Karnataka High Court
Kenchappa vs Mysuru City Corporation on 11 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:1552
RSA No. 628 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 628 OF 2022 (INJ)
BETWEEN:
KENCHAPPA,
SINCE DEAD BY HIS LRS.
LATE RAMCHADNRA K,
S/O LATE KENCHAPPA,
SINCE DEAD BY HIS LRS.
1. SMT. SAROJAMMARI,
WIFE OF LATE K. RAMACHANDRU,
AGED ABOUT 62 YEARS,
2. SRI. S. SHYAM,
S/O LATE K. RAMCHANDRU,
AGED ABOUT 40 YEARS,
Digitally
signed by
SUMA B N 3. SMT. R. SMITHA,
Location:
High Court D/O LATE K. RAMACHANDRU,
of Karnataka AGED ABOUT 38 YEARS,
4. SMT. R. SWETHA,
D/O LATE K. RAMACHANDRU,
AGED ABOUT 36 YEARS,
ALL RESIDING AT NO. 26/3, 7TH MAIN,
VINAYAKANAGAR, MYSURU.
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RSA No. 628 of 2022
5. SMT. YASHODA,
W/O SHAMULINGA,
AGED ABOUT 70 YEARS,
RESIDENT AT NO. 2491/1,
3RD MAIN, 4TH CROSS,
VINAYAKA NAGAR, MYSURU - 570 012.
6. SMT. MANJULA,
W/O JAYARAPPA,
AGED ABOUT 65 YEARS,
R/AT "KANASU" NILAYA,
16TH CROSS, NANJANGUD - 571 301.
7. SRI. BORELINGE GOWDA,
S/O LATE KENCHAPPA,
AGED ABOUT 62 YEARS,
R/AT 2284, 6TH MAIN,
VINAYAKA NAGAR,
MYSURU - 570 012.
8. SMT. SHEELA,
WIFE OF VENKATESH,
AGED ABOUT 65 YEARS,
R/AT R/O NO. 3/1,
LAKSHMI CHIKEN STALL,
ADISHKTHI SEVATHANA,
KUMBRA KOPPAL, MYSURU - 570 031.
9. SRI. ASHOKA K,
S/O LATE K. RAMACHANDRU,
AGED ABOUT 52 YEARS,
R/AT 2284, 6TH MAIN,
VINAYAKA NAGAR, MYSURU - 570 012.
10. SMT. JYOTHI,
W/O KALEGOWDA,
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RSA No. 628 of 2022
AGED ABOUT 49 YEARS,
NO. 465, RAMA MANDIRA ROAD,
VOKKALAGERI, NANJANGUD - 571 301.
...APPELLANTS
(BY SRI. B. SHARATH KUMAR, ADVOCATE)
AND:
1. MYSURU CITY CORPORATION,
SYYAJI ROAD, MYSURU - 570 001,
REPRESENTED BY ITS COMMISSIONER.
2. THE ASSITANT COMMISSIONER,
ZONAL 6, SHESHADRI IYER ROAD,
MYSURU - 570 001.
3. HEALTH OFFICER,
MYSURU CITY CORPORATION,
SAYYAJIRAO ROAD, MYSURU - 570 001.
4. THE DEPUTY COMMISSIONER, CHAIRMAN,
NANJARAJAJ BAHADUUR CHOULTRY,
MYSURU - 570 001.
...RESPONDENTS
(BY SRI. B. SHARATH KUMAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 24.11.2021 PASSED IN
RA.NO.30/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
13.02.2019 PASSED IN OS.NO.2119/2010 ON THE FILE OF THE
II ADDITIONAL I CIVIL JUDGE AND JMFC, MYSURU.
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RSA No. 628 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/plaintiff is before this Court aggrieved
by the judgment and decree dated 13.02.2019 passed in
O.S.No.2119/2010 by the II Additional First Civil Judge
and JMFC, Mysuru (for short 'Trial Court') by which the
Trial Court dismissed the suit filed for injunction which was
confirmed by Judgment and Decree dated 24.11.2021
passed in R.A. No.30/2020 on the file of the I Additional
District and Sessions Judge, Mysuru (for short 'First
Appellate Court') in R.A.No.30/2020.
2. The case of the plaintiff is that he is the tenant
under M/s. Nanjaraja Bahaddur Choultry Trust, running a
Tea Shop under the name and style of "Kenchappa Tea
Stall" inside the compound of premises forming part of the
said building belonging to the Choultry in terms of the
Trade License obtained from the Defendant - Mysore City
Corporation which was renewed from time to time. That on
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14.10.2010, the plaintiff had applied for renewal of the
trade license and paid requisite fee as calculated by
Defendant - Mysore City Corporation and deposited the
same to the account of the Corporation Bank. But the
Defendant had not issued the Trade license on instruction
of the Addl. Deputy Commissioner. That upon instigation
of defendant No.4, the Health Officer, the other
defendants have started interfering with the peaceful
possession and enjoyment of the schedule property by the
plaintiff and attempted to dispossess the plaintiff from the
premise and cause demolition of the schedule property.
