Karnataka High Court
Parutappa S/O Irabasappa Herakal vs Amogha S/O Ashoksing Hajeri on 5 June, 2024
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NC: 2024:KHC-K:3624
RSA No. 200187 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO. 200187 OF 2019
(PER/INJ)
BETWEEN:
PARUTAPPA S/O IRABASAPPA HERAKAL
AGE: 74 YEARS, OCC: RETIRED,
R/O. SHRUSTI COLONY, OPP. COURT COMPLEX,
BAGALKOT ROAD, VIJAYAPUR-586101.
...APPELLANT
(BY SRI J. AUGUSTIN, ADVOCATE)
AND:
AMOGHA S/O ASHOKSING HAJERI
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. C/O. ASHOK SINGH,
Digitally signed S/O NARASINGH HAJERI
by SWETA (DEVI) CHALUKYA NAGAR,
KULKARNI
NEAR ULLAGADDI DOCTORS HOUSE,
Location: High
Court of SOLAPUR ROAD, VIJAYAPUR-586101.
Karnataka
...RESPONDENT
(BY SRI SUDHIRSING R. VIJAPUR, ADVOCATE)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO CALL
FOR THE RECORDS, SET ASIDE THE JUDGMENT AND DECREE
DATED: 13.02.2019 PASSED IN R.A. NO.85/2015 BY THE
LEARNED FIRST ADDITIONAL SENIOR CIVIL JUDGE AT
VIJAYAPURA AND CONSEQUENTLY CONFIRM THE JUDGMENT
AND DECREE DATED: 17.10.2015 PASSED IN O.S.
NO.611/2009 BY THE LEARNED PRL. CIVIL JUDGE AT
VIJAYAPURA.
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NC: 2024:KHC-K:3624
RSA No. 200187 of 2019
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is by the plaintiff assailing the judgment and decree dated 13.02.2019 in R.A.No.85/2015 on the file of the I-Additional Senior Civil Judge and Additional CJM, Vijayapur [hereinafter referred to as 'the first appellate Court' for short], whereby, the suit of the plaintiff was dismissed reversing the judgment and decree dated 17.10.2015 passed in O.S.No.611/2009 on the file of the Principal Judge at Vijayapur [hereinafter referred to as 'the Trial Court' for short].
2. The parties are referred to as per the ranking before the Trial Court for the sake of convenience.
3. Suit for permanent injunction restraining the defendant from taking any sort of construction of latrine and bathroom in the 3 feet area from the 'AB' compound wall towards the south as per the plaint sketch at "L" and "B" in the property bearing Sy.No.412, 413 A/25 -3- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 measuring 0.01 gunte, 09 ane 69 paise, mandatory injunction directing the defendant to remove the latrine and bathroom which are not fully constructed at "L" & "B" touching to the "AB" compound wall towards the southern side and for directing the defendant to remove the staircase portion constructed in the 3 feet area from the compound "AB" wall towards the southern side of the compound wall constructed in the property bearing Sy.No.412, 413 A/25 of defendant.
4. The plaint avers that the plaintiff who is the owner of the property bearing Sy.No.412, 413 A/24, has constructed the building thereon and has left 3 feet space towards the direction of the building in his property as per the rules and regulations and towards the south of the plaintiff's property the property of the defendant bearing Sy.No.412, 413A/25 measuring 0.1 guntas is situated. It is stated that the defendant started construction of his house in property and towards the south of the "AB" compound wall by leaving 3 feet space from the said -4- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 compound wall. It is stated that the plaintiff has no objections to the construction of defendant's construction if his construction is by leaving the 3 feet area from the "AB" compound wall towards south of the said compound. But the defendant, all of a sudden, has laid a foundation in the 3 feet space left by him towards the south of "AB" compound wall i.e., north of his wall and he has constructed a latrine and a bathroom in the said 3 feet area. It is stated that the defendant has high handedly put up construction in the 3 feet area towards the south of the "AB" compound wall and as such, the present suit.
