Karnataka High Court
Sri. M. Maranna @ M Marappa vs The Commissioner on 3 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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RFA No. 1698 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 1698 OF 2019 (DEC/INJ)
BETWEEN:
SRI. M. MARANNA @ M. MARAPPA
(SINCE DEAD BY LRS)
1) SMT. RUDRAMMA, WIFE
AGED ABOUT 60 YEARS,
2) SRI. SATHYANARAYANA, SON
AGED ABOUT 45 YEARS,
3) SRI. ARUN KUMAR, SON
AGED ABOUT 32 YEARS,
ALL ARE RESIDING AT
NO.C-14, B. CHANNASANDRA,
BANASWADI POST,
Digitally BANGALORE - 560 043.
signed by ...APPELLANTS
VEDAVATHI
AK (BY SRI. JANARDHANA G., ADVOCATE)
Location:
High court AND:
of
Karnataka 1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE,
BENGALURU - 560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER
BANASWADI SUB-DIVISION,
BRUHAT BENGALURU MAHANAGARA PALIKE,
BENGALURU - 560 043.
...RESPONDENTS
(BY SRI. S. J. PURANIK, ADVOCATE FOR R1 AND R2)
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RFA No. 1698 of 2019
THIS RFA IS FILED UNDER SEC.96 R/W.ORDER 41 OF
THE CPC., AGAINST THE JUDGMENT AND DECREE DATED
01.07.2019 PASSED IN OS NO.27326/2009 ON THE FILE OF
THE XXVI ADDL.CITY CIVIL AND SESSIONS JUDGE AT MAYO
HALL BENGALURU(CCH-20), DISMISSING THE SUIT FOR AND
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal is filed by the appellant under section 96 of
CPC for setting aside the judgment passed by XXVI Addl.City
Civil and Sessions Judge at Mayo Hall Bengaluru in
O.S.No.27326/2009 dated 01.07.2019 for having dismissed the
suit of the plaintiff.
2. The appellant was the plaintiff and the respondent are
the defendants before the trial court and the ranks of the
parties are retained for the sake of the convenience.
3. The case of the plaintiff before the trial court is that,
he has filed the suit for declaration to declare that notice issued
by the defendant under section 321 (3) of Karnataka Municipal
Corporations Act, 1976 (herein after referred as 'KMC Act') is
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not binding on him, and not binding on his property, as well as
on the plaintiff and granting decree to restrain the defendants
from interfering and demolishing the building constructed by
the plaintiff. It is alleged by the plaintiff that his father was the
owner of the property bearing No.50 situated at B
Channasandra, K.R.Puram Bengaluru East, acquired from his
ancestors and he was paying tax for the same. He has put up
construction and also shop in the suit property, by obtaining
the license from the village panchayath. Accordingly, he put up
the building to the south of the suit property, a vacant site
bearing No.48, belonging to Narayanaswamy and the said
Narayanaswamy was trying to encroach the property in 1975,
hence father filed a suit in O.S.No.695/1975 renumbered as
O.S.No.5525/1980 to declare his father as owner and also
permanent injunction in respect of the suit property.
Accordingly, a decree was obtained by his father and it was
further upheld by High court in the first appeal. Thereafter, at
the instigation of the neighbour Narayanaswamy, the defendant
issued notice under section 321(3) of KMC Act, calling the
plaintiff to demolish the building that was put up in 1948. It is
an unauthorized construction and thereby there is violation of
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building bye-laws. The notice was challenged by the father of
the plaintiff before the appellate or the KAT. During the
pendency, it was stayed, later appeal was withdrawn. The
appellant also filed second appeal, which came to be dismissed
on the ground of misconception of the fact that properties are
totally different and subsequently the suit came to be filed.
4. After summons, the respondent appearing filed a
written statement contending that the suit is not maintainable.
The plaintiff claimed the property as bearing No.48 and 50 in
the appeal filed before the KAT. As such, the notice issued by
the defendant was not answered by him. Therefore, the final
notice has been issued for demolition and it is also contended
as per 482 of KMC Act, that the civil court does not have the
jurisdiction to set aside the notice under section 321(3) of KMC
Act, it is only to approach the KAT and hence prayed for
dismissing the suit.
