IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1792 OF 2015 BETWEEN:
SRI. T. RANGE GOWDA AGED 59 YEARS S/O LATE THIMME GOWDA RESIDING AT DOOR NO.16, FACT GODOWN, B.KATIHALLI, KOPPALU INDIRANAGAR EXTENSION, HASSAN-573 201.
(BY SRI.A RAVISHANKAR, ADVOCATE) AND:
SRI. K.G. PURUSHOTHAM AGED 47 YEARS S/O LATE G.K. GUNDAPPA RESIDING AT FACT GODOWN, B. KATIHALLI, KOPPALU INDIRANAGAR EXTENSION, HASSAN-573 201.
...APPELLANT …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:3.8.2015 PASSED IN RA.NO.30/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.12.2012 PASSED IN OS.NO.143/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC, HASSAN AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the plaintiff questioning the judgment and decree dated 03.08.2015 passed in R.A.No.30/2013 on the file of the II Additional Senior Civil Judge and JMFC, Hassan, confirming the judgment and decree dated 13.12.2012 passed in O.S.No.143/2008 on the file of the Civil Judge and JMFC, Hassan.
2. For the sake of convenience, the parties are referred to as per their status before the Courts below.
3. The facts leading to the top noted appeal are as follows:
The plaintiff filed a suit for mandatory injunction in O.S.No.143/2008 by contending that he is the absolute owner of suit ‘A’ property which measures North-South 40 feet and East-West 31 feet. The plaintiff contended that he had purchased the schedule ‘A’ property under registered sale deed dated 17.02.1999 and has constructed residential house in the year 2001 and while constructing the residential house, the plaintiff has left open space measuring 1½ feet North-South and 32 feet East-West to have access to air and light. The plaintiff has specifically claimed in the plaint that he has put up the compound wall on the southern side of his property by leaving setback space of 1½ feet. The plaintiff further contended that the defendant is the owner of schedule ‘B’ property. The case of the plaintiff is that the defendant by encroaching upon setback left by the plaintiff has put up two pillars. The plaintiff has further averred in the plaint that the defendant is a rich and influential man and as such, he was not able to prevent the defendant from proceeding with illegal construction and hence, the present suit is filed. The case of the plaintiff is that on account of illegal construction made by the defendant in the setback space left by the plaintiff has virtually denied and deprived the plaintiff of free flow of air and light to his house. On this set of pleadings, the plaintiff sought for relief of mandatory injunction.
4. In pursuance of summons, the defendant appeared through his Counsel and filed written statement. The defendant has stoutly denied the entire averments made in the plaint. The defendant has specifically contended in the written statement that he has put up pillars for construction of car shed well within his property and as such, the said construction would not cause obstruction in regard to free flow of air and light to the plaintiff’s property and hence, sought for dismissal of the suit.
5. The Trial Court based on the rival contentions, formulated the following issues:
“1) Whether the plaintiff proves that while constructing a house building in suit ‘A’ schedule property, towards the southern side, he has left 1½ x 32 feet space for the purpose of flow of air and light and constructed a compound wall at ‘CD’ area shown in the rough sketch annexed to the plaint?
2) Whether the plaintiff proves that the defendant has illegally put up 6 feet height 2 pillars in set back area shown as ‘EF’ in the rough sketch annexed to the plaint, abutting to the compound wall?
3) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for?
4) What decree or order?”
6. The plaintiff in support of his contention examined himself as PW.1 and got marked Exs.P-1 to P-7. The plaintiff also sought for local inspection of the suit schedule property and the Commissioner having carried out local inspection submitted his report. The Commissioner was also examined as CW.1 and his report is marked as Ex.C-1. The defendant by way of rebuttal evidence, examined himself as DW.1 and produced documents vide Exs. D-1 to D-4. The Trial Court having appreciated the evidence on record has recorded a finding that the contention of the plaintiff that he holds vacant space to an extent of 1½ feet towards southern side of his property that is beyond his compound wall at point ‘CD’ cannot be accepted. The Trial Court also took judicial note of the fact that the plaintiff himself is guilty of violation of norms since the material on record indicates that he has put grills on the compound wall. The Trial Court also recorded a finding that the plaintiff has an efficacious remedy under Section 41(h) of the Specific Relief Act and based on the above said reasoning assigned, the Trial Court proceeded to dismiss the suit. Aggrieved by the same, the plaintiff filed regular appeal in R.A.No.30/2013.