5. Pursuant to the suit summons issued by the Trial Court, the defendant appeared and filed his written statement inter alia denying the claim of the plaintiff and contending that almost all the work has been completed and the suit of the plaintiff is not maintainable. By way of a counter claim, the defendant prayed to decree in favour of the defendant by allowing his counter claim and passing mandatory injunction against the plaintiff who demolished -5- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 the 3 feet space constructed towards the northern side of the "AB" wall.
6. The Trial Court, based on the pleadings of the parties, framed the following issues, which read as under:
"ISSUES
1. Whether Plaintiff and Defendant prove that their constructions are in accordance with the Rules?
2. Whether plaintiff proves that the construction of defendant has affected his right to enjoy the property peacefully as being alleged?
3. Whether the parties are entitled to the relief?
4. What order or decree?
ADDL. ISSUES
1. Whether plaintiff proves that Defendant had illegally and highhandedly constructed the latrine and bathroom at point L and B as shown in the plaint sketch?
2. Whether plaintiff is entitled for mandatory injunction directing the Defendant to remove the latrine and bathroom at point L and B as shown in the plaint sketch?"
7. The Trial Court, by the judgment and decree, decreed the suit of the plaintiff restraining the defendant from proceeding with the construction of latrine and -6- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 bathroom in the property bearing Sy.No.412, 413 A/25 in 3 feet area towards the southern side of "AB" compound wall as shown in the sketch and directed by way of mandatory injunction to remove the latrine and bathroom constructed in the property and by way of mandatory injunction to remove the staircase portion constructed in the property in the 3 feet area.
8. Aggrieved, the defendant preferred an appeal before the first appellate Court. The first appellate Court, while re-appreciating the entire oral and documentary evidence, reversed the judgment and decree of the Trial Court, set aside the order passed by the Trial Court and dismissed the suit. Aggrieved, the plaintiff is before this Court.
9. Heard Sri J. Augustin, the learned counsel for the appellant and Sri Sudhirsingh R. Vijapur, the learned counsel appearing for the respondent.
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019
10. Learned counsel for the appellant would contend that the defendant has put up construction over the 3 feet set back area from the compound wall of the plaintiff and it has been established by the plaintiff by leading evidence and as per Ex.P-6 and P-12 which are the photographs. The Trial Court Rightly held that the defendant has put up staircase, bathroom and latrine in the 3 feet area which the defendant has to leave as a set back as per the rules and regulations of the Municipal Corporation and the construction made by the defendant is clearly in violation of the zonal regulation and not leaving of the mandatory set back. Learned counsel for the appellant submits that there arises substantial question of law to be considered by this Court and warrants interference.
11. Per contra, learned counsel appearing for the respondent justifies the judgment and decree of the first appellate Court and would contend that the first appellate Court has rightly re-assessed the entire oral and -8- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 documentary evidence being the last fact finding Court and has rightly arrived at a conclusion that the defendant has constructed the staircase in his plot abutting to the "AB" compound wall and the report of the Court Commissioner clearly indicate the actual situation and that there arises no substantial question of law for consideration in the present appeal and sought for dismissal of the appeal.
12. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the judgment and decree of the courts below.
13. The suit of the plaintiff is on the ground that there is violation of set back area in terms of the violation of essential regulations and not leaving the mandatory set back as per the building bye-laws. According to the plaintiff, the construction is in violation of the sanctioned plan and though the Corporation was intimated about the violation made by the defendant, no action has been taken by the concerned authority. The plaintiff has sought for -9- NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 permanent injunction, the permanent injunction in favour of the plaintiff cannot be granted until he establishes his right in respect of the neighbouring owner and for him to institute a suit for injunction. The neighboring owner who contends that there is violation/deviation from the essential regulations or the building bye-laws, has to establish the result of injury or the right that could be to the neighbouring owner.
14. The learned counsel for the appellant has relied upon the decision of the Delhi High Court in Onkar Nath vs. Ram Nath Gupta and Others1 to contend that the neighbour has a right to get injunction restraining the party proceeding with the construction from further raising his un-authozied construction. The plaintiff, in order to establish about injury or right has to prove a prima facie injury or violation of right in his favour and this aspect has been considered by the first appellate Court. The decision placed reliance by the learned counsel for the appellant is 1 AIR 1985 DELHI 293
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 distinguishable and not applicable to the present facts as plaintiff has failed to show the prima facie injury that could be caused to the plaintiff.
