Karnataka High Court

Sri Mansukh Lal Khicha vs The Corporation Of City Of ... on 2 June, 2023

Bench: H T Prasad

                                              -1-
                                                       RFA No. 616 of 2008




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 2ND DAY OF JUNE, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                          REGULAR FIRST APPEAL NO. 616 OF 2008 (INJ)
                   BETWEEN:

                   1.    SRI MANSUKH LAL KHICHA
                         S/O.LATE.SRI.CHHOGALALJI
                         AGED ABOUT 55 YEARS.

                   2.    SMT CHANDRAKALA M KHICHA
                         W/O.SRI.MANSUKH LAL KHICHA
                         AGED ABOUT 50 YEARS
                         BOTH ARE NO.2,1ST CROSS
                         K.V.TEMPLE STREET
                         MANAVARTHAPET
                         BANGALORE-53.
                                                                ...APPELLANTS
                   (BY SRI. M L DAYANANDA KUMAR.,ADVOCATE)

                   AND:

Digitally signed
by                 1.    THE CORPORATION OF CITY OF BANGALORE
DHANALAKSHMI             BY ITS COMMISSIONER
MURTHY
Location: High
                         KEMPEGOWDA CIRCLE
Court of                 BANGALORE-1.
Karnataka

                   2.    THE EXECUTIVE ENGINEER
                         THE CORPORATION OF CITY OF BANGALORE
                         KEMPEGOWDA CIRCLE
                         BANGALORE-1.

                   3.    SRI NAGESH
                         JUNIOR ENGINEER
                         CORPORATION OF CITY OF BANGALORE
                         BANGALORE.
                                  -2-
                                           RFA No. 616 of 2008




4.   SRI LOKESH
     S/O.LATE.SRI.N.LAKSHMAN
     AGE MAJOR,NO.564
     H.S.R.LAYOUT, 23RD CROSS
     14TH MAIN,BANGALORE-68.
                                               ...RESPONDENTS
(BY SRI. S N PRASHANTH CHANDRA .,ADVOCATE FOR R1 & 2:
NOTICE TO R3 AND R4 ARE HELD SUFFICIENT)



     THIS RFA IS    FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:18.1.2008
PASSED IN O.S.NO.7133/95 ON THE FILE OF THE XVI ADDL.
CITY CIVIL JUDGE, BANGALORE (CCH-12), DISMISSING THE
SUIT FOR PERMANENT INJUNCTION AND MANDATORY
INJUNCTION.

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

This appeal is filed under Section 96 of CPC

challenging the judgment and decree dated 18.1.2008

passed by XVI Addl. City Civil & Sessions Judge, Bengaluru

in O.S.No.7133/1995, whereby the suit filed by the

plaintiffs has been dismissed.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court in

original suit.

RFA No. 616 of 2008

3. Brief facts of the case:

Plaintiffs are the absolute owners in possession of the

suit schedule property, which was acquired by them under

the registered sale deed dated 30.10.1986 from one

Smt.M.Venku Bai and others. Plaintiffs are paying tax

regularly as per the assessment made by the Corporation.

They have put up a new construction after demolishing the

old structure after obtaining necessary sanctioned plan

from the Corporation. Defendant No.3, who has no

manner of right, title or interest over the southern side of

the suit schedule property is trying to encroach the

conservancy lane, which is leading to the main road by

putting up a wall and to utilize the same as a shop. The

same affects the rights of the plaintiffs. Hence, the

plaintiffs have filed the suit for injunction.

On service of suit summons, defendant Nos.1 to 3

appeared through counsel and filed the written statement

denying the averments made in the plaint and they have

contended that the plaint has to be returned since the

plaintiffs have not complied with the provisions of Section

RFA No. 616 of 2008

482 of the Karnataka Municipal Corporation Act. Defendant

No.4 appeared though counsel and filed written statement

denying the averments made in the plaint and contended

that the property in dispute belongs to the Corporation

and plaintiffs have no manner of right, title or interest

over the suit schedule property. Hence, the defendants

sought for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial

Court has framed following issues:

(1) Whether the Plaintiffs prove that there exists a conservancy lane and they have got a right over the same as a passage to have access to their schedule properties?

