Karnataka High Court
Sarayi Honurappa S/O Dodda Bheemappa vs Smt.Moulabee W/O Late Raja Sab on 6 February, 2020
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 6th day of February 2020
Before
THE HON'BLE MR.JUSTICE S.G. PANDIT
Writ Petition No. 105252/2019 (GM-CPC)
Between:
1. SARAYI HONURAPPA S/O DODDA BHEEMAPPA
AGED ABOUT: 60 YEARS,
R/O: NEAR MAREMMA TEMPLE,
BANDIHATTI, CAWLL BAZAAR, BALLARI.
2. NAGESH S/O SARAYI HONNURAPPA
AGED ABOUT: 34 YEARS,
R/O: NEAR MAREMMA TEMPLE,
BANDIHATTI, CAWL BAZAAR, BALLARI.
3. GOVINDA S/O SARAYI HONNURAPPA
AGED ABOUT: 32 YEARS,
R/O: NEAR MAREMMA TEMPLE,
BANDIHATTI, CAWL BAZAAR, BALLARI.
... PETITIONERS
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
AND
SMT.MOULABEE W/O LATE RAJA SAB
AGED ABOUT: 52 YEARS,
OCC: HOUSEWIFE,
R/O: HOUSE NO.249,
NEAR MAREMMA TEMPLE,
BANDIHATTI, CAWL BAZAAR, BALLARI.
... RESPONDENT
(BY SRI. GURUBASAVARAJ S.M, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER OF THE II ADDITIONAL SENIOR CIVIL
JUDGE, BELLARY IN M.A.NO. 17/2018 DATED 08.01.2019
VIDE ANNEXURE-H CONFIRMING THE ORDER OF THE I
ADDITIONAL CIVIL JUDGE, BELLARY IN O.S.NO.57/2018
DATED 20.03.2018 VIDE ANNEXUER-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The defendants in O.S. No.57 of 2018 are before this Court under Article 227 of the Constitution of India assailing the order dated 08.01.2019 passed in M.A. No.17 of 2018 by the II Additional Senior Civil Judge, Ballari and the order dated 20.03.2018 passed in O.S. No.57 of 2018 on I.A. No.2.
2. The petitioners are the defendants and the respondent is the plaintiff in the above stated suit. The suit is one for mandatory injunction against the defendants to close the windows put up in the first and the second floor towards Northern side of the plaintiff's property on the joint wall and for a permanent injunction 3 against the defendants from constructing any structure on the joint wall/common wall on the Northern side of the plaintiff's property. Along with the suit, the plaintiff also filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, seeking an ad interim order of injunction against the defendants from putting up any construction in respect of the windows situated on the first and the second floor of petition 'B' Schedule till the disposal of the suit. The Trial Court, after hearing both the sides, by order dated 20.03.2018 allowed I.A. No.2 and restrained the defendants from putting up further construction in the suit schedule property till the disposal of the suit. Aggrieved by the said order, the defendants filed an appeal in M.A. No.17 of 2018, under Order XLIII Rule 1 of CPC, on the file of the II Additional Senior Civil Judge, Ballari. The Appellate Court, under the impugned judgment dated 08.01.2019, dismissed the appeal and affirmed the order passed by the Trial Court. Hence, 4 challenging both the orders i.e., the order of the Appellate Court passed in M.A.No.17 of 2018 and the order of the Trial Court passed on I.A. No.2 filed under Order XXXIX Rules 1 and 2 of CPC, the defendants are before this Court in this writ petition.
3. Heard the learned counsel for the petitioners and the learned counsel for the respondent.
4. The learned counsel for the petitioners would submit that both the impugned orders are wholly erroneous and both the Courts below have failed to appreciate the case of the petitioners. The petitioners herein have put up construction consisting of the ground, the first and the second floors, and further they denied construction on common wall or joint wall of the plaintiff and the defendants. Both, the plaintiff and the defendants are adjacent owners and it is the case of the petitioners that they have constructed the structure on 5 their property and the plaintiff could not have objected for the same.
5. Per contra, learned counsel for the respondent/plaintiff would submit that the plaintiff and the defendants are the adjacent owners. The Northern side of the property is common/joint wall between the plaintiff and the defendants. The defendants have constructed a new building connected to the common wall and if the defendants put up windows, it will cause problem to the plaintiffs. Further, the respondent submits that the defendants have not obtained approved plan from the competent authority. As the balance of convenience was in favour of the plaintiff, the Trial Court has allowed I.A.No.2 and restrained the defendants from putting up further construction in the suit schedule property till disposal of the suit. The Appellate Court, after properly examining the material on record, has confirmed the order of the Trial Court.
6
6. Having heard the learned counsels for the parties and on perusal of the material on record, I am of the view that no ground is made out by the petitioners to interfere with the concurrent finding of fact, under Article 227 of the Constitution of India. Moreover, the injunction against the petitioners/defendants is operating since March 2018. The Trial Court on examination of the material on record, found that both, the plaintiff and the defendants, are the adjacent owners and both possess 'Hakku Patra' in respect of their property. Further, the defendants have not placed on record the sanctioned plan in respect of the construction which they are carrying on. Whether the construction is in accordance with law, whether the construction is on the common wall and whether the defendants have left set-back are all matter for trial. The Trial Court rightly restrained the defendants from putting up further construction in respect of the windows. The Appellate Court, on appreciation of the material on record, has 7 affirmed the order passed by the Trial Court. On perusal of the entire material placed on record, I am of the view that the orders impugned herein would not require any interference. Accordingly, the writ petition stands rejected.
7. Any observation made by the Trial Court or the Appellate Court or by this Court in the course of its order respectively, shall not influence the Trial Court while disposing of the suit.
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