Karnataka High Court
M/S Gangambika Industries vs M/S. Sachindanad Industries And Anr on 15 December, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200182/2017 (INJ)
BETWEEN
M/S GANGAMBIKA INDUSTRIES
THROUGH ITS PROP. GANGUBAI
W/O SHIVASHARNAPPA BIRBITTE
AGE: 51 YEARS, OCC: BUSINESS
R/O H.NO.1545/156,
AMBIKA NIVAS, SHIVAJI NAGAR
KALABURAGI.
...PETITIONER
(BY SRI SUDARSHAN M., ADVOCATE)
AND
1. M/S. SACHIDANAND INDUSTRIES
THROUGH ITS PROP. SUBHASH
S/O PANDURANGRAO PATIL
AGE: 70 YEARS, OCC: BUSINESS
R/O PLOT NO.56/A, II STAGE
KAPNOOR INDUSTRIAL AREA
HUMNABAD ROAD
KALABURAGI-585103.
2. THE KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, KAPNOOR
1ST STAGE, INDUSTRIAL AREA
2
HUMNABAD ROAD
KALABURAGI REPRESENTED BY
ITS DEPUTY DEVELOPMENT OFFICER
KALABURAGI
DIST: KALABURAGI-585103.
RESPONDENTS
(BY SRI S.B. HANGARKI, ADVOCATE FOR R1;
SRI K.A. KALBURGI, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED
03.03.2017 PASSED IN R.A.NO.100/2013 ON THE FILE OF
THE III ADDITIONAL SENIOR CIVIL JUDGE AT
KALABURAGI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 16.08.2013,
PASSED IN O.S.NO.73/2011 ON THE FILE OF THE VTH
ADDL. CIVIL JUDGE AND JMFC, GULBARGA.
THIS APPEAL IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful defendant No.1, wherein plaintiff's suit seeking relief of perpetual injunction and mandatory injunction to direct defendant No.1 to demolish the construction made on the compound wall and also in 3 the open space existing between the said compound wall and factory building of defendant No.1.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
3. The plaintiff has filed the present suit seeking relief of mandatory injunction and perpetual injunction. The plaintiff has filed the present suit alleging that the defendant, who is the owner of the adjoining plot has commenced with construction of compound wall without leaving the required set back. The plaintiff contended that there is a common compound wall of thickness eight inches between the plot of plaintiff and defendant and the said compound wall was constructed by the plaintiff and the adjacent Plot No.77/B, which is now purchased by the defendant No.1. The present suit is filed alleging that the defendant No.1 high handedly started construction 4 over the compound wall and the said construction is made within set back.
4. The defendant No.1 on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 on the contrary contended that there is no need to seek permission to construct compound wall. Defendant No.1 on the contrary claimed that it is the plaintiff, who has made illegal construction in the property owned by him bearing plot No.56/A and therefore, contended that construction by the plaintiff is in violation of approved plan issued by KIADB. The plaintiff and the defendant No.1 to substantiate their respective claims have lead in oral and documentary evidence. The Trial Court having assessed the oral and documentary evidence coupled with the several admissions elicited in the 5 cross-examination of the defendant No.1 answered issue Nos.1 to 4 in the affirmative and held that defendant No.1 has commenced construction illegally by encroaching over set back area. Referring to cross- examination of D.W.1, the Trial Court found that the defendant No.1 has admitted during trial that he has commenced construction by leaving two feet towards set back area. The Trial Court referring to bylaws and the evidence lead in by the plaintiff vide Ex.P.10, which is an approved layout plan, found that adjoining owners are required to leave set back of 5 meters. On these set of reasoning, the Trial Court proceeded to decree the suit granting relief of mandatory injunction directing defendant No.1 to remove the illegal construction made on the suit property and consequently, the injunction was granted restraining defendant No.1 from putting up any construction in the set back area.
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5. Feeling aggrieved by the judgment and decree of the Trial Court, defendant No.1 preferred an appeal before the Appellate Court. The Appellate Court has independently assessed the oral and documentary evidence. At para No.17 of the judgment, the Appellate Court has taken note of Ex.P.5 and Ex.P.10 and has come to the conclusion that defendant No.1 has to leave minimum five meters. Referring to the photographs, the Appellate Court was also of the view that defendant No.1 has commenced construction by encroaching in the set back area. The Appellate Court has also taken note of the fact that the defendant No.1 has made a statement that he has commenced construction of compound wall after leaving two feet from the boundary line. The Appellate Court taking note of the statement held that it amounts to admission and consequently, proceeded to dismiss the 7 appeal. These concurrent findings are under challenge.
6. Heard learned counsel appearing for the defendant No.1 and learned counsel appearing for the plaintiff.
7. It is not in dispute that the plaintiff and the defendant No.1 are adjoining owners. The clinching evidence lead in by the plaintiff clearly establishes that the adjoining owners are required to maintain a set back of five meters while putting up construction in their property. It is the specific case of the defendant No.1 that he has commenced construction by leaving two feet set back. This statement made during trial would clinch the entire controversy between the parties. I have also examined the photographs where it is found that huge pillars are erected by the defendant No.1 and in all probabilities, 8 he intends to extent his construction by encroaching over the set back. The pillars are admittedly found in the set back area. Therefore, both Courts were justified in recording a categorical finding that the construction commenced by defendant No.1 is by encroaching over the common set back area. These concurrent findings are based on legal evidence lead in by the plaintiff coupled with the admission elicited during trial, wherein defendant No.1 has admitted that he has commenced construction by leaving two feet as against five meters prescribed by the KIADB.
Therefore, I do not find any illegalities in the judgments and decrees rendered by the Courts below.
No substantial question of law arises for consideration.
Accordingly, the appeal is dismissed. 9 In view of dismissal of main appeal, pending interlocutory applications, if any, does not survive for consideration.
Sd/-
JUDGE NBM