K N MALLIKARJUNA S/O K NAGANNA V. THE COMMISSIONER

RSA/2377/2008

AI Insights

The case revolves around a dispute where the plaintiff, K. N. Mallikarjuna, claimed ownership and lawful possession over a property which included a closed public drainage. The drainage was allegedly closed by the plaintiff in 1988 with the permission of the municipal authorities, which he later used for personal purposes. The defendants, Mysore City Corporation, contested this by asserting that the drainage was public property and the closure was unauthorized. The trial court initially ruled in favor of the plaintiff, but the appellate court reversed this decision, leading to the current appeal. The High Court dismissed the appeal, agreeing with the appellate court's findings that the plaintiff's actions were unauthorized and not supported by sufficient evidence of permission from the municipal authorities.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 726484 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 11-08-2023
• Assessment Year: misc
• Laws Referred To: Section 100 of CPC, Municipalities Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: GEETHADEVI
• Assessee Lawyers: GURUDATH
• Keywords: Miscarriage of justice; Permanent injunction; Property Dispute; Regular Second Appeal; Drainage Closure
• Section: 100

Judgement Text

" - 1 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR REGULAR SECOND APPEAL NO. 2377 OF 2008 (SP) BETWEEN: K. N. MALLIKARJUNA, S/O. K. NAGANNA, AGED ABOUT 62 YEARS, NO.937, LAXMIPURAM, MMYSORE-570 004. …APPELLANT (BY SRI. GURUDATH .B.S, ADVOCATE) AND: 1. THE COMMISSIONER, MYSORE CITY COPRN., MYSORE-570 001. 2. THE EXECUTIVE ENGINEER, MYSORE CITY CORPN., MYSORE-570 004. …RESPONDENTS (BY SRI. GEETHADEVI .M.P, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATE: 22.8.2008 PASSED IN R.A.NO.334/2008 ON THE FILE OF THE III ADDL. DISTRICT & SESSIONS JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED: 22.3.1997 PASSED IN OS.NO. 689/1994 ON THE FILE OF THE II ADDL. I MUNSIFF, MYSORE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by RENUKAMBA K G Location: High Court of Karnataka - 2 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 JUDGMENT This appeal is filed under Section 100 of CPC by the appellant/plaintiff challenging the judgment and decree passed by III Additional District Judge, Mysore in RA No.334/2008, whereby the learned Sessions Judge reversed the finding of the trial Court in OS No.689/1994. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The plaintiff has filed a suit against the defendant, claiming that he is the absolute owner of the suit schedule property and he is in possession enjoying the same for several years. It is contended that he has constructed several buildings in different portions of the suit property as per the sanctioned plan and after obtaining permission. It is contended that the portion he has already put up a construction i.e., the existing Vidyaranya theatre and the portion had drainage adjoining the said theatre. In 1998, - 3 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 the competent authority permitted him to close drainage and utilize the same for construction by fixing annual charges. Hence, he claims that accordingly, he closed the drainage at his own cost and for his utilizing the same with intimation to the first defendant vide letter dated 12.10.1988 and using the same for the benefit and convenience of both himself and public at large. 4. It is contended that the plaintiff has covered the drainage and requested the Commissioner to fix the lease amount payable to the authorities and he covered the drainage by investing huge amount by slabs in order to make the said drainage convenient to utilize by the public as pathway also. It is further asserted that in a portion adjoining the theatre the plaintiff has already put up the construction and leased out the premises to the Deputy Commissioner of Income tax, Mysore. It is further claimed that on 12.04.1994, he received legal notice from defendant alleging that he has closed the drainage towards south with slabs unauthorizedly and - 4 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 raised the compound with AC sheet and directed the plaintiff to remove the same. 5. It is asserted by the plaintiff that the first defendant has issued the notice after lapse of several years of the construction of the structure and hence, he asserts that issuance of notice is against the principles of natural justice. He denied the other allegations and according to him, it is the precedent of the defendant Corporation to permit almost all the big buildings i.e., restaurant, hotels situated in Mysore city adjoining to the municipal drainage to close the same at their own cost. He claims that the defendants are interfering in his peaceful enjoyment of suit schedule property and hence, he filed this suit. 6. The first defendant has appeared and filed written statement, denying the allegations and assertions made thereunder. It is denied that the plaintiff has obtained permission or consent from the defendant to close the public drainage, which is exclusive property of - 5 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 the defendant. The defendant further denied the precedent of the Corporation to permit any person to cover public drainage at their own cost for convenient use of their own building. The defendant has also denied the other allegations. It is contended that the defendant and the officials of the defendant-Corporation have noticed construction of the said AC sheet shed covering the public drainage by the plaintiff and issued a notice dated 12.04.1994, to remove the same. Hence, it is asserted that plaintiff being a wrong doer, is not entitled for discretionary relief of permanent injunction. Hence, he has sought for dismissal of the suit. On the basis of the pleadings, trial Court has framed the following four issues: 1) Whether plaintiff prove his lawful possession over the suit schedule property on the date of suit? 2) Whether plaintiff prove the defendant is interfering with the suit schedule property by attempting to demolish and removing any of the structures in the schedule premises? - 6 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 3) Whether plaintiff is entitled to the relief claimed in the suit? 4) What order or decree? The plaintiff was got examined himself as PW1 and placed reliance on Exs.P1 to P4. Junior Engineer who is working with the defendant is examined as DW1. 