15. The Court Commissioner submitted his report as per Ex.C-1 along with Ex.C-2 - sketch. The Court Commissioner was examined as CW-1 who categorically stated about visiting the house of the plaintiff and defendant along with pancha and having conducted the survey of plaintiff's plot as well as the defendant's plot. The actual situation of the plaintiff's property and the defendant's has been enumerated in the report of the Court Commissioner. Ex.C-1 reveals the situation of the latrine and the bathroom. The construction of the latrine and bathroom, though according to the report it is on the space of the set back area, the question for consideration before the Court was whether the construction of the latrine and bathroom in the plot of the defendant would effect the light and air of the plaintiff's house. The Co- ordinate bench of this Court in S. Sundar Raj vs.
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 Vijayendra Kumar and Others2 has held at paras-8 and 9 as under:
8. 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 preises in terms of municipal licence. The said judgment was subsequently followed in Dr. K. Panduranga Nayak v Smt. Jayashree and Others. 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 2 2001 (1) Kar.L.J. 468
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 however serious, 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 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 for approaching the Commissioner complaining of such a deviation".
9. In the light of these 2 rulings it is clear to me that no injunction can be granted at the instance of a neighrouring owner unless the violation/deviation of license results in injury or a right as held by this Court in these two judgments. Admittedly in the case on hand the plaintiff/owner has failed to prove prima facie an injury or violation of a right in his favour and this aspect has not been considered by the Appellate Court. Therefore in my view the Trial Judge committed a serious error. I make it clear that not in
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 all circumstances a neighbouring owner cannot approach the Civil Court for injunction. A neighbouring owner can seek an injunction against his neighbour for violation of a building plan or a licence or loss subject to the condition that such violation resulted in violation of his right or causing an injury to him on account of such deviation / violation.
16. Even assuming that there is violation of licence in not leaving the set back by the defendant, how the said factor clothes the plaintiff with right to seek mandatory injunction to demolish the building constructed by defendant No.1 on his own property. In case of S. Sundar Raj stated supra, this Court held that mere infringement of byelaw would not clothe the plaintiff with a right to maintain a suit because the Corporation/Municipal authorities would be competent to initiate action regarding such grievances and therefore relief of temporary injunction could not be granted. It is also observed that if the construction has affected the rights of plaintiff
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 regarding the light and air, then injunction could be granted.
17. The plaintiff contended that the building constructed is in violation of building byelaws, the plaintiff has not shown that violation by defendant has caused any injury to plaintiff or violated any right and in the absence of any injury, plaintiff is not entitled for relief of any injunction. The Karnataka Municipal Corporation provides a remedy for any contravention of its provisions or byelaws made thereunder and under Section 321 of Karnataka Municipal Corporations Act, 1976 gives power to the Commissioner to take action.
18. The decision in S. Sundar's case is aptly applicable to the present facts of the case as stated supra. The relief as prayed for would be entitled only in the event of violation/ deviation of license resulting in injury or violation of right in favour of the neighboring owner. the Trial Court, in the considered view of this Court, has committed an error in granting injunction. The first
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NC: 2024:KHC-K:3624 RSA No. 200187 of 2019 appellate Court has rightly re-appreciated the entire oral and documentary evidence and there being no possibility of the plaintiff getting any discomfort from the construction put up by the defendant in the 3 feet set back open space towards the southern side of the "AB" wall i.e., in the property of the defendant, the first appellate Court has rightly dismissed the suit of the plaintiff and the same does not warrant any interference. No substantial question of law arises for consideration in the present appeal.
Accordingly, this Court pass the following:
ORDER i. The Regular Second Appeal is hereby dismissed.
ii. The judgment and decree of the first appellate Court stands confirmed.
Sd/-
JUDGE SWK List No.: 1 Sl No.: 36 CT: VD