this is a fit case for being remanded to the Trial Court,

since the appellant did not have an opportunity to contest

the proceedings. She sought to contend that the land

acquisition records clearly indicated that there were no

structures on the land bearing Sy.Nos.115/5A and 115/1

and infact, even in the award in respect of poultry sheds,

the claim for compensation was disallowed on the ground

that it had been constructed after the preliminary

notification. She submitted that if an opportunity was

granted, the defendant would be able to establish that

RFA No. 1450 of 2006

there was no poultry farm in existence as contended by

the plaintiffs and the suit was liable to be dismissed.

8. Learned counsel for the respondents on the other

hand supported the decree and contended that the

demolition of the structures was made in the year 1989

and despite the notices issued to the Society and also to

Vijaya Bank, there had been no response. He highlighted

the fact that though the suit was filed in the year 1982

and was pending till 2005, the Society did not chose to

contest the proceedings at all and in this view of the

matter, the plea of the appellant that the appeal is to be

allowed cannot be sustained.

9. On merits, learned counsel contended that the

existence of the poultry sheds stood proved by production

of electricity bills and also by lodging of the police

complaint immediately thereafter. He placed reliance on

Ex.P28, in which, Sri.Ramakantha Shetty, the Secretary of

the defendant - Society admitted that on 20.10.1989,

RFA No. 1450 of 2006

certain structures existed in the land were demolished and

this by itself proved the case of the plaintiffs. He

therefore, submitted that the impugned judgment and

decree cannot be found fault with.

10. As far as the contention of the appellant's counsel

that the appellant deserved a remand in order to establish

their case is concerned, it is to be noticed that the suit was

filed claiming of an illegal demolition effected in the year

1989. It is not in dispute that the notices issued to the

Society were not responded to. It is also not in dispute

that the suit was filed in the year 1992 and was pending

for 13 years and the Society despite having men and

resources at its command, did not chose to contest the

proceedings for 13 long years.

11. In my view, having regard to the fact that the

defendant is a Society and had men and resources at its

command, the prayer made by the appellant that equity

RFA No. 1450 of 2006

demands a remand for adjudication on its merits, cannot

be accepted.

12. As far as the merits of the case is concerned, the

Trial Court has recorded a clear finding that there were

poultry sheds in existence and the same were demolished

and the plaintiffs being the tenants have suffered

immensely to an extent of Rs.1,25,000/-.

13. Ex.P1 indicates that the plaintiffs had taken the

property on rent and Ex.P2 indicates that they had

obtained an approval of a plan for structure of a dwelling

house and the poultry farm from the concerned

jurisdictional Grama Panchayath. Exs.P4 to P7 are the

receipts for having paid the electricity charges to

Karnataka Electricity Board. The plaintiffs have also

produced receipt for having purchased the vencob chicks

in the year 1989 as per Ex.P15.

RFA No. 1450 of 2006

14. Exs.P22 to P27 are the photographs indicating the

structure which were razed to the ground. Ex.P16

indicates that the plaintiffs had raised a loan of

Rs.55,000/- by hypothecating the birds, chicks, poultry

equipments and poultry sheds with Vijaya Bank. The

plaintiffs have produced Ex.P18 which was a

communication dated 02.11.1989 addressed to the Bank

stating that the Society formed by its employees had

demolished the poultry sheds on 20.10.1989. Exs.P20 and

P21 which are the communication dated 11.12.1990 and

19.04.1991 indicate that the plaintiffs had made a demand

for recovery of the outstanding loan. It is to be stated here

that vide Ex.P17, the Bank had stated the matter of

demolition and the compensation for the demolition cannot

be laid against the Bank and the Bank had nothing to do

with it.

15. The plaintiffs have also produced the complaints that

they had lodged to the Deputy Commissioner at Ex.P22, to

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RFA No. 1450 of 2006

the Sub-Inspector at Ex.P23 and also to the Governor of

Karnataka at Ex.P24. These documents clearly indicate

that the plaintiffs had taken immediate action to lodge the

complaints to the jurisdictional authorities about the

demolition.

16. On the complaint of the plaintiffs, the Commissioner

of Police had conducted an enquiry and submitted a report

to the Special Secretary to the Government and a copy of

the same is produced at Ex.P28. In the said report, it has

been noticed by the Commissioner as under:

"Shri P.Ramakantha Shetty, the Secretary, Vijaya Bank Co-operative Housing Society had enquired with the petition and the allegations against the Society. He has stated that they were in possession of land bearing Sy.No.115/5A of Bilikalli from 1.10.1988 and the case against their Society was dismissed by the Supreme Court and they are physical possession of the land along with so many other lands and they were doing development work such was levelling of the land forming of roads since 1st June 1989. And they use to take police protection to avoid untoward incidents. As usually

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RFA No. 1450 of 2006

on 20.10.1989 they have carried the work levelling the roads two bull-dozore hired from Agro Industries Corporation and they have removed certain structure existing in the land and they did not demolished any poultry farm as stated by the petitioner. Further, it is ascertained that there is no specific demolition order in favour of Vijaya Bank Society."

17. As could be seen from the above, the Secretary of

the Society admitted that certain structures were

demolished on 20.10.1989 and that date was the very

date on which the plaintiffs had contended that the poultry

sheds were demolished. In the light of these documents,

the Trial Court was absolutely justified in coming to the

conclusion that the poultry sheds were demolished without

recourse to the due process of law.

18. Learned counsel for the appellant, however, sought

to contend that the poultry farms did not exist on the

aforementioned lands and even if they did, they were

obviously illegal. In the light of the settled law that even a

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RFA No. 1450 of 2006

trespasser cannot be dispossessed, except, in accordance

with law, the argument of the appellant's counsel that the

structures, if any, were illegal and unauthorized and their

demolition cannot be found fault with, cannot be accepted.

19. The Trial Court had meticulously considered the

extent of damages suffered by the plaintiffs. The Trial

Court has noticed that the claim of Rs.75,000/- at the rate

of Rs.5/- for 6000 chicks were reasonable and so also the

sum of Rs.2,000/- claimed by them towards costs of

medicine and vaccine were also reasonable.

20. The Trial Court has noticed that though a claim of

Rs.30,000/- was made towards costs of equipments, no

evidence was produced to indicate the costs of the

equipments lost and therefore, has refused to award

compensation on that score.

21. The Trial Court has noticed that a sum of Rs.12,000/-

was claimed regarding feed stock and husk and has

awarded a sum of Rs.10,000/-.

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RFA No. 1450 of 2006

22. The Trial Court after noticing that the plaintiffs had

claimed a sum of Rs.30,000/- towards office equipments,

farm house, bicycle, furniture, electrical equipment etc.,

had recorded a clear finding that since the plaintiffs claim

that they were the tenants under one Sri.V.Sreenivas,

they cannot lay a claim for the loss of farm house and

electrical equipments and has rightly rejected the claim of

Rs.30,000/-.

23. The Trial Court has awarded a sum of Rs.3,000/-

towards loss of utensils and other articles and has refused

to award a sum of Rs.5,000/- claimed towards costs of

cages.

24. As far as the claim of Rs.1,80,000/- towards loss of

income is concerned, the Trial Court has correctly come to

the conclusion that the plaintiffs were entitled for loss of

income only for a period of six months and has awarded a

sum of Rs.30,000/-.

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RFA No. 1450 of 2006

25. In my view, this assessment of damages and the

quantification of the same at Rs.1,25,000/- is just and

proper and cannot be found fault with. As a consequence,

I find no reason to entertain the appeal and same is

rejected.

Sd/-

JUDGE

BRN/GH