Karnataka High Court
Basanagouda S/O Hanamantagouda Patil vs Vijayakumar S/O Halappa Patil on 24 October, 2024
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NC: 2024:KHC-D:15444
RSA No. 5616 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5616 OF 2011 (PAR)
BETWEEN:
1. BASANAGOUDA
S/O. HANAMANTAGOUDA PATIL,
SINCE DECEASED BY HIS LRS.
1A. KAMALAKSHAMMA,
W/O. BASANAGOUDA PATIL,
AGE: 79 YEARS, OCC. HOUSEHOLD WORK,
R/O. MUNDAWAD VILLAGE, TQ. MUNDARAGI,
DIST. GADDAG.
1B. ANANDGOUDA,
S/O. BASANAGOUDA PATIL,
AGE: 52 YEARS, OCC. AGRICULTURE,
Digitally
R/O. MUNDAWAD VILLAGE, TQ. MUNDARAGI,
signed by
VISHAL
VISHAL
NINGAPPA
NINGAPPA PATTIHAL
DIST. GADDAG.
PATTIHAL Date:
2024.11.13
11:32:40
+0530
1C. PRABHUGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 51 YEARS, OCC. AGRICULTURE,
R/O. MUNDAWAD VILLAGE, TQ. MUNDARAGI,
DIST. GADDAG.
1D. VIRUPAKSHAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 50 YEARS, OCC. AGRICULTURE,
R/O. MUNDAWAD VILLAGE, TQ. MUNDARAGI,
DIST. GADDAG.
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NC: 2024:KHC-D:15444
RSA No. 5616 of 2011
...APPELLANTS
(BY SRI. S.S.PATIL AND
SRI. MAHANTESH R PATIL, ADVOCATES)
AND:
VIJAYAKUMAR,
S/O. HALAPPA PATIL,
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. MUDARGI, DIST. GADAG-582101.
...RESPONDENT
(SOLE RESPONDENT SRI. VIJAYAKUMAR IS SERVED)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO CALL
FOR RECORDS, PERUSE THE SAME AND SET ASIDE THE
JUDGMENT AND DECREE PASSED IN O.S.NO.128/2002 OF
CIVIL JUDGE (JR.DN.,) AND JMFC, MUNDARGI DATED
19.03.2010 AND JUDGMENT AND DECREE DATED 24.06.2011
PASSED IN R.A.NO.31/2010 PASSED BY PRL. SENIOR CIVIL
JUDGE AND CJM, GADAG, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:15444
RSA No. 5616 of 2011
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by the Courts below, the plaintiff is before this Court in the regular second appeal.
2. Parties herein are referred to as per the rank before the trial Court for the sake of convenience.
3. Suit for relief of declaration and injunction to declare that the construction of the defendant towards the set back left by the plaintiff to the West side of the property, encroaching the set back left by the plaintiff, touching the compound wall of the plaintiff is illegal and contrary to the law and further direction to the defendant to remove the construction over the set back left by the plaintiff and to restrain the defendant from permanent injunction from proceeding with the construction towards the West of the property over the set back left by the plaintiff touching the compound wall of the plaintiff in any manner.
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NC: 2024:KHC-D:15444 RSA No. 5616 of 2011
4. The plaintiff has produced the hand sketch map along with the plaint, which is extracted as under:
Southern house F G The property of the defendant Bearing T.M.L.No. 1859/1648/B Measuring 8933sqft.
E H S
ROAD
o
N
Bhangi road -5ft- u
o
t
r
h
t B C
h
The property of the plaintiff
Bearing T.M.L. No.
1861/1650 sqft.
A D
West
Annadaneshwar Nagar
Illegal construction by
defendant encroaching the
Bhangi road touching the
compound wall of the
plaintiff.
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NC: 2024:KHC-D:15444
RSA No. 5616 of 2011
5. Initially the suit was filed stating that there is 5 feet bhangi road, later by amended 'bhangi road' was incorporated as 'set back'. The case of the plaintiff is that the plaintiff is the owner in possession of suit 'A' property TMC No.1861/1650 and the defendant is the owner of TMC No.1859/1648/B, the suit 1(A) described as A B C D measuring 7078.5 sq.feet and 1(B) described as E F G H is measuring 8933 sq.feet, further that B E H C is the set back of width of 5 feet towards Eastern side of the house, then the plaintiff has constructed the compound wall that defendant by violating the terms and conditions, and contrary to the provisions of Building bye-laws, the defendant has constructed his house by encroaching upon the set back and over the compound wall of the plaintiff.
