Sri. M. Maranna @ M Marappa Vs the Commissioner

THIS RFA IS FILED UNDER SEC.96 R/W.ORDER 41 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.07.2019 PASSED IN OS NO.27326/2009 ON THE FILE OF THE XXVI ADDL.CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL BENGALURU(CCH-20), DISMISSING THE SUIT FOR AND DECLARATION AND PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellant under section 96 of CPC for setting aside the judgment passed by XXVI Addl.City Civil and Sessions Judge at Mayo Hall Bengaluru in O.S.No.27326/2009 dated 01.07.2019 for having dismissed the suit of the plaintiff.

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The appellant was the plaintiff and the respondent are the defendants before the trial court and the ranks of the parties are retained for the sake of the convenience.

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The case of the plaintiff before the trial court is that, he has filed the suit for declaration to declare that notice issued by the defendant under section 321 (3) of Karnataka Municipal Corporations Act, 1976 (herein after referred as 'KMC Act') is

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not binding on him, and not binding on his property, as well as on the plaintiff and granting decree to restrain the defendants from interfering and demolishing the building constructed by the plaintiff. It is alleged by the plaintiff that his father was the owner of the property bearing No.50 situated at B Channasandra, K.R.Puram Bengaluru East, acquired from his ancestors and he was paying tax for the same. He has put up construction and also shop in the suit property, by obtaining the license from the village panchayath. Accordingly, he put up the building to the south of the suit property, a vacant site bearing No.48, belonging to Narayanaswamy and the said Narayanaswamy was trying to encroach the property in 1975, hence father filed a suit in O.S.No.695/1975 renumbered as O.S.No.5525/1980 to declare his father as owner and also permanent injunction in respect of the suit property. Accordingly, a decree was obtained by his father and it was further upheld by High court in the first appeal. Thereafter, at the instigation of the neighbour Narayanaswamy, the defendant issued notice under section 321(3) of KMC Act, calling the plaintiff to demolish the building that was put up in 1948. It is an unauthorized construction and thereby there is violation of

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building bye-laws. The notice was challenged by the father of the plaintiff before the appellate or the KAT. During the pendency, it was stayed, later appeal was withdrawn. The appellant also filed second appeal, which came to be dismissed on the ground of misconception of the fact that properties are totally different and subsequently the suit came to be filed.

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After summons, the respondent appearing filed a written statement contending that the suit is not maintainable. The plaintiff claimed the property as bearing No.48 and 50 in the appeal filed before the KAT. As such, the notice issued by the defendant was not answered by him. Therefore, the final notice has been issued for demolition and it is also contended as per 482 of KMC Act, that the civil court does not have the jurisdiction to set aside the notice under section 321(3) of KMC Act, it is only to approach the KAT and hence prayed for dismissing the suit.

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Based upon the pleadings, the trial court framed 6 issues and on behalf of the plaintiff examined himself as PW1 and marked 7 documents and respondent/defendant made oral or document evidence. Accordingly, the trial court after

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hearing arguments answered the issues No.1, 3 to 5 in the negative and issue No.2 in the affirmative and finally dismissed the suit. Hence, appellant is before this court.

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Learned counsel for the appellant has contended that the trial court has committed error in dismissing the suit as not maintainable, since the plaintiff challenged the notice under section 321 of KMC Act, is not correct. The defendant issued notice to the plaintiff stating that he is the owner of the site No.48, which is not correct. The plaintiff is the owner of the site No.50, his father already obtained the declaration and permanent injunction against one Narayanaswamy who is adjacent owner, as per the Commissioner report and finding in the Ex.P3 produced by the plaintiff, where a competant civil court has declared that the plaintiff's father was owner of the site No.50 and the Narayanaswamy was owner of site No.48 trying to interfere in the property of the plaintiff in site No.50, a decree was not granted, which was not properly considered and given any finding. Even they approached the KAT, the KAT categorically stated that the notice was issued for site No.48, whereas the appellant was owner of the site No.50. There was misconception of fact. Therefore, the same was dismissed.

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The KAT also categorically stated that it is altogether different property, therefore on this basis the appeal is dismissed. Such being the case, only option available to plaintiff is to file civil suit to declare that the notice is not binding on him. Therefore, the suit is maintainable and hence prayed for allowing the appeal.

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Per contra, learned counsel for the

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respondent/defendant has supported the judgment of the trial court contending that, even if any wrong order is passed by the KAT, it has to be challenged before the High court by filing a writ appeal, which was not done by the appellant. Therefore, filing the civil suit is not correct. While filing the appeal before the KAT, it is stated that they are the owner of the site No.48/50 claiming the site No.50. Therefore, the notice is rightly issued by KMC. Therefore, the civil suit is not maintainable under section 482 of KMC Act and the trial court rightly dismissed the suit. The remedy available to the plaintiff is elsewhere and not in this court. Accordingly, prayed for dismissing the appeal.

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During the course of arguments, learned counsel for the appellant submits that he is the owner of the site No.50 and not 48, and he has no objection to demolish any building constructed in site No.48. Likewise, learned counsel for the respondent also submits that they are ready to demolish site No.48, if the plaintiff is not the owner of the site No.48.

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The submission of both the counsel is placed on record.

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Having heard the arguments, perused the records, the point that arises for my consideration are;

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1. Whether the suit of the plaintiff for

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declaration of injunction is maintainable, as the notice issued by the defendant under section 321 KMC Act is not binding?

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2. Whether the judgment of the trial court,

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calls for interference?

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3. Whether the appellant proved that he is

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the owner of the property, i.e, site no.50 but not site no.48?

