High Court of Karnataka dismissed an appeal filed by the Mysore City Corporation. The bench confirmed the First Appellate Court's judgment decreeing damages to the plaintiff for the unauthorized removal of two coconut trees while a related suit was pending. The Court found no substantial question of law.
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.
NC: 2024:KHC:8652 RSA No. 1249 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1249 OF 2019 (RES)
BETWEEN:
REPRESENTED BY ITS COMMISSIONER.
…APPELLANTS
(BY SRI. GEETHA DEVI M P.,ADVOCATE FOR R1 AND R2)
Digitally signed by SUMA B N Location: High Court of Karnataka
AND:
SHRI H.N.SHIVANANDA SHETTY, SON OF LATE NANJAPPA, HOUSE NO.34, SEWEZ FARM ROAD, HOMBALE RANGAIAH GARDEN EXTENSION, VIDYARANYAPURAM, KHILLE MOHALLA, MYSURU CITY-570 007.
…RESPONDENT
(BY SRI. GURUDATH B S., ADVOCATE)
NC: 2024:KHC:8652 RSA No. 1249 of 2019
THIS RSA IS FILED UNDER SECTION 100 OF CPC, TO SET-ASIDE THE JUDGMENT AND DECREE DATED 18.12.2018 PASSED IN RA.NO.295/2016 (OLD R.A.NO.35/2014) ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MYSURU AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant-Corporation against the judgment and order dated 18.12.2018 passed in R.A.No.295/2016 (Old R.A.No.35/2014) on the file of IV Additional District Judge, Mysuru by which while allowing the appeal, the First Appellate Court set-aside the judgment and decree dated 29.10.2013 passed in O.S.No.1650/2009 on the file of III Additional I Civil Judge and J.M.F.C, Mysuru and consequently decreed the suit of the plaintiff holding that the plaintiff is entitled for recovery of damages of Rs.1,20,000/payable jointly by the defendants to the plaintiff.
2.1 That he is the owner in possession of the suit schedule property having purchased the same in terms of registered deed of sale dated 22.10.2003. That he had constructed a house on the southern side of the schedule property, and after his retirement from the service, he is residing along with his family members in the said house. The suit schedule property is a vacant site consisting of three
fruit yielding coconut trees aged about 20 years and arecanut trees. That the Plaintiff had nourished the said trees for over a period of 20 years without causing any damage to any person. Towards northern side of the suit schedule property, there exists a house of one Padmarajaiah, who had constructed his house without leaving 3 feet setback on either side of his house. Though, the Plaintiff had objected the said Padmarajaiah about not leaving the set back, he had erected a compound wall on the southern side of the house, which was about 10.ft height. Padmarajaiah caused damage to the northern side compound wall of the Plaintiff.
NC: 2024:KHC:8652 RSA No. 1249 of 2019
2.2. That the plaintiff had given memorandum to the
Mysore City Corporation (appellant No.1) dated 06.01.2008 to direct the said Padmamjaiah to demolish his compound wall and to leave set back. But, the respondent-Corporation without taking any action against Padmarajaiah had issued a notice dated 26.11.2008 to the plaintiff and his wife to cut and remove the coconut trees. The wife of the plaintiff had suitably replied to the said notice on 29.11.2008.
2.3. That in collusion with the said Padmarajaiah, the defendant-authorities came near the suit schedule property on 03.12.2008 at about 5:30 p.m., along with their staff which was prevented with the intervention of the neighbours.
2.4. Thereafter, the plaintiff filed a complaint against the defendant No.2-Horticulture Department and its staff to the Commissioner of Police and had also issued legal notice to said Padmarajaiah and their daughter on 09.12.2008. Since, no action was taken against Padmarajaiah, the plaintiff instituted a suit in O.S.No. 1821/2008 on the file of III Addl. Civil Judge, Mysore against the present defendants. In the said suit, the plaintiff sought for the relief of
NC: 2024:KHC:8652 RSA No. 1249 of 2019
permanent injunction restraining the defendants from cutting and removing the coconut trees and to declare that the notice issued by the defendants has no identity under law.
2.5. That during the pendency of the said suit, the defendants unlawfully entered the suit property on 02.01.2009, at about 12:30 p.m., and they cut and removed two coconut trees between 12:30 p.m. to 3:00 p.m. At that time, the plaintiff was taking treatment in All Indian Institute of Speech and Hearing, as he was suffering pain in his ears. By the time, that the plaintiff returned to his house, he saw the defendants were removing the coconut trees, which the plaintiff nourished for a period of 20 years.
2.6. Subsequently, the plaintiff got issued a legal notice dated 22.02.2009 against the defendants to pay damage of Rs.60,000/- per tree, totalling in a sum of Rs.1,20,000/- for both the trees. That the trees were yielding 1,200 coconuts per year giving income of Rs.10,000/- per year. Despite the service of the notice, the defendants have taken no action constraining the plaintiff to file the suit.
contending that;
3.1. The coconut trees were grown very tall and the leaves, nuts and flowers of the tree were causing damage to the property of the neighbouring house. The roots of the trees penetrated to the underground water tank, sanitary lines and compound wall of the neighbouring house. Therefore, the owner of the neighbouring house submitted a memorandum to these defendants on 24.11.2008, appealing that there is damage to their property and life by the existing two coconut trees and sought for removal of the said trees. In response thereof, the defendant No.1 had issued the notice to the plaintiff on 26.11.2008 calling upon them to remove the said coconut trees.
