M.R.K. Rao S/O Late N.S. Rajgopal Rao and ors. Vs. Corporation of City of Bangalore - Court Judgment

SooperKanoon Citationsooperkanoon.com/843989
SubjectProperty
CourtKarnataka High Court
Decided OnApr-03-2009
Case NumberR.F.A. No. 396/2001
JudgeAshok B. Hinchigeri, J.
ActsLand Acquisition Act
AppellantM.R.K. Rao S/O Late N.S. Rajgopal Rao and ors.
RespondentCorporation of City of Bangalore
Appellant AdvocateAmarnath Simha, Adv.
Respondent AdvocateArunkumar, Adv. for ;Vishwanath Assts
DispositionAppeal allowed
Excerpt:
- constitution of india -- article 226; [a.s. bopanna, j] jurisdiction under held, high court will have jurisdiction regarding the statutory contracts and not a non statutory contracts. proper remedy is to work out through the competent civil court. ashok b. hinchigeri, j.1. this appeal is directed against the judgment, order and decree passed by the court of xvi addl. city civil and sessions judge, bangalore city in o.s. no. 1869/1985.2. this is a third regular first appeal arising from o.s. no. 1869/1985. the facts of the case in brief are that the appellants are the legal heirs of one m.s. rajagopal rao, who is the absolute owner of the schedule property. for the formation of the road, the respondent - corporation occupied almost half of the schedule property - 65' x 30'. the appellants ventilated their grievance contending that the part of the schedule property occupied for the formation of road is neither acquired nor purchased from the appellants. they prayed for the judgment and decree of permanent injunction restraining the corporation from encroaching on the schedule property and for mandatory injunction directing them to deviate the road from the schedule property. by its order, dt. 28.08.1900, the suit was dismissed. 'thereafter the appellants instituted r.f.a. no. 137/1991. the division bench of this court, by its judgment, dt. 16.01.1992 set aside the judgment of the trial court by permitting the appellants to seek the relief of damages. the trial court by its judgment, dt. 29.08.1994, decreed the suit by granting the relief in the nature of injunction and awarding the damages of rs. 2 lakh. this was challenged by the respondent in r.f.a. no. 66/1995. the said r.f.a. appears to have been allowed based on the prayer of the respondent - corporation that they be given a chance to prove their case by adducing the evidence. however even on the remand of the matter, the respondent - corporation shied away from entering the witness box, as it had done on the earlier occasions. the trial court dismissed the suit by its judgment, dt. 25.10.2000 based on the materials placed on its record on the earlier occasions.3. aggrieved by the dismissal of the suit, this appeal is instituted.4. sri amarnath simha, the learned counsel for the appellants submits that when the respondent - corporation did not avail of the opportunity, which they sought and which they got, to adduce evidence. when there were no subsequent developments, the trial court ought to have only passed the judgment confirming its earlier judgment passed in the remanded matter. there was no need for the appellants - plaintiffs to produce the additional evidence. therefore the appellants only prayed for a judgment confirming or reviving the earlier judgment passed in the remanded matter.5. sri arun kumar appearing for m/s. vishwanath associates for the respondent prays for the dismissal of this appeal.6. it is strange that the respondent - corporation has not chosen to lead evidence before the trial court, even when the matter was remanded twice. the remand for the second time was at its instance and in its appeal. the conduct of the respondent corporation in getting the matter remanded to adduce evidence but not entering the witness box is most deplorable, to say the least. but then the appellants cannot be given any relief based on the default committed by the respondent - corporation. the evidence placed on record, in my considered opinion, does not enable to come to the conclusion this way or that way, that is, to decide whether the appellants are entitled to damages or not notwithstanding the blemishful conduct of the respondent -corporation, i am not inclined to grant the damages. i find that the consideration of the matter by the trial court ought to have been better. when i go through the tower court records, i do not find the evidence of any independent witness. there is nothing except the self-supporting evidence of the appellants. whether the road was pre-existing, if so, when it was re-formed or widened. the appellants have not led the evidence of the person from whom they have purchased the property. they have not led the evidence of their neighbours or anybody in the locality. whether the dimension of the schedule property in actuality is the same as shown in the records are yet to be substantiated. the appellants have also to clearly state why they did not take the khatha, why they did not retain the copies of the title deeds, etc. on these matters, it is also open to the appellants to amend their pleadings and lead the supporting and additional evidence. thereafter it is for the trial court to frame appropriate issues.7. it is also the court's anxiety that if any private land is required for public purpose like road formation, the same has to be either compulsorily acquired by resorting to the provisions of the land acquisition act or by holding private negotiations and purchasing the property from the owner. but without resorting to any of these two, occupying the private land is tantamount to violating the precious properly rights of the individuals. right to property may have ceased to be a fundamental right but it has become a constitutional, legal and human right.8. i set aside the judgment under appeal and remand the matter to the trial court. it is really painful for this court to remand the matter for the third time. but it can not but be remanded, as the corporation has not led any evidence and as the evidence placed by the appellants is not of decisive nature,9. considering the age of the matter (suit is of the year 1985), i deem it necessary to direct the trial court to dispose of the matter within six months time. both the parties and/or their respective learned advocates shall appear before the trial court on 16.04.2009 at 11.00 a.m. without any notice from the trial court further, they are directed to cooperate with the trial court in the speedy disposal of the matter.10. this appeal is allowed in the above terms. nor order as to costs.
Judgment:

Ashok B. Hinchigeri, J.

