Karnataka High Court
Dr.(Prof) Radheshyam Mishra vs Sanjeevani W/O Ramachandra Gaidole on 5 June, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
R.S.A. NO.100805/2014
BETWEEN
DR.(PROF) RADHESHYAM MISHRA
AGE 67 YEARS, OCC: RETIRED,
R/O. CCB.NO.415, CROSS 2,
DR.SHAMA PRASAD MUKHARJEE ROAD,
BELGAUM-590005 ... APPELLANT
(BY SRI. SANTOSH NARGUND, ADV.)
AND
1. SANJEEVANI W/O RAMACHANDRA GAIDOLE
AGE: 62 YEARS, OCC: HOUSEWIFE,
R/O.CTS.NO.4612, CROSS NO.1,
DR.S.P.M.ROAD, BELGAUM-590005
2. THE COMMISSIONER
CORPORATION OF THE CITY OF
BELGAUM, BELGAUM-590001
3. HARISHANKAR MISHRA
AGE 60 YEARS, OCC: SERVICE,
R/O. CCB.NO.415, CROSS 2,
DR.SHAMA PRASAD MUKHARJI ROAD,
BELGAUM-590005 ... RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
06.09.2014 PASSED IN R.A. NO.181/2013 ON THE FILE OF
THE III ADDL. SENIOR CIVIL JUDGE, BELGAUM
DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DATED 03.09.2013 AND THE
DECREE PASSED IN O.S. NO.586/2004 ON THE FILE OF
THE III ADDL. CIVIL JUDGE AND JMFC, BELGAUM,
DECREEING THE SUIT FILED FOR MANDATORY AND
PERPERTUAL INJUNCTION.
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THIS RSA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is directed against the judgment and decree dated 06.09.2014 in R.A. No.181/2013 on the file of the III Additional Senior Civil Judge, Belagavi dismissing the appeal with costs and confirming the judgment and decree for mandatory injunction dated 03.09.2013 in O.S. No.586/2004 on the file of III Additional Civil Judge and JMFC, Belagavi.
2. For the sake of convenience, parties shall be referred to as per their status before the Trial Court.
3. Heard Shri Santosh D. Naragund, learned counsel for the appellant.
4. Briefly stated the facts of the case are, plaintiff filed the instant suit praying for mandatory and perpetual injunction and to direct the defendants to remove encroachment made on the suit schedule 'B' property and to restrain defendants from putting up further construction over the suit schedule 'B' property :3: by way of permanent injunction. Plaint averments revel that subject matter of the suit is the construction made on waste water drain (nala) belonging to the Municipal Corporation which runs for about 10 to 12 K.ms from east to west in Belgaum City and divides the Belagavi City in to two parts i.e., northern and southern parts. Defendants No.1 and 2 have put up some illegal construction on the said nala measuring about 20 feet (east-west) x 20 feet (north-south). Plaintiff's case is, the illegal construction put up by the defendants No.1 and 2 obstructs flow of water in the city and adversely affects his property which is adjacent to the illegal construction put up by the defendants. Accordingly, plaintiff has prayed for mandatory injunction and to direct the defendants to remove the illegal construction.
5. Suit was resisted by filing written statement on behalf of defendant No.2 contending inter alia:
• that the drain belongs to the Corporation of the city of Belgavi;:4:
• that the description of the suit property is not correct and plaintiff has no right, title or interest over the 'B' schedule property;
6. Based on the pleadings, Trial Court framed as many as six issues and answered issues No.1 to 3 and 5 in the affirmative and issues No.4 in the negative. On behalf of the plaintiff, one witness was examined as P.W.1 and 8 exhibits marked as Exs.P.1 to P.8. On behalf of defendants, two witnesses were examined as D.W.1 and D.W.2 and Exs.D.1 to D.17 marked.
7. The Trial Court, on consideration of the material on record dismissed the suit with costs. Feeling aggrieved, the plaintiff challenged the judgment and decree of the Trial Court before the Lower Appellate Court. The Lower Appellate Court framed following points for its consideration.
"1. Whether the Trial Court has erred in coming to the conclusion that defendant No.2 has made illegal construction about 20 x 20 feet in 'B' schedule property?:5:
2. Whether the Trial Court has erred in decreeing the suit of the plaintiff as prayed and judgment and decree of the Trial Court is illegal, perverse, capricious and resulted in miscarriage of justice required to be interfered with?
What order?"
8. The lower Appellate Court on re-appreciation of the evidence on record including the Court Commissioner's report, recorded a finding that the 2nd defendant had put up construction covering the drain. It has further recorded that the 2nd defendant has not produced any permission or the licence issued by the City Municipal Council in respect of the alleged construction. The lower Appellate Court has categorically recorded that permanent structure has been put up by the 2nd defendant.
9. Thus answering points No.1 and 2 in the negative, the lower Appellate Court dismissed the regular appeal with costs of Rs.25,000/- payable by the :6: 2nd defendant to the plaintiff and Rs.10,000/- payable by the 3rd defendant to the plaintiff.
10. Shri Santosh Naragund, learned counsel for the appellant argued that plaintiff's suit is not maintainable. Both the Courts below concurrently recorded that the 2nd defendant has put up illegal construction measuring about 20 x 20 feet on the nala. The wastewater drain is an important amenity for a city to ensure that the water does not get clogged in the city. Illegal constructions on the wastewater drains impede free flow of water and shall have adverse effect on public health.
In view of the categorical findings recorded by both the Courts below, the solitary ground urged by the learned advocate for the appellant that the plaintiff does not have cause of action is too fragile to be countenanced.
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Resultantly, this appeal fails and is accordingly dismissed.
No costs.
Sd/-
JUDGE Vb/Rsh