Partly allowed

Smt R N Meenakshi v. P Kamalesh Kumar

Karnataka HC4 Mar 2021RSA/841/2019

Case brief

AI extract

What is this about?

The High Court allowed part of the appeal and modified the First Appellate Court's decree. The High Court held that since it was factually established that a toilet existed in the common passage prior to the defendant's purchase, the municipal authorities could not have been absolved of joint liability to pay damages. The decree was modified to hold the defendants jointly liable for the damages.

What did the court decide?

The judgment setting aside the First Appellate Court's exoneration of the Commissioner is set aside; damages of Rs. 20,000 are to be borne equally by Defendants 1 and 2; the perpetual injunction award

Smt R N Meenakshi Vs P Kamalesh Kumar — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO. 841 OF 2019 (DEC/INJ)

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BETWEEN:

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SMT. R.N. MEENAKSHI W/O Y.K.JAGANNATHA SETTY, AGED ABOUT 51 YEARS, R/AT NO.206, NEW NO.K-38, KSHATHRIYA ROAD, K.R.MOHALLA, MYSURU-570004.

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...APPELLANT [BY SRI. KIRAN V. RON FOR SMT. SUKRUTA R., ADVOCATE - VC]

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AND:

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P. KAMALESH KUMAR S/O PALAJ DEEP CHAND, AGED ABOUT 43 YEARS

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P.PRAVEEN S/O PALAI DEEP CHAND AGED ABOUT 39 YEARS

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PALAJ DEEP CHAND S/O LATE DEEP CHAND AGED ABOUT 73 YEARS

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ALL RESPONDENTS NO.1 TO 3 R/AT NO.486, CH-55, D.SUBBAIAH ROAD, BEHIND KRISHNA BAKERY, CHAMARAJA MOHALLA, MYSORE-570010.

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THE COMMISSIONER MYSORE CITY CORPORATION MYSURU-570007.

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…RESPONDENTS

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[BY SRI. MOHAN BHAT, ADVOCATE FOR RESPONDENT NO.4 – VC; SRI. N. NANJUNDASWAMY, ADVOCATE FOR RESPONDENTS NO.1 TO 3 - PH]

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST JUDGMENT AND DECREE DATED 20.08.2018 PASSED IN R.A.NO.124/2014 (OLD NO.342/2013) ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AT MYSURU DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 02.08.2013 PASSED IN O.S.NO.1502/2011 ON THE FILE OF THE I ADDITIONAL FIRST CIVIL JUDGE AND JMFC AT MYSORE.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This is an appeal filed by defendant No.1 under

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Section 100 of the Code of Civil Procedure, 1908, challenging the concurrent finding of fact recorded in O.S. No.1502/2011 and R.A. No.124/2014.

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The facts leading to filing of O.S.

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No.1502/2011 are that the plaintiffs are the owners of ‘A’ and ‘C’ schedule properties. It is claimed that Smt.Eshwari

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Bai, the mother of plaintiff no.3 and the grandmother of plaintiffs 1 and 2 had purchased it in terms of a sale deed

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dated 03.09.1976. It is stated that Smt.Eshwari Bai expired on 01.10.1989 and the plaintiffs succeeded to her estate. Plaintiffs No.1 and 2 divided ‘A’ and ‘C’ schedule properties into two shares. The defendant No.1 was residing in the ‘B’ schedule property that lay on the north of the ‘A’ and ‘C’ schedule properties. Between ‘A’ and ‘B’ schedule property, the ‘C’ schedule property measuring 12 x 4.5ft. wide passage was situated and was exclusively used by plaintiffs. It is stated that in the ‘C’ schedule passage, a toilet was existing on the eastern corner for exclusive use by the owners of the ‘A’ schedule property. It is stated that the toilet was in existence even at the time of the purchase by Smt.Eshwari Bai. The toilet measured east-west 6ft. and north-south 5.8ft. There were two doors to the said toilet, one opened into ‘A’ schedule property while the other opened into the ‘C’ schedule passage. It is stated that defendant No.1 lodged a complaint on 29.08.2010 with the defendant No.2 that the plaintiff had closed the windows and had taken up construction of a toilet in the ‘C’ schedule passage. Pursuant thereto, defendant No.1 issued a notice dated 02.02.2011 calling

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upon the plaintiffs to reply. The plaintiffs replied to the said notice. Notwithstanding that, the defendant No.1 lodged a complaint before the police and on 20.08.2011 defendant No.1 and her husband brought the officials of defendant No.2 and ensured the demolition of toilet. The attempts of plaintiffs to stop the demolition of the toilet turned futile. Based on this, the plaintiffs filed a suit for declaration of title to the ‘C’ schedule property and also for a declaration that the mention of the Schedule ‘C’ property as a common passage in the sale deed of defendant no.1 did not bind them and for consequential injunction. They also sought for damages of a sum of Rs.50,000/- for the unauthorized demolition of the toilet which lay within their property.