5. Based upon the pleadings, the trial court framed 6
issues and on behalf of the plaintiff examined himself as PW1
and marked 7 documents and respondent/defendant made oral
or document evidence. Accordingly, the trial court after
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hearing arguments answered the issues No.1, 3 to 5 in the
negative and issue No.2 in the affirmative and finally dismissed
the suit. Hence, appellant is before this court.
6. Learned counsel for the appellant has contended that
the trial court has committed error in dismissing the suit as not
maintainable, since the plaintiff challenged the notice under
section 321 of KMC Act, is not correct. The defendant issued
notice to the plaintiff stating that he is the owner of the site
No.48, which is not correct. The plaintiff is the owner of the
site No.50, his father already obtained the declaration and
permanent injunction against one Narayanaswamy who is
adjacent owner, as per the Commissioner report and finding in
the Ex.P3 produced by the plaintiff, where a competant civil
court has declared that the plaintiff's father was owner of the
site No.50 and the Narayanaswamy was owner of site No.48
trying to interfere in the property of the plaintiff in site No.50, a
decree was not granted, which was not properly considered and
given any finding. Even they approached the KAT, the KAT
categorically stated that the notice was issued for site No.48,
whereas the appellant was owner of the site No.50. There was
misconception of fact. Therefore, the same was dismissed.
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The KAT also categorically stated that it is altogether different
property, therefore on this basis the appeal is dismissed. Such
being the case, only option available to plaintiff is to file civil
suit to declare that the notice is not binding on him. Therefore,
the suit is maintainable and hence prayed for allowing the
appeal.
7. Per contra, learned counsel for the
respondent/defendant has supported the judgment of the trial
court contending that, even if any wrong order is passed by the
KAT, it has to be challenged before the High court by filing a
writ appeal, which was not done by the appellant. Therefore,
filing the civil suit is not correct. While filing the appeal before
the KAT, it is stated that they are the owner of the site
No.48/50 claiming the site No.50. Therefore, the notice is
rightly issued by KMC. Therefore, the civil suit is not
maintainable under section 482 of KMC Act and the trial court
rightly dismissed the suit. The remedy available to the plaintiff
is elsewhere and not in this court. Accordingly, prayed for
dismissing the appeal.
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8. During the course of arguments, learned counsel for
the appellant submits that he is the owner of the site No.50
and not 48, and he has no objection to demolish any building
constructed in site No.48. Likewise, learned counsel for the
respondent also submits that they are ready to demolish site
No.48, if the plaintiff is not the owner of the site No.48.
9. The submission of both the counsel is placed on
record.
10. Having heard the arguments, perused the records,
the point that arises for my consideration are;
1. Whether the suit of the plaintiff for
declaration of injunction is maintainable, as the
notice issued by the defendant under section 321
KMC Act is not binding?
2. Whether the judgment of the trial court,
calls for interference?
3. Whether the appellant proved that he is
the owner of the property, i.e, site no.50 but not
site no.48?
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11. Upon hearing the arguments, perusal of records,
especially the evidence of the plaintiff, he has categorically
stated that his father was the owner of the property of site
No.50. The adjacent owner Narayanaswamy who was the
owner of the site No.48 was trying to encroach or interfere with
the schedule property. Therefore, a suit was filed by his father
for declaration and injunction and to obtain the decree. In
support of his contention Ex.P3 is marked, Ex.P3 is judgment
and decree passed in O.S.No.695/1975 new No.5552/1980
ordered by 7th Additional City Civil and Sessions Judge, where
on perusal of the judgment, it is categorically stated by the
Civil Court and the finding was given after considering the
Commissioner's report appointed by the court, where the
Commissioner report categorically stated that the site No.48
belongs to defendant Narayanaswamy and site No.50 belongs
to Chikkammallappa. Thereafter, the suit came to be decreed
by the Civil Court. The said Narayanaswamy also filed first
appeal before the High Court by filing in RFA No.193/1982
which also came to be dismissed on 03.11.1989 which reveals
the plaintiff's father was the owner of the site No.50 and after
the death of the father of the plaintiff, the plaintiff became the
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successor of his father. There is no dispute from the defendant
that the plaintiff is the owner of the site no.50 , there is no
documents, or oral evidence or either written documents filed
by the defendant, in the trial court that the plaintiff is also
