Karnataka High Court
A Panchappa S/O Channappa vs J K Harinarayana Sarada on 28 October, 2024
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NC: 2024:KHC-D:15780
RSA No. 1514 of 2007
C/W RSA No. 1512 of 2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 1514 OF 2007 (INJ)
C/W. REGULAR SECOND APPEAL NO. 1512 OF 2007 (INJ)
IN RSA NO.1514/2007:
BETWEEN:
1. A PANCHAPPA S/O. LATE CHANNAPPA,
SINCE DEAD BY HIS LRS.
1A. SMT. A RATHNAMMA W/O. LATE A. PANCHAPPA,
AGED ABOUT 74 YEARS,
1B. A.SUGURAPPA S/O. LATE A PANCHAPPA,
AGED ABOUT 52 YEARS,
1C. PARVATHI W/O. THIPPESWAMY,
Digitally
signed by
AGED ABOUT 49 YEARS,
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.08
10:48:25
1D. A.VIRUPAKSHI S/O. LATE PANCHAPPA
+0530
AGED ABOUT 46 YEARS,
ALL ARE R/O. D.NO.23, 11TH WARD,
FLOWER STREET,
ASPLLI LANE, BALLARI-583101.
... APPELLANTS
(BY SRI. B CHIDANANDA, ADVOCATE)
AND:
1. J.K.HARINARAYANA SARADA
S/O. JUGAL KISHORE SARADA,
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NC: 2024:KHC-D:15780
RSA No. 1514 of 2007
C/W RSA No. 1512 of 2007
AGED ABOUT 60 YEARS,
RICE MERCHANT, R/O. D.NO.8,
XI WARD, CAR STREET,
BELLARI-583101.
2. A.KARIBASAPPA S/O. A.CHANNAPPA,
AGED ABOUT 62 YEARS, ASST EX-ENGINEER,
K.E.B, TORANAGALLU,
SANDUR TALUK, BELLARY DISTRICT-583129.
... RESPONDENTS
(BY SRI. BASAVARAJ KAREDDY, ADVOCATE FOR R1;
SRI. V.SHIVAARAJ HIREMATH, ADVOCATE FOR R2)
THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE II ADDL.
CIVIL JUDGE (SR.DN.), BELLARY, DATED 28.02.2007, MADE IN
RA 105/2006 AND FURTHER BE PLEASED TO CONFIRM THE
JUDGMENT AND DECREE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN.), BELLARY DATED 20.02.2001 MADE IN
O.S.NO.183/1995, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RSA NO.1512/2007:
BETWEEN:
1. A PANCHAPPA S/O. LATE CHANNAPPA,
SINCE DEAD BY HIS LRS.
1A. SMT. A RATHNAMMA W/O. LATE A. PANCHAPPA,
AGED ABOUT 74 YEARS,
1B. A.SUGURAPPA S/O. LATE A PANCHAPPA,
AGED ABOUT 52 YEARS,
1C. PARVATHI W/O. THIPPESWAMY,
AGED ABOUT 49 YEARS,
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NC: 2024:KHC-D:15780
RSA No. 1514 of 2007
C/W RSA No. 1512 of 2007
1D. A.VIRUPAKSHI S/O. LATE PANCHAPPA
AGED ABOUT 46 YEARS,
ALL ARE R/O. D.NO.23, 11TH WARD,
FLOWER STREET,
ASPLLI LANE, BALLARI-583101.
... APPELLANTS
(BY SRI. B.CHIDANANDA, ADVOCATE)
AND:
1. J.K.HARINARAYANA SARADA
S/O. JUGAL KISHORE SARADA,
AGED ABOUT 60 YEARS,
RICE MERCHANT, R/O. D.NO.8,
XI WARD, CAR STREET,
BELLARI-583101.
2. A.KARIBASAPPA S/O. A.CHANNAPPA,
AGED ABOUT 62 YEARS, ASST EX-ENGINEER,
K.E.B, TORANAGALLU,
SANDUR TALUK, BELLARY DISTRICT-583129.
... RESPONDENTS
(BY SRI. J. BASAVARAJ, ADVOCATE FOR R1;
SRI. SHIVARAJ HIREMATH, ADVOCATE FOR R2)
THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE II ADDL.
CIVIL JUDGE (SR.DN.), BELLARY, DATED 28.02.2007, MADE IN
RA 104/2006 AND FURTHER BE PLEASED TO CONFIRM THE
JUDGMENT AND DECREE OF THE PRINCIPAL CIVIL JUDGE
(JR.DN.), BELLARY DATED 20.02.2001 MADE IN
O.S.NO.362/1995, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:15780
RSA No. 1514 of 2007
C/W RSA No. 1512 of 2007
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
1. The plaintiffs are before this Court in the Regular Second Appeal assailing the judgment and decree passed in R.A. Nos.104/2006 & 105/2006, dated 28.02.2007 on the file of the II-Addl. Civil Judge (Sr.Dn.) Ballari (for short "the First Appellate Court") confirming the judgment and decree in O.S. Nos.362/1995 & 183/1995 dated 20.02.2001 on the file of the Prl. Civil Judge (Jr.Dn.), Ballari (for short "the trial Court").
