Dismissed

Karnataka Housing Board v. Ramanna v

Karnataka HC30 Aug 2024RSA/1003/2017

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal filed by the Karnataka Housing Board. The Court held that the notice issued by the plaintiff, though cited under Section 80 CPC, sufficiently informed the defendants of the intent to sue under Section 72 of the Karnataka Housing Board Act, 1962. The Court rejected the appeal against the compensation decree.

What did the court decide?

Regular second appeal dismissed; judgment and decree of Courts below confirmed.

Karnataka Housing Board Vs Ramanna v — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:35053 RSA No. 1003 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.1003 OF 2017 (RES)

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BETWEEN:

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KARNATAKA HOUSING BOARD, CAUVERY BHAVAN, BENGALURU – 560 009, REP. BY ITS HOUSING COMMISSIONER.

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THE EXECUTIVE ENGINEER, KARNATAKA HOUSING BOARD,

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HASSAN-573 201.

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... APPELLANTS

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(BY SRI RAGHAVENDRA A KULKARNI, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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RAMANNA V., S/O VENKAPPA POOJARY, AGE: 49 YEARS, HULEMAKKI HOUSE, KACHKAL POST, KOPPA TALUK, DISTRICT - CHIKKAMAGALURU - 577 101.

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THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE DEPUTY COMMISSIONER, CHIKKAMAGALURU DISTRICT, CHIKKAMAGALURU - 577 101.

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NC: 2024:KHC:35053 RSA No. 1003 of 2017

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THE TAHASILDAR, KOPPA TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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…RESPONDENTS

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(BY SMT. ANUSHA ASUNDI, ADVOCATE FOR SRI. A MADHUSUDHANA RAO, ADVOCATE FOR R1; SRI RAJENDRA K R, AGA FOR R2 TO R4)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT DECREE DATED 02.04.2016 PASSED IN REGULAR APPEAL.NO.39/2012 ON THE FILE OF THE 1^ST ADDITIONAL DISTRICT JUDGE, CHIKKAMAGALURU AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Assailing the concurrent findings of facts recorded by

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the Courts below, defendant Nos.2 and 3 are before this Court in the Regular Second Appeal.

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Parties herein are referred to as per their rank before the trial Court for the sake of convenience.

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Suit is filed seeking compensation of

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Rs.2,09,350/- with cost and current interest at the

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rate of 18% per annum from the date of suit till the date of realization for the damage caused to the house property

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and also to the movables of the plaintiff and in the alternative, to reconstruct the house which was demolished by defendant No.3 at its cost and expenses and also to compensate the loss caused by destroying the valuables belonging to the plaintiff and for such other reliefs.

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Plaint averments:

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The plaintiff was serving in the Indian Army and

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had a house property in Sl.No.662, Asst. No.720 of Koppa Rural Grama Panchayath in Sy.No.77 bounded

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East by : Kottige of Sri Krishna Murthy; West by : Vacant site; North by : Panchayath road and South by : Housing Board property (hereinafter referred to as the ‘suit schedule property’)

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It is the case of the plaintiff that he was in possession and occupation of the property since 1980-81 and had given an application on 18.02.1991 for regularization to defendant No.5 to the land on which the

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house was constructed. It is contended that the plaintiff is continuously paying the kandayam to the Gram Panchayath. That the officials of defendant Nos.2 and 3 threatened the plaintiff stating that they would evict and demolish the house of the plaintiff, and the plaintiff gave representation to defendant Nos.3 and 4 requesting them

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to prevent the harassment from the officials of the Housing Board from demolishing his house property. It is the case of the plaintiff that on 13.09.2002, defendant No.3, without giving any notice and without informing the plaintiff, has demolished the schedule house property and destroyed the valuables which were inside the house. That the wife of the plaintiff has given a complaint to the jurisdictional police station and the plaintiff determined the damages to the extent of Rs.2,09,350/-.

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On notice, the defendants appeared and defendant No.3 filed the written statement which is adopted by defendant No.2.

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The averments of the written statement are:

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It is the case of defendant Nos.2 and 3 that an

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extent of 7 acres 26 guntas of land was granted to Karnataka Housing Board (herein after referred to as "KHB" for short) in old Sy.No.77 (new Sy.No.192) of Koppa village, Koppa taluk by the Government under Order No.DIS.A4/ALN/[b] 67-68 dated 06.09.1967. After the grant, the KHB is in possession and enjoyment of the said land and it has fenced the entire land. The KHB has noticed a small Mangalore tiled shed/bidara measuring 24x30 feet in the land belonging to it and as nobody was in possession or occupation of the said land, demolished the said shed on 13.09.2002. It is the case of defendant Nos.2 and 3 that before going for the demolition, a spot mahazar was drawn in the presence of villagers and police and no household articles or any items were found in the house at the time of demolition of the shed. It is further contended that the Mangalore tiled shed was in a dilapidated condition and no person was residing in the said shed and the villagers also told the officials of KHB

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that nobody was residing at any time and further, it is contended that report of the Revenue Inspector, Koppa was submitted stating that at no point of time, the plaintiff or his wife were residing in the said shed or that any articles were kept in the shed when the KHB officials demolished the shed and the suit of the plaintiff is not maintainable and is liable to be dismissed as he has not followed the mandatory provisions for filing the suit.

