Karnataka High Court
P S Lingamma W/O P Virupakshappa vs Madhavilata W/O G Nagaraj Sh on 4 July, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4th DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
R.S.A. NO. 5254 OF 2008 (INJN)
BETWEEN:
P S LINGAMMA
W/O P VIRUPAKSHAPPA
Age:51
D NO 32/34, OLD WARD NO 16,
NEW WARD 15, BOMBAY PRESS ROAD,
BELLARY ... APPELLANT
(By Sri. M C BANDI AND A M BANDI, ADV. )
AND
1. MADHAVILATA
W/O G NAGARAJ SH
Age: 33 YEARS
DOOR NO 33/35,WARD NO15,
BOMBAY PRESS ROAD, BELLARY
2. THE COMMISSIONER
BELLARY URBAN DEVELOPMENT
AUTHORITY, BELLARY.
3. THE COMMISSIONER
CITY MUNICIPAL CORPORATION
BELLARY ... RESPONDENTS
2
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD: 25/7/2008 PASSED IN
R.A.NO:94/2007 ON THE FILE OF THE PRL. DISTRICT
JUDGE, BELLARY, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGEMENT AND DECREE DTD: 21/7/2007
PASSED IN O.S.NO:468/2005 ON THE FILE OF THE PRL.
CIVIL JUDGE(JR.DN), BELLARY, DISMISSING THE SUIT
FILED FOR PERMANENT INJUNCTION.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff's second appeal aggrieved by the concurrent findings dismissing the suit.
2. Appellant instituted O.S.468/2005 before the Prl.Civil Judge (Jr.Dn), Bellary alleging that the defendants 2 and 3 had put up construction of a building by encroaching upon the road and without leaving setback area, sought for permanent injunction to restrain the defendant from constructing the house in the setback area contrary to the sanctioned plan and license and if the defendant has constructed the building in the setback area, a mandatory injunction to demolish that portion of the building. The defendant 3 entered appearance and resisted the suit by filing a written statement inter alia contending that there is a 10 feet wide road in between the property of the plaintiff and the defendant which was not interfered with and that the Village Panchayat had permitted construction of the building in the setback area. After a trial, regard being had to the material on record and evidence both oral and documentary, the trial Court held that the construction put up by the defendants 2 and 3 though was not in accordance with the approved plan, nevertheless put up construction by leaving 3 feet setback area. The defendant having neither encroached upon the 10 feet wide road nor obstructed the plaintiff's ingress and egress to and from the plaintiff's residence through the 10 feet wide road between the two properties and since the plaintiff did not show how he was aggrieved by such a construction put up by the defendants 2 and 3, while it was for the authorities of the Municipality to take action in accordance with law, 4 dismissed the suit by Judgment and decree dt. 21.7.2007.
3. That Judgment and decree when carried in R.A.94/2007 before the Prl.Civil Judge (Sr.Dn), Bellary on a reappreciation of the material on record and evidence both oral and documentary, concurred with the reasons, findings and conclusions arrived at by the trial Court to dismiss the appeal by Judgment and decree dt. 25.7.2008.
4. Having heard the learned counsel for the appellant, perused the pleadings and examined the Judgment and decree of the Courts below, undoubtedly the appellant is unable to point out to the infringement of any rights of the plaintiff due to the construction of the building by the defendants. The reasons, findings and conclusions arrived at by the Courts below cannot be faulted with.
5
5. Learned counsel for the appellant submits that under Section 91 of the CPC the appellant is entitled to institute a suit in the event is aggrieved by nuisance committed by the defendant. In the instant case there is not an iota of evidence, muchless pleading of nuisance to establish nuisance committed by the defendant by which the plaintiff can be said to be aggrieved.
In the circumstances, no substantial question of law arises for decision making. The appeal is accordingly dismissed.
Sd/-
JUDGE ln.