Karnataka High Court
Gulam Jeelani S/O M V Khader Mahagavi vs Mohammed Nazeer Ahmed S/O Mohammed ... on 26 June, 2024
-1-
NC: 2024:KHC-K:4310
RSA No. 7265 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.7265 OF 2012 (INJ)
BETWEEN:
GULAM JEELANI
S/O M.V. KHADER MAHAGAVI
AGE: 50 YEARS, OCC: BUSINESS,
R/O. H.NO. 6-251, KHARI BOWLI,
MOMINPURA,
GULBARGA-585104.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
Digitally signed 1. MOHAMMED NAZEER AHMED
by SUMITRA
SHERIGAR S/O MOHAMMED ISMAIL
Location: HIGH AGE: 60 YEARS, OCC: BUSINESS,
COURT OF
KARNATAKA R/O. H.NO. 6-253, KHARI BOWLI,
MOMINPURA,
GULBARGA-585104.
2. THE COMMISSIONER
CITY CORPORATION
GULBARAGA-585102.
...RESPONDENTS
(BY SRI MOHD. KHADER KHAN, ADVOCATE FOR R1;
SRI P.S. MALIPATIL, ADVOCATE FOR R2)
-2-
NC: 2024:KHC-K:4310
RSA No. 7265 of 2012
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 05.06.2012 PASSED IN R.A.
NO.226/2010 BY THE IV ADDL. DISTRICT JUDGE, GULBARGA,
AND TO RESTORE THE JUDGMENT AND DECREE DATED
01.09.2008 PASSED IN O.S. NO.126/2006 BY THE PRL. CIVIL
JUDGE (JR.DN.) GULBARGA WITH COST THROUGHOUT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is in this regular second appeal assailing the judgment and decree in R.A. No.226/2010 dated 05.06.2012 on the file of the IV Additional District Judge, at Gulbarga reversing the judgment and decree in O.S. No.126/2006 dated 01.09.2008 and dismissing the suit of the plaintiff seeking mandatory injunction.
2. Parties herein are referred to as per their ranking before the trial Court in for the sake of convenience.
3. Suit seeking relief of perpetual injunction restraining defendant No.1, his servants, agents and etc., from encroaching, opening the Windows, Staircase, Sajja or fixing any door and to other openings towards the northern side of the suit property, that is, the house of the plaintiff bearing -3- NC: 2024:KHC-K:4310 RSA No. 7265 of 2012 Municipal Corporation No.6-251 and restraining defendant No.2 from giving the construction permission to defendant No.1, and relief of mandatory injunction directing defendant No.1 to demolish the Sajja, Staircase, Platform, the Door and Window in the southern side. Plaint avers that the plaintiff is the absolute owner of house property bearing Municipal Corporation No.6-251 of which the portion was purchased by his father on its western side from one Mohd. Imamsab S/o. Mohd. Hazarathsab under a sale-deed. Suit property is land measuring 40 feet x 8.3 feet in length running from West to East in front of the plaintiff's house bearing Municipal Corporation No.6-251 (Hereinafter referred to as 'suit property' for short). It was the case of the plaintiff that from the date of purchase the plaintiff is having easementary rights to use the suit property to approach the main Government Road. It is the case of the plaintiff that defendant No.1 obtained permission from the City Municipal Corporation, Gulbarga, for re-roofing of his house and under the garb of such permission, defendant No.1 has demolished his entire building with mala-fide intention and made a construction by encroaching into the suit property and raised the Sajja in the suit property by encroaching 3 feet -4- NC: 2024:KHC-K:4310 RSA No. 7265 of 2012 therein. It is stated that defendant No.1 has taken illegal construction though objections were filed by the plaintiff to stop the illegal construction. Defendant No.2 - Corporation has made no efforts to stop the illegal construction.
4. On notice the defendants appeared and only defendant No.1 filed his written statement interalia contending and denying the plaint averments. It is the case of defendant No.1 that the house of defendant No.1 was in dilapidated position, for which he sought permission to re-construct and defendant No.2 the Corporation has accorded permission to re- construct and the re-construction carried out by defendant No.1 is according to the building permission granted by defendant No.1 - Corporation. According to the defendants, the construction of the house does not disturb the plaintiff from exercising his easementary rights over the suit property.
