Karnataka High Court
Sri.Durgadas S/O Chinnanna Kamte vs Sri.Krishna S/O Chinnaswamy Kamate ... on 10 November, 2025
-1-
NC: 2025:KHC-D:15352
RSA No. 5324 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 10TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.5324 OF 2009
BETWEEN:
SRI. DURGADAS
S/O. CHINNANNA KAMTE,
AGED ABOUT 55 YEARS, OCC. COBBLER,
R/O. SHED ADJOINING, H.NO.18,
OLD MOCHI LANE, CAMP, BELAGAVI.
...APPELLANT
(BY SRI. SUNIL KHOT, ADVOCATE FOR
SRI. RAMACHANDRA A. MALI, ADVOCATE)
AND.
SRI.KRISHNA
S/O. CHINNASWAMY KAMATE
SINCE DEAD BY LRS.
Digitally
signed by 1. SMT. RENUKA W/O. KRISHNA KAMATE,
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
AGED ABOUT 51 YEARS,
2025.11.14
10:21:39
+0530
OCC. HOUSEHOLD WORK,
2. SRI. GOVIND
S/O. KRISHNA KAMATE,
AGED ABOUT 23 YEARS,
OCC. PRIVATE SERVICE,
3. RAJU
S/O. KRISHNA KAMATE,
AGED ABOUT 19 YEARS,
OCC. PRIVATE SERVICE,
4. SMT. SHARADA
D/O. KRISHNA KAMATE
-2-
NC: 2025:KHC-D:15352
RSA No. 5324 of 2009
HC-KAR
AGED ABOUT 24 YEARS,
OCC. HOUSEHOLD WORK,
SL.NO.1 TO 4 ARE R/O. H.NO.18, MOCHI LANE,
CAMP, BELAGAVI-590001.
5. SMT. MITALI
W/O. TARUN MEHTA,
AGED ABOUT 28 YEARS,
OCC. HOUSEHOLD WORK,
R/O. KAWADUGUDA, SECANDARABAD(A.P.)
6. SMT. RAMASHREE
W/O. UTTAM CHATRE,
AGED ABOUT 26 YEARS,
OCC. HOUSEHOLD WORK,
R/O. OLD MOCHI LANE, CAMP,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. S.M. TONNE, ADVOCATE FOR
SRI. B.S. KAMATE, ADVOCATE FOR R1 TO R6)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
CALL FOR THE RECORDS IN O.S.NO.391/1996 DATED 07.11.2002 ON
THE FILE OF THE I ADDL. CIVIL JUDGE (JR.DN.) BELAGAVI AND ALSO
THE RECORDS IN R.A.NO.106/2007 ON THE FILE OF THE FAST TRACK
COURT II AND ADDL. DISTRICT JUDGE, BELAGAVI IN THE INTEREST
OF JUSTICE AND EQUITY AND TO SET ASIDE THE JUDGMENT AND
DECREE DATED 26.03.2009 MADE IN R.A.NO.106/2007 PASSED BY
THE FAST TRACK COURT II AND ADDL. DISTRICT JUDGE BELAGAVI AS
THE SAME BEING ERRONEOUS AND NOT SUSTAINABLE IN LAW AND
ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER.
-3-
NC: 2025:KHC-D:15352
RSA No. 5324 of 2009
HC-KAR
ORAL JUDGMENT
(PER. THE HON'BLE MR. JUSTICE C M JOSHI ) Heard the learned counsel appearing for the appellant and respondents.
2. This appeal is filed by the defendant in O.S.No.391/1996, who suffered a decree of mandatory injunction at the hands of the First Appellate Court in R.A.No.106/2007 dated 26.03.2009.
3. The factual matrix pertaining to the present appeal may be summarized as below:
4. The respondent, who was the plaintiff before the Trial Court, filed a suit for injunction contending that the suit property is the eastern half portion of the house property bearing No.18 situated at old Mochi Lane, Camp, Belgaum and the plaintiff is the owner and occupant in actual possession and enjoyment of the property. His property consisted of ground floor and the first floor. The father of the plaintiff had purchased it under the registered sale deed dated 11.06.1951 from one Gangamma. Since then, he is in possession and enjoyment of the same. The -4- NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR name of the father of the plaintiff was shown as occupant in the General Land Register (GLR) maintained by the Cantonment Authority and after death of the father of the plaintiff, the name of mother of the plaintiff and the plaintiff was entered in the records. It is contented that the family of the plaintiff's cousin viz., Iralal was residing in a ground floor as permissive user and the plaintiff by filing O.S.No.133/1992 got ejected occupants of the ground floor.
