Karnataka High Court
Syed Gafoor @ Mohinuddin S/O Abdul ... vs Abdul Sab S/O Rajesab Walekar on 24 June, 2013
Author: B.Manohar
Bench: B. Manohar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24 t h DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B. MANOHAR
R.S.A.NO. 1246/2006 (DEC)
BETWEEN:
1. Syed Gafoor @ Mohinuddin
S/o. Abdul Rahaman Sab
Aged about 63 years
Prashantinagar, Islampur
Gangavathi, Koppal Dist.583 227
2. Smt. Moghal Banu Begum
W/o. Kareem Baig
Aged about 36 years
Prashantinagar, Islampur
Gangavathi, Koppal Dist.583 227
3. Kareem Baig
S/o. Murad Baig
Aged about 43 years
Prashantinagar, Islampur
Gangavathi, Koppal Dist.583 227
- APPELLANTS
(By Sri Harsh Desai, Adv.)
2
AND:
1. Abdul Sab
S/o. Rajesab Walekar
Aged about 46 years
Prashanthinagar, Islampurm
Gangavathi, Koppal District 583 227
2. The Commissioner
City Municipal Council
Gangavathi, Koppal District 583 227
3. The State of Karnataka
By the Deputy Commissioner
Koppal District, Koppal 583 231
- RESPONDENTS
(By Sri. Vijay S. Chiniwar for Sri. Mahabaleshwar
Hasinal, Adv. for R1; Sri. B. Sharanabasawa, Adv.
for R2; Sri. Anandkumar K. Navalgimath, HCGP
for R3)
This RSA is filed U/S. 100 C.P.C. against the
judgment and decree dated 27.01.2006 passed in
R.A. No. 32/2005 on the file of Civil Judge
(Sr.Dn.), Gangavathi, dismissing the appeal and
confirming the judgment and decree dated
25.6.2005 passed in O.S. No. 204/2000 on the file
of the Addl. Civil Judge (Jr. Dn.) and JMFC,
Gangavathi.
This appeal coming on for admission this day,
the Court delivered the following:
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JUDGMENT
Plaintiffs are the appellants in this appeal. Being aggrieved by the judgment and decree dated 27.01.2006 made in R.A. No. 32/2005 passed by the Civil Judge (Sr. Dn.), Gangavathi confirming the judgment and decree dated 25.06.2005 made in O.S. No. 204/2000 passed by the Addl. Civil Judge (Jr. Dn.), Gangavathi, the plaintiffs have filed this appeal.
The rank of the parties is referred to as arrayed in O.S.No.204/2000, for the sake of convenience and better understanding.
2. Appellants are the plaintiffs in O.S. No.204/2000. They filed a suit against the defendants seeking for relief of declaration declaring that, running of flour mill, paddy huller machine and chilly pounding machine in the residential locality is illegal and against the public policy and also consequential relief of mandatory injunction directing the defendants to remove the flour mill, paddy 4 huller machine and chilly pounding machine from the suit schedule premises. In the plaint the plaintiffs have contended that they are the owners of the plots bearing No.509, 510, 501, 500 measuring East-West 15' and North-South 25' respectively. The plaintiffs have purchased those plots for the residential purpose. Originally those sites were allotted by the municipality for residential use. The allegation of the plaintiffs is that, the 1st defendant, who is the owner of residential plot bearing No.508 installed and running the flourmill, paddy huller machine and chilly pounding machine in the suit schedule premises. It was contended that, western wall of the house situated in plot No.509 is the common wall which is existing in between the plaintiff and first defendant's plots, installing of those machines will adversely affect the interest of the plaintiffs and it will create sound, noise and discharging the dust in the locality and running those machines are also creating a nuisance and vibrations in the wall and disturbing their normal life. It is further 5 alleged that, without obtaining necessary permission from the competent authority, these machines have been installed by the respondents. Hence the plaintiffs sought decree the suit in the above terms. In view of that, the plaintiff filed the suit with the above prayer.
