Karnataka High Court
Swarna Prabhudas vs Nagaraj Shekharappa on 19 August, 2011
IN THE HIGH COURT OF KARNATAKA CIRC ULT BENCH AT DHARWAD DATED THIS THE 197! DAY OF AUGUST 2 20h, THE HON'BLE MR. J USTIFE ARALI-NAGARAJ | R.S.A. NOQ.897/2007 BETWEEN: Swarna Prabhuc das S/o Swarna Gabrial. Age: 49 vears me Oce: Goveriiment' Servi ice : Residing at Chet: ana Colony, Benger: Extension. oe Hubli "eo Ce wo : | .. Appellant (By Si, G.RuAnd hanimarh, Advocate) AND Nagara| Shek Khatapp oa Madiru, "y Age: 28 vears, _ Oee:Private Service, Residing at No.5. "An and. Nivas", . ~ Uday nagar, Benger, Hubii-23 ..Respondent
(By "ri.Vinay S. Koujalagi for Sri. V.M.Sheelavant . Adv ocate} | . This R.S.A. is filed u/s 100 of CPC against the Judgment and Decree dated 16/01/2007 passed in RA No.83/2005 on the file of the If Addl. Civil Judge ee ead (Sr.Dn.) Hubli, allowing the appeal and setting aside the judgment and decree dated 06.04.2005 passed in O.S.No0.254/2003 on the file of the I Addl. Civil dudge (Jr.Dn.) Hubli. rege This appeal coming on for admresrot. this.. dav, court delivered the following: wa a This) Regular Second Appeal is <bv the defendant in O.5.N6,254/26903 6n the file of the oD learned | Addl. Ci 7" . J ud ge Bane Dn.), Hubli (hereinafter ~velerred | 4 o- a s pial Court' for short). Th e ap pellant has : ch allenged in this app eal | the. Ju gin ept a nd Decree dated 16/01/2007 passedsin R.A. No.83/2005 on the file -of the learned I] Addl. Civil Judge (Sr.Dn.) Hubli (hereinafter referred to as 'First Appellate "Court for short).
2.- The Trial Court, by its Judgment and "Decree has dismissed the suit of the plaintiff.
" Agerieved by the same, the plaintiff preferred the said Regular Appeal. The First Appellate ewe Oe 'cad Court, by its impugned Judgment and Decree, allowed the said Appeal and decreed the. suit of the plaintiff partly. Therefore, the defendant. ivas. filed the present Regular Second Appear. a
3. For the purpose of convenience 'the, parties are referred to -as. they are 'rererred to before the Trial Court-in the said original suit. The said suit was filed dgainsft the appellant- defendant, 'seeking: -a "decree- of permanent injunction "restraining. the defendant from making construction in his plot bearing No.76 of BO RTT R.S.No,7B situateg. at Bengeri, Hubli, without leaving set. back towards the plaintiff's property which "issan open site. The plaintiff has also * sought for che decree of mandatory injunction directing" the defendant to remove a_ pillar : constructed at point C-1 and also to remove the construction made by him along the eastern line adjacent to the plaintiffs open site and maintain So ere ~ oes AENIAD "The appeal is allowed. Suit is partly decreed and defendant is. directed to . remove the construction ON. the a castern side of his property wherever he has not left stipulated 2 "ineter. setback. He is dire ete cle 0%. Pe m aves, . extended portion OF the. wall on. 'the :
eastern side wherever setback on the eastern side vis less: than, 1.2 "meters and directed. - LO. 3 keep - set back throughout on. the eastern" side from north . ta, south cate j De, meters. On failure -of-the "defendant to do so, the plaintiff is. entitled' to get a commissioner &ppointed for getting extended ¢ onstruction removed."
6. The deferadant (appellant herein} has challenged. the legality and correctness of the "mpugnéd Su dgment and Decree of the First Appellate-Court by stating in the memorandum ~ 6f appeal, the following six substantial questions of law:
Whether the Trial Court was Justified under the fact and. circumstances of the Justified in reversing the. well oS revision finding in.Frial Court? The praver of th ere spo ndent AS _ disclosed in th &.plai nt was f or an" injunction not % QO con struct a ny building Ai th ou t ; lea vin g set back area towards "the SUIT Property (eastern sidé cf Plot N».76 of RS No.7). whether the. Trial Court Wass justified ~in+ directing to demolish constructions put up by the appellant which is contrary to . Zoning regulations 1.€., wherever iii}.
1.2 miéters is not left out?
The suit was for permanent " inpurction, Whether Trial Court _ tras Justified in granting injunction?
in the absence of pleading, evidence and documents regarding the extent of the set i ne back, whether the Trial Court h as ustified in directing to demolish such the portion which comes:
Within 1.2 meters?
Vj Whether the Trial (Cou rl cas Justified in directing: Co demolish - any part of "the be hiding whieh 7 contrary to seth: ack rule . (1.2 Meters) eho. bt Specific ed whether and w hat extent such: demolitions shou Id take pk acer.
