Karnataka High Court
Shankramma W/O Benakappa Master vs Sripad Bhat S/O Chandrabhat Joshi on 8 April, 2008
Author: N.Kumar
Bench: N.Kumar
a COMMIT TI wall. The defendant ought to have constructed oe 2001. The Town Planning Authority, Shahapur issued commencement certificate in favour of defendant with a | condition that she will not keep the windows, doors, PES, paranales and cupboards (Almirah) in the suit common wall. Inspite of decree in O.S.No. 20/2001 and inspite of So specific conditions of the Town Planning Authority, | Shahapur, the defendant with an ulterior motive and on the advise of bad elements has 'ept cupboards and also trying to keep windows in the suit coromon wall. The defendant has constructed the common wall by using single brick towards the last point 'epace of common wall of the plaintit's house. 'The previous euit common wall was about 2% in width Now the defendant is oonetruccing the suit common wall of 1%' and leaving the suit commen wail 1' space towarde defendant's howe. The defendant is exclusively using the common . wall space of about 2. As she is constructing common S wall oy single brick, the defendant has encroached 2%' oe . comaon space illegally without any right. So it is liable 2 oe to be demolish along with cupboards kept in the suit 5 ¢ § 3 G F ¢ 2 ¢ ;
;
( 4 4 py Vier Vee ae ee ee eS ee es owt St peeve pthc whe oe oe tke mh 2 ame eo q oe : ar W.C. of moris and windows and almirah, however, Ve -8- being lege and in violation of the decree passed earlier as well as the decree passed by the trial Court, it ordered for demolition of the said common wall. Aggrieved by the said judgment and decree of the | lower appellate Court, the defendant ia ae second Te appeal.
a. In this appeal, at the royuoet of both the parties, an Executive Engineer wes appointed as the Commissioner te repurt about the dispoted common wall regarding ie width: and eagth, whether moria, parnals acd wintows arid almirah are opened in the said enit common wall, about the height of kumbies slong with ite width and to furnish other particulars as sought tor by both the partion, 'Sci C.S.Patil, the Assistant Exeoutive Engineer,
- the Commissioner has submitted his report. He has 7 : given: the measurement of the wall, the width of the wall oe and also the fact that in the said wall there are no bath ¢C 4 ¢ be 3 b 3 3 ¢ 3 oe ¢ € ;
a 2 ;
¢ ¢ 3 ( Teo. <a ee ey ae ee Ce en eo oe ee eo ray + YY 2a eo eee oe pene ate. 2 thee em, ( f « , there are brick masonry patches of one mumber in wall AB ami two numbers in wall BC of outer wall. of the lower appellate Court contends now hat ne : material on record discloses that the wall in dispute is a ' _ common wall, the defendant has now cast a roofing to her house which reate on the aad common wall, no cupboards or windors are opened in the said- common wall, under those: eirousestances, as it is a common wall, the -- sopeilate Court was not justified ; in "granting « decree for raanxiatory injunction to demolish 'the aaid wall In feet, the eaid wall was constructed after . obtaining permission from. the authorities concerned | after the trial Court decree and therefore, it cannot be 7 Per contra, the leamed counsel for the ss eepondent Sri Veeresh B Patil submits that the trial Court decreed the suit granting an order of injunction, 'ee ee 7 ! ! ;
a | -10- on 10.4.2002, On 6.6.2002 the defendant obtains ¢ 3 f :
a , Permission from the authorities behind the back of toe | plaintiff, which was challenged by the plaintiff. beiore the Commissioner and obtained an order of stay on 29,6. 2002. Subsequently, the said license is quashed and therefore, the said construction of common wall by eS area) a eT ee ee See. ee eS. a? ee the defendant is an illegal construction, constructed during the pendency of the 'Proceedings, contrary to the decree of injunction granted by che trial Court and | therefore, the lower oppellate Court wos fully justified ; int passing deoree for 'mandatory injunction ee a ee ae ee ee eee ee a ee ee
8. From the materio! aforesaid, it is clear that the plaintit arid defendant aire neighbours. The title of the : property owned by the plaintiff and defendant is not in | | diopute, It is also not in dispute that the common wall
- exits | 'petween the plaintiff and defendant house. Mets & the plaintiff nor the defendant's roof rested on
- . this common wall. It was a plain common wall without Se a windows and cupboards. The material on record | diwcloses that the defendant hes demolished this pa TY eet ae ee a ee re Se oe ne a. ene a. et ae) ae Se ae eo ee ee a a i ee ine ( ¢ oo
-~43 -
_ after decree not only in this case even in the earlier suit. Therefore, it = clear that the construction, which = being put up by the defendant, ie illegal, during the . pendemy of the suit and without the coment of the plaintiff. It is clear that the defendant has no respect br the law. The construction is. put-up in violation of Court orders and therefore, the lower appeliste Court was fully justified in directing demolition of the said auit commer! wall. The said finding of the lower appellate Court i based cn Inga! evidence and ieping in mind _ the legal position. "Therefore, it docs not warrant any interference. Ko substantial questions of law do arme for consideration. im 'this: second appeal which merit admiasion. Hence, the appeal is dismissed at the stage of adzaiseioa. a Judge