owner of site No.48. Therefore, on perusal of the record, the
plaintiff was successful in proving that he is the owner of site
no.50 of Channasandra, K.R.Puram Bengaluru. However, the
notice issued by the respondent/defendant under section 321
(3) of KMC Act, which reveals they have already issued
preliminary notice under section 321(1) and (2). Subsequently
they issued the final notice under section 321 (3) of KMC ACT,
wherein they have stated that the said property in site No.48,
Channasandra, K.R.Puram Bengaluru, where Marappa, the
plaintiff is the owner and he has violated the building sanction
plan and no proper plan was further obtained. Therefore, they
directed him to demolish the building. Of course this order has
been challenged by the plaintiff's father before the KAT by filing
a first appeal which came to be dismissed, as his father said to
be died during the pendency of the said appeal. Subsequently,
the plaintiff filed 2nd appeal where the KAT took up the matter
and finally at point no.2, the KAT has stated that "crux of the
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case is that the property ordered to be demolished because of
deviation and unauthorized construction in respect of one
bearing No.48 of B.Channasandra, K.R.Puram Bengaluru East,
not the property bearing No.50 claimed by the appellant, thus
the appellant is claiming different property than the one against
which a confirmation order passed by the KMC under section
321(3) of KMC act. This order clearly reveals the notice was
issued to the property No.48, 'B' Channasandra, K.R.Puram
Bengaluru East, but not No.50. The contention of the plaintiff
agitated that he is the owner of property in site no.50, but not
site no.48. However, the notice has been issued to him in the
name of Maranna, but they want to demolish the site No.50 at
the instigation of Narayanaswamy who has suffered decree
against his father. On perusal of the order of the KAT, as
stated by the learned counsel, the order is correctly passed by
KAT that notice issued by the respondent is to site no.48 and
not site no.50. Such being the case, the KAT cannot quash the
notice under section 321 of KMC Act as it is different from site
No.48 but not site No.50. Ofcourse there was some reference
available in the fact of the case where the plaintiff said to have
claimed he is the owner of site no.48/50 of Channasandra, in
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the appeal before KAT, but the fact remains that the entire case
of the plaintiff throughout is that, he has agitated that he is the
owner of the property no.50 but not 48. Actually the site no.48
belongs to one Narayanaswamy who is the neighbour of the
plaintiff. Such being the case, the very notice issued to the
appellant ought to have been issued to Narayanaswamy.
Therefore, the notice itself is not binding on the plaintiff on the
property bearing No.50 and in site no.48, the defendant is
trying to demolish site no.50 under the guise of issuing notice
under section 321 of KMC Act to the site No.48. Therefore, in
the suit the plaintiff is required to protect his property by filing
the civil suit as he has suffered order in the KAT as it was
different property. Such being the case, the only option for the
plaintiff is to file the suit. Accordingly, the suit was filed for the
plaintiff for declaration and injunction, is maintainable.
12. In view of my observation in point Nos.1 and 3 that
plaintiff is owner of property No.50 and he is not the owner of
site no.48 and the appellant counsel also stated no objection to
demolish the building constructed under site No.48 and the
defendant also categorically stated site no.48 they issued the
notice. If at all the defendant claims the site No.48 also
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belongs to the plaintiff then the defendant has no objection to
demolish as per the order passed by them. However, the
plaintiff also has no objection to demolish the property/building
built on site no.48. But they cannot interfere over the site
no.50 which belongs to plaintiff.
13. Hence, the trial court on misconception of fact has
wrongly held that the civil suit is not maintainable on the notice
issued to the plaintiff under section 321 of the KMC Act, which
was already dismissed by the KAT is not correct. Therefore,
the judgment of the trial court calls for interference.
Accordingly, I proceed to pass the following order;
The appeal is hereby allowed.
The suit of the plaintiff is decreed.
The plaintiff is the owner of the property, in site no.50.
The notice issued for the respondent under
section 321 (3) of KMC Act is not binding on the plaintiff and
the defendant is hereby restrained permanently from
interfering with the peaceful possession and enjoyment of the
property in site No.50.
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The defendant is permitted to demolish by following due
process of law in building construction of the site No.50 if the
plaintiff violated the rules/bye-laws.
If the plaintiff is found to have constructed any building in
site no.48 in violation of the bye-laws of site No.50, then the
respondent can take the action in accordance with law.
Sd/-
(K.NATARAJAN)
JUDGE
AKV
CT:SK