5. The defendant put up a shed illegally on the area adjoining the house property of the plaintiff on the eastern side, which was belonging to Cantonment Board. After several efforts by the plaintiff, the Cantonment Authorities issued show-cause notice to the plaintiff as well as the defendant, but they could not stop the construction by the defendant. The plaintiff replied to the said notice and the defendant did not. In his reply notice, the plaintiff had brought to the notice of the Cantonment Authorities that the encroachment was made by the defendant but not the plaintiff. Despite an interim injunction, the defendant continued to proceed with the construction and instead of shed, he has constructed an RCC structure by demolishing the said shed. -5-
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR While constructing the building, the defendant has closed a window which was on the eastern wall of the house of the plaintiff and thereby blocking light and air. Subsequently, during pendency of the suit, the plaintiff got the plaint amended incorporating the relief for mandatory injunction.
6. On service of summons, the defendant appeared and he contented that in the year 1985, he constructed a south wall with burnt bricks and a tiled roof was placed. It is contented that the construction was done in Survey No.251/6 and the Cantonment Board, treating the land on which the construction is carried out as an encroachment on the government land, had issued a notice on 25.07.1985. Since the construction was done by father of the defendant, there were some litigations which were commenced and are pending. It is contented that the GLR register extract cannot be a document of title and the plaintiff cannot claim any ownership on the basis of the GLR records. Therefore, the entire suit property of the plaintiff is based on imagination and hence, the suit deserves to be dismissed.
7. On the basis of the above contentions, the Trial Court framed the following issues and additional issue: -6-
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR "ISSUES
1. Whether the plaintiff proves that the description of the suit property is correct?
2. Whether the plaintiff proves that he is in lawful and actual possession of the suit property?
3. Whether the plaintiff proves that Defendant has interfered in the actual, lawful, peaceful possession and enjoyment of the suit property by the plaintiff?
4. Whether the plaintiff is entitled for the reliefs sought for?
5. What order or decree?
Addl.Issue No.1: Whether the plaintiff proves that he is entitled for mandatory injunction as prayed?"
8. After the trial, the Trial Court heard the arguments and proceeded to dismiss the suit. Against the said order of -7- NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR dismissal, the plaintiff approached the First Appellate Court in R.A.No.106/2007. After hearing the arguments, the First Appellate Court came to the conclusion that the order of the Trial Court is perverse and therefore, it reversed the judgment of the Trial Court and decreed the suit of the plaintiff. Being aggrieved, the defendant is before this Court in Second Appeal. This court while hearing the matter for admission, has framed the following substantial questions of law :
i) Whether the First Appellate Court has committed a serious error in reversing the judgment of the trial Court passed in O.S.No.391/1996 without looking to the fact that suit for mandatory injunction without relief of declaration is not maintainable?
ii) Whether the First Appellate Court has committed a serious error in ignoring the material evidence placed on record and thereby the judgment of the First Appellate Court is perverse and illegal?"
9. The arguments by learned counsel appearing for the appellant and the learned counsel for the respondents were heard.
-8-
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR
10. During the pendency of the appeal before the First Appellate Court, the plaintiff died and his legal representatives are brought on record. The learned counsel appearing for the appellant would submit that the plaintiff has nowhere sought for any declaration about his rights in the suit schedule property i.e., House No.18. He contends that the plaintiff had directly filed a suit for injunction and later by way of amendment of the plaint converted the suit for injunction into a suit for mandatory injunction. He submits that unless the plaintiff establishes his rights in the suit schedule property, he could not have sought for a mandatory injunction against the defendants. Therefore, in the absence of a relief for declaration having not been sought, the present suit for mandatory is not maintainable.
11. He also submits that the First Appellate Court failed to look into the fact that the plaintiff had failed to establish that he was in rightful occupation of the suit schedule property. It is pointed out that the defendant was in possession of the property and he has constructed the building in accordance with law. It is contented that the building permission of the plaintiff is also not produced and therefore, the right to air and light from the -9- NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR alleged window on the eastern wall of the house of the plaintiff is not established and as such, the First Appellate Court has erred in decreeing the suit.
