In a second appeal regarding a suit for damages, the High Court of Karnataka upheld the dismissal of the plaintiff's claim by the lower courts. The court ruled the suit was not maintainable due to lack of statutory notice under the Karnataka Municipalities Act and because the plaintiff failed to prove ownership of the stones.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1706 OF 2016 (RES )
BETWEEN:
SRI B NARASIMHA PAI S/O LATE B.VAMAN PAI, AGED ABOUT 65 YEARS, R/AT KUNDAPURA KASABA VILLAGE, KUNDAPURA TALUK – 572 101.
….APPELLANT
(BY SRI. K PRASANNA SHETTY., ADVOCATE)
AND:
Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka
THE CHIEF OFFICER TOWN MUNICIPALITY, KUNDAPURA – 572 101.
…RESPONDENT
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.08.2016 PASSED IN RA NO.16/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.02.2009 PASSED IN OS NO.96/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) KUNDAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 16/2009, passed in R.A.No.16/2009 by the Senior Civil Judge at Kundapura, confirming the judgment and decree dated 20.02.2009, passed in O.S.No.96/2007 by the Principal Civil Judge, Kundapura.
Plaintiff filed a suit for damages against the defendant. It is the case of the plaintiff that the plaintiff is the absolute owner and in actual possession and enjoyment of 'A' schedule property by virtue of registered sale deed dated 01.07.2006. The plaintiff, in order to carry out some repairs in his building in 'A' schedule
property, has collected a truck load granite stones in the last week of December 2006 and dumped close to his compound wall to the south of electric poles dumped by MESCOM, Kundapura. On 06.01.2007, the defendant forcibly and illegally without the knowledge of the plaintiff took away 250 granite stones, destroyed and damaged the saplings planted by the plaintiff close to the compound wall. The defendant had no right to exceed the power provided under any law, much less under the Karnataka Municipalities Act, 1964. The plaintiff got issued a legal notice on 07.01.2007, to the defendant. The defendant replied to the legal notice. Hence cause of action arose for the plaintiff to file the suit for damages.
the suit filed by the plaintiff is not maintainable. The plaintiff has not issued notice under Section 80 of CPC and also the statutory notice mandated under Section 284 of the Karnataka Municipalities Act, 1964. It is contended that the defendant in his official capacity has control over
the road margin and nobody has right to use the road margin without the permission of the defendant or Town Municipality. The dumping of stones causes public nuisance and inconvenience. Nothing prevented the plaintiff from obtaining the same on payment of the legal costs claimed by the municipality, but instead, the plaintiff has filed the instant suit. On these grounds sought for dismissal of the suit.
pleadings, framed the following issues:
NC: 2023:KHC:37039 RSA No. 1706 of 2016
compound wall of 'A' schedule property and caused damages to the plaintiff and destroyed the saplings of the plaintiff?
property and collected a truck load of granite stones in the last week of December 2006 and stocked the same to his compound wall. It is contended that MESCOM, Kundapura started to dump their cement concrete electric poles outside the compound wall on plaintiff's property. It is contended that the Chief Officer, Town Municipality, Kundapura illegally and without informing the plaintiff, took away 250 granite stones and destroyed the same, due to which the plaintiff has suffered damages to an extent of Rs.3,000/-. Further, the plaintiff got marked documents at Ex.P1 to P3, the RTC extracts in respect of 'A' schedule property; Ex.P4 is the copy of legal notice issued to the defendant; Ex.P5 is the reply issued by the defendant to the plaintiff; Ex.P6 is the letter issued by MESCOM; Ex.P7 and P8 are the postal acknowledgments; Ex.P9, P10 and P12 are the photographs; and Ex.P11 is the CD relating to the photographs. In the crossexamination, PW-1 has admitted that he has dumped granite stones in the municipality road margin outside the compound wall and he had not obtained prior permission
from the municipality and further he has admitted that he has to obtain permission from municipality to stock the stones on the road margin and he admits that he has not obtained any such permission from the municipality. He also admits that he has not produced any documents to show that granite stones removed by the municipality belongs to him.
NC: 2023:KHC:37039 RSA No. 1706 of 2016
same and caused loss to the plaintiff. Further, the plaintiff has not produced any receipts to show that he has purchased the granite. In the absence of material on record, the trial Court was justified in recording a finding that the plaintiff has failed to prove that the is the owner of the alleged granite stones and further the plaintiff has failed to prove that the defendant has destroyed the granite stones. The First Appellate Court, on reappreciating the material on record, was justified in confirming the judgment and decree passed by the trial Court. Further, the First Appellate Court has also recorded
a finding that the suit filed by the plaintiff is not maintainable in view of Section 284 of the Karnataka Municipalities Act, on the ground that prior to the filing of the suit, the plaintiff has not issued any notice to the defendant under Section 283 of the Karnataka Municipalities Act and Section 80 of CPC. The courts below were justified in passing the impugned judgments and decrees. Hence I do not find any ground to interfere with the impugned judgments and decrees. I do not find
NC: 2023:KHC:37039 RSA No. 1706 of 2016
any substantial question of law that arise for
consideration.
I proceed to pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgments and decrees passed by the courts below are confirmed.
No order as to the costs.
SD/JUDGE
RD
3 issues framed by the court
Whether the suit is barred under Section 283 and 284 of the Karnataka Municipalities Act due to non-issuance of statutory notice?
Whether the appellant was the owner of the granite stones alleged to have been removed by the respondent?
Whether the appellant has jurisdictional error warranting interference in the lower courts' dismissal of the suit?
3 provisions across 2 enactments
Sri B Narasimha Pai
Chief Officer Town Municipality, Kundapura
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