6. On notice, defendant appeared and filed his written statement inter alia denying the plaint averments as well as the hand sketch map annexed to the plaint, the defendant contended that the bhangi road or the alleged set back shown by letters B E H C is not at all in existence -6- NC: 2024:KHC-D:15444 RSA No. 5616 of 2011 and no encroachment is made as alleged by the plaintiff.
The ownership and possession of the plaintiff and defendant as shown by a separate hand sketch map.
7. The trial Court on basis of the pleading, framed the following issues:
1. "Whether the Plaintiff proves he is the absolute owner of the suit property?
2. Whether the plaintiff proves that the existence of set back between the east of the suit property of the plaintiff and towards the West of the property of the defendant?
3. Whether the Plaintiff further proves that he is in lawful possession over the suit property as on the date of the suit?
4. Whether the Plaintiff proves that the alleged interference caused by the defendant?
5. Whether the suit is barred for non-joinder of necessary parties?
6. Whether there is no cause of action?
7. Whether the plaintiff is entitled for relief of declaration and injunction?
8. What order or decree?"-7-
NC: 2024:KHC-D:15444 RSA No. 5616 of 2011
8. In order to substantiate his claim plaintiff examined himself as PW1, four witnesses as PW2 to PW5 and got marked documents at Ex.P1 to Ex.P13. On the other hand the defendant examined himself as DW1, two witnesses as DW2 and DW3 and got marked documents at Ex.D1 to Ex.D10.
9. The trial Court on basis of pleading, oral and documentary evidence arrived at a conclusion that:
i. The plaintiff has failed to prove that he is the absolute owner of the suit property.
ii. That the plaintiff has failed to prove the existence of set back between the East of the suit property of the plaintiff and towards the West of the property of the defendant.
iii. That the plaintiff has failed to prove that he is in lawful possession over the suit property as on the date of the suit.
10. By the judgment and decree, the trial Court dismissed the suit of the plaintiff. Aggrieved, the plaintiff -8- NC: 2024:KHC-D:15444 RSA No. 5616 of 2011 preferred appeal before the First Appellate Court, the First Appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence concurred with the judgment and decree of the trial Court. Aggrieved, the plaintiff is before this Court in the regular second appeal.
11. Heard learned counsel for the appellant. Though the respondent is served he has chosen to remain absent.
12. The case made out by the plaintiff is that the defendant has encroached on 5 feet set back and also encroached over the compound wall constructed by the plaintiff without leaving necessary set back. This Court in the case of S. Sundar Raj Vs. Vijayendra Kumar and others1 (S. Sundar Raj) has held at paragraph No.7 as under:
"7. This Court ruled that a temporary injunction cannot be granted in the absence of a creation of right in the neighbouring owner to institute a suit for injunction for violation of clear space of four feet between the two adjoining premises in terms of municipal licence. The said judgment was 1 (2001) a Kant LJ 468.-9-
NC: 2024:KHC-D:15444 RSA No. 5616 of 2011 subsequently followed in Dr. K. Panduranga Nayak v. Smt. Jayashree. The Single Judge after noticing the earlier judgment of this Court in Mathew Phillip's case, supra, ruled in paras 6 and 9 reading as under:
"As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is the same as his own, but these rights of enjoyment are naturally qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to so much light and air as come to him and he cannot complain of the obstruction however serious, in unless he can establish his title to an easement of light and air. When there is an infringement of the bye- law, the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under Section 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner under Section 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if
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NC: 2024:KHC-D:15444 RSA No. 5616 of 2011 the Commissioner does not decide to compound then he may take action as he deems fit and proper.
The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision approaching the Commissioner complaining of such a deviation"
13. This Court held that, not leaving set back violation of bye-laws, but that does not give the neighbours to file a suit unless for the plaintiff makes out a case of infringement of his rights. Pleadings are totally silent about this aspect
14. In the absence of the same, the Courts below were justified in holding that the plaintiff has not discharged the burden of proving that the defendant has infringed any right of the plaintiff by putting up construction. Not leaving necessary set back area for a building is violation of Building Rules and Regulation, and
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NC: 2024:KHC-D:15444 RSA No. 5616 of 2011 it is for the authorities to take appropriated action. The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and there is no substantial question of law arises for consideration and accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgments and decrees of the Courts below stand confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA) AT,VNP LIST NO.: 2 SL NO.: 1