3. In pursuance to the notice issued by the trial Court, the 1st defendant entered appearance and filed written statement contending that, after obtaining necessary permission from the competent authority, he is running the flour mill and decorticate of paddy huller machine and chilly pounding machine in the suit schedule premises. It is further contended that, by running flour mill and other machines, there is no sound, noise or discharging of any dust and as such, there is no nuisance and also vibrations as alleged by the plaintiffs. The defendants in their written statement contended that the defendant No.1 has obtained necessary permission from the competent authority in the year 1991-92 itself for 6 running the flour mill and other machines and the license has been renewed from time to time. It is further contended that, at the time of issuing license in favour of the defendant No.1, the defendant No.2 has followed the procedure prescribed in law and nobody have objected for issuing such a license to the defendant No.1. It is further contended that running of a flour mill, paddy huller machine and chilly pounding machine in the premises, do not make much noise, as such it is not considered as industry and sought for dismissal of the suit.
4. On the basis of the pleadings of the parties, the trial Court framed the following issues:
i. Whether the plaintiffs prove that, they are the absolute owner of the suit plots No.509, 510, 500 measuring East-West 15' and North-South 25' respectively?
ii. Whether the plaintiffs prove that, the Western Wall of the house situated in Plot No.508 and Eastern wall of the plot No.509 is the common 7 wall which is existing in between the plaintiff No.2 and defendant No.1's plots?
iii. Do the plaintiffs prove that, the installation of flour mill, pounding machine and decorticating machines are causing public nuisance and damage to the walls of their houses?
iv. Do the plaintiffs prove that, the defendant No.1 has illegally installed flour mill, pounding machine and decorticating machines without the knowledge of plaintiffs and public of that locality?
v. Do the plaintiffs prove that, they have got cause of action to file the present suit against the defendants?
vi. Do the defendant No.1 prove that this court has not pecuniary jurisdiction to try this suit? vii. Do the plaintiffs prove that, they are entitled for the relief of declaration against the defendants? viii. Do the plaintiffs prove that, they are entitled for relief of mandatory injunction in respect of removal of all machinaries of defendant No.1? 8 ix. What order or decree?
5. The plaintiffs in order to prove their case, the first plaintiff examined as PW1 and got examined four more witnesses as PWs. 2 to 5 and marked Exs. P1 to P29. On behalf of the defendants, the 1st defendant was examined as DW1 and examined one more witness as DW2 and marked documents at Exs. D1 to D18.
6. The trial Court, on appreciating the oral and documentary evidence let-in by the parties, held issues No.1 and 5 in the affirmative and issues No.2, 3, 4, 7 and 8 in the negative and consequently, by its judgment and decree dated 25.06.2005 dismissed the suit filed by the plaintiffs holding that plaintiffs are not entitled to the relief claimed in the plaint.
7. Being aggrieved by the judgment and decree dated 25.06.2005, the plaintiffs filed R.A.No.32/2005 on the file of the Civil Judge (Sr.Dn.) at Gangavathi on various grounds. The 1st Appellate Court on re- 9 appreciating the oral and documentary evidence, framed the following points for its consideration:
i. Whether findings of the trial Court in
O.S.No.204/2000 is correct?
ii. Whether the findings of the learned trial Judge
in O.S.No.204/2000 calls for interference?
iii. What Order?
8. The 1st Appellate Court, after considering the arguments addressed by the parties and on re- appreciating the evidence, held point No.1 in the affirmative and point No.2 in the negative and consequently by the judgment and decree dated 27.01.2006 dismissed the appeal confirming the judgment and decree passed by the trial Court in O.S.No.204/2000. Being aggrieved by the judgment and decree passed by the Courts below, the plaintiffs have preferred this Second Appeal.
