Karnataka High Court
K R Suresh vs K P Manjunatha on 10 August, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 99 OF 2010(INJ)
BETWEEN:
1. K R SURESH
AGED 52 YEARS,
S/O RATNAKARA SHETTY
2. MANGALA
AGED 52 YEARS,
W/O K R SURSH
BOTH R/AT MAHADEVPET
MADIKERI, KODAGU - 571201
..APPELLANTS
(BY SRI P. SUBRAMANYA BHAT, ADVOCATE)
AND:
1. K P MANJUNATHA
AGED 60 YEARS,
S/O PUTTAIH
R/AT 6A, INCOME TAX COLONY, NO.2,
INFANTRY ROAD, BANGALORE-560001
(DELETED AS PER COURT ORDER
DATED 04.01.2011)
2. D RAJU
AGED 59 YEARS,
2
S/O DODDAIAH
UDAYA NILAYA COMPOUND,
OPP TO RAVI FLOOR MILL, LANE NO.10
MAHADEVPET, MADIKERI, KODAGU-271201
...RESPONDENTS
(BY SRI.N.KUMAR, ADVOCATE FOR SRI.L S VENKATAKRISHNA,
ADVOCATE FOR R2; V/O DATED: 04/01/2011 R1 DELETED)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED: 17.11.2009 PASSED IN
R.A.NO.32/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 26.7.1999 PASSED IN
O.S.NO.84/1995 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN)
KODAGU, MADIKERI AND ETC.,
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendants questioning the concurrent findings of the Courts below wherein the relief of mandatory injunction is granted directing the defendants to remove the slab fixed on the southern wall of defendant's house.
2. For the sake of brevity, the parties are referred to as per their rank before the Court below.
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3. The plaintiff filed a suit seeking relief of mandatory injunction to remove the slab measuring 40 feet in length and 2 feet in width put up by the defendants on the newly constructed wall. The plaintiff in the said suit claimed that there is a lane between the wall of plaintiff's house and house of the defendants. The said lane is about 60 feet in length. It is further contended that the said lane leads to the shop owned by the plaintiff at the backyard of his main house. The grievance of the plaintiff is that defendants have highhandedly put up a slab abutting to the southern side of the wall of the defendants house. The said slab almost touches the wall of plaintiff's house and therefore, the plaintiff contended that the rain water on account of the slab would directly fall on the mud wall of the plaintiff's house and it would thereby cause damages. Hence, the present suit came to be filed seeking relief of mandatory injunction.
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4. The defendants, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendants contended that one D.D.Parvathy W/o Late D.S.Deva Shetty has already instituted a suit in O.S.No.158/1994 and the present plaintiff is arrayed as defendant No.2 and since the subject matter of the present suit is ceased under the earlier suit, the plaintiff has to work out his remedy in the earlier suit and he cannot maintain the present suit for mandatory injunction. Therefore, the defendants contended that since plaintiff in the earlier suit is not party to the present suit, the same has to be dismissed for non-joinder of necessary parties. The defendants also contended that though plaintiff has consciously acquiesced the construction made by the defendant No.2 and therefore, defendants denied the claim made in the plaint. The defendants also seriously disputed the existence of a lane between the properties of plaintiff and defendants. On the contrary, defendants contended that this 5 open space is exclusively owned by defendants and therefore, defendants claimed that they are entitled to extend the lintel of the balcony. It was further contended that defendants are entitled to use the vacant space and no prejudice is caused to the plaintiff on account of construction of slab (sajja).
5. The plaintiff in support of his claim let in oral evidence and adduced documentary evidence vide Exs.P-1 to P-3. The defendants also let in oral evidence by examining defendant No.1 but, however, have not chosen to adduce any documentary evidence in support of their claim.
6. The Trial Court having examined the oral and documentary evidence has answered issue Nos.2, 3 and 6 in the affirmative. The Trial Court held that plaintiff has succeeded in proving the existence of a lane between the property of plaintiff and defendants. The Trial Court was also of the view that on account of illegal construction of slab by defendant No.2, there is every likelihood of damaging the 6 plaintiff's house. On these set of reasonings, the Trial Court proceeded to decree the suit.
7. Feeling aggrieved by the judgment and decree of the Trial Court, the defendants preferred an appeal before the Appellate Court in R.A.No.32/1999.
8. Pending consideration of the appeal, the defendants sought for local inspection and accordingly, Court Commissioner was appointed. The commissioner having visited the spot has submitted his report. The Appellate Court being the final fact finding authority has independently assessed the oral and documentary evidence and also the commissioner report. The Appellate Court having given its anxious consideration to the material on record has concurred with the finding of the Trial Court in regard to existence of lane between plaintiff's property and defendants' property. The Appellate Court having regard to the commissioner report and also photographs has also recorded a finding that there is 7 open space between the property of plaintiff and defendants. Therefore, the Appellate Court was of the view that the slab constructed by the defendants on the southern wall would affect the plaintiff's right and therefore, was of the view that plaintiff has succeeded in establishing that he is entitled for relief of mandatory injunction. This concurrent judgments are under challenge.
9. This Court vide order dated 17.09.2010 has admitted the appeal on the following substantial question of law:
"Whether the learned Appellate Judge was justified in giving a finding on the correctness or otherwise of the Commissioner's report while deciding the Regular Appeal?"
10. Heard learned counsel appearing for the appellants/defendants and learned counsel appearing for the respondent/plaintiff. I have gone through the judgments rendered by both the Courts below.
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11. If the material on record is examined in the context of the substantial question of law framed by this Court, the controversy between the parties revolves around a narrow compass. The present suit is filed seeking relief of mandatory injunction on the premise that defendants have highhandedly constructed a slab in the open space situated between the plaintiff's property and defendants' property. The sketch which is produced by the plaintiff before the Trial Court vide Ex.P-3 coupled with photographs which were produced before the Appellate Court clearly demonstrates the existence of a lane between the property of plaintiff and property of defendants which runs East West. The photographs would clearly depict the factual matrix at the ground.
12. On perusal of the commissioner report coupled with the photographs which were produced before the Appellate Court clearly establishes the existence of open space between the plaintiff's property and defendants property. This Court would also find that defendants have constructed the house 9 without leaving setback. Therefore, the slab which is constructed on the southern wall of defendants house virtually touches the wall of the plaintiff. Therefore, the plaintiff is entitled for relief of mandatory injunction not because that the rain water would run down on the Northern wall of the plaintiff but also on the ground that defendant has not left any setback and therefore, he cannot extend and put up construction in an open space between two private properties. The material on record also indicates that the width of the open space hardly measures 2 feet 3 inches and therefore, the defendants being the adjoining owners have no right to utilize the common space left between two private properties. Even on that count, the construction has to be held to be an illegal construction.
13. Both the Courts having examined the material on record have come to conclusion that plaintiff is entitled for relief of mandatory injunction. On perusal of the photographs, this Court would find that the extended slab, if ordered for 10 demolition, no prejudice would be caused to the defendants. If the slab is ordered to be demolished, that will not affect or damage the property owned by the defendants. Therefore, the concurrent findings recorded by the Courts below in granting relief of mandatory injunction is based on legal evidence let in by the plaintiff coupled with commissioner report which was secured at the instance of the defendants. Therefore, the substantial question of law framed by this Court needs to be answered in the negative. Accordingly, answered in the negative.
14. Hence, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE CA