Dismissed

Sri Mansukh Lal Khicha v. the Corporation of City of Bangalore

Karnataka HC2 Jun 2023RFA/616/2008

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a first appeal filed by absolute owners challenging the dismissal of their suit for permanent and mandatory injunctions. The Court held that the property was allotted to a respondent via a 1997 resolution which remained unchallenged. The appeal was dismissed with liberty to file a writ challenging the allotment.

What did the court decide?

Appellants at liberty to challenge the Resolution dated 22.7.1997 before the appropriate legal forum.

Sri Mansukh Lal Khicha Vs the Corporation of City of… — Property and Title | Karnataka HC (2023)

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1 - RFA No. 616 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 616 OF 2008 (INJ)

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BETWEEN:

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SRI MANSUKH LAL KHICHA S/O.LATE.SRI.CHHOGALALJI AGED ABOUT 55 YEARS.

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SMT CHANDRAKALA M KHICHA W/O.SRI.MANSUKH LAL KHICHA AGED ABOUT 50 YEARS BOTH ARE NO.2,1ST CROSS K.V.TEMPLE STREET MANAVARTHAPET BANGALORE-53.

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…APPELLANTS

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(BY SRI. M L DAYANANDA KUMAR.,ADVOCATE)

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AND: Digitally signed 1. THE CORPORATION OF CITY OF BANGALORE by DHANALAKSHMI BY ITS COMMISSIONER MURTHY KEMPEGOWDA CIRCLE Location: High Court of BANGALORE-1. Karnataka 2. THE EXECUTIVE ENGINEER THE CORPORATION OF CITY OF BANGALORE KEMPEGOWDA CIRCLE BANGALORE-1. 3. SRI NAGESH JUNIOR ENGINEER CORPORATION OF CITY OF BANGALORE BANGALORE.

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RFA No. 616 of 2008

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SRI LOKESH S/O.LATE.SRI.N.LAKSHMAN AGE MAJOR,NO.564 H.S.R.LAYOUT, 23RD CROSS 14TH MAIN,BANGALORE-68.

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…RESPONDENTS

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(BY SRI. S N PRASHANTH CHANDRA .,ADVOCATE FOR R1 & 2: NOTICE TO R3 AND R4 ARE HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:18.1.2008 PASSED IN O.S.NO.7133/95 ON THE FILE OF THE XVI ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-12), DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND MANDATORY INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section 96 of CPC challenging the judgment and decree dated 18.1.2008 passed by XVI Addl. City Civil & Sessions Judge, Bengaluru in O.S.No.7133/1995, whereby the suit filed by the plaintiffs has been dismissed.

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For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in original suit.

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RFA No. 616 of 2008

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3. Brief facts of the case:

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Plaintiffs are the absolute owners in possession of the suit schedule property, which was acquired by them under the registered sale deed dated 30.10.1986 from one Smt.M.Venku Bai and others. Plaintiffs are paying tax regularly as per the assessment made by the Corporation. They have put up a new construction after demolishing the old structure after obtaining necessary sanctioned plan from the Corporation. Defendant No.3, who has no manner of right, title or interest over the southern side of the suit schedule property is trying to encroach the conservancy lane, which is leading to the main road by putting up a wall and to utilize the same as a shop. The same affects the rights of the plaintiffs. Hence, the plaintiffs have filed the suit for injunction.

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On service of suit summons, defendant Nos.1 to 3 appeared through counsel and filed the written statement denying the averments made in the plaint and they have contended that the plaint has to be returned since the plaintiffs have not complied with the provisions of Section

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RFA No. 616 of 2008

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482 of the Karnataka Municipal Corporation Act. Defendant No.4 appeared though counsel and filed written statement denying the averments made in the plaint and contended that the property in dispute belongs to the Corporation and plaintiffs have no manner of right, title or interest over the suit schedule property. Hence, the defendants sought for dismissal of the suit.

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On the basis of the pleadings of the parties, the Trial Court has framed following issues:

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(1) Whether the Plaintiffs prove that there exists a conservancy lane and they have got a right over the same as a passage to have access to their schedule properties?