Vi) Whether Tri iat Court, WAS Justified HM pPaAssi ns 2 fe, vague judgement léavi ng. ath e . matter to be adj adi cated Dv exec uting the COU rte "7 This matter was listed on 05.08.2901] "for adniiss jen' During the course of arguments, when the Court expressed that the above said : Subst tantial questions of law do not arise in the 2 present appeal, the learned counsel for the ppellant sought for time on the ground that he
--_---- oe would reformulate law. Th erefore, the matter came to be adjoay to this dav. Today, the learned appellant substantial questions of law, which' number, s has filed a memo reformulating.th e read as under:
What is' the effect-.ef "completion certificate iss:ied unGer "Section SI@ of! Karnataka' "Municipal ao Corporation Act con. the alleged illegal constrizctio ne? Cana. decree be passed for ~ demolitre ne cof part of the construction without specifying the "-.nrecise description by measurement of the illegal "Construction?
Whether there is compliance of "
the provisions of Order 7 Rule 3 CPC in so for as the description of property to be demolished? ee i the substantial questions of ned counsel for the | are. fouruin.
4. Whether the First Appellate Court Was justified in ignoring the ~ admission of PW1°?
8. As to the first substantial. question of. law is concerned, it is t he. conten tion ot. th ¢ learned counsel for the-appellani-defendant that. when once completion certificate is issued under Section 310. of ih a Karnata ka Municipal Corporation Act, A 976, : is sh ail have to be presu med, th e construc tion' in questio m came to be completed in accord ance with the relevant provisions - % Paws "an d> there fore, the First Appellate. Court . is not justified in granting decrees of mandatory injunction directing the appellan t defen dant to remove the construction.
9... Whether the construction made by the ~ defendant was not in compliance with the Rules and: byve-laws of the Municipal Corporation .. would be a question of fact, and hence the same
--O™ iat cannot be a question of law much less substantial question of law. Therefore, A em. of the opinion that this first substantia} questién -
10. The second su b sta ri tial qu C Stio nv ; Fl aw:
is "Can a decree be passed for deme litio n of part of the construction . with out ; spe c ifying the precise description by measu re m ent "of - the illegal construction This, | uestion, itself iS vague. A careful ofr eading ol t he 6 pera tive portion of the Jud gm ent of t he ri rst A pp ella te Court, (which is extracted ab ove.) ite ould be seen that. it is Stated therein' fo . specific terms that the : defen da nt "sh all kee p the set back to a width of
- 12 Jmeéters® from North to South throughout Eastern side of his property and wherever the ~, construction is made encroaching upon the said aréa of 1.2 meters in width, such construction is "to be removed. Therefore, it cannot be said that a ad the exact area of the constru ection, which is directed to be removed by the defendant. is wot specified in the impugned Ju dgment atid Decree. 'l. Third substantial g est io no of law is "Whether there is co mplra nee of the pre visions of"
Order 7 Rule 3 CPC in so for as the deseriprion of property to be denoti ishe l is: cone erne d." "Order 7 Rule 3 of € PC provides that aphete the subject matter of A hen it is "inimovedble property, the plaint shall: ia on Se i n "descrip: ion of the property sufficient to identify it ari d, In case suit proy Pe PLY can he: ide n tific i by. bo undaries or numbers in a record of Settle en , or survey, the plaint shall : specify such bou ind aries or numbers". The facts ofthe: case" disclose that the hand sketch was antiexed +6 the plaint. On careful perusal of the "hand sketch it could be seen that, open site of the plaintiff is shown as the area covered under "the letters A.B.C.D. and site of the defendant is id shown as area covered under the letters C.D.E.F. It could be seen further that when CD 1s the common boundary line of the -site' of. tree - plaintiff and defendant, it could: alse be seen that, at point 'K' a larger area-is 'teft Tromsthe common boundary line "and vat point *L? "very"
short space is left, Therefore, it is clear-that set back sought for is fron: point K ta point L. The First Appellate, Court has specified in its decree that the defendant.shall maintain the setback of 1.2 meterswide-starting from point 'K' up to the point "L*, by remeving.the such portion of the construction as made within that setback of 1.2 ~. meters wide. Therefore, | am of the considered © epinion that. this third substantial question of Bp law also dees not arise in the present appeal.
12. The last and fourth substantial 'question of law as reformulated by the appellant reads as "whether the First Appellate Court was ne iad "eb Justified in ignoring the admission of PWI", This question, besides being vague, cannot be termed as a question of law much less, Su bsta nial | question of law. oo
13. For the reasons aloresaid, $.am of the"
considered opinion that all the four substantial questions of law as. reformulated today by the counsel for the app ellant-deféndant do n ot arise In the present-Reetlar Second Appeal. Th erefore, INNS ; I this appeal is-liable to be dismissed at the stage of admission. Hence, the following:
"ORDER Present Regular Second Appeal is ". dismissed as no substantial question law arises.
. €. In view of dismissal of this Second Appeal, the J udgment and Decree H & + passed by the First Appellate Court Rms I4 remains undistrubed. However, as a requested by the learned couiys oh For the appellant-defendant three months ~ time is granted ata the appeilant. defendant to satisfy thé décree passed. by the First Appéllate Court: ; No order as to-costs,. | mn Baye
-. «JUDGE