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The Trial Court on the basis of the pleadings

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framed the following issues:

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“1. Does plaintiff proves the existence of the suit schedule property?

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2. Whether the plaintiff further proves that during the absence of plaintiff and his wife, the 3^rd defendant without informing the plaintiff has demolished the schedule house property and destroyed the valuables and belongings of the plaintiff thereby causing loss of more than Rs.2,00,000/-?

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3. Whether the plaintiff is entitled for suit claim?

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4. What decree of order?”

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In order to establish their claim the plaintiff examined himself as PW1, got marked document at Ex.P1 to P69, defendant Nos.2 and 3, examined the Engineer of KHB as DW1 and one witness as DW2, got marked document at Ex.D1 to D12.

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The Trial Court on the basis of pleadings, oral and documentary evidence arrived at a conclusion:

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That the suit schedule property is the property situated at Koppa Rural Grama Panchayath bearing Sl.No.662, Asst. No.720 measuring 36 X 22 feet and the plaintiff has proved the existence of the suit property.

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That the plaintiff has proved that during the absence of the plaintiff and his wife, defendant No.3 has caused loss to the plaintiff.

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By the judgment and decree, the Trial Court decreed

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the suit of the plaintiff with cost, holding that the plaintiff is entitled to recover the damage of Rs.1,10,000/- by way

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of compensation from defendant No.3 with interest @ 6% p.a from the date of suit till the date of realization.

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Aggrieved, defendant No.3 preferred appeal before the First Appellate Court, the First Appellate Court, while re-appreciating and reconsidering the entire oral and documentary evidence, independently, confirmed the judgment and decree of the Trial Court. Aggrieved, defendant No.3 is before this Court.

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Heard Sri Raghavendra A. Kulkarni, learned counsel for the appellants, Smt Anusha Asundi, learned counsel for Sri A. Madhusudhan Rao, learned counsel for respondent No.1 and Sri Rajendra K. R., learned counsel for respondent Nos.2 to 4.

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Reiterating the various other contentions raised in the appeal memo, the learned counsel for the appellants would mainly urge the following grounds:

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i. That the plaintiff had issued a legal notice at Ex.P41 under Section 80 CPC before filing the suit,

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however, Section 80 CPC is not applicable to the appellants-KHB as there is a special provision enacted under the Karnataka Housing Board Act, 1962 (herein after referred to as "the Act" for short) and as per Section 72, it mandates that an issuance of notice before filing the suit and without issuance of notice as contemplated under Section 72 of the Act, the suit is not maintainable. In support of his contention, learned counsel has placed reliance on

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the case of Krishna Murthy Setty Vs. Karnataka Housing Board (Krishna Murthy Setty)¹ .

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ii. Further that the application of the plaintiff as per Ex.D9 for regularisation was rejected by the Tahasildar on 18.02.1991, the endorsement issued by the Tahasildar has not been assailed by the plaintiff and the endorsement has become final, which aspect has been totally overlooked by the Courts below while awarding compensation for damages.

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1 ILR 1989 KAR 3479

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iii. That the Courts below have failed to see that PW1 has admitted in his cross-examination that the land of 7 acres 26 guntas belongs to the appellants and further deposed that he is unaware as to whom the shed belongs and in light of the categorical admission, the Courts below were not justified in granting compensation holding that the plaintiff was in possession of the suit property.

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iv. That the documents produced by the plaintiff even the Hakkupatra dated 15.12.2007 issued by the Tahasildar is subsequent which is during the pendency of the suit and the documents were created for the purpose of suit colluding with the Gram Panchayat.

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v. Learned counsel submits that there arises substantial question of law to be dealt with to be considered in the present appeal.

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Per contra, learned counsel for the respondent

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would urge the following grounds:

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a) Learned counsel justified the judgment and decree of the Courts below would submit that the concurrent findings of facts recorded by the Courts below does not warrant any interference under Section 100 CPC and there arises no substantial question of law to be framed by this Court.

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b) Drawing the attention of this Court to the cross examination of DW1, learned counsel submits that DW1 has admitted in his cross examination that 7 guntas of land is adjacent to 7 acres 26 guntas of land granted to the Housing Board, further the sanction to KHB in respect of 7 guntas of land was in the year 2004 and the plaintiff has constructed the shed situated in 7 guntas and DW1 has categorically admitted in his cross examination about the demolition of the shed situated in 7 guntas was in the year 2002.