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(2) Whether the Plaintiffs prove that the 3rd Defendant is attempting to put up unauthorised construction on the conservancy lane adversely affecting the user of the same as a passage by the Plaintiffs to have access to their schedule property?

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RFA No. 616 of 2008

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(3) Whether the Defendants prove that the Plaintiffs have filed the suit with a malafide intention to grab the property belonging to the Corporation claiming it to be a public conservancy?

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(4) Whether the Plaintiff is entitled to a decree of permanent and mandatory injunctions as prayed for?

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(5) To what decree or order?

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On behalf of the plaintiffs, the plaintiff No.1 has been examined as PW-1 and produced 14 documents and marked as Exs.P-1 to 14. On behalf of the defendants, neither any witness was examined nor any document was produced. On appreciation of oral and documentary evidence, the Trial Court has answered issue Nos.1, 2 and 4 in the negative and issue No.3 in the affirmative and dismissed the suit. Being aggrieved by the same, the plaintiffs have filed this appeal.

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The learned counsel for the appellants-plaintiffs

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has contended that on the southern side of the suit

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RFA No. 616 of 2008

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schedule property there is a conservancy lane. Defendant No.4 without any authority of law is trying to encroach the same. He further contended that since the conservancy is a public property which belongs to the Corporation, if defendants are permitted to encroach the same, it will affect the rights of the plaintiffs. He further contended that during the pendency of the suit, defendant No.4 has forcibly constructed a shed. Therefore, the plaintiffs had sought for amendment of plaint seeking for mandatory injunction. He further contended that during the pendency of the suit, the Corporation has allotted the land in dispute in favour of defendant No.4 by passing a Resolution dated 22.7.1997 without any authority of law. The trial court without considering these aspects has committed an error in dismissing the suit of the plaintiffs.

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The learned counsel for the respondent Nos.1 and 2 has submitted that since the property in dispute belongs to the Corporation, the plaintiffs have no manner of right, interest or title over the property in dispute. The

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RFA No. 616 of 2008

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said property is now been allotted to defendant No.4. The trial court after considering the evidence of the parties has rightly dismissed the suit.

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Respondent Nos.3 and 4 are served and unrepresented.

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Heard the learned counsel for the parties.

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Perused the judgment and decree of the trial court and original records.

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The plaintiffs in the suit had sought for the following reliefs:

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“Wherefore, the plaintiffs pray that this Hon’ble Court be pleased to pass a judgment and decree:

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a) Against the 3 defendant restraining him permanently from putting up construction on the conservancy lane affecting the user of the conservancy lane as an access to the schedule property.

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b) And directing the defendants 1 & 2 to take action against the 3^rd defendant who is trying

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RFA No. 616 of 2008

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to grab the property of the Corporation, namely the conservancy lane which is lying to the Southern side of the schedule property.

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c) And restraining the defendants 1 & 2 not to put up any kind of construction over the conservancy lane affecting the user of the same as a passage to have access to the Main Road.

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d) For costs and such other reliefs as this Hon'ble Court may deem fit to grant under the circumstances of the case.

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e) The Mandatory Injunction may kindly be issued against the defendants to demolish the illegal construction of shed on conservancy lane (suit property).

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It is also not in dispute that by Resolution dated 22.7.1997, the Corporation has allotted the land in dispute in favour of defendant No.4. In view of the subsequent allotment and the said allotment not being challenged before any court of law, the releif sought by the plaintiffs

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RFA No. 616 of 2008

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cannot be granted. The only remedy available to the plaintiffs is to challenge the Resolution dated 22.7.1997 passed by the Corporation granting the land in dispute in favour of defendant No.4, before the appropriate legal forum.

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Accordingly, the appeal is disposed of.

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The plaintiffs are at liberty to challenge the

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Resolution dated 22.7.1997 passed by the Corporation

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granting the land in dispute in favour of defendant No.4, before the appropriate legal forum, if law permits.

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Sd/JUDGE

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List No.: 1 Sl No.: 53

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Sri Mansukh Lal Khicha v. the Corporation of City of Bangalore

Case brief

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Sri Mansukh Lal Khicha v. the Corporation of City of Bangalore

Case brief

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