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Upon hearing the arguments, perusal of records, especially the evidence of the plaintiff, he has categorically stated that his father was the owner of the property of site No.50. The adjacent owner Narayanaswamy who was the owner of the site No.48 was trying to encroach or interfere with the schedule property. Therefore, a suit was filed by his father for declaration and injunction and to obtain the decree. In support of his contention Ex.P3 is marked, Ex.P3 is judgment and decree passed in O.S.No.695/1975 new No.5552/1980 ordered by 7th Additional City Civil and Sessions Judge, where on perusal of the judgment, it is categorically stated by the Civil Court and the finding was given after considering the Commissioner’s report appointed by the court, where the Commissioner report categorically stated that the site No.48 belongs to defendant Narayanaswamy and site No.50 belongs to Chikkammallappa. Thereafter, the suit came to be decreed by the Civil Court. The said Narayanaswamy also filed first appeal before the High Court by filing in RFA No.193/1982 which also came to be dismissed on 03.11.1989 which reveals the plaintiff's father was the owner of the site No.50 and after the death of the father of the plaintiff, the plaintiff became the

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successor of his father. There is no dispute from the defendant that the plaintiff is the owner of the site no.50 , there is no documents, or oral evidence or either written documents filed by the defendant, in the trial court that the plaintiff is also owner of site No.48. Therefore, on perusal of the record, the plaintiff was successful in proving that he is the owner of site no.50 of Channasandra, K.R.Puram Bengaluru. However, the notice issued by the respondent/defendant under section 321 (3) of KMC Act, which reveals they have already issued preliminary notice under section 321(1) and (2). Subsequently they issued the final notice under section 321 (3) of KMC ACT, wherein they have stated that the said property in site No.48, Channasandra, K.R.Puram Bengaluru, where Marappa, the plaintiff is the owner and he has violated the building sanction plan and no proper plan was further obtained. Therefore, they directed him to demolish the building. Of course this order has been challenged by the plaintiff’s father before the KAT by filing a first appeal which came to be dismissed, as his father said to be died during the pendency of the said appeal. Subsequently, the plaintiff filed 2^nd appeal where the KAT took up the matter and finally at point no.2, the KAT has stated that “ crux of the

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case is that the property ordered to be demolished because of deviation and unauthorized construction in respect of one bearing No.48 of B.Channasandra, K.R.Puram Bengaluru East, not the property bearing No.50 claimed by the appellant, thus the appellant is claiming different property than the one against which a confirmation order passed by the KMC under section 321(3) of KMC act. This order clearly reveals the notice was issued to the property No.48, 'B' Channasandra, K.R.Puram Bengaluru East, but not No.50. The contention of the plaintiff agitated that he is the owner of property in site no.50, but not site no.48. However, the notice has been issued to him in the name of Maranna, but they want to demolish the site No.50 at the instigation of Narayanaswamy who has suffered decree against his father. On perusal of the order of the KAT, as stated by the learned counsel, the order is correctly passed by KAT that notice issued by the respondent is to site no.48 and not site no.50. Such being the case, the KAT cannot quash the notice under section 321 of KMC Act as it is different from site No.48 but not site No.50. Ofcourse there was some reference available in the fact of the case where the plaintiff said to have claimed he is the owner of site no.48/50 of Channasandra, in

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the appeal before KAT, but the fact remains that the entire case of the plaintiff throughout is that, he has agitated that he is the owner of the property no.50 but not 48. Actually the site no.48

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belongs to one Narayanaswamy who is the neighbour of the plaintiff. Such being the case, the very notice issued to the appellant ought to have been issued to Narayanaswamy. Therefore, the notice itself is not binding on the plaintiff on the property bearing No.50 and in site no.48, the defendant is trying to demolish site no.50 under the guise of issuing notice under section 321 of KMC Act to the site No.48. Therefore, in the suit the plaintiff is required to protect his property by filing the civil suit as he has suffered order in the KAT as it was different property. Such being the case, the only option for the plaintiff is to file the suit. Accordingly, the suit was filed for the plaintiff for declaration and injunction, is maintainable.

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In view of my observation in point Nos.1 and 3 that plaintiff is owner of property No.50 and he is not the owner of site no.48 and the appellant counsel also stated no objection to demolish the building constructed under site No.48 and the defendant also categorically stated site no.48 they issued the notice. If at all the defendant claims the site No.48 also

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belongs to the plaintiff then the defendant has no objection to demolish as per the order passed by them. However, the plaintiff also has no objection to demolish the property/building built on site no.48. But they cannot interfere over the site no.50 which belongs to plaintiff.

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Hence, the trial court on misconception of fact has wrongly held that the civil suit is not maintainable on the notice issued to the plaintiff under section 321 of the KMC Act, which was already dismissed by the KAT is not correct. Therefore, the judgment of the trial court calls for interference.

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Accordingly, I proceed to pass the following order;

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The appeal is hereby allowed .

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The suit of the plaintiff is decreed.

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The plaintiff is the owner of the property, in site no.50.

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The notice issued for the respondent under

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section 321 (3) of KMC Act is not binding on the plaintiff and the defendant is hereby restrained permanently from interfering with the peaceful possession and enjoyment of the property in site No.50.

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The defendant is permitted to demolish by following due process of law in building construction of the site No.50 if the plaintiff violated the rules/bye-laws.

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If the plaintiff is found to have constructed any building in site no.48 in violation of the bye-laws of site No.50, then the respondent can take the action in accordance with law.

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Sd/(K.NATARAJAN) JUDGE

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AKV List No.: 1 Sl No.: 57 CT:SK

Sri. M. Maranna @ M Marappa v. the Commissioner

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Sri. M. Maranna @ M Marappa v. the Commissioner

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