(2) Whether the Plaintiffs prove that the 3rd Defendant is attempting to put up unauthorised construction on the conservancy lane adversely affecting the user of the same as a passage by the Plaintiffs to have access to their schedule property?

RFA No. 616 of 2008

(3) Whether the Defendants prove that the Plaintiffs have filed the suit with a malafide intention to grab the property belonging to the Corporation claiming it to be a public conservancy?

(4) Whether the Plaintiff is entitled to a decree of permanent and mandatory injunctions as prayed for?

(5) To what decree or order?

On behalf of the plaintiffs, the plaintiff No.1 has been

examined as PW-1 and produced 14 documents and

marked as Exs.P-1 to 14. On behalf of the defendants,

neither any witness was examined nor any document was

produced. On appreciation of oral and documentary

evidence, the Trial Court has answered issue Nos.1, 2 and

4 in the negative and issue No.3 in the affirmative and

dismissed the suit. Being aggrieved by the same, the

plaintiffs have filed this appeal.

4. The learned counsel for the appellants-plaintiffs

has contended that on the southern side of the suit

RFA No. 616 of 2008

schedule property there is a conservancy lane. Defendant

No.4 without any authority of law is trying to encroach the

same. He further contended that since the conservancy is

a public property which belongs to the Corporation, if

defendants are permitted to encroach the same, it will

affect the rights of the plaintiffs. He further contended that

during the pendency of the suit, defendant No.4 has

forcibly constructed a shed. Therefore, the plaintiffs had

sought for amendment of plaint seeking for mandatory

injunction. He further contended that during the pendency

of the suit, the Corporation has allotted the land in dispute

in favour of defendant No.4 by passing a Resolution dated

22.7.1997 without any authority of law. The trial court

without considering these aspects has committed an error

in dismissing the suit of the plaintiffs.

5. The learned counsel for the respondent Nos.1

and 2 has submitted that since the property in dispute

belongs to the Corporation, the plaintiffs have no manner

of right, interest or title over the property in dispute. The

RFA No. 616 of 2008

said property is now been allotted to defendant No.4. The

trial court after considering the evidence of the parties has

rightly dismissed the suit.

6. Respondent Nos.3 and 4 are served and

unrepresented.

7. Heard the learned counsel for the parties.

Perused the judgment and decree of the trial court and

original records.

8. The plaintiffs in the suit had sought for the

following reliefs:

"Wherefore, the plaintiffs pray that this Hon'ble Court be pleased to pass a judgment and decree:

a) Against the 3 defendant restraining him permanently from putting up construction on the conservancy lane affecting the user of the conservancy lane as an access to the schedule property.

b) And directing the defendants 1 & 2 to take action against the 3rd defendant who is trying

RFA No. 616 of 2008

to grab the property of the Corporation, namely the conservancy lane which is lying to the Southern side of the schedule property.

c) And restraining the defendants 1 & 2 not to put up any kind of construction over the conservancy lane affecting the user of the same as a passage to have access to the Main Road.

d) For costs and such other reliefs as this Hon'ble Court may deem fit to grant under the circumstances of the case.

e) The Mandatory Injunction may kindly be issued against the defendants to demolish the illegal construction of shed on conservancy lane (suit property).

9. It is also not in dispute that by Resolution dated

22.7.1997, the Corporation has allotted the land in dispute

in favour of defendant No.4. In view of the subsequent

allotment and the said allotment not being challenged

before any court of law, the releif sought by the plaintiffs

RFA No. 616 of 2008

cannot be granted. The only remedy available to the

plaintiffs is to challenge the Resolution dated 22.7.1997

passed by the Corporation granting the land in dispute in

favour of defendant No.4, before the appropriate legal

forum.

10. Accordingly, the appeal is disposed of.