IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 1050 OF 2010 (DEC/INJ) Between:
TAUQUR AHMED S/O.MOHAMMED TOUSUF SHARIFF AGED 54 YEARS R/AT HANUMANTHA RAO STREET OPP. TO OLYMPIA THEATRE MYSURU.
... APPELLANT (BY SRI. NITYANAND M. BHAT., ADVOCATE FOR SRI. MANMOHAN P. N., ADVOCATE) And:
CORPORATION OF CITY OF MYSORE NEW SAYYAJI RAO ROAD, MYSURU REP. BY ITS COMMISSIONER ... RESPONDENT (BY SMT. M.P. GEETHADEVI., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.1.2009 PASSED IN R.A.NO.857/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, MYSURU, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 29.7.2006 PASSED IN O.S.NO.731/2005 ON THE FILE OF THE I ADDL. I CIVIL JUDGE (JR.DN) MYSURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the plaintiff in O.S.No.731/2005 on the file of I Additional Civil Judge (Jr.Dn.), Mysuru (for short, 'trial Court'). The appellant’s suit in O.S.No.731/2005 for relief of declaration and consequential mandatory injunction is decreed by the trial Court by its judgment dated 29.7.2006. The trial Court has declared that the action of the respondent in demolishing the structure of the suit schedule property was unlawful and further directed the respondent to rebuild the construction in the suit schedule property to its original design as described in the plaint within three months from the date of the judgment with a further direction that if the respondent did not reconstruct the building according to the original design, the appellant would be entitled to reconstruct and recover the cost of construction from the respondent.
2. In the appeal filed by the respondent in R.A.No.857/2009 on the file of the Presiding Officer, Fast Track Court-II Mysuru (for short, 'appellate Court'), the trial Court’s judgment insofar as finding that the respondent has unlawfully demolished the structure in the suit schedule property is confirmed, but insofar as other directions, the same are modified holding that the appellant would be entitled to claim damages from the respondent for the unlawful demolition. The appellant aggrieved by this modification is in this appeal.
3. The appellate Court has modified the trial Court’s judgment in the premise that the appellant had not lead any evidence on the type of structure that he had put up in the suit schedule property, nor had lead evidence of the other details of the construction. The appellate Court has also found that the appellant had failed to lead evidence as regards cost of construction incurred by him. The appellate Court has modified the directions by the trial Court to rebuild only in the light of these two circumstances and the fact that the appellant was put in possession of the property when it was a vacant site. In the absence of requisite evidence as regards nature of construction, or the details of construction, there could not have been any direction to the respondent to reconstruct with liberty to the appellant to rebuild and recover the cost of such rebuilding from the respondent. Therefore, no substantial question of law is raised in this appeal and accordingly, the appeal is dismissed.
4. It is needless to observe that the appellant would be entitled to recover damages in the manner directed by the first appellate Court subject to all exceptions in law.
Sd/- Judge SA Ct:sr