Regular first appeal filed by unsuccessful plaintiffs challenging dismissal of suit for permanent injunction. The Apex Court held that suit schedule property was notified as a park by Housing Board and transferred to BBMP; residents without ownership rights lack title to challenge development intended for a park.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO.193 OF 2008
BETWEEN:
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AGED ABOUT 44 YEARS NO.130 EWS 1ST STAGE KHB COLONY BASAVESHWARANAGAR BENGALURU – 560 079
...APPELLANTS
(BY SRI.GOUTHAM A.R, ADVOCATE)
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AND
…..RESPONDENTS
(BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE FOR R1-R3, R-4-DELETED)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.01.2008 PASSED IN O.S.NO.6720/2006 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.NO.10) DISMSISING THE SUIT FOR PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This captioned Regular First Appeal is filed by the unsuccessful plaintiffs questioning the judgment and
decree passed in O.S.No.6720/2006, wherein the learned Judge has dismissed the suit filed by the plaintiffs herein.
referred to as per their ranks before the Trial Court.
follows;
The plaintiffs claimed to be the permanent residents of KHB Colony, Basaveshwaranagar, Bengaluru. It is contended that the plaintiffs are residing in the above said area for several years and claimed to be the public spirited people who are interested in safeguarding the environment and
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civic amenities in the area for the benefit of the residents of Basaveshwaranagar Area. The plaintiffs claimed that the suit schedule property is used as a playground. It is further specifically contended that the children are making use of the said open space for playing games like football and cricket etc. The plaintiffs have further contended that the playground is used through Gates and the said open space is easily accessible to all the children to utilize the said open space for playing.
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are intending to convert the entire playground into a park thereby denying the children of the said vicinity to use the said open space as a playground. The plaintiffs have specifically alleged that children of the said vicinity do not have alternate playground. To strengthen their claim, the plaintiffs have also pleaded at para No.6 of the plaint that in the 18th ward of Basaveshwara Nagar, which also includes KHB colony, there are as many as seven parks within the radius of 1.5 kilometers. Since there are no other playgrounds in the said vicinity and if, defendants are permitted to convert the playground into a park, that would virtually deny the children of that vicinity from indulging in sports activities and therefore, would cause irreparable loss, hardship and substantial injury to the residents of KHB colony. On these set of pleadings, the present suit for bare injunction came to be filed.
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Corporation contested the proceedings by filing written statement. The defendants stoutly denied the entire averments made in the plaint. The defendants specifically contended that the present suit schedule property is located in the combined layout of Karnataka Housing Board and Agrahara Dasarahalli. The defendants specifically contended that the suit schedule property is the land reserved for park under the scheme of Karnataka Housing Board. The schedule property was transferred by the Housing Board in favour of the defendants to maintain it as a park. It is also specifically pleaded that the entire open space was transferred in two installments. The western portion measuring east to west 133+122/2 feet and north to south 254+280/2 feet totally measuring 31,372 square feet was transferred to the defendants on 12.04.2005 for development of park by the
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defendants. The remaining eastern portion which comprises of old dilapidated buildings i.e., godown, camp office and a watchman shed totally measuring 23,004 square feets was transferred to the defendants on 13.05.2005. The defendants also contended that in view of relinquishment by the Housing Board, the property was duly mutated in the name of the defendants corporation on 10.10.2005. Since the open space was designated and reserved for park, the defendants intended to develop the open space to utilize as a park and accordingly, demolished the old dilapidated brick masonry compound wall and commenced work of fixing and erection of ornamental M.S Grill Iron gate fencing with rods and the same was completed by July 2006 at the two entrance gates at north and south.
that the present suit is not maintainable as there is no
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compliance with the provisions of Section 482 of KMC
Act. The defendants also contended that the plaintiffs have not approached the Court with clean hands and the present suit is presented by suppressing material facts. On these set of defence, the defendants sought for dismissal of the suit.
7. Based on the rival contentions, the Trial
Court formulated the following issues.
2. Whether the plaintiffs are entitled to permanent injunction sought for?
3. To what order or decree?
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documentary evidence vide Exs.P.1 to 17. The defendants – Corporation examined its official as D.W.1 and adduced documentary evidence vide Exs.D.1 to 10.
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reasonings, the learned Judge has proceeded to dismiss the suit.
documentary evidence.
Whether the judgment and decree of the Trial Court in dismissing the suit suffers from infirmities and therefore, would warrant at the hands of the Court?
12. Findings on point No.1 :-
The present suit is filed for bare injunction and
the plaintiffs claim that they are the residents of Basaveshwara Nagar. On bare perusal of the averments made in the plaint, this Court would find
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that none of the plaintiffs are owners of the sites formed by the Karnataka Housing Board. Except producing some photographs, a rough sketch and a copy of the legal notice dated 01.08.2006, the plaintiffs have not placed on record any clinching evidence to substantiate their claim that this open space is notified as a playground and the same has to be utilized as a playground. On the contrary, the defendants – Corporation has placed on record the proceedings of the Housing Board vide Exs.D.6 and 7. The defendants – Corporation has also placed on record the approved layout plan vide Ex.D.8. The proceedings of the Housing Board vide Exs.D.6 and 7 would clinch the controversy between the parties. Exs.D.6 and 7 are to be examined by referring to the approved layout plan vide Ex.D.8. While seeking approval, the Housing Board has left open space while submitting a proposal for approval of the layout and
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while leaving open space, the Housing Board has clearly notified that this open space has to be utilized for park. This layout is approved and since this layout formed by the Housing Board and layout out is approved at the instance of the Housing Board, the plaintiffs cannot assert and insist that this open space has to be utilized as a playground and not as a park. The Housing Board having developed the land and having formed the layout has subsequently, handed over this open space to BBMP. This transfer is made by specifically notifying that the open space has to be utilized as a park. The proceedings vide Exs.D.6 and 7 of the Housing Board would clinch the issue. In both the proceedings as per Exs.D.6 and 7, the Housing Board has clearly stated that this open space has to be developed and utilized for the purpose of park. If this clinching rebuttal evidence is taken into consideration, this court is of the view that the
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plaintiffs bald assertions in the plaint in the absence of clinching evidence cannot be entertained. The plaintiffs, who are the residents and have no legal right over the suit schedule property, cannot maintain a suit for bare injunction. This Court would also find that the plaintiffs, while instituting the suit, have not chosen to implead the Housing Board, which was necessary party having regard to the controversy between the parties.
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the matter, the point formulated by this Court has to be answered in the negative.
Accordingly, the appeal is devoid of merits and stands dismissed.
Sd/JUDGE
NBM
2 issues framed by the court
Whether the judgment and decree of the Trial Court in dismissing the suit for permanent injunction suffers from infirmities warranting interference?
Whether the plaintiffs have a legal right to prevent the defendant Corporation from developing the notified park area as a park instead of a playground?
Sri Sripathi S/O M.H. Chikkanna and others
Bangalore Mahanagara Palike
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