12. Per contra, the learned counsel appearing for the respondent submits that there is no dispute that the plaintiff is the earlier occupier and his name appears in the GLR register. It is submitted that the defendant was only an encroacher and therefore, his rights cannot be superior to that of the plaintiff. It is contented that when the defendant wanted to put up a construction, it was incumbent upon the defendant to obtain a valid building permission by following the building by-laws as applicable to the Cantonment Board. In the absence of any such documents, the defendant cannot claim any right in respect of the suit property. Therefore, he submits that the plaintiff was entitled for the light and air through a window on the eastern wall and the defendant had no right to block the same.
13. On careful perusal of the records, it is evident that the Cantonment Board grants only occupancy rights for the occupants to use the said land for certain period and it never grants any ownership rights to any of the occupiers. However,
- 10 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR the rights granted so are transferable and inheritable. Even for construction or renovation, permission has to be obtained from the Cantonment Board. The ultimate title of any property within the cantonment area belongs to the Cantonment Board and it has the powers to grant any portion of the land for occupation by the rightful holders. The plaintiff has sought for an injunction and later converted the suit into a suit for mandatory injunction.
14. It is pertinent to note that either the plaintiff or the defendant do not have the ownership over the suit schedule property. If the rights of the plaintiff and the defendant are compared, it may be seen that the plaintiff has a better right and interest over the suit schedule property in view of his name finding in the GLR extract of the suit schedule property. Further, the plaintiff has also produced a transfer deeds under which his father obtained the rights from one Gangamma in the year 1951. The other documents produced by the plaintiff show that the Cantonment Board has recognized the rights of the plaintiff over House No.18.
15. On perusal of the correspondence between the plaintiff and the Cantonment Board, it is evident that the
- 11 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR Cantonment Board had issued notice to the plaintiff as well as the defendant to remove the unauthorized construction. In fact, the eastern portion of the house, which was in existence, was an open space and in that area the defendant has put up a construction as may be seen from the photograph produced at Ex.P.8 and Ex.P9. These records show that the plaintiff was in possession and enjoyment of the same after he purchased the leasehold/occupancy rights from Gangamma. The plaintiff's father inherited the same from Gangamma. After death of father of the plaintiff, the plaintiff has inherited such rights. It is settled principle of law that such occupancy rights or the leasehold rights are inheritable and transferable. There is no dispute between the parties in this regard. Therefore, the footing on which the plaintiff is seeking rights over the suit schedule property has a better standing than the one contented by the defendant.
16. The defendant though contented that he is entitled for regularization of the construction which he has made, there is no documentary evidence to show that he had obtained any building licence for the purpose of construction of either a shed
- 12 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR or RCC structure later on. The entire written statement of the defendant revolves around denying the contentions of the plaintiff but he has not stated as to how he has got any right, title or interest over the eastern portion of House No.18.
17. The perusal of the records also show that the First Appellate Court in paragraphs 13, 15 and 16 has narrated the lis between the parties in a succinct manner. Paragraphs 13, 15 and 16 read as below:
"13. In this case, almost all the facts are admitted by the parties. The defendant has admitted the ownership of the plaintiff over the suit schedule property. The plaintiff has admitted that the vacant land lying towards eastern side of his property belongs to the Cantonment Board, wherein the defendant has put up unauthorised construction and residing there. It is also an admitted fact that the cantonment board is trying to evict the defendant who is in unauthorised possession of the property and taking illegal steps for eviction. It is an admitted fact that the defendant has put up first floor on the existing house, which was resulted in this disputed. It is an admitted fact that the house of the plaintiff and defendant are adjacent to each other having a common wall towards eastern side. The house of the plaintiff is having first floor and there is a window
- 13 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR opening towards the eastern side when the defendant has put up his construction on the first floor, the window which was opening towards the eastern side was closed, which has given rise to this dispute. The suit has been filed for the relief of injunction. Interim temporary injunction was granted. During that period, the defendant has completed the construction by completely closing the window on the eastern side. Thereafter, the suit has been converted into mandatory injunction for removal of the construction put up by the defendant closing the window and affecting the free air and light enjoyed by the plaintiff. After the evidence and hearing the parties and on the basis of the materials placed before the lower court, the lower court mainly relying upon the decision reported in 2000 (1) K.L.J. Page 468 has dismissed the suit as not maintainable, mainly on the reasons that no temporary injunction can be granted at the instance of neighbor on the sole ground of violation of sanction plan or the building byelaws and also on the ground that no easementary right is shown to be existing in favour of the party and suit of such party is not maintainable. Therefore, the suit was dismissed and the plaintiff is before this court on various grounds of appeal.