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3. Defendant No.1 contested the case of plaintiffs

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and contended that the plaintiffs were trying to grab the common passage through which defendant No.1 had the right of ingress and egress. She contended that in the sale deed dated 10-12-1982, in terms of which her vendor purchased the ‘B’ schedule property, the ‘C’ schedule

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property was described as a common passage. She claimed when her vendor sold the ‘B’ schedule property in terms of the sale deed dated 02-09-1996, it was inadvertently not mentioned that the ‘C’ schedule property was a common passage. This discrepancy was later rectified by a deed dated 13-03-2008 by which the ‘C’ schedule property was mentioned as a common passage. She claimed that there was no toilet in the passage when the grandmother of plaintiffs 1 and 2 had purchased but the plaintiffs after obtaining an ex parte order in the suit had constructed a toilet in the passage. She also claimed that the plaintiffs had furnished wrong measurements and the measurement of ‘C’ schedule property was wrongly furnished and instead of 18 x 4½ ft. the passage was shown as 12 x 4½ ft. She claimed that ‘C’ schedule property was common passage and did not belong to plaintiffs exclusively. She claimed that since the plaintiffs were constructing the toilet in the common passage, she lodged a complaint with the municipal authorities who demolished it.

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The defendant no.1 also sought for a counter claim for mandatory injunction to demolish the unauthorized toilet constructed on the suit ‘C’ schedule property.

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Based on these rival contentions, the Trial

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Court framed the following issues :

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i. Whether the plaintiffs prove that they are the owners of the property described in the schedule ‘C’ of the plaint?

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ii. Whether the plaintiffs prove that in the sale deed of the defendant No.1 ‘C’ schedule property is wrongly shown as common passage?

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iii. Whether the plaintiffs prove that toilet existed in the ‘C’ schedule property belonged to the plaintiff and defendants are illegally causing obstruction to the construction of the demolished toilet?

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iv. Whether the plaintiffs prove that defendants have caused the loss to the tune of Rs.55,000/- by demolishing the toilet existed in ‘C’ schedule property?

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v. Whether the defendant No.1 proves that ‘C’ schedule property is a common passage?

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vi. Whether the defendant No.1 proves that plaintiffs are illegally constructed the toilet in the common passage?

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vii. Whether the plaintiffs are entitled for the reliefs claimed in the suit?

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viii. Whether the defendant No.1 is entitled for the reliefs claimed in the suit?

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ix. What order or decree?

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The Plaintiff no.1 was examined as P.W.1 and

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he marked documents as Exs-P1 to P-15. Defendant No.1 examined herself as D.W.1 and one witness as D.W.2 and they marked documents as Exs-D1 to D33.

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The Trial Court considered the oral and documentary evidence on record and held that the defendant no.1 had successfully established that the suit ‘C’ schedule property was a passage which was common to all. It also held that the plaintiffs had established that the toilet existed in the ‘C’ schedule passage even prior to the purchase of the ‘A’ schedule property by the grandmother of plaintiffs No.1 and 2. The Trial Court also held that the toilet which existed was demolished unauthorizedly at the behest of the defendant no.1 who had lodged a complaint

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with the Mayor on 25-08-2010 who directed suitable action to be taken. The Joint Director of Town Planning issued a notice dated 7-5-2011 to the Assistant Commissioner stating that a local inspection was conducted in the absence of the plaintiffs. Thus, he directed the Assistant Commissioner to ascertain whether the toilet was constructed unauthorisedly or not and to take action as provided in the Karnataka Municipal Corporation Act, 1976. The Assistant Commissioner, without conducting any enquiry, demolished the toilet. The Trial Court held that the defendants were responsible in equal measure in unauthorizedly demolishing the toilet, and therefore , directed the defendants to indemnify the damages caused to the plaintiffs in a sum of Rs.20,000-00. The Trial Court negatived the claim of the plaintiffs that their grandmother had purchased the suit ‘C’ schedule property. The Trial Court also negatived the claim of the plaintiffs that the ‘C’ schedule property was meant for the exclusive use of the plaintiffs.