1. This appeal is directed against the judgment, order and decree passed by the Court of XVI Addl. City Civil and Sessions Judge, Bangalore City in O.S. No. 1869/1985.

2. This is a third Regular First Appeal arising from O.S. No. 1869/1985. The facts of the case in brief are that the appellants are the legal heirs of one M.S. Rajagopal Rao, who is the absolute owner of the schedule property. For the formation of the road, the respondent - Corporation occupied almost half of the schedule property - 65' X 30'. The appellants ventilated their grievance contending that the part of the schedule property occupied for the formation of road is neither acquired nor purchased from the appellants. They prayed for the judgment and decree of permanent injunction restraining the Corporation from encroaching on the schedule property and for mandatory injunction directing them to deviate the road from the schedule property. By its order, dt. 28.08.1900, the suit was dismissed. 'Thereafter the appellants instituted R.F.A. No. 137/1991. The Division Bench of this Court, by its judgment, dt. 16.01.1992 set aside the judgment of the Trial Court by permitting the appellants to seek the relief of damages. The Trial Court by its judgment, dt. 29.08.1994, decreed the suit by granting the relief in the nature of injunction and awarding the damages of Rs. 2 lakh. This was challenged by the respondent in R.F.A. No. 66/1995. The said R.F.A. appears to have been allowed based on the prayer of the respondent - Corporation that they be given a chance to prove their case by adducing the evidence. However even on the remand of the matter, the respondent - Corporation shied away from entering the witness box, as it had done on the earlier occasions. The Trial Court dismissed the suit by its judgment, dt. 25.10.2000 based on the materials placed on its record on the earlier occasions.

3. Aggrieved by the dismissal of the suit, this appeal is instituted.

4. Sri Amarnath Simha, the learned Counsel for the appellants submits that when the respondent - Corporation did not avail of the opportunity, which they sought and which they got, to adduce evidence. When there were no subsequent developments, the Trial Court ought to have only passed the judgment confirming its earlier judgment passed in the remanded matter. There was no need for the appellants - plaintiffs to produce the additional evidence. Therefore the appellants only prayed for a judgment confirming or reviving the earlier judgment passed in the remanded matter.

5. Sri Arun Kumar appearing for M/s. Vishwanath Associates for the respondent prays for the dismissal of this appeal.

6. It is strange that the respondent - Corporation has not chosen to lead evidence before the Trial Court, even when the matter was remanded twice. The remand for the second time was at its instance and in its appeal. The conduct of the respondent Corporation in getting the matter remanded to adduce evidence but not entering the witness box is most deplorable, to say the least. But then the appellants cannot be given any relief based on the default committed by the respondent - Corporation. The evidence placed on record, in my considered opinion, does not enable to come to the conclusion this way or that way, that is, to decide whether the appellants are entitled to damages or not Notwithstanding the blemishful conduct of the respondent -Corporation, I am not inclined to grant the damages. I find that the consideration of the matter by the Trial Court ought to have been better. When I go through the tower Court records, I do not find the evidence of any independent witness. There is nothing except the self-supporting evidence of the appellants. Whether the road was pre-existing, if so, when it was re-formed or widened. The appellants have not led the evidence of the person from whom they have purchased the property. They have not led the evidence of their neighbours or anybody in the locality. Whether the dimension of the schedule property in actuality is the same as shown in the records are yet to be substantiated. The appellants have also to clearly state why they did not take the khatha, why they did not retain the copies of the title deeds, etc. On these matters, it is also open to the appellants to amend their pleadings and lead the supporting and additional evidence. Thereafter it is for the Trial Court to frame appropriate issues.

7. It is also the Court's anxiety that if any private land is required for public purpose like road formation, the same has to be either compulsorily acquired by resorting to the provisions of the Land Acquisition Act or by holding private negotiations and purchasing the property from the owner. But without resorting to any of these two, occupying the private land is tantamount to violating the precious properly rights of the individuals. Right to property may have ceased to be a fundamental right but it has become a constitutional, legal and human right.

8. I set aside the judgment under appeal and remand the matter to the Trial Court. It is really painful for this Court to remand the matter for the third time. But it can not but be remanded, as the Corporation has not led any evidence and as the evidence placed by the appellants is not of decisive nature,

9. Considering the age of the matter (suit is of the year 1985), I deem it necessary to direct the Trial Court to dispose of the matter within six months time. Both the parties and/or their respective learned advocates shall appear before the Trial Court on 16.04.2009 at 11.00 a.m. without any notice from the Trial Court Further, they are directed to cooperate with the Trial Court in the speedy disposal of the matter.

10. This appeal is allowed in the above terms. Nor order as to costs.