2. For the sake of convenience, the parties are referred to pas per their rank before the trial Court.
3. Suit schedule property in both the suits is Building bearing Door Nos.21, XI Ward, Aspalli Lane, Flower Street, Ballari with the following boundaries:
"East: Premises belonging to Kavakuntla Bheemaiah Family and lane;
-5- NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 West: Open space belonging to the defendant; North: Premises originally belonging to Tunga Guru Siddappa and Gogi Gunapallappa; & South: Premises belonging the Soruppa family."
4. O.S. No.183/1995 is filed seeking permanent injunction and O.S. No.362/1994 is filed seeking permanent injunction as well as mandatory injunction in respect of the suit schedule property. The case of the plaintiffs is that, they are the absolute owner of the suit schedule property and the property is 60 years old building and there are two ventilators in the western wall. There are two portions, consisting of two rooms and in occupation of the tenants. The western wall contains ventilators, which is the only source of air and light and is the exclusive wall belonging to the plaintiffs. It is the case of the plaintiffs that the defendant is the owner of the property situated towards -6- NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 western side of the suit schedule property. The defendant started construction with RCC pillars by leaving just one feet from exclusive western wall of the plaintiffs. It is the case of the plaintiffs that, the defendant completed the construction without leaving 10 feet open space between his construction and the western wall of the plaintiffs and it is blocking the ventilators and preventing the access of air and light.
5. The defendant appeared and filed written statement inter alia contending that the plaintiffs have not mentioned as to what is the inconvenience caused to the plaintiffs when the construction by the defendant is in his property and there is a wall which divides and demarcates the property of the plaintiffs and defendant. It is stated that the defendant is putting up the construction after obtaining the necessary permission from the authorities and construction of defendant does not prevent the access of any air and light as contended by the plaintiffs. -7-
NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007
6. The trial Court based on the pleadings in both the suits, framed the following issues:
"ISSUES (IN O.S.NO.362/1995)
1. Whether plaintiffs prove that they are the absolute owners of the schedule property? (Deleted)
2. Whether plaintiffs prove that defendant is the owner of adjacent to the suit property on western side? (Deleted)
3. Whether plaintiffs prove that defendant has recently started put up construction in the suit open space with R.C.C. Pillars? (Deleted)
4. Whether plaintiffs prove that the defendant started to put up construction adjacent to the suit property on the western side by leaving just one feet between the western wall of the suit schedule property and the proposed construction?
5. Whether plaintiffs prove that western wall of the suit schedule property which divides the properties of plaintiffs and defendant is exclusive wall belonging to the plaintiffs?
6. Whether plaintiffs prove that defendant has to construct his construction in his property within -8- NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 a distance of 10' from western wall of the suit premises?
7. Whether plaintiffs are entitled for the relief of permanent injunction as prayed for?
8. What order and decree?
ADDITIONAL ISSUE
1. Whether the plaintiff is entitled to the relief of mandatory injunction?
ISSUES (IN O.S.NO.183/1995)
1. Whether the plaintiff proves that the plaintiff is the absolute owner in possession of the suit schedule property? (Deleted)
2. Whether the plaintiff proves that, the defendant's construction towards the western side by putting up R.C.C. pillars and complete constructions will prevent the air and light to the two portions of the suit schedule property?
3. Whether the plaintiff proves that he has got easementary right of light and air on western side of the suit property?
4. Whether the plaintiff is entitled for the relief as sought for?
5. What order or decree?"-9-
NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007
7. The trial Court based on the pleadings, oral and documentary evidence, arrived at a conclusion that, the plaintiffs have proved that, the defendant has put up construction adjacent to the suit schedule property on the western side by leaving just one feet between the western wall of the suit schedule property and the proposed construction; and by the judgment and decree, the trial Court decreed the suit of the plaintiffs and restrain from putting up any construction obstructing the easementry right of the plaintiffs for air and light through four ventilators existing in the western wall of the suit schedule property and further directed the defendant to remove the beam and other construction over it only to the extent which is obstructing the free flow of air and light through the four ventilators existing in the western wall of the suit schedule property and not below the ventilators. Aggrieved, the defendants preferred appeal before the First Appellate Court. The First Appellate Court while reappreciating and
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 reconsidering the entire oral and documentary evidence, framed the following points for its consideration:
"1. Whether the trial court is erred in holding that, the construction undertaken by the defendant and Insertion of beam obstructed and prevented the free flow of air and light through ventilators existing in the western wall of the suit schedule property and thereby granting the relief by partly decree the suit?
2. Whether the impugned judgment and decree needs to be interfered with?
3. What decree or order?"
8. The First Appellate Court modified the judgment and decree of the trial Court and directed the defendant to make alteration or modification in beam so as to give more access to air and light through ventilators existing in the western wall of the suit schedule property of the plaintiff or otherwise alternatively to allow the plaintiffs to widen the ventilators to have the access of air and light at the cost of the defendant and further a direction is given by the trial Court to the defendant to remove the beam is set aside.