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Being aggrieved by the Judgment and Decree

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of the Trial Court, the defendant filed R.A. 124/2014 (old R.A.No.342/2013) before the First Appellate Court challenging the grant of part of a sum of Rs.20,000-00 as damages and also filed R.A.No.248/2014 (old R.A.no.341/2013) challenging the rejection of the counter claim of the defendant no.1. The plaintiffs also filed R.A.No.669/16 (old R.A.No.100/2016). The First Appellate Court secured the records of the Trial Court, heard the parties, framed points for consideration and after considering the oral and documentary evidence, dismissed the appeal filed by the defendant no.1 and partly allowed the appeal filed by the plaintiff and granted perpetual injunction restraining the defendants from interfering with the right of the plaintiffs to use the ‘C’ schedule passage and the toilet situated on the eastern side of the passage.

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Being aggrieved by the concurrent finding of facts recorded by both the Courts, defendant No.1 has filed this appeal.

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The learned counsel for the defendants did not

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dispute the fact that the toilet existed in the passage long prior to plaintiff No.3’s mother purchasing the ‘A’ schedule property. He also did not dispute that this state of affairs continued even after the plaintiffs’ mother purchased the ‘A’ schedule property. The only formidable contention urged by defendant No.1 is that she did not physically dismantle the construction but she had merely lodged a complaint with the municipal authorities stating that the plaintiffs had undertaken the construction of a toilet. Defendant No.1 claimed that defendant No.2 had merely exercised a right that the municipal laws provided and therefore the municipal authorities ought to have verified before taking any drastic measures to demolish the construction. He claimed that the first appellate Court could not have absolved the municipal authorities/ defendant no.2 from the joint liability to pay the damages awarded by the Trial Court.

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Per contra, the plaintiffs claimed that the defendant no.1 was aware that the toilet existed in the

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passage even prior to and after the mother of plaintiff No.3 and grandmother of plaintiffs No.1 and 2 purchased the suit ‘A’ and ‘C’ schedule properties, and therefore, defendant no.1 did not have any right to lodge a complaint with the municipal authorities. He submitted that at any rate, the whole controversy arose due to the complaint lodged by defendant no.1, and therefore, he is bound to pay the amount.

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I have carefully considered the records of the Trial Court as well as its Judgment and Decree.

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The existence of a toilet in the ‘C’ schedule property on the eastern side is a fact which was not in dispute between the parties and the Courts below have consistently recorded a finding of fact on this aspect. It is also not in dispute that this toilet was demolished at the behest of the defendant no.1 who lodged a complaint with the defendant no.2. Once a complaint was filed, it is incumbent upon the defendant no.2 to act in accordance with law. The defendant no.2, though served with a notice of the suit did not file its written statement. It did not even

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justify its act of demolishing a structure on the touchstone of any statutory provision. It did not even care to file an appeal challenging the Judgment of the Trial Court imposing the liability to pay the damages as awarded by the Trial Court. Since the existence of the toilet prior to and subsequent to the grandmother of the plaintiffs 1 and 2 is proved beyond doubt, this Court would not venture into a fact finding mission, more so when the defendants did not claim that the appreciation of evidence by the Courts below was perverse or that the Courts below had failed to take note or ignored any material evidence. In so far as the demolition of the toilet, the Courts below have recorded a finding that the same was done high handedly. Thus, the First appellate Court was not justified in interfering with the Judgment and Decree of the Trial Court in so far it related to exonerating the defendant no.2 from the liability to pay the damages along with the defendant no.1, moreso in view of the fact that the defendant no.2 had accepted the Judgment and Decree of the Trial Court by not filing an appeal there against.

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In view of the above, this Regular Second

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Appeal filed by the appellants is allowed in part and the impugned Judgment and Decree passed by the First Appellate Court exonerating the defendant no.2 from paying the damages awarded by the Trial Court is set aside to that extent. Hence the Decree of the First Appellate Court is modified and it is ordered that the damages of Rs.20,000-00 along with interest @ 6% per annum as ordered by the Trial Court shall be borne equally by the defendants no.1 and 2. The Judgment of the First Appellate Court granting perpetual injunction restraining the defendants from interfering with the plaintiffs right to usage of the ‘C’ Schedule passage and the toilet is upheld.

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In view of disposal of the appeal, all pending

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interim applications shall be consigned to the record.

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Sd/JUDGE

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hnm

Smt R N Meenakshi v. P Kamalesh Kumar

Case brief

What is this about?

What did the court decide?

Smt R N Meenakshi v. P Kamalesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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