Shri Afzal Pasha vs Mysuru Urban Development ...
2023 Latest Caselaw 2475 Kant

                                                  -1-
                                                                 RSA No. 216 of 2016




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 23RD DAY OF MAY, 2023

                                                BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                         REGULAR SECOND APPEAL NO.216 OF 2016 (MON)

                      BETWEEN:

                      SHRI AFZAL PASHA,
                      AGED ABOUT 49 YEARS,
                      S/O SRI NISSAR AHAMED,
                      OCC:BUSINESS,
                      R/AT NO.104, 2ND CROSS,
                      BANNI MANTAPA 'C' LAYOUT
                      MANDI MOHALLA,
                      MYSURU - 577 701.                                 ...APPELLANT

                      (BY SRI.G.S.BHAT., ADVOCATE ALONG WITH
                           MS.AKSHATHA R., ADVOCATE)

                      AND:

                      MYSURU URBAN DEVELOPMENT AUTHORITY,
Digitally signed by   J.L.B. ROAD, MYSURU - 577 701,
THEJASKUMAR N
Location: HIGH        REPRESENTED BY ITS COMMISSIONER.                 ...RESPONDENT
COURT OF
KARNATAKA

                      (BY SRI.T.P.VIVEKANANDA., ADVOCATE)

                             THIS   REGULAR   SECOND    APPEAL    IS   FILED   UNDER
                      SECTION 100 OF CIVIL PROCEDURE CODE, 1908, SEEKING
                      CERTAIN RELIEFS.

                             THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
                      THE COURT DELIVERED THE FOLLOWING:
                              -2-
                                         RSA No. 216 of 2016




                          JUDGMENT

Learned counsel for appellant and Sri.T.P.Vivekananda,

learned counsel for the respondent has appeared in person.

2. This appeal is from the Court of II Additional

District Judge, Mysore.

3. For the sake of convenience, the status of the

parties is referred to as per their rankings before the Trial

Court.

4. The facts of the case are quite simple and are

stated as under:

It is stated that the suit schedule property initially

belonged to one Smt.Kempamma. The said Smt.Kempamma

along with her son sold the suit schedule property to one

Sri.Muktharpasha. He in turn executed a registered Gift Deed

on 03.07.2006 in favor of his son Sri.Mokshad Pasha. The

said, Sri.Mokshad Pasha sold the property in favor of the

plaintiff on 07.11.2006 and put the plaintiff in possession of

the suit property.

RSA No. 216 of 2016

It is averred that the suit property is situated within the

municipal limits of Mysore City Corporation (MCC). The MCC

has collected property tax in respect of the suit schedule

property from the plaintiff. It is the contention of the plaintiff

that he has put up construction in the portion of the suit

property. The defendant trespassed into the suit schedule

property and demolished the house which was constructed

by him. Hence, he was constrained to take shelter under the

Court of Law. The plaintiff contends that he sustained a loss

to the tune of Rs.1,50,000/- (Rupees One Lakh Fifty

Thousand only) and hence, he filed a suit for recovery of

damages.

After service of summons, the defendant appeared and

filed a detailed written statement. It is contended by the

defendants that the suit schedule property forms part of

Sy.No.133 and the Mysore Urban Development Authority

(MUDA) acquired the same in the year 1988. It is also

contended by the defendant that the plaintiff was in

unauthorized possession of the suit property and hence, they

were constrained to take action for the demolition of the

RSA No. 216 of 2016

building which is alleged to have been constructed by the

plaintiff. Among other grounds, they prayed for the dismissal

of the suit.

Based on the above pleadings, the Trial Court framed

the following:

ISSUES

1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as an absolute owner?

2. Whether the plaintiff further proves that he had constructed a house in a portion of the suit schedule property as morefully described in the plaint schedule?

3. Whether the plaintiff further that the defendant authority has illegally and unlawfully trespassed into the suit schedule property and dismantled the constructed house belonging to the plaintiff?

4. Whether the plaintiff is entitled to recover one lakh with cost and interest at the rate of 18% per annum from the defendant authority as damages for causing loss to the plaintiff?

5. What order or decree?

RSA No. 216 of 2016

In order to substantiate the claim, the plaintiff Afzal

Pasha was examined as PW1, and two more witnesses were

examined as PW2 & 3 and produced nine documents which

were marked as Ex.P.1 to P9. On behalf of the defendant,

one Sri.M.D.Kumar was examined as DW1 and he produced

five documents which were marked as Ex.D.1 to D5.