5. The trial Court on the basis of the pleadings, framed the following issues:
"1. Whether plaintiff proves that he has exclusive right over the lane measuring 40' X 8'3" from East to West infront of the house of the plaintiff bearing No.6/251?-5-
NC: 2024:KHC-K:4310 RSA No. 7265 of 2012
2. Whether plaintiff further proves the interference from the defendant by way of encroachment over the still schedule property by fixing the staircase, windows, Sajja towards the northern-side of the suit property?
3. What order or decree?
Additional issues
1. Whether plaintiff proves that the defendant No.1 had made an encroachment to the extent of 3 feet in the suit-lane and constructed Sajja on the roof level and window level illegally and unauthorisedly?
2. Whether the plaintiff is entitled for the mandatory injunction to remove the said illegal and unauthorised construction made by encroaching on the suit-lane?"
6. In order to substantiate their claim, plaintiff examined himself as PW1, one independent witness as PW2, who was later on expunged as per the order dated 20.12.2007. On behalf of plaintiff documents at Exs.P1 to P26 were marked. On the other hand, defendant No.1 got himself examined as DW1, two witnesses as DW2 and DW3 and got marked documents at Exs.D1 to D11. Learned counsel for defendant -6- NC: 2024:KHC-K:4310 RSA No. 7265 of 2012 No.1 voluntarily gave up DW3 as per the order-sheet dated 03.07.2008 and the deposition of DW3 was expunged.
7. The trial Court based on the pleadings, oral and documentary evidence, decreed the suit of the plaintiff in part, holding that the plaintiff is entitled for the relief of mandatory injunction directing defendant No.1 to demolish the Sajja, Staircase, Platform and Katta which are illegally and unauthorizedly constructed by defendant No.1 towards southern side of defendant No.1's house on the drainage and the suit-lane.
8. Aggrieved, defendant No.1 preferred appeal before the first Appellate Court. The first Appellate Court while re- appreciating the entire oral and documentary evidence set aside the order of the trial Court and dismissed the suit of the plaintiff for mandatory injunction. Aggrieved, the plaintiff is before this Court.
9. Heard the learned counsel for the appellant-plaintiff Sri Vinayak Apte, learned counsel for the respondent No.1- -7- NC: 2024:KHC-K:4310 RSA No. 7265 of 2012 defendant No.1 Sri Mohd. Khader Khan, and learned counsel for defendant No.2 Sri P.S. Malipatil.
10. The claim of the plaintiff laid down before the trial Court is that defendant No.1, in violation of the permission granted by defendant No.2, has put up illegal construction encroaching the suit property. The suit laid by the plaintiff is on the public lane. The plaintiff has approached the trial Court with the specific case that there exists a lane between the house of the plaintiff and house of defendant No.1 and there is a public lane and defendant No.1 in the guise of putting construction has encroached the public lane. The law is well settled that when the case of the plaintiff is against a particular person that he has violated building bye-laws the proper remedy available to the plaintiff is to approach the appropriate authorities. Section 321 of the Karnataka Municipal Corporation Act envisages the course of action to the Corporation when there is violation of the building plan. The plaintiff is unable to substantiate before the Court that even assuming that there is an encroachment in public lane by defendant No.1, such encroachment is causing any hindrance to the plaintiff and in the absence of the same the first -8- NC: 2024:KHC-K:4310 RSA No. 7265 of 2012 appellate Court was justified in dismissing the suit of the plaintiff for mandatory injunction. The course available to the plaintiff is to approach the appropriate authorities seeking that defendant No.1 has violated the building bye-laws and has put up an illegal construction on the public lane and if such a grievance is made before the authority it is for the authority to take proper action in accordance with law. The suit of the plaintiff has been rightly dismissed by the first Appellate Court warranting no interference by this Court under Section 100 of CPC and no substantial question of law arises for consideration.
11. Accordingly, the Court pass the following:
ORDER
i) The regular second appeal is hereby dismissed.
ii) Judgment and decree of the first Appellate Court stand confirmed.-9-
NC: 2024:KHC-K:4310 RSA No. 7265 of 2012
iii) It is needless to observe that the appellant-
plaintiff is at liberty to seek for appropriate relief before the authority in accordance with law.
Pending I.As., if any, does not survive for consideration.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 33 CT: VD