7. After hearing the arguments and after perusing the oral as well as documentary evidence, the trial Court has answered the issues 1 to 3 in the affirmative and decreed the suit of the plaintiff. Being aggrieved by the said judgment & decree, the defendant has approached the learned III Additional District Judge, Mysore in RA No.334/2004. 8. The learned District Judge after re-appreciating the oral and documentary evidence, has allowed the appeal by setting aside the judgment and decree passed by the learned Civil Judge in OS No.689/1994 and ultimately dismissed the suit. Being aggrieved by this - 7 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 judgment and decree of the lower appellate Court, the plaintiff is before this Court by this regular second appeal. 9. Heard the arguments advanced by the learned counsel for the appellant and learned counsel for the respondent. Perused the records. 10. The learned counsel for the appellant would contend that the trial Court has appreciated the oral and documentary evidence in proper perspective, but the lower appellate Court has erroneously reversed the said findings which is against the facts and probabilities of the case. It is further contended that the title of the plaintiff over suit property in his possession is not disputed and the appellate Court has erroneously dismissed the suit, which has resulted in miscarriage of justice. Hence, he would seek for allowing the appeal by restoring the judgment and decree of the appeal. 11. Per contra, learned counsel for the respondent would contend that under the guise of the suit schedule - 8 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 property plaintiff is interested in asserting his right over the drainage, which is admittedly belonging to the respondent and admittedly, he has constructed shed after putting slabs over the drainage and closed it illegally and he intends to make use of the same for personal use and same cannot be permitted. Hence, he would contend that trial Court has failed to appreciate this aspect. But the lower appellate Court appreciated this aspect and has rightly dismissed the suit by allowing the appeal, which does not suffer from any perversity. Hence, he has sought for dismissal of the appeal. 12. This Court vide order dated 26.07.2010, has framed the following substantial questions of law: 1. Whether the judgment and decree of the first appellate Court is perverse in misreading the material and evidence on record with regard to the suit schedule property concerning the construction put up over it? 2. Whether the Judgment and decree of the first appellate Court is perverse with regard to its - 9 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 findings regarding evidence and pleading being inconsistent with respect of provisions of Municipalities Act? 13. The plaintiff claims to be the owner in possession of property bearing No.55 which is not under serious dispute. But on reading of the plaint averment, it is evident that the plaintiff is rather interested in drainage which is belonging to respondent, but not in suit property and his claim is only pertaining to drainage, but not the suit property. 14. According to the plaintiff, adjoining to property No.55 there is a drainage and in 1988, he with the permission of the competent authority, has closed the drainage and utilized the same. The plaintiff has got examined himself as PW1 and according to him, the drainage was causing nuisance with stagnation of filthy water and therefore, he requested the defendants to close the same. He has applied to the Corporation and they have visited the spot and permitted the plaintiff to cover - 10 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 the drainage by himself. He disputes construction of any structures over the drainage. But PW1 has given a complete go by to plaint pleadings, wherein he pleaded that he has closed the drainage with the permission of the Corporation and he has informed the same to the Corporation vide letter dated 12.10.1998. He has also asserted that he is using the same for his personal use and it is also being used by the public at large. But now he has given a go by to his pleadings and put forward a different story. 15. The plaintiff has not produced any documents to show that the defendant has permitted him to close the drainage. Further, the plaintiff has also not produced any document to show that he has applied for fixation of rent for use of closed drainage area. permitted the closure of the drainage area. On the contrary, Ex.P1 is the notice issued by the defendant for removal of the stone slabs on drainage and it has nothing to do with suit property. Ex.P2 is pertaining to allotment of Site No.55 situated in - 11 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 Vidyaranya theatre and Ex.P3 & P4 are regarding endorsements pertaining to assessment of tax for construction made over the property bearing No.55. These documents do not refer to drainage and the assertions of the plaint clearly disclose that the plaintiff is not aggrieved by any action of the defendant over his property, but he is aggrieved by the action undertaken by the Corporation pertaining to drainage. 16. Admittedly, the plaintiff is not the owner in possession of the drainage. He has illegally closed the drainage and he has not obtained any permission for use of the drainage. He asserts that he has requested to fix the lease amount for utilization of the closed drainage, but no such documents are forthcoming. The trial Court did not appreciate any of these aspects in proper perspective. But the lower Appellate Court has considered all these aspects in proper perspective and has rightly allowed the appeal by dismissing the suit of the plaintiff. The conduct of the plaintiff discloses that under the guise - 12 - NC: 2023:KHC:28881 RSA No. 2377 of 2008 of property No.55, he wanted to lay claim over the drainage and such conduct on the part of the plaintiff cannot be appreciated. The judgment and decree passed by the lower appellate Court cannot be said to be erroneous, arbitrary or perverse so as to call for interference. As such, both the substantial questions of law under consideration are answered in the negative and accordingly, the appeal being devoid of any merits needs to be dismissed. Hence, I proceed to pass the following: ORDER I. The appeal stands dismissed. Sd/- JUDGE DS List No.: 2 Sl No.: 1 "