7. The Lower Appellate Court on re- appreciation found that though the sale deed dated 17.02.1999 in favour of the plaintiff pertaining to schedule ‘A’ property, the extent is shown as 40x32 feet. However, in the notice issued by the authority, the measurement more particularly towards North- South is shown as 31 feet. The measurement shown in Katha is in fact admitted by the plaintiff himself. The Appellate Court having examined the cross- examination of plaintiff has concurred with the reasoning of the Trial Court that the plaintiff is also guilty of violation of building norms and rules and the same is culled out in the categorical admission given by the plaintiff at para 16 of the judgment. The appellant has also taken note of this admission elicited from the mouth of plaintiff on confrontation of photos to the plaintiff in regard to grills put up by the plaintiff on the compound wall and this photos have been marked as Exs.D-1 to D-2. Both the Courts have come to the conclusion that both the parties to the suit have violated the rules. Both the Courts below have arrived at a conclusion that the plaintiff has put up grills by heightening the compound and the defendant has put up pillars without leaving any setbacks. In that view of the matter, the Appellate Court dismissed the appeal filed by the present appellant herein. Being aggrieved by the concurrent findings of fact, the plaintiff/appellant is before this Hon’ble Court.
8. Heard learned counsel for the appellant and perused the records.
9. Learned counsel for the appellant would vehemently argue that both the Courts have concurrently erred in not appreciating the evidence of the parties in the proper perspective. Both the Courts have not at all appreciated the report of Commissioner dated 13.09.2012, which clearly establishes the illegal construction put up by the defendant. Learned counsel for the appellant would also vehemently argue that the findings recorded by the both the Courts that the present suit is itself barred under Section 41(h) of Specific Relief Act is perverse. On this ground, learned counsel for the appellant submits that both the Courts have concurrently erred in dismissing the suit and the finding of fact recorded by the Courts is contrary to the clinching evidence on record and hence, the same would amount to perversity and would give raise to substantial questions of law in the top noted appeal.
10. It is not in dispute that the Commissioner was appointed at the instance of appellant/plaintiff. The case of the plaintiff is that he has put a compound wall on the southern side of schedule ‘A’ property which is referred ‘CD’ in the hand sketch. The plaintiff has further contended that beyond his compound wall, he has left setback of 1½ feet. On this set of pleadings, the case of the plaintiff is that even beyond compound wall, he has retained 1½ feet open space to enable him to have free flow of air and light. It is the specific case of the plaintiff that the defendant has virtually encroached on this setback space left by the plaintiff and encroached by putting up illegal construction. It is not in dispute that plaintiff’s property measures 40 feet North-South and in the sketch the plaintiff has shown the measurement of his property as 38½ feet and beyond ‘CD’ compound, he claims that he has left open space measuring 1½ feet as setback. On perusal of the Commissioner report, the Commissioner has scaled the measurement of the plaintiff schedule ‘A’ property as 39 feet 6 inches towards North-South. This part of the report would clinch the issue and it would go against the very theory set up by the plaintiff that beyond compound wall, he has left setback of 1½ feet. If the schedule ‘A’ property measuring 39 feet 6 inches within the compound wall, then in the event, the contention of the plaintiff that he has left a setback of 1½ feet beyond compound wall towards southern side cannot be believed and as such, the question of granting discretionary relief of mandatory injunction would not arise. It is also evident from the records that plaintiff has accepted the Commissioner report and has not challenged that portion of Commissioner report which indicates that his property measuring 39 feet 6 inches towards North-South. If the width of the compound wall is included, this Court is of the view that the plaintiff’s property is situated within the compound wall and does not own any vacant space beyond the southern side of compound wall. In that view of the matter, the suit of the plaintiff has to fail.
11. The evidence on record indicates that defendant has put up pillars just abutting to the dividing compound wall ‘CD’, but the said illegal construction is within schedule ‘B’ property and hence in this context, plaintiff cannot maintain suit for mandatory injunction against the adjoining owner i.e., defendant mainly on the ground that the latter proposes to build certain construction on his own property which may be in breach of Municipal Rules and Regulations. Hence, this Court is of the view that there is no breach of an obligation existing in favour of plaintiff. But, however, that would not take away the right of the plaintiff in reporting violation of building norms to the competent authority. In that view of the matter, the findings of the Courts below that plaintiff has efficacious remedy under Section 41(h) of the Specific Relief Act does not suffer from any infirmity.
12. In the light of the above conclusion, I do not find any illegality in the reasoning assigned by the Trial Court finding that the plaintiff has efficacious remedy under Section 41(h) of the Specific Relief Act.
Accordingly, the appeal is dismissed.
Sd/- JUDGE CA