Dismissed

Smt. K. H. Lalitha v. Mr. Felix Andrade

Karnataka HC16 Feb 2023RSA/274/2019

Case brief

AI extract

What is this about?

Second appeals filed against dismissal of suits for permanent and mandatory injunctions regarding property possession and unauthorized construction. The High Court of Karnataka held that no substantial question of law arose, affirming that mandatory injunction requires the Municipality as a party and dismisses the appeals.

What did the court decide?

Both the second appeals filed under Section 100 CPC were dismissed. No relief granted to the appellants.

Smt. K. H. Lalitha Vs Mr. Felix Andrade — Property and Title | Karnataka HC (2023)

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.273 OF 2019 (DEC/INJ) C/W REGULAR SECOND APPEAL NO.274 OF 2019 (INJ)

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IN R.S.A.NO.273 OF 2019:

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BETWEEN:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SMT. K.G. LALITHA, W/O M.A. NARAYANASHETTY, AGED ABOUT 52 YEARS, R/AT MEGALAPETE, MUDIGERE TOWN AND POST, MUDIGERE TALUK, CHIKMAGALUR DISTRICT, REPRESENTED BY HER GPA HOLDER, SRI M.A. NARAYANA SHETTY, S/O ANNAPPA SHETTY, PIN 577132.

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…APPELLANT

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(BY SRI SHYAMPRASHANTH S, ADVOCATE)

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AND:

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MR. FELIX ANDRADE, S/O NICOLACE ANDRADE, AGED ABOUT 66 YEARS, R/AT SAMPIGEKATTE ROAD, MUDIGERE TOWN AND POST, MUDIGERE TALUK, CHIKMANGALUR DIST-577132.

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…RESPONDENT

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THIS R.S.A. IS FILED UNDER SECTION 100 ORDER XXXXI RULE 1 OF CPC, AGAINST THE JUDGMENT AND

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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DECREE DATED 12.10.2018 PASSED IN RA.NO.11/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDIGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.02.2016 PASSED IN OS.NO.112/2009 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC, MUDIGERE.

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IN R.S.A.NO.274 OF 2019:

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BETWEEN:

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SMT. K.G. LALITHA, W/O M.A. NARAYANASHETTY, AGED ABOUT 52 YEARS, R/AT MEGALAPETE, MUDIGERE TOWN AND POST, MUDIGERE TALUK, CHIKMAGALUR DISTRICT-577 132. REPRESENTED BY HER GPA HOLDER, SRI M.A. NARAYANA SHETTY, S/O ANNAPPA SHETTY, PIN 577132.

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SRI M.A. NARAYANA SHETTY, S/O ANNAPPA SHETTY, AGED ABOUT 67 YEARS, PRESENTLY R/AT MEGALAPETE, MUDIGERE TOWN AND POST, MUDIGERE TALUK, CHIKMAGALUR DISTRICT-577 132.

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…APPELLANTS

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(BY SRI SHYAMPRASHANTH S, ADVOCATE)

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AND:

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MR. FELIX ANDRADE, S/O NICOLACE ANDRADE, AGED ABOUT 66 YEARS, R/AT SAMPIGEKATTE ROAD, MUDIGERE TOWN AND POST-577 132. MUDIGERE TALUK, CHIKMANGALUR DIST.

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…RESPONDENT

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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THIS R.S.A. IS FILED UNDER SECTION 100 ORDER XXXXI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.10.2018 PASSED IN RA.NO.12/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDIGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.02.2016 PASSED IN OS.NO.149/2009 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC, MUDIGERE.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the learned counsel for the appellants.

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R.S.A.No.273/2019 and R.S.A.No.274/2019

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are filed challenging the judgment and decree dated 12.10.2018, passed in R.A.Nos.11/2017 and 12/2017, respectively, on the file of the Senior Civil Judge and JMFC, Mudigere.

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The factual matrix of the case of the plaintiff in O.S.No.149/2009 is that the plaintiff is in possession of the suit schedule property and the defendants are interfering with the peaceful possession of the suit schedule property. Hence, sought for the relief of permanent injunction. The plaintiff in O.S.No.112/2009

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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contended that the plaintiff is in possession of suit ‘A’ schedule property as on the date of suit and further contended that the defendant has to leave 3 feet space after the compound wall on southern and northern side and the defendant is constructing the house without leaving set back as per the Municipal Rules. Hence, sought for the relief of permanent injunction and mandatory injunction. Additional issues were framed regarding digging of soil as a result compound wall of plaintiff land fell down and caused lass of Rs.15,000/- to the plaintiff and the defendant has constructed a building in a area of 41 x 42 feet by violation of building licence.

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Both the suits were clubbed and the plaintiff in O.S.No.149/2009 examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents at Exs.P.1 to 18. The defendant No.2 examined himself as D.W.1 and got marked the documents at Exs.D.1 to 23. The Court Commissioner was also appointed and the Commissioner was examined

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as C.W.1 and produced the documents at Exs.C1 to 7.

