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2023 DIGILAW 745 (KAR)

Mansukh Lal Khicha v. Corporation of City

2023-06-02

H.T.NARENDRA PRASAD

body2023
JUDGMENT 1. This appeal is filed under Sec. 96 of CPC challenging the judgment and decree dtd. 18/1/2008 passed by XVI Addl. City Civil & Sessions Judge, Bengaluru in O.S.No.7133/1995, whereby the suit filed by the plaintiffs has been dismissed. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in original suit. 3. Brief facts of the case: Plaintiffs are the absolute owners in possession of the suit schedule property, which was acquired by them under the registered sale deed dtd. 30/10/1986 from one Smt.M.Venku Bai and others. Plaintiffs are paying tax regularly as per the assessment made by the Corporation. They have put up a new construction after demolishing the old structure after obtaining necessary sanctioned plan from the Corporation. Defendant No.3, who has no manner of right, title or interest over the southern side of the suit schedule property is trying to encroach the conservancy lane, which is leading to the main road by putting up a wall and to utilize the same as a shop. The same affects the rights of the plaintiffs. Hence, the plaintiffs have filed the suit for injunction. On service of suit summons, defendant Nos.1 to 3 appeared through counsel and filed the written statement denying the averments made in the plaint and they have contended that the plaint has to be returned since the plaintiffs have not complied with the provisions of Sec. 482 of the Karnataka Municipal Corporation Act. Defendant No.4 appeared though counsel and filed written statement denying the averments made in the plaint and contended that the property in dispute belongs to the Corporation and plaintiffs have no manner of right, title or interest over the suit schedule property. Hence, the defendants sought for dismissal of the suit. On the basis of the pleadings of the parties, the Trial Court has framed following issues: (1) Whether the Plaintiffs prove that there exists a conservancy lane and they have got a right over the same as a passage to have access to their schedule properties? (2) Whether the Plaintiffs prove that the 3rd Defendant is attempting to put up unauthorised construction on the conservancy lane adversely affecting the user of the same as a passage by the Plaintiffs to have access to their schedule property? (2) Whether the Plaintiffs prove that the 3rd Defendant is attempting to put up unauthorised construction on the conservancy lane adversely affecting the user of the same as a passage by the Plaintiffs to have access to their schedule property? (3) Whether the Defendants prove that the Plaintiffs have filed the suit with a malafide intention to grab the property belonging to the Corporation claiming it to be a public conservancy? (4) Whether the Plaintiff is entitled to a decree of permanent and mandatory injunctions as prayed for? (5) To what decree or order? On behalf of the plaintiffs, the plaintiff No.1 has been examined as PW-1 and produced 14 documents and marked as Exs.P-1 to 14. On behalf of the defendants, neither any witness was examined nor any document was produced. On appreciation of oral and documentary evidence, the Trial Court has answered issue Nos.1, 2 and 4 in the negative and issue No.3 in the affirmative and dismissed the suit. Being aggrieved by the same, the plaintiffs have filed this appeal. 4. The learned counsel for the appellants-plaintiffs has contended that on the southern side of the suit schedule property there is a conservancy lane. Defendant No.4 without any authority of law is trying to encroach the same. He further contended that since the conservancy is a public property which belongs to the Corporation, if defendants are permitted to encroach the same, it will affect the rights of the plaintiffs. He further contended that during the pendency of the suit, defendant No.4 has forcibly constructed a shed. Therefore, the plaintiffs had sought for amendment of plaint seeking for mandatory injunction. He further contended that during the pendency of the suit, the Corporation has allotted the land in dispute in favour of defendant No.4 by passing a Resolution dtd. 22/7/1997 without any authority of law. The trial court without considering these aspects has committed an error in dismissing the suit of the plaintiffs. 5. The learned counsel for the respondent Nos.1 and 2 has submitted that since the property in dispute belongs to the Corporation, the plaintiffs have no manner of right, interest or title over the property in dispute. The said property is now been allotted to defendant No.4. The trial court after considering the evidence of the parties has rightly dismissed the suit. 6. Respondent Nos.3 and 4 are served and unrepresented. 7. The said property is now been allotted to defendant No.4. The trial court after considering the evidence of the parties has rightly dismissed the suit. 6. Respondent Nos.3 and 4 are served and unrepresented. 7. Heard the learned counsel for the parties. Perused the judgment and decree of the trial court and original records. 8. The plaintiffs in the suit had sought for the following reliefs: "Wherefore, the plaintiffs pray that this Hon'ble Court be pleased to pass a judgment and decree: a) Against the 3 defendant restraining him permanently from putting up construction on the conservancy lane affecting the user of the conservancy lane as an access to the schedule property. b) And directing the defendants 1 and 2 to take action against the 3rd defendant who is trying to grab the property of the Corporation, namely the conservancy lane which is lying to the Southern side of the schedule property. c) And restraining the defendants 1 and 2 not to put up any kind of construction over the conservancy lane affecting the user of the same as a passage to have access to the Main Road. d) For costs and such other reliefs as this Hon'ble Court may deem fit to grant under the circumstances of the case. e) The Mandatory Injunction may kindly be issued against the defendants to demolish the illegal construction of shed on conservancy lane (suit property). 9. It is also not in dispute that by Resolution dtd. 22/7/1997, the Corporation has allotted the land in dispute in favour of defendant No.4. In view of the subsequent allotment and the said allotment not being challenged before any court of law, the releif sought by the plaintiffs cannot be granted. The only remedy available to the plaintiffs is to challenge the Resolution dtd. 22/7/1997 passed by the Corporation granting the land in dispute in favour of defendant No.4, before the appropriate legal forum. 10. Accordingly, the appeal is disposed of. The plaintiffs are at liberty to challenge the Resolution dtd. 22/7/1997 passed by the Corporation granting the land in dispute in favour of defendant No.4, before the appropriate legal forum, if law permits.