14. xxxx
15. As could be seen from the evidence and photographs produced by the parties, it is clear that
- 14 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR the shed of the defendant is just adjacent to the house of the plaintiff. It is an admitted fact that the house of the plaintiff was constructed earlier than that of the defendant. The defendant has put up a shed earlier and thereafter it was completed as a pakka RCC building and raised a first floor, as result of which the first floor of the plaintiff's house which was already in existence from the beginning where the window was opened towards the eastern side of was closed, resulting in the obstruction of the passage of air and light. No doubt, the adjacent area belongs to the Cantonment board and the defendant is not having any right. It is an established principles that as per the provisions of Cantonment Act, the ownership right will not be given to the occupants either to the plaintiff or to the defendant. They are only permitting or giving occupancy rights. The ownership will remains with the Cantonment Board. Now, the only question is whether the violation of municipal laws of the Cantonment Board by the defendant will gives rise to cause of action to the plaintiff to maintain a suit for injunction and mandatory injunction against the defendant who had violated the municipal laws. As could be seen from the decision relied upon by the lower court, the plaintiff will not get such a right to question the violation of the Municipal Byelaws by the defendant. As could be seen from the decision reported in 2008(3) K.L.J. Page 79, wherein the Hon'ble High Court of Karnataka has made an observation that
- 15 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR every person has inherent right to bring suit of civil nature of his choice at his own cost unless suit is barred by statute. Suit for its maintainability requires no authority of law and it is enough that no statute bars suit. In this case, the defendant had encroached illegally the pathway in front of the compound of the plaintiff which was obstructing for his ingress and egress, the plaintiff aggrieved by the said action of the defendant filed a suit seeking mandatory injunction. The plaintiff who is a lawful owner of the suit schedule property gets an inherent right to file a civil suit for mandatory injunction.
16. Erecting of shed on the public property, then aggrieved party like the appellant can filed a suit to obtain mandatory injunction. Similar is the case at hand. Here also, the plaintiff is the owner in possession and enjoyment of the house and the defendant who had put up construction without license of the Cantonment Board and closed the window of the plaintiff's first floor house resulting in prevention of free flow of air and light. Under these circumstances, as could be seen from this recent decision of the High Court of Karnataka, which gives the right to the plaintiff and which is clearly contrary to the decision reported in 2000(1) K.L.J. Page 468. So also, in the other cases relied upon by the appellant clearly goes to show such a suit is maintainable and the plaintiff will get right to file suit for injunction and mandatory injunction in order to
- 16 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR protect his property and right. The only difference between these two cases are, here the plaintiff were to complaining about the prevention of passing of air and light to his property through window. In the reported decision, the plaintiff was prevented from ingress and egress to his property by putting up construction on the existing municipal road. There also where construction was taken place on the property belonging to the Municipality, here also the defendant has put up construction on the property belonging to the Cantonment Board. Even otherwise, if the Cantonment Board were to regularise the unauthorised construction of the defendant by accepting some nominal fee for regularising the unauthorised construction, then also the defendant cannot violate the municipal laws such as leaving a setback of 3' from the edge of the wall of the plaintiff. Therefore, with that condition only the Cantonment authority will give permission to the defendant for putting up of any construction. It is an admitted fact that the plaintiff was enjoying the free air and light on his upstairs through the window, which he shows in the photographs, which was closed by putting up of construction. The presence of other windows in the house and passing of light from other sides is not a criteria to close down the window of plaintiff. From east to west there will be free flow of air rather than from north to south or south to north as the case may be. Therefore, whatever right that the plaintiff enjoying either to has been
- 17 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR obstructed that to by illegal construction. Had the defendant taken a building license and were to put up a construction of his own land, then the matter would be different. Under these circumstances, the decision that has been relied upon by the lower court should have been applied. As per the decision that are relied upon by the appellant in this case are aptly applicable to the present case at hand, which are passed by the Hon'ble High Court of Karnataka or by the Supreme Court and one decision is from Maharashtra on the same principle. On the other hand, the decision relied upon by the respondent is old one passed by the Calcutta High Court. Under these circumstances, the decision of the Karnataka High Court are appliable to the case at hand. Therefore, I am of the considered view that there is violation of the right of the plaintiff of enjoying free air and light by putting up of construction on first floor. Therefore, these facts have not been properly appreciated by the lower court and the lower court has passed order arbitrarily, capriciously without applying the recent decision. Therefore, the appellant has made out a ground for allowing of this appeal. Hence, I answer the points in the affirmative and proceed to pass the following:
18. Therefore, the contention of the learned counsel for the appellant/defendant that the plaintiff could not have sought a mandatory injunction without relief of declaration, cannot be
- 18 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR accepted. It is evident from the discussion made by the First Appellate Court that it has come to a categorical finding on facts that the defendant has forcibly constructed the structure in the suit schedule property. The observations of the First Appellate Court are clear in this regard. Thus, the appellant claims his possession by way of forcible occupation and now he wants to regularize such occupation. There is absolutely no material on record to show that the appellant had sought for any such regularization. Moreover, it is an admitted fact that the Cantonment Board had issued notice to the appellant by treating him as an unauthorized occupant and has initiated several proceedings to evict him from the property under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
19. Section 184 and 185 of the Cantonments Act, 1924 reads as under:
"184. Illegal erection and re-erection.- Whoever begins, continues or completes the erection or re- erection of a building-
a) without having given a valid notice as required by sections 179 and 180, or before the building
- 19 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR has been sanctioned or is deemed to have been sanctioned, or
b) without complying with any direction made under sub-section (1) of section 181, or
c) when sanction has been refused, or has ceased to be available, [or has been suspended by the Officer Commanding-in-Chief, the Command, under clause (b) of sub‑section (1) of section 52], shall be punishable with fine which may extend to [five thousand rupees.]