3.2. That the plaintiff had not given any prominence to the said notice and the wife of the plaintiff hardly given a reply to the notice. In her reply, it was stated that they would not remove the trees, which is unfair. Later on, final notice dated 14.12.2008 and 11.12.2008 were issued to the plaintiff to cut and remove trees.
3.3. Since the plaintiff raised objections, the defendants
under police protection on 02.01.2009 removed the said two coconut trees. Since, the plaintiff and his family members had caused obstruction with the staff of the respondentCorporation, a criminal case was registered against the plaintiff.
3.4. The plaintiff has not obtained any interim order in O.S.No.1821/2008. Despite, receipt of the legal notices the plaintiff did not take any action invoking powers under Section 323 of the Karnataka Municipal Corporation Act, 1976 (for short 'KMC Act') the defendant-Corporation removed the trees with the aid of the police, which is inevitable in the interest of the public at large.
"1.Whether the plaintiff proves that the Defendants have illegally cut and removed two coconut fruits yielding trees ?
2. Whether the Defendants prove that acting under section 323 of Karnataka Municipal Corporation Act, they have removed the trees ?
3. Whether the plaintiff is entitled for the suit claim?
4. What Order or Decree?"
NC: 2024:KHC:8652 RSA No. 1249 of 2019
evidence the Trial Court answered Issue Nos.1 and 3 in the negative and Issue No.2 in the affirmative and consequently dismissed the suit.
"1. Whether it is a fit case for remand?
2. Whether the Defendants have illegally cut and removed the coconut trees which belongs to this Plaintiff?
3. Whether the Defendants prove that to prevent causing damage to the public, they have cut and removed the trees in accordance with law?
4. Whether the Plaintiff is entitled for damages as prayed for?
5. Whether the Trial Court was justified in dismissing the suit of the Plaintiff?
NC: 2024:KHC:8652 RSA No. 1249 of 2019
6. Whether the impugned Judgment and Decree is not sustainable under law and the same is required to be interfered by this Court?
7. What Order?"
Appellate Court answered Point Nos.1, 3 and 5 in the negative and Point Nos.2, 4 and 6 in the affirmative and consequently allowed the appeal granting the relief as prayed for. Being aggrieved by the same appellantCorporation is before this Court.
submission that as the plaintiff was issued with two notices
and there was no compliance with said notices, the appellant-Corporation authorities had to initiate action under the provisions of the statute, which they have done and there is no illegality or irregularity in they discharging their public function. It is her submission that even there is no material placed on record by the plaintiff with regard to assessment of the damage as determined by the First Appellate Court. Thus she submits that the First Appellate Court ought not to have decreed the suit in facts circumstance of the case, giving raise to substantial question of law.
the respondent/plaintiff submits that the plaintiff had filed a suit in O.S.No.1821/2008 against his neighbor Padmarajaiah and respondent-Corporation wherein the plaintiff had also sought for declaration in respect of notices that were issued by the appellant-Corporation and even before determination of the issues raised by the plaintiff in the said suit, appellantCorporation trespassed into the property of the plaintiff and
cut down the coconut trees. He submits that this high handed act of the respondent-authorities in cutting down the trees even when the matter was pending consideration before the Trial Court would indicate that the valuable right of the plaintiff was breached. He further submits that there was no determination of the fact, if the trees were causing any damages to the neighbors as alleged and even without determination of the same, respondent-authorities had cut down the trees. It is his further submission that the trees were 20 years of age yielding about 1,200 coconuts per year and that the trees could have lasted for atleast 20 more years. Thus, the assessment of damage made by the plaintiff accepted by the First Appellate Court cannot be found fault with. He submits that no substantial question of law would arise for consideration and seeks for dismissal of the appeal.
authorities had cut down the said trees. It may be that there was issuance of notice prior to the appellant-authorities cutting down the trees. But what cannot be lost sight of is that plaintiff had indeed initiated the proceedings in O.S.No.1821/2008 in which there was a specific plea by the plaintiff to declare the said legal notice is illegal and initiation of said proceeding was to the notice of the appellantCorporation. Though, as rightly pointed out by the learned counsel for the appellant-Corporation Section 323 of the KMC Act does not expressly contemplate any enquiry to be conducted when a complaint is received regarding danger being posed by the existing trees, it cannot be read to the extent requiring no application of mind at all by the appellant-authorities on such complaint. It may be that there was a complaint by the neighbor with regard to said trees causing damage to his property or danger to his life, but it was expected of the appellant-authorities to have applied their mind, assess the situation independently and
then come to the conclusion of them requiring to cut down the trees. After all an authority which is vested with
NC: 2024:KHC:8652 RSA No. 1249 of 2019
statutory power is expected to discharge its duties judiciously. Nothing is placed on record regarding respondent-authorities discharging such duties.
NC: 2024:KHC:8652 RSA No. 1249 of 2019
there is no substantial question of law involved in this matter requiring determination at the hands of this Court. Appeal lacks merits as such the same is dismissed confirming the
judgment and Order passed by the First Appellate Court.
Sd/JUDGE
RL
2 issues framed by the court
Whether the High Court should interfere with the First Appellate Court's decree granting damages for the removal of coconut trees?
Whether the respondent authorities acted legally under Section 323 of the Karnataka Municipal Corporation Act by removing the trees?
Mysore City Corporation
Horticulture Department
Shri H.N. Shivananda Shetty
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
