Karnataka High Court
Smt S M Renukamma vs Bangaru Srinivasan on 22 March, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.51246 OF 2019 (GM-CPC)
BETWEEN:
1 . SMT. S.M. RENUKAMMA,
W/O K KRISHNAPPA
AGED ABOUT 50 YEARS,
2 . SRI. K. KRISHNAPPA @ K MUNIKRISHNAPPA
S/O MUNIYAPPA,
AGED ABOUT 55 YEARS,
BOTH ARE RESIDING AT:
K.E.PET,
SIDDLAGHATTA - 562 105.
...PETITIONERS
(BY SRI. SEENAPPA.K, ADVOCATE)
AND:
1 . SRI. BANGARU SRINIVASAN,
S/O JAYANARAYANASWAMY,
AGED ABOUT 57 YEARS,
RESIDING AT: K.K. PET,
SIDDLAGHATTA - 562 105.
2 . THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL,
SIDDLAGHATTA - 562 105.
...RESPONDENTS
(BY SRI. NARASIMHA MURTHY GOV., ADVOCATE FOR R1;
SRI. M.H.SAWKAR, ADVOCTE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-J THE IMPUGNED ORDER DATED 04.11.2019
PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, SIDLAGHATTA
IN EXECUTION PETITION NO.8/2017 AND; DIRECT THE ADDL.
2
CIVIL JUDGE AND JMFC, SIDLGHATTA TO ENQUIRE,
DETERMINE AND MEMO FILED BY THE PETITONERS DATED
17.09.2019 AS PR ANNEXURE-G; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
There was a suit for declaration & mandatory injunction
in O.S.No.2/2000; it was filed by the first respondent herein;
petitioners were the defendants; the suit came to be decreed
on 07.09.2002; petitioners' appeal in R.A.No.56/2002 was
negatived on 18.02.2009; their further challenge to the same
in RSA No.587/2009 suffered the same fate on 08.02.2011;
first respondent filed Execution Petition.No.8/2017 for
enforcing the decree; on 17.09.2019, petitioners filed a Memo
reporting compliance with and satisfaction of the decreetal
requirement.
2. The learned Judge of the Court below having not
been satisfied that the decree was duly complied with, levied
execution vide order dated 04.11.2019 directing the Bailiff to
cause delivery of possession of encroached portion, with
police protection; aggrieved thereby the petitioner-judgment
debtors are knocking at the doors of the Writ Court.
3. After service of notice, the first respondent-Decree
Holder having entered appearance through his counsel,
vehemently opposes the writ petition pointing out the
recalcitrant attitude of the petitioners in troubling him
despite his victory in a long drawn legal battle; he seeks
dismissal of the writ petition, pointing out that the decree has
remained unsatisfied for years.
4. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant a limited indulgence in the matter as under and for
the following reasons:
(a) during the course of hearing it transpires that the
encroachment of the western wall is to the extent of about 9
inches within and the said wall runs about 29 feet; this
roughly works out to be 27 sq.ft (9.3x12x30); it is fairly
submitted at the Bar that the approximate current market
value of the land per foot is Rs.3,000/- (Rupees three
thousand) only and there is no reason to doubt this version;
therefore, the petitioner has to make good this encroachment
by paying a compensation of Rs.1,00,000/- (Rupees One
Lakh) only to the respondent-Decree Holder;
(b) the above apart, learned counsel for the
petitioners after arguing the matter at length now fairly
submits that the petitioner would close all the windows
permanently and remove the chajja that protrudes into the
land of the respondent-Decree Holder; this he will do within a
period of two weeks; regard being had to special
circumstances of the case this Court has to work out equity
by taking into account a host of factors, lest the justice
should suffer.
In the above special circumstances, this writ petition is
disposed off with the following directions:
(i) Petitioners shall close all the windows on the
western wall permanently & irretrievably, and
further remove the chajja that protrudes into the
land of the respondent- Decree Holder within two
weeks;
(ii) Petitioners shall collectively pay a sum of Rupees
one lakh (Rs.1,00,000/-) only to the first
respondent - Decree Holder within a period of two
weeks;
(iii) Petitioners shall file the photograph and an
affidavit in the Registry of this Court to the effect
that the aforesaid directions (i) & (ii) above are
complied within an outer limit of three weeks from
this day;
(iv) If petitioners fail to comply with the directions (i)
to (iii) supra, the impugned order shall revive on
its own, and the Executing Court shall enforce the
same with full police force forthwith and report
compliance to the Registrar General of this Court
before the onset of Summer Vacation - 2021; in
addition to that, petitioner shall be liable to pay a
cost of Rs.50,000/- (Rupees Fifty Thousand) only
to the respondent-Decree Holder;
(v) Petitioner or any person claiming under them, at
any time hereafter shall not meddle with the wall
now retained nor shall they do anything that will
cause disturbance to the enjoyment of the
property by the respondent - Decree Holder in his
own way;
(vi) Petitioners further undertake that in future if they
take up any construction, they shall be leaving at
least two feet space from the property of the
respondent - Decree Holder.
No costs.
Sd/-
JUDGE
DS/Bsv