Being aggrieved by the same, the plaintiff has filed the
suit. Subsequently plaintiff got the plaint amended and
pleaded that on 20.11.2010 the defendant No.2 had
demolished the rear portion of the suit schedule property
and forcibly dispossessed him from the suit schedule
property and also seized the suit schedule property in
disobedience of the Temporary Injunction Order.
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3. Defendants No.1 to 3 filed the written
statement denying the plaint averments. It is contended
that the plaintiff has sought for grant of Trade license
without obtaining the consent of the owner of the
premises or from the neighbouring property owners as
required under law that since the application of the
plaintiff was incomplete and defective, the request for
grant of trade license has been rejected and the same has
been notified to the plaintiff through an Endorsement
dated 02.11.2010. It is contended that the plaintiff was
never issued with any Trade License as such the renewal
of the license would not arise. It is contended that the
Defendant - Mysore City Corporation had demolished the
portion of the building as it has become dilapidated and
the plaintiff is no more in possession of the premises as
such it was contended that the plaintiff is not entitled for
the relief of injunction. The Trial Court has framed the
following issues:
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(i) Whether the plaintiff proves that she is in
possession and enjoyment of the suit schedule
property"
(ii) Whether plaintiff proves that defendants are
interfering with the peaceful possession of suit
schedule property?
(iii) Whether the plaintiff is entitled for the relief of
permanent injunction?
(iv) What order or decree?
4. The Trial Court after appreciation of oral and
documentary evidence on record, has answered Issue
Nos.1 to 3 'in the negative' and consequently dismissed
the suit. Aggrieved by the same, the plaintiff preferred the
regular appeal in R.A.No.30/2020 before the First
Appellate Court. Considering the grounds urged in the
appeal, after re-appreciation of oral and documentary
evidence on record, the First Appellate Court dismissed the
Appeal, consequently confirmed the judgment and decree
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passed by the Trial Court. Aggrieved by the same, the
plaintiff is before this Court.
5. The counsel for the appellant/plaintiff
reiterating the grounds urged in the appeal memo submits
that the plaintiff still continued to be in the possession of
the property and the proceedings under the provisions of
Karnataka Public Premises (Eviction of Unauthorised
Occupants ) Act, 1974 (for short 'the Act') has been
initiated by respondent No.4 and the said proceedings are
still pending consideration. He submits, despite production
of notice issued in the said proceedings, the Trial Court
and the First Appellate Court have not appreciated the fact
of the plaintiff being in possession of the property. He
further submits that the dismissal of the suit of the
plaintiff on the premise of he having been dispossessed
from the schedule premises without considering the
pendency of proceedings by the First Appellate Court gives
raise to substantial question of law to be considered by
this Court.
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6. Heard the learned counsel for the parties.
Perused the records.
7. The case of the plaintiff is that he is in
occupation of schedule premises as a tenant in suit
schedule property belonging to the Choultry which is
admittedly under the management, administration and
supervision of defendant No.4. The cause of action for the
suit was apparently against the Defendant No.1 - Mysore
City Corporation which had sought to demolish the
premises as the building has become dilapidate. The
plaintiff is thus not a tenant under the Defendant - Mysore
City Corporation. He claims his rights as a tenant under
defendant No.4. In the Cross-Examination, the plaintiff
who has been examined as PW1 has categorically admitted
that despite there being an Interim Order by the Trial
Court, the 1st defendant/Mysore City Corporation has
demolished the rear portion of the premises and has
dispossessed the plaintiff therefrom. The said deposition
and admission of the plaintiff having been dispossessed
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from the suit schedule property has been taken note of by
the Trial Court and the First Appellate Court.
8. Though it is contended by the counsel for the
appellant/plaintiff that since the proceedings under the
Karnataka Public Premises (Eviction of unauthorized
Occupants)Act, 1974 are still pending consideration and
that the plaintiff cannot be dispossessed without due
process of law. The said plea is contrary to the cause of
action to the suit as the suit was primarily brought against
the Defendant No.1 - Mysore City Corporation restraining
it from demolishing the portion of premises and
dispossessing the plaintiff therefrom. It is also on record
that original plaintiff passed away and his legal
representatives have been brought on record. By the very
admission of the plaintiff witness, he is not in possession
of premises. However, even as rightly observed by the
First Appellate Court if the plaintiff, now his legal
representatives are in actual possession of the schedule
premises and if they are prosecuting the proceedings
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initiated by defendant No.4 under the Karnataka Public
Premises (Eviction of unauthorized Occupants)Act, 1974,
the legal representatives of the plaintiff are at liberty to
take further course of action under the relevant provision
of law. No substantial question of law would arise for
consideration in this appeal.
8. Under the circumstances, the Appeal stands
dismissed.
Sd/-
JUDGE
SNC
CT: BHK