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 Aggrieved by the modification of the judgment and decree by the First Appellate Court, the plaintiffs are before this Court in this Regular Second Appeal and no appeal is proffered by the defendant.
9. This Court on 26.08.2011 framed the following substantial question of law, which reads as under:
"Whether the modification of the decree passed by the trial court granting mandatory and permanent injunction against the defendant to the effect that defendant/appellant as to make alternation or modification in beam so as to give more access to air and light through ventilators existing in the western wall of the plaintiffs property or otherwise alternatively to allow the plaintiffs to widen the ventilators to have the access of air and light at the cost of the appellant/defendant is perverse and arbitrary for non-consideration of the material on record?"
10. Learned counsel appearing for the appellant and the learned counsel appearing for the respondents have been heard on the substantial question of law framed by this Court.
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007
11. Learned counsel appearing for the appellant submits that the plaintiffs are having four ventilators on the western wall which is their exclusive property and the defendant has constructed the first floor by raising pillars and in light of the construction carried out, there is a block of air and light to the plaintiffs' house and the modification of the judgment and decree of the trial Court by the First Appellate Court is without application of mind and contrary to the easement rights of the plaintiffs.
12. Per contra, learned counsel appearing for the respondents submits that the First Appellate Court in fact ought to have dismissed their suit, since the plaintiffs have failed to establish as to what right has been infringed by building constructed by the defendant even otherwise, the First Appellate Court has held that the appellant is at liberty to widen the ventilators to have access of air and light at the cost of defendant, if he intends to do so.
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007
13. This Court has carefully considered the rival contentions urged by the learned counsel appearing for the parties and perused the materials available on record.
14. It is the case of the plaintiffs that, in light of the construction put up by the defendant without leaving the set back of one feet, four ventilators on the westerns wall, from which the plaintiffs used to access air and light has been obstructed. The material on record would indicate that the grievance of the plaintiffs is about not leaving set back as required under law, if the defendant has constructed any structure without leaving any set back, it is for the concerned authorities to take action against the defendant, but does not give a right to the plaintiffs to file a suit unless his personal right is infringed. When there is an infringement of any byelaw as contended by the plaintiffs, the proper recourse is that the concerned authorities to take action in accordance with law. This Court in the case
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 of S. Sundar Raj vs Vijayendra Kumar & Others1 has held at paragraph No.8 as under:
"8. This Court ruled that a temporary injunction cannot be granted in the absence of a creation of right in the neighbouring owner to institute a suit for injunction for violation of clear space of four feet between the two adjoining premises in terms of municipal licence. The said judgment was subsequently followed in Dr. K. Panduranga Nayak v. Smt. Jayashree [1989 (3) Kar. L.J. 497 : AIR 1990 Kant. 236 : ILR 1989 KAR 3104.] . The Single Judge after noticing the earlier judgment of this Court in Mathew Phillip's case, supra, ruled in paras 6 and 9 reading as under:
"As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is 1 2001 (1) KAR. L.J. 468
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 the same as his own, but these rights of enjoyment are naturally qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to so much light and air as come to him and he cannot complain of the obstruction however serious, in unless he can establish his title to an easement of light and air.
When there is an infringement of the bye-law, the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under Section 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner under Section 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if the Commissioner does not decide to compound then he may take action as he deems fit and proper.
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation".
15. This Court in S. Sundar Raj supra observed that no injunction can be granted at the instance of a neighrouring owner unless the violation/deviation of license results in injury or a right. The grievance of the plaintiffs is not that the defendant has encroached upon the property of the plaintiffs and he has put up construction; what according to the plaintiffs is that the construction made in the property of the defendant has obstructed the air and light through the ventilators. The ventilators which have been installed on the western wall is not attached to the
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 two rooms of the plaintiffs which is in occupation of the tenants; whereas the two rooms have separate access of air and light and that the beams which are according to the plaintiffs above the western wall, the First Appellate Court directed the defendant to make alteration or modification in the beam so as to get access of air and light through ventilators and also allowed the plaintiffs to widen the ventilators. Further, the direction given to plaintiffs to widen the ventilators, so that they have access of air and light and if really the plaintiffs intended to have more access through ventilators he could not made such provision of extending the ventilators. The ventilators which have been constructed on the western wall is only to an extent of air and light to enter into the premises of the plaintiff and it cannot be an absolute right by claiming any infringement of right has been taken place by constructing the building of the defendant in his property. In the absence of any infringement of his any right, the modification though was unwarranted, this Court is not disturbing the judgment and decree of the First Appellate court in light of no appeal has
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NC: 2024:KHC-D:15780 RSA No. 1514 of 2007 C/W RSA No. 1512 of 2007 been preferred by the defendant. The substantial question of law framed by this Court is answered accordingly holding that there is no perversity arbitrariness in the order of the First Appellate Court and this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment and decree passed by the First Appellate Court is stands confirmed.
Sd/-
____________________ JUSTICE K.S. HEMALEKHA VNP CT:PA LIST NO.: 2 SL NO.: 21