9. Sri. Harsh Desai, learned Counsel appearing for the appellants contended that the judgment and decree 10 passed by the trial Court is contrary to law and evidence on record. The specific case pleaded by the appellants is that, the 1st respondent is running a flour mill at residential plot No.508. The plot was allotted for construction of residential house. Running of the flour mill, pounding machines and decorticating machines would adversely affect the interest of the neighbors and the plaintiffs, who are the owners of site No.509, 500, 501 and 510. The learned Judge of the Court below without considering the oral and documentary evidence produced by the parties, dismissed the suit solely on the ground that the 1st respondent had obtained the license from the competent authority, which is contrary to the law. The learned trial Judge has also not taken into consideration other contentions raised by the plaintiffs. Further, the 1st Appellate Court has not re-appreciated the evidence let-in by the parties and it has not discussed the oral and documentary evidence adduced by the parties, same is contrary to law. He further contended that, the Pollution 11 Control Board issued circular to the effect that, in the residential areas, the flourmill exceeding 5 HP motor cannot be run and that has been issued on the basis of the judgment of this Court. Hence the permission granted by the 2nd respondent is contrary to law. Hence sought for setting aside the judgment and decree passed by the Court below, by allowing this appeal.
10. On the other hand, Sri. B. Sharanabasawa, learned Counsel appearing for respondent No.2 contended that, the 1st respondent is running the flourmill, paddy huller machine and chilly pounding machines after obtaining necessary permission from the competent authority and the permission has been granted in the year 1991-92 itself as per Exs. D10 and D11 and has been renewed from time to time. Further the plan at Ex.D8 has also been sanctioned for construction of the building. He has not violated the condition of license. 12
11. Sri. Vijay S. Chiniwar for Sri. Mahabaleshwar Hasinal, learned Counsel for the respondent No.1 argued in support of the judgment and decree passed by the Courts below and contended that, after obtaining necessary permission from the competent authority, the first defendant has established the flourmill and pounding machines and both the Courts below after considering the oral and documentary evidence on record held that the plaintiffs have not made out a case to interfere with the running of the flourmill and chilly pounding machines and sought for dismissal of the appeal.
12. I have carefully considered of the arguments addressed by the parties and perused the judgment and decrees passed by both the Courts below.
13. The case of the appellants is that, the 1st respondent, without obtaining necessary permission from the competent authority has established the flourmill, paddy huller machine and chilly pounding machines. The 13 plaintiffs are the owners of plot No.509, 500, 501, 510 and running of the flourmill and other pounding machines will adversely affect the interest of the plaintiffs. In support of their contention, the plaintiffs have examined several witnesses and reiterated the stand taken in the plaint and also produced the documents to show that they have purchased the plot from the original owner and they are paying tax to the Corporation. They have also produced some of the photographs of building and its negative also. On the other hand, the 1st respondent in his written statement contended that, after obtaining necessary permission from the competent authority he has established the flourmill and chilly pounding machines. The 2nd respondent has also reiterated the same stand and they have also produced the document to show that KEB has also granted electricity supply and he is paying the electricity bill regularly.
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14. The records clearly discloses that the plaintiffs had purchased the site subsequent to the establishment of flourmill by the 1st respondent. Admittedly, the documents produced by the parties clearly discloses that, after obtaining necessary permission from the competent authority, the 1st respondent constructed the building and thereafter obtained permission to run the flourmill and pounding machines in the year 1991-92 itself. The KEB also supplied electricity to them. The sale deed produced by the plaintiffs clearly discloses that, they purchased the residential site from the original owner subsequent to the establishment of flour mill and other mills. The suit came to be filed in the year 2000 i.e., after 10 years after establishment of the flourmill and other mills. The trial Court, on appreciating the oral and documentary evidence found that, running of the flour mill will not affect the interest of the plaintiffs and it will not create nuisance of noise pollution as alleged by the plaintiffs and accordingly, dismissed the suit. Being aggrieved by the same, the 15 appellants filed the R.A.No.32/2005 before the 1st Appellate Court, which also came to be dismissed. Being aggrieved by the same, this second appeal has been filed. The subsequent circular issued by the Pollution Control Board will not be applicable to the existing flour mills. If the first respondent has violated any of the statutes it is open to the appellants to take action in accordance with law.
15. The finding recorded by the Courts below is purely a question of fact and the same is not liable to be interfered by this Court exercising power under section 100 of Civil Procedure Code. There is no substantial question of law to be decided by this Court. Accordingly I pass the following:
ORDER Appeal is dismissed. Parties to bear their costs.
Sd/-
JUDGE gab/-