Karnataka High Court
Hakkem S/O Malik Shaikh vs Shri. Parashuram S/O Chennappa Murkute on 13 October, 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13th DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C. M. POONACHA
REGULAR SECOND APPEAL NO. 5653 OF 2011 (PAR)
BETWEEN
HAKKEM S/O MALIK SHAIKH
AGE: 31 YEARS, OCC: BUSINESS,
R/O: CTS NO. 2258, KACHERI GALLI,
BELAGAVI-590001.
... APPELLANT
(BY SRI. SHIVARAJ S. BALLOLI, ADV.)
AND
1. SHRI. PARASHURAM S/O CHENNAPPA MURKUTE,
SINCE DECEASED BY HIS LR'S
1a) PRABHAKAR S/O. PARASHURAM MURKUTE
AGED: MAJOR, OCC: NIL
R/O. H.NO. 2257, OPP KANNADA MARATHI
PRIMARY SCHOOL, KONDUSKOP,
DIST. BELAGAVI.
1b) KIRAN S/O. PARASHURAM MURKUTE
AGE: MAJOR, OCC:NIL
R/O. H.NO. 2257, OPP KANNADA MARATHI
PRIMARY SCHOOL, KONDUSKOP,
DIST. BELAGAVI.
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1c) PABHI D/O PARASHURAM MURKUTE
AGE: MAJOR, OCC: NIL
R/O. H.NO. 2257, OPP KANNADA MARATHI
PRIMARY SCHOOL, KONDUSKOP,
DIST. BELAGAVI.
2. SHRI. GUNDU S/O CHENNAPPA MURKUTE,
AGE: MAJOR, OCC: PVT. SERVICE,
R/O. CTS NO. 2257, KACHERI GALLI,
DIST. BELAGAVI-590001.
RESPONDENTS
(BY SRI. AMEER AHMED BAGALI, ADV. FOR R2;
NOTICE TO R1 (B) (A AND C) IS HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED U/SEC.100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DTD: 04.01.2011
PASSED IN R.A. NO. 93/2008 ON THE FILE OF THE III-ADDL. CIVIL
JUDGE (SR.DN) BELAGAVI, AT BELAGAVI, ALLOWING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DTD: 25.02.2008
PASSED IN OS. NO. 392/2007 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DN) BELAGAVI, DECREEING THE SUIT FILED FOR
PERPETUAL AND MANDATORY INJUCTION.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 04.10.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THIS COURT PRONOUNCED THE
FOLLOWING:
ORDER
The above appeal is filed under Section 100 of Code of Civil Procedure by the plaintiff seeking to set aside the 3 Judgment and Decree dated 04.01.2011 passed in R.A.No.93/2008 by the III Additional Civil Judge (Sr. Dn.), Belagavi (hereinafter referred to as 'the first appellate Court'), wherein the Judgment and Decree dated 25.02.2008 passed in O.S.No.392/2007 by the Principal Civil Judge (Jr. Dn.), Belagavi (hereinafter referred to as 'the trial Court'), decreeing the suit of the plaintiff has been set aside.
2. The parties will be referred to as per their ranking before the trial Court for the sake of convenience.
3. The plaintiff filed a suit in O.S.No.392/2007 against the defendants for perpetual and mandatory injunction. It is the case of the plaintiff that he is the owner of the house property bearing CTS No.2258, measuring 163.88 square meters situated at Kacheri Galli, Shahapur, Belgaum, having acquired the same vide 4 registered sale deed dated 29.09.2004. That, as on the date of the purchase, a dilapidated old house was situated in the said property and hence, he demolished the same after obtaining necessary permission from the corporation authorities and constructed a building and he is residing in the said house. The defendants throughout the time when the plaintiff was putting up construction has caused obstruction to the same and by giving complaints to various authorities as a result of which, notice was issued under Section 321 of K.M.C. Act and which was challenged by the plaintiff in Miscellaneous No.19/2006. Thereafter, the defendant extended the roof by two feet by encroaching upon the plaintiffs property in the eastern side and on account of the encroachment, the air and ventilation is obstructed. Despite various requests by the plaintiff with the defendants, to remove the encroachment, the defendants did not agree to the same. Hence, the suit is filed.
