IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT R.S.A.No.1296/2013 [INJ] BETWEEN:
1. SRI. CHELUVEGOWDA S/O SRI. NARAYANAGOWDA AGED ABOUT 53 YEARS R/AT D.NO. 39 SHREE MANCHAMMANA TEMPLE BEEDHI METAGALLI, MYSORE-570016.
NOW R/AT NO.5, 2ND MAIN ROAD 3RD CROSS, B.M. SHREENAGAR METAGALLI, MYSORE-570 016.
2. SRI. M N PRAKASH S/O SRI NARAYANAGOWDA AGED ABOUT 50 YEARS R/AT D.NO. 39 SHREE MANCHAMMANA TEMPLE BEEDHI METAGALLI, MYSORE-570 016.
NOW R/AT NO.450, 7TH MAIN ROAD 11TH CROSS, B.M. SHREENAGAR METAGALLI, MYSORE-570 016.
...APPELLANTS (BY SRI.DATTA PRASAD, ADV. FOR SRI. MANMOHAN P N, ADV.) AND:
1. CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560001.
2. ASSISTANT DIRECTOR ( D D P I) DEPARTMENT OF EDUCATION MYSORE DISTRICT NEAR TIPPU CIRCLE N R MOHALLA, MYSORE-570 001.
3. ADMINISTRATIVE OFFICER NIRMITHI KENDRA BEHIND REGIONAL COLLEGE BHOGADI, MYSORE-570 001.
…RESPONDENTS (BY SRI.SHIVASWAMY, ADV. FOR R3 GOVT.ADV. FOR R1 R2-SERVED & UNREPRESENTED) THIS R.S.A. FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.09.2011 PASSED IN R.A.NO.1107/2010 ON THE FILE OF THE PRESIDING OFFICER, F.T.C. IV AT MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16/04/2010 PASSED IN O.S.NO.282/2005 ON THE FILE OF THE III ADDITIONAL FIRST CIVIL JUDGE & JMFC., MYSORE AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The plaintiffs are in appeal under Section 100 of the Code of Civil Procedure, against the concurrent finding under the judgment and decree dated 16.04.2010 in O.S.No.282/2005 and judgment and decree dated 23.09.2011 in R.A.No.1107/2010 on the file of the Fast Track Court-IV at Mysore.
2. The plaintiffs’ suit was for permanent and mandatory injunction in respect of suit schedule sites bearing No.149 and 150 situated at Metagalli extension, Jayadevanagara, Mysore. It is the claim of the plaintiffs that the sites were allotted by KIADB in lieu of acquisition of his land by KIADB authorities. Initially, the suit was filed for permanent injunction and subsequently the relief of mandatory injunction to 3rd defendant to remove the illegal construction was inserted. It is stated by the plaintiffs that in the year 1993, when the second plaintiff tried to construct a residential house in site No.149, the KIADB issued notice contending that the property belongs to them. Against which, the plaintiffs had filed the suit for permanent injunction against the KIADB, which came to be allowed and decreed against the KIADB. It is the case of the plaintiffs that the 2nd and 3rd defendants started constructing school building by encroaching the plaintiffs’ property. It is stated that the defendants have no manner of right, title or interest over the suit schedule property. The plaintiffs filed a police complaint against the defendants, but they have not taken any action against them. As such, the plaintiffs issued legal notice to them and thereafter filed the present suit in O.S.No.282/2005 for permanent injunction.
3. On issuance of suit summons, even though served with summons, the second defendant failed to appear and was placed ex parte. Defendants 1 and 3 appeared before the Court and 3rd defendant filed written statement contending that the suit is not maintainable either in law or on facts. Defendant No.3 stated that the second defendant on acquisition of the site entrusted the responsibility of construction of school building to 3rd defendant under NABARD scheme and stated that site No.435/A, the possession of which was handed over to the 3rd defendant.
4. Based on the pleadings of the parties, the trial Court framed the following issues:
1. Whether plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property as stated in the plaint?
2. Does the plaintiffs prove the alleged interference?
3. Whether defendants prove that suit is not maintainable?
4. Whether plaintiffs are entitled to permanent injunction as stated in the plaint?
5. What order or decree?
Thereafter one additional issue was framed which is as follows:
Whether plaintiffs are entitle for the relief of Mandatory injunction as prayed for?
6. The second plaintiff was examined as P.W.1 and documents Ex.P1 to Ex.P17 were marked. The defendants have not adduced any evidence nor cross- examined P.W.1.
7. The issues were answered in the negative and the suit of the plaintiffs was dismissed. Aggrieved by the dismissal of the suit, the plaintiffs filed R.A.No.1107/2010. The Appellate court, on perusal of the records and on hearing the parties, framed the following points for consideration.