On the trial of the action, the Trial Court decreed the

suit for Rs.1,00,000/- (Rupees One Lakh only) with cost as

damages together with interest at 6% per annum. Aggrieved

by the Judgment and Decree of the Trial Court, the MUDA

preferred an appeal before the Appellate Court. On appeal,

the Appellate Court dismissed the suit. Hence, this Regular

Second Appeal is filed by the plaintiff under Section 100 of

CPC.

5. Learned counsel for the appellant submits that

the Judgment and Decree of the Appellate Court are

erroneous, contrary to law, and opposed to evidence on

record, and hence the same is liable to be set aside.

RSA No. 216 of 2016

Next, it is submitted that the Appellate Court has erred

in not deciding the case on merits.

A further submission is made that the plaintiff has

become the absolute owner of the property by way of a

registered sale deed. Hence, the defendant is not justified in

taking coercive action for the demolition of the house which

was constructed by the plaintiff.

Learned counsel vehemently contended that the

Appellate Court committed a serious error of law in relying

on Exhibits D1, D2, D3, D4, and D5. None of these

documents establishes that the property has been acquired.

Lastly, it is submitted that viewed from any angle, the

Judgment and Decree of the Appellate Court are

unsustainable in law. Therefore, it is submitted that this

Regular Second Appeal raises a substantial question of law

and hence the same may be admitted.

6. Sri.T.P.Vivekananda., learned counsel for the

respondent justified the Judgment and Decree of the

Appellate Court.

RSA No. 216 of 2016

Next, he submits that the First Appellate Court in

extenso re-appreciated the material evidence on record and

rightly rejected the claim of the plaintiff.

A further submission is made that the property in

question i.e., the suit schedule property is the acquired

property. The erstwhile CITB acquired the property way back

in the year 1988. The plaintiff was in unauthorized

possession of the same. Hence, the MUDA was constrained

to take action and rightly took the necessary steps to take

possession of the property.

Lastly, he submitted that the First Appellate Court on

re-appreciation of the entire material evidence on record has

rightly rejected the suit. Therefore, he submits that the

Regular Second Appeal does not raise any substantial

question of law and accordingly, he prayed for dismissal of

the appeal at the stage of admission.

7. Heard, the contentions urged on behalf of the

respective parties and perused the appeal papers with

utmost care.

RSA No. 216 of 2016

The plaintiff sued for damages. Suffice it to note that

the plaintiff based his claim on the sale deed. It is contended

that he purchased the property from the erstwhile owner and

has constructed a building.

It is pivotal to note that the defendant MUDA raised a

specific contention that the suit property is an acquired

property and the authority concerned acquired the same way

back in the year 1988. It also produced the documents to

substantiate the contention and the fact that the suit

schedule property has been acquired. Despite the fact that

the property has been acquired, the Trial Court concluded

that the plaintiff is entitled to the claim only on the ground

that the author of the Acquisition has not been examined as

a witness. The Trial Court disbelieved the contention about

the acquisition and decreed the suit. However, on an appeal,

the Appellate Court on re-appreciation of the entire material

evidence on record concluded that the property in question is

acquired and the CITB has acquired the property in question

in the year 1988 and rejected the claim by dismissing the

suit.

RSA No. 216 of 2016

It is relevant to note that the plaintiff never disputed

the acquisition of the property. The only contention put forth

by the plaintiff is that he purchased the property from his

previous vendor and the act on the part of the defendant

about the demotion is illegal.

Learned counsel for the appellant in presenting the

argument strenuously urged that the act on the part of the

authority in demolishing the building is highly illegal and thus

the plaintiff is justified in claiming the damages. I would not

agree with the said contention for the simple reason that the

property in question is acquired and hence the action on the

part of the authority in demolishing the house is just and

proper. I may venture to say that the action in my opinion is

justified in several respects. Hence, it is quite impossible to

believe the contention of the plaintiff that the action taken by

the authority in demolishing the house is illegal. I would

agree with the view taken by the Appellate Judge.

It is perhaps well to observe here that the after the

1976 amendment, the scope of Section 100 of CPC has been

drastically curtailed and narrowed down. The Trial court in

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RSA No. 216 of 2016

extenso referred to the evidence on record and decreed the

suit. The First Appellate Court has examined the evidence on

record and reappraised it and dismissed the suit. I am

satisfied it has been appreciated from the correct perspective

and thus justified in rejecting the claim of the plaintiff.

No substantial question of law arises for consideration

in this appeal. As a result, I find no merit in this appeal, and

accordingly, it is dismissed at the stage of admission.

No order as to costs.

Sd/-

JUDGE

TKN