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4. The defendants entered appearance and contested the case of the plaintiff and contended inter- alia that the plaintiff has made encroachment on the property of the defendants and he being an influential person has filed suit and is harassing the defendants. Hence, sought for dismissal of the suit.
5. The trial Court, consequent to the pleadings of the parties framed six issues. The plaintiff examined himself as P.W.1 and marked Ex.P.1 to Ex.P.10. The defendant examined himself as D.W.1. However, no documents were marked. The trial Court by its Judgment and decree dated 25.02.2008 decreed the suit of the plaintiff. Being aggrieved, the defendant filed R.A.No.93/2008. The plaintiff entered appearance before the first appellate Court and contested the same. By its Judgment and Decree dated 04.11.2011, the first appellate Court allowed the appeal filed by the defendants and set aside the Judgment and decree 6 passed by the trial Court. Being aggrieved, the present appeal is filed.
6. This Court vide order dated 19.08.2005 admitted the above appeal and framed following substantial questions of law:
1. Whether the lower appellate court is justified in reversing the judgment and decree of the trial court ignoring the categorical admission of DW.1 made on oath?
2. Whether the lower appellate court justified in reversing the judgment and decree of the trial court holding that there are no documents to show the actual extent of encroachment in view of Ex.P.1 and P.3, property tax extract and certified copy of the building construction permission?
3. Whether the lower appellate court justified in reversing the judgment and decree of the trial court in the facts and circumstances of the present case?
7. Learned counsel for the appellant contended that, the first appellate Court erred in setting aside the decree passed by the trial Court despite the material on record which demonstrated that the defendants had 7 encroached the property of the plaintiff by extending the construction. He further submitted that, due to the extension of the roof of the house of the defendant, the same has deprived the plaintiff of air and light.
8. Per contra, learned counsel for the respondent justifies the order passed by the first appellate Court.
9. I have considered the submissions made by the learned counsels and perused the material on record.
10. In the suit filed by the plaintiff, the following reliefs are sought:
(a) Perpetual injunction be granted restraining the defendants, their men, agents, servants, heirs, executors, assigns or anybody acting on their behalf from causing any obstruction to the plaintiff's peaceful possession and enjoyment of the house property bearing CTS No.2258 situated at Kacherigalli, Shahapur, Belgaum;
(b) Mandatory injunction be issued directing the defendants, their agents, servants or anybody claiming through them to remove the extended roof of 2' in the Eastern side set back area of the plaintiff;
(c) All costs of the suit be awarded to the plaintiff from the defendants;
(d) Kind permission to amend the plaint as and when found necessary be granted;8
(e) Any other relief or reliefs as this Hon'ble Court deems fit and proper be granted to meet the ends of justice and equity.
11. The trial Court, consequent to the pleadings of the parties, framed the following issues:
(i) Whether plaintiff proves that he has constructed building in the suit property as per terms and conditions mentioned in the building construction permission?
(ii) Whether plaintiff further proves that the defendants are illegally interfering with his peaceful possession and enjoyment of the suit property?
(iii) Whether plaintiff further proves that defendants have extended 2' roof in the eastern side set back area of him?
(iv) Whether defendants are entitled for compensatory costs?
(v) Whether plaintiff is entitled for the relief, as prayed in the plaint?
(6) What order or decree?