(i) Whether I.A.No.1 filed under Order 41 Rule 27 of CPC deserves to be allowed?
(ii) Whether the plaintiffs/appellants prove that the defendants have put up the school building in the suit schedule properties?
(iii) Whether the judgment and decree passed by the trial Court is capricious, illegal and call for interference by the Appellate Court?
Answering the above points in the negative, the Appellate Court dismissed the appeal.
8. Heard the learned counsel for the appellants and perused the material placed on record.
9. Learned counsel for the appellants would submit that the suit schedule property is allotted to them in lieu of the land acquired by the KIADB. The defendants have no manner of right, title or interest over the suit schedule property. But they are forcibly encroaching the suit sites and constructing the school building. He further submits that the construction was taken up during the pendency of the suit. Therefore, it became necessary for the plaintiffs to amend the plaint to include the prayer for mandatory injunction. It is his further contention that the appellants/plaintiffs had filed I.A.No.1 under Order 41 Rule 27 of CPC in the appeal, seeking permission to produce photographs and village map of the area which was rejected by the Appellate Court along with the appeal. It is further contended that the trial Court having come to the conclusion that the appellants are owners of the suit schedule sites, ought to have granted injunction. Further it is contended that even though application for appointment of commissioner for local inspection was allowed, the Court failed to appoint Commissioner, which was absolutely necessary to prove the case. The Defendants to substantiate their contention that they are contracting in site No.435/A and the suit schedule property is different, have not produced any document nor disputed the documents produced by the plaintiffs.
10. On hearing the learned counsel for the appellants/plaintiffs and on perusal of the material on record, I am of the view that no substantial question of law would arise for consideration in this appeal for the following reasons:
The suit of the plaintiffs was initially for permanent injunction and subsequently, relief of mandatory injunction was sought. In the suit for injunction, the parties will have to prove their possession in respect of the suit schedule property. The prayer for injunction to be decided only with reference to the finding on possession. The plaintiffs claimed that the suit schedule sites were allotted to them, in lieu of acquisition of their lands by the KIADB. In support of their contention, the plaintiffs have produced Ex.P1 and Ex.P2/Hakku patra, Ex.P11 and Ex.P12/self-
assessment Forms extract, Ex.P8-demand register. It is the plaintiffs’ contention that the defendants have encroached their site and constructed the school building over it. The defendants on the other hand in their written statement contended that the site was acquired by the 2nd defendant-DDPI and possession of which was handed over to the 3rd defendant for construction of school building. The plaintiffs themselves had admitted that the defendants are constructing the building over the suit schedule property. It is the case of the defendants that they are constructing the building on the site bearing No.435/A and the dispute is with regard to identity of the property. When such being the case, suit for bear injunction would not be maintainable. The plaintiffs have utterly failed to prove their possession over the suit schedule property. The trial Court has rightly come to the conclusion that the defendants have constructed the school building over the suit schedule property. The Appellate Court by its reasoned judgment rightly rejected the appeal.
11. I.A.No.1 was filed by the plaintiffs/appellants under Order 41 Rule 27 of CPC to produce the photographs and layout plan. In the appeal, an application was also filed under Order 26 Rule 9 of CPC. Even though the said application was allowed, the plaintiffs/appellants failed to take steps for local inspection by the Court Commissioner and to obtain a report from the Court Commissioner. The Appellate Court on the photographs produced by the plaintiffs, under which, the application filed under Order 41 Rule 27 of CPC has observed that when it is an admitted fact that the construction of building is already over and when the school is running therein, the photographs produced would have no relevancy. The photographs would not indicate the location of the building.
12. As stated earlier, there is dispute with regard to the identification of the property. The other document produced along with the application was a Xerox copy of the map. The trial Court was of the opinion that as no true copy or certified copy of the village map was produced, Xerox copy could not be looked into.
13. The plaintiffs have admitted that the defendants have already constructed building over the suit schedule property, which means the plaintiffs are not in possession of the suit schedule property. Further it is noticed that, even though application for appointment of Commissioner for local inspection was allowed, the plaintiffs have failed to suggest the Commissioner and failed get the Commissioner report. The plaintiffs also failed to prove by producing cogent evidence, that the suit schedule property and site No.435/A claimed by defendants are one and the same and is not different. No material is placed on record to establish that the suit schedule property and site No.435/A claimed by defendant are different and situated at different location. The appeal is based only on facts and identity of the suit schedule property.
14. From the material placed on record and on going through the judgments rendered by the courts below, I am of the view that no substantial question of law is involved in the present appeal. As such, the appeal is dismissed.
Sd/-
JUDGE mpk/-* CT:bms