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c) Learned counsel submits that the plaintiff has issued notice to the defendant No.3 under Section 80 CPC and brought to the notice about the

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intention of the plaintiff to file the suit and hence, the defendants cannot contend that the suit was not maintainable in the absence of the notice as per Section 72 of the Act, since, merely wrongly mentioning the provision as Section 80 could not be held that the plaintiff has not complied the mandatory provisions of issuance of notice before filing of the suit.

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d) Learned counsel submits that the Courts below taking into consideration the oral and documentary evidence have rightly decreed the suit holding that the plaintiff is entitled for compensation.

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This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the judgment and decree of the Courts below and the material on record.

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The case of the plaintiff is that he was in possession and occupation of the suit schedule property since 1980-81, he had given an application for

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regularization of the land on which the house was constructed to defendant No.5. It is further case that defendant Nos.2 and 3-the officials of Housing Board threatened the plaintiff stating that they will evict and demolish the house belonging to him and on 13.09.2002, without informing the plaintiff they have demolished the suit property, the burden was on the plaintiff to prove that the house was situated in the suit property, the plaintiff does not dispute that the suit property was the Government land, the defendants contended that the said land was granted to KHB.

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The written statement averment indicates that defendant No.3 has taken a stand that in light of the grant in favour of KHB, they have demolished the Mangalore tiled House, which was in the dilapidated condition in the year 2002. The undisputed fact is that the plaintiff has given an application to the Tahasildar for regularization of land on which the house was constructed and the said application was pending consideration.

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PW1 has admitted that 7 acres 26 guntas of

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land granted to Housing Board by the Government, the schedule property claimed by the plaintiff does not form part of the granted land of KHB measuring 7 acres 26 guntas in the year 1967, DW1 the official of defendant No.3 has produced the order copy of Deputy Commissioner at Ex.D4 under this order, the Deputy Commissioner has reserved the 7 guntas of land in Sy.No.77 of Koppa village for public purpose and permitted the KHB to form a public park. DW1 in his cross examination has admitted that soon after the granting of 7 acres 26 guntas of land to KHB in the year 1967, they have put up fence surrounding the said land. Further, DW1 has stated that the plaintiff was residing in the house situated in 7 guntas of land since 6 to 7 years earlier to eviction.

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The cross examination of DW1 itself makes it evident that the suit property was not situated in 7 acres 26 guntas of land granted to KHB in the year 1967, but

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was situated in 7 guntas of land, which was subsequently, granted to KHB in the year 2004 for the purpose of park. The demolition of the shed by defendant No.3 in the year 2002 was when there was no authority to KHB over 7 guntas of land in which, the shed was situated, the Trial Court taking into consideration the evidence of PW1, PW2

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and the categorical admission of the witnesses of defendants in their cross examination, arrived at a conclusion that defendant Nos.2 and 3 were not granted 7 guntas of land when the Mangalore Tiled old house was demolished, which the plaintiff contended that he is in possession and arrived at a conclusion that the plaintiff is entitled for compensation amount.

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The First Appellate Court being the last-fact finding Court has rightly re-appreciated and reconsidered the entire oral and documentary evidence and in light of categorical admission of DW1 and DW2, arrived at a conclusion that defendant No.3 has demolished the house on 13.09.2002 and therefore, the action of defendant No.3

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is barbaric and inhuman and Ex.P23 and P27, which were the letters given by the plaintiff to the superior authorities regarding the demolition of the house and defendant No.3 has not followed the procedures as contemplated under the law.

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The reliance placed by the learned counsel for the appellant in Krishna Murthy Setty's case, there was no notice at all issued by the plaintiff prior to filing of the suit either under Section 72 of the Act or under Section 80 CPC and in that circumstances, this Court observed that without serving notice on defendant No.3 under Section 72 of the Act, the suit was not maintainable.

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In the instant case, at Ex.P41 the plaintiff has issued notice to defendant No.3 though under Section 80 but the contents were about the intimation of the plaintiff to institute the present suit and hence, the contention raised by the plaintiff that there was no notice issued defendant No.3 before filing the suit falls to ground, as merely wrong mentioning of the provisions as Section 80

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CPC, does not mean non-compliance of mandatory provisions of Section 72 of the Act, the whole purpose of issuing notice to the statutory body is intimating the intention about the plaintiff to file a suit and thus, the decision of Krishnamurthy’s case is not applicable to the present facts and is distinguishable, there is no infirmity or illegality found in the judgments of the Courts below warranting interference under Section 100 CPC.

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The Apex Court in the case of P.K. Palanisamy Vs. N. Arumugham and another² has observed that only because a wrong provision was mentioned that itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. The Apex Court observed that it is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order, if the Court and / or statutory authority had the requisite jurisdiction therefor. The manner in which, the

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2 (2009) 9 SCC 173

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Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and no substantial question of law arises for consideration and accordingly, this Court pass the following:

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ORDER

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