12. The trial Court, upon an appreciation of the oral and documentary evidence on record, considered Issue Nos.2, 3 and 4 and recorded the following findings:
i) Looking into the cross-examination of PW.1 it is clear that defendants are illegally interfering with the plaintiff's peaceful possession and 9 enjoyment of the suit property and the defendants have extended their roof much beyond their wall to the eastern side setback area of the plaintiff while repairing their roof.
ii) Looking into the Ex.P.8 it is clear that the defendants have extended the roof and put red tiles beyond their western wall edge by encroaching the setback area.
iii) Admittedly, the plaintiff while constructing his new building in CTS No.2258, after demolishing the earlier dilapidated at left setback area towards the eastern side. So in the setback area, the defendants have no right and therefore, cannot extend their roof edge in the said setback area.10
13. The first appellate Court upon consideration of the material on record, framed the following points for consideration:
(i) Whether appellants prove that lower court order is liable to be interfered with?
(ii) What Order ?
14. The first appellate Court noticed that the trial Court has relied upon the evidence of D.W.1 and the photographs produced at Ex.P.6 to P.10 came to the conclusion that the defendants had extended the roof on the eastern wall and encroached upon the set back area of the plaintiff's property. The first appellate Court noticed that the plaintiff has not produced any documents to show the length and breadth of the suit property nor produced a copy of the Sale Deed. It is also noticed that the plaintiff has not produced any documents to show how much set back area has been left while putting the new construction and the rules and regulations under which the set back area was required 11 to be left. It was further noticed that, P.W.1 had admitted that, he has not produced any completion certificate from the corporation. Further the first appellate Court has noticed the following aspects:
(i) P.W.1 admits that notice has been issued by the Corporation of the City of Belgaum that the plaintiff had violated the set back area;
(ii) P.W.1 admits that he has not got the suit property measured;
(iii) No document is produced to show the length and breadth of the suit property and as to how much set back area he has left with respect to his property as per the corporation norms when he put up the construction;
(iv) The plaintiff is not sure of his actual extent of the suit property and hence, the question of encroachment by the defendant cannot be made out; 12
(v) The trial Court decreed the suit only by relying upon the photographs at Ex.P.6 to Ex.P.10.
15. It is clear from the aforementioned that, the plaintiff has not produced any documents to show the measurement and extent of the property owned by him, the set back area required to be left as stipulated by the rules and regulations, the actual set back area left by him when he put up the construction of his residential house. In the absence of the said aspects, as rightly noticed by the first appellate Court, the trial Court ought not to have decreed the suit of the plaintiff. The trial Court erred in decreeing the suit of the plaintiff only by relying upon the photographs and the evidence of D.W.1.
16. It is forthcoming from the reliefs sought for in the plaint that the plaintiff has sought for an injunction to restrain the defendants in causing obstruction to the peaceful possession and enjoyment of the suit property. Vide para B in the plaint, a mandatory injunction is sought 13 by the defendants to remove the extended roof of 2 inches on the eastern side setback area of the plaintiff.
17. Having regard to the relief sought for, it was necessary for the plaintiff to set out the details, specifications and measurements of his property as also demonstrate as to the setback area that the defendant was required to leave in respect of his properties which is adjoining the plaint schedule property so as to demonstrate how and in what manner the construction is put up by the defendant has encroached the suit property.
18. It is relevant to note that in order to grant the relief of mandatory injunction, the plaintiff will be required to plead and prove in order to justify the extent of encroachment allegedly made into the property of the plaintiff by the defendant. As noticed by the First Appellate Court, the plaintiff has not furnished the details of the 14 setback area and other aspects on the basis of which the relief has been sought for by the plaintiff.
18. In view of the aforementioned, the substantial questions of law Nos.1 to 3 framed by this Court are answered in the affirmative. Hence, the following order is passed:
ORDER
i) The above appeal is dismissed
ii) The Judgment and decree dated 04.11.2011 passed in RA No.93/2008 by the III Additional Senior Civil Judge Belgaum, is affirmed.
iii) The Judgment and Decree dated 25.02.2008 passed in O.S.No.392/2007 is set aside.
iv) The suit filed by the plaintiff in
O.S.No.392/2017 is dismissed.
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v) Draw decree accordingly.
Sd/-
JUDGE
SVH