185. Power to stop erection or re-erection or to demolish.- [(1)] A [Board] may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the [Board] considers that such erection or re-erection is an offence under section 184, and may in any such case [or in any other case in which the Board considers that the erection or re-erection of a building is an offence under section 184, within [twelve months] of the completion of such erection or re-erection in like manner direct the alteration or demolition as it thinks necessary of the building or any part thereof, so erected or re-erected:
Provided that the [Board] may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable:
- 20 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR [Provided further that the Board shall not, without the previous concurrence of the Officer Commanding-in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.
(2) A Board shall by notice in writing direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re‑erection of a building in any case in which the order under section 181 sanctioning the erection or re‑erection has been suspended by the Officer Commanding‑in‑Chief, the Command, under clause (b) of sub‑section (1) of section 52, and shall in any such case in like manner direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or re‑erected where the Officer Commanding‑in‑Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re‑erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him:
Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re‑erected prior to the date on which the order of the Officer Commanding‑in‑Chief, the Command, has
- 21 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR been communicated to him.]"
20. Under these circumstances, it cannot be held that it is mandatory to claim a declaration if a person wants to seek mandatory injunction. A person who is in better right, title and interest than the defendant is entitled for seeking a mandatory injunction, if the same is not opposed to by any provisions of law. In the case on hand, there is a clear violation by the defendant by constructing the first floor on the adjacent premises by closing the window of the house of the plaintiff. In that view of the matter, the first substantial question of law is answered in the negative.
21. So far as the second substantial question of law is concerned, this Court has considered the entire evidence and is of the view that there do not exist any second question of law as framed by this Court. There is no error committed by the First Appellate Court by ignoring any evidence. The defendant has produced the order of the Estate Officer of the Cantonment Board and the notice issued. The orders of the Estate Officer clearly show that the construction made by the appellant herein was by unauthorized encroachment into the property of the
- 22 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR cantonment and there is no mention of any regularization of such encroachment made by him. Under these circumstances, the second substantial question of law does not arise for consideration.
22. Lastly, learned counsel for the appellant submitted that though the grievance of the plaintiff was only in respect of the closure of the window on the first floor of the house of the plaintiff, the First Appellate Court has directed demolition of the entire wall on the eastern side. In fact, the operative portion of the order does not mention in detail regarding what is to be demolished but it simply says that the suit is decreed. The claim of the plaintiff to demolish the entire eastern wall is unwarranted and therefore, he submits that only the first floor of the eastern portion of the house of the plaintiff may be ordered to be cleared. This Court finds some merit in the said contention. However, it is to be noted that the demolition in respect of the illegal construction made by the defendant is a subject matter of the lis between the defendant and the Cantonment Board. The Cantonment Board is at liberty to demolish the entire structure if it holds that it is an illegal construction, but so far as the plaintiff
- 23 -
NC: 2025:KHC-D:15352 RSA No. 5324 of 2009 HC-KAR is concerned, it would suffice to direct that the eastern portion of the first floor of the illegal construction made by the defendant is to be removed and demolished, so that there is free flow of air and light through the window of the plaintiff's house. With these directions, the appeal is dismissed.
23. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
SD/-
(C M JOSHI) JUDGE YAN CT. PA LIST NO.. 1 SL NO.. 46