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The Trial Court after considering both oral and documentary evidence placed on record, answered issue Nos.1 and 2 as affirmative in O.S.No.149/2009 in coming to the conclusion that the plaintiff is in possession of the suit schedule property and the defendants are interfering with the peaceful possession of the plaintiff. The plaintiff is entitled for the relief of permanent injunction. The Trial Court considering both oral and documentary evidence placed on record in O.S.No.112/2009, answered issue No.1 as partly affirmative, issue No.2 as affirmative that the defendant has to leave 3 feet space after the compound wall and answered issue No.3 as partly affirmative, issue No.4 in negative in rejecting the claim made by the plaintiff for the relief of permanent injunction and mandatory injunction and answered additional issue No.2 in the affirmative.

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Being aggrieved by the judgment and decree

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of the Trial Court passed in O.S.No.149/2009 granting the relief of permanent injunction and rejecting the suit filed by the plaintiff in O.S.No.112/2009, two appeals

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were filed in R.A.Nos.11/2017 and 12/2017 by the aggrieved parties. The First Appellate Court on reappreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court granting judgment and decree in favour of the plaintiff in O.S.No.149/2009 and also confirmed the dismissal of the suit in O.S.No.112/2009. Hence, the present two appeals are filed before this Court.

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The learned counsel for the appellant in R.S.A.No.273/2019 would contend that both the Courts have committed an error in holding that the plaintiff has failed to establish that the defendant has not left set back and constructed building and the plaintiff is not entitled for the relief of declaration as sought and also committed an error in holding that the appellant is not entitled for the damages as sought. Having perused the judgment and decree of the Trial Court, the Appellate Court comes to the conclusion that the plaintiff has not proved the allegation of constructing of building by the defendant without leaving set back. The Commissioner

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was appointed and based on the Commissioner’s report, the Trial Court comes to the conclusion that there was no violation and the defendant has left the set back. The Trial Court also comes to the conclusion that the Court cannot grant any mandatory injunction unless the competent authority is made as party to the proceedings and the same is found in the reasoning of the Trial Court in paragraph No.40. The plaintiff has proved the fact that the defendant has constructed the building by violating the licence conditions and approved plan and the defendant has failed to prove the title from the land measuring east to west 20 feet and north to south 40 feet. It is observed that the Town Panchayat is the necessary party to take necessary steps against the defendant. The plaintiff has not filed the suit in a representative capacity. The plaintiff has no right over the land of the defendant or land of the Municipality. He cannot seek such relief in personal capacity. But, Town Municipality, Mudigere can initiate suitable action against the defendant as per law. Hence, comes to the

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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conclusion that in the absence of necessary party, the Court cannot grant mandatory injunction.

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It is observed in paragraph No.41 of the

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judgment of the Trial Court that the plaintiff sought the relief of mandatory injunction to construct a revetment to protect ’A’ schedule property. The plaintiff has failed to prove that the defendant is liable for construction of revetment. The defendant has left the set back from the land of the plaintiff. Therefore, the plaintiff is not entitled for any relief as claimed in the plaint. However, the Municipality of Mudigere can take necessary action to remove the unauthorized construction made by the defendant in accordance with law. Having considered the reasoning given by the Trial Court, the Appellate Court on re-appreciation of both oral and documentary evidence placed on record, comes to the conclusion that the plaintiff has not proved the case for the relief of declaration and injunction and for mandatory injunction. The competent authority is the Municipality and the

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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Municipality can take action against the defendant and Municipality is not made as party to the proceedings.

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R.S.A.No.274/2019 is filed against the judgment and award passed in O.S.No.149/2009. The

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Trial Court having considered the material on record, while answering issue No.1 taken note of the plaintiff is in possession of the suit schedule property as on the date of filing the suit and when the relief is sought for permanent injunction, the Court has to take note of whether the plaintiff is in possession as on the date of filing the suit and whether any interference by the defendant. The Trial Court while answering issue Nos.1 and 2 taken note of the admission given by the defendants that the plaintiff is in possession of the suit schedule property and the same is discussed in paragraph Nos.14 to 20. The Trial Court also taken note of that the Court Commissioner was appointed and possession of the plaintiff in respect of two sites within the boundaries also admitted and also the Court has observed that whether the plaintiff is having title or

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ownership over the schedule property cannot be decided in a suit filed restricting the relief only for permanent injunction. The plaintiff has already proved that he is in possession of the suit property. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, comes to the conclusion that the Trial Court has not committed any error when the plaintiff has proved the possession as on the date of the suit and also taken note of the pleadings and evidence available on record in respect of the property is in possession of the plaintiff. When such being the case

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and when the relief is sought only for permanent injunction and I have already pointed out that the material discloses that the plaintiff has been in possession of the suit schedule property. The Trial Court while decreeing the suit for permanent injunction made it clear that competent authority can take action against the defendant under due process of law. When such material is found, the Trial Court and the First Appellate Court considered the material on record and hence I do

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RSA No. 273 of 2019 C/W RSA No. 274 of 2019

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not find any error committed by both the Courts and the said finding is based on both oral and documentary evidence placed on record. Under the circumstances, I do not find any substantial question of law in both the appeals to admit the appeals and to invoke Section 100 of CPC.

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In view of the discussions made above, I pass

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the following:

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ORDER

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Both the appeals are dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 33

Smt. K. H. Lalitha v. Mr. Felix Andrade

Case brief

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Smt. K. H. Lalitha v. Mr. Felix Andrade

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