Khaja Hussain vs Shantawwa

A.V. Chandrashekara, J.—Plaintiffs are before this Court as they are aggrieved by the concurrent findings of O.S. No. 17/2003 and R.A. No. 27/2007. Respondents herein were the defendants in the said suit. Parties will be referred to as plaintiffs and defendants as their rankings given in the trial Court.

Plaintiffs had filed a suit for the relief of mandatory injunction in respect of a road measuring 10 ft. in width leading from Salarjund road towards Kumbar Street in Koppal. According to the plaintiffs, the suit property is a public road, which has a width of 10 feet. It leads from Salarjund road to Kumbar Street and by the side of the same, the houses of the plaintiffs are stated to be situated. According to the plaintiffs, they have been using the suit road from the times immoral as ingress and egress along with other people of the locality. At the southern side of the suit road, there was an open space belonging to a society bearing M.B. No. 551/4. Defendant No. 1 was a poor lady and did not have any shelter and at her request, plaintiffs permitted her to put a temporary shed on the suit road for a period of one year. In the year 2000 and thereafter, they started to use the open space of the society to reach their houses. In view of the society undertaking the construction of building in their space, plaintiffs have been prevented from using this open space as an access to their houses. Therefore, they had asked the first defendant to remove the temporary shed put up by her on the road.

On the basis of a mutation entry, defendant No. 1 flatly refused to remove the shed and thereafter, plaintiffs were forced to file a representative suit seeking the relief of mandatory injunction. Defendant No. 1 chose to file a detailed written statement stating that plaintiffs have no locus-standi to file a suit in the representative capacity and that she has not put up a shed on the road. It is stated that she is residing in that suit property from long time and that she has put up the construction on a space measuring 15 feet X 25 feet sanctioned by the Municipality and she has been granted a sum of Rs. 30,000/- to put up the house under a Government scheme. It is further stated that suit property is not a public road. On the basis of the above pleadings, the following issues came to be framed.

ISSUES

1) Whether the plaintiffs prove that the existence of 10 feet suit road as alleged in the plaint?

2) Whether the plaintiffs prove that they are in enjoyment of the suit road since the time immemorial as an easementary right as pleaded in the plaint?

3) Whether the plaintiffs are entitled to the relief''s of perpetual and mandatory injunction as prayed for?

4) What order or decree?

Plaintiff No. 1 Khaja Hussain and Mohammed Afzal Hussain have been examined as PWs-1 and 2. Shantawwa and Siddaramappa have been examined as DWs-1 and 2. Four exhibits have been got marked on behalf of the plaintiffs and 9 exhibits have been got marked on behalf of the defendants. Commissioner is examined, as CW-1 and 4 exhibits have been got marked on behalf of the Commissioner. Ultimately suit is dismissed after contest, vide judgment, dated 06.09.2007. Appeal filed u/s 96 of C.P.C. in R.A. No. 27/2007 before the Court of Civil Judge (Sr. Dn), Koppal has also been dismissed. These concurrent findings which are called in question on various grounds as set out in the appeal memo.

Regular Appeal has been dismissed with an observation that the dismissal of the suit and confirmation of the same by the appellate Court will not come in the way of Municipality to proceed against the first defendant in accordance with the Karnataka Municipal Corporation Act and the Rules framed thereunder, it is found that the construction so made by the first defendant is unauthorised one.

Both the Courts have concurrently held that the suit space in question is not an open space. The first appellate Court has come to the conclusion that if the first defendant has put up a construction contrary to the provisions of Karnataka Municipal Corporation Act, Municipality can take suitable action in accordance with law. The assertion of the first defendant is that she has put up a shed in a space measuring 25 X 15 feet granted by the Municipality and that Government has sanctioned financial assistance to put up a shed. Admittedly, the first defendant is a lady belonging to weaker section of the society and has been residing there from long time. As rightly pointed out by the trial Court, it is understandable as to how the plaintiffs could permit the first defendant to put up a shed on a space, which is claimed to be a public road. If it is a public road, necessarily Municipality is the competent authority to take action in accordance with law. In this view of the matter, there are no good grounds to interfere with the well considered judgment of the trial Court as well as the first appellate Court more particularly, when an observation is made by the first appellate Court that the Municipality can take action against the first defendant, if the construction is not in accordance with the provisions of the Karnataka Municipalities Act and Rules framed thereunder. There are no good grounds to interfere with the well considered concurrent findings of facts in a suit for mandatory injunction. Accordingly, appeal is liable to be dismissed.

ORDER

Appeal is dismissed as unfit for admission. Notwithstanding the dismissal of the appeal, the Municipality is at liberty to take action in accordance with law, if the construction stated to have been made by the first defendant is not in accordance with the provisions of Karnataka Municipalities Act and the Rules framed thereunder.