Mr A Soloman vs Mr Ronald Ramamurthy
2022 Latest Caselaw 2073 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

               R.S.A.No.2182 OF 2012

BETWEEN:

MR. A. SOLOMON
S/O A. ANTHONY
AGED ABOUT 72 YEARS
R/AT 4554, VI CROSS2
ST. MARY'S ROAD
N.R. MOHALLA
MYSORE - 570 007.                          ... APPELLANT

(BY SRI. DATTA PRASAD, ADVOCATE
    SRI. MANMOHAN P.N. FOR ADVOCATE)

AND:

MR. RONALD RAMAMURTHY
S/O LATE DR. RAMAMURTHY
AGED ABOUT 61 YEARS
R/AT NO.4553/1, VI CROSS,
ST. MARY'S ROAD
N.R. MOHALLA
MYSORE - 570 007.                      ... RESPONDENT

(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1;
    SRI. MOHAN BHAT, ADVOCATE FOR R2)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 13.07.2012 PASSED IN R.A. NO. 106/2002 ON THE FILE
OF PRINCIPAL JUDGE, SMALL CAUSES AND SENIOR CIVIL
JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED:29.01.2022 PASSED IN
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OS.NO.590/1997 ON THE FILE OF V ADDITIONAL I CIVIL JUDGE
(JR. DN), MYSORE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

R.S.A.No.2182/2012 is filed by the

appellant/defendant aggrieved by the concurrent findings

rendered in O.S. No.590/1997 on the file of the V

Additional I Civil Judge (Jn.Dn.), Mysore (hereinafter

referred to as the 'Trial Court') and in R.A.No.106/2002 on

the file of the Principal Judge, Small Causes and Senior

Civil Judge, Mysore (hereinafter referred to as the 'First

Appellate Court').

2. Brief facts leading upto filing of the present

appeal is ;

That one Ronald Ramamurthy- respondent/plaintiff

filed suit in O.S.No.590/1997 against Mr.A.Soloman, the

appellant/defendant who also happens to be his brother-

in-law for relief of declaration and permanent injunction

contending that he is the absolute owner of the property

bearing D.No.4553/1, 6th Cross, St. Mary's Road,

N.R.Mohalla, Mysore described as plaint 'A' schedule

property and that the defendant is the owner of property

bearing D.No.4554, 6th Cross, St. Mary's Road,

N.R.Mohalla, Mysore described as plaint 'B' schedule

property. That the plaint 'A' and 'B' schedule properties

are bifurcated by a compound wall. That the respondent/

plaintiff has left 3 1/2 feet of set back area towards east of

his property. That there are shops constructed on the

northern portion and a RCC building on the southern side

of the 'B' schedule property. That there is a Mangalore

Tiled House in the middle of the 'B' schedule property. That

there is 5 1/4th feet vacant space existing between the

western wall of the said Mangalore Tiled House and the

compound wall of 'B' schedule property. The dining hall

and the bedroom in the ground of plaint 'A' schedule

property is situated diagonally opposite to the said vacant

space. That the appellant/defendant with an intention of

causing nuisance to the respondent/plaintiff had

demolished the Mangalore Tiled House and he is in the

process of putting up construction on the western side of

the set back area of plaint 'B' schedule property. That the

said construction was illegal and if the appellant/defendant

succeeds constructing on the set back area, same would

reduce the flow of air and light to the plaint 'A' schedule

property causing inconvenience and injury to his rights.

Hence, sought for declaration of his easementary rights of

air and light through the set back area in the 'B' schedule

property and for consequent injunction restraining

appellant/defendant from putting up any construction on

the set back area in the 'B' schedule property.

3. The appellant/defendant filled written

statement denying the plaint averments. That description

of boundaries is incorrect as East of Plaint 'A' Schedule

ought to be South and West of Plaint 'B' Schedule ought to

be North. It was contended that the appellant/defendant

being desirous of changing the roof of the Mangalore tiled

house, had obtained plan. While executing the plan, it was

found that northern wall of the house was to be

demolished as it was weak, hence, upon the advise of the

Engineers and authorities, he demolished the wall and had

constructed northern wall on his property leaving 4 1/4

feet space. That in view of the interim order passed by the

Trial Court, he approached the Corporation authorities and

sought for modification of the plan and also filed a memo

before the trial Court undertaking to demolish the recently

constructed northern wall of his property by leaving set

back of 5 1/4 feet between his northern compound and

northern wall to be constructed in future. That since the

defendant has given an undertaking before the Court

exhibiting his bonafide intention, the allegation of the

plaintiff that defendant causing nuisance would render

without any meaning and hence, sought for dismissal of

suit as same having become infructuous.

4. The Trial Court based on the pleadings framed

the following issues.

"(1). Whether the plaintiff proves that he is the absolute owner in possession of plaint 'A' schedule property?

(2) Whether the plaintiff proves that the plaint 'B' schedule property is situated towards the eastern side of 'A' schedule property and the defendant is owner thereof?

(3) Whether the plaintiff proves that there is 5 feet 3 inches set back area towards western side of the plaint 'B' schedule property as per law?

(4) Whether the plaintiff is entitled for the relief of easementary right as prayed in the prayer para (a) of plaint?

(5) Whether the plaintiff proves that the defendant trying to put up illegal construction as averred in the plaint?

(6) Whether the plaintiff is entitled for the relief of permanent injunction as prayed in prayer para (b) of the plaint?

(7) What order or decree?"

and recorded evidence. Respondent/plaintiff

examined himself as P.W.1 and exhibited 19 documents

marked as Ex.P.1 to Ex.P.19 and appellant/defendant

examined himself as D.W.1 and exhibited 4 documents

marked as Ex.D.1 to Ex.D.4.

5. On appreciation of evidence and by its

judgment and decree dated 29.01.2002 the trial Court

decreed the suit of the plaintiff. Aggrieved by the same,

appellant/defendant filed regular appeal in R.A.

No.106/2002 before the first appellate court. Considering

the grounds urged in the appeal memorandum the first

appellate court framed following points for its

consideration.

"(1) Whether the plaintiff has got right of drawing air and light to the bed room and dining hall in the plaint 'A' schedule property through the set back are of 5 feet 3 inches in 'B' schedule property?

(2) Whether the plaintiff is entitled for the relief of declaration and injunction as sought for?

(3) Whether the judgment and decree passed by the lower Court are perverse, capricious and suffers from any infirmity? If so, liable to be interfered with?

(4) What order?"

and by its judgment and order dated 13.07.2012

dismissed the appeal confirming the judgment and decree

passed by the trial Court.

6. Learned counsel for the appellant/defendant

reiterating the grounds urged in the memorandum of

appeal submitted that:

(a) The grant of injunction by the Courts below

without plaintiff proving the interference was unjustified

more so, when the appellant/defendant had himself

demolished the construction on the set back area, nothing

remained for consideration in the matter.

(b) That the grant on relief of declaration and

easementary rights on air and light through the set back

area infavour of the respondent/plaintiff is without any

proof of absolute right and enjoyment for the prescribed

period of time as required under the Indian Easement Act,

1882. That the respondent /plaintiff has neither pleaded

nor proved that he has been enjoying the right over 20

years being entitled for such a relief of declaration.

(c) That the respondent/plaintiff has failed to

establish that the construction put up would block free flow

of air and light which was essential for grant of relief of

declaration and injunction. Thus, he submits same gives

raise to substantial question of law requiring consideration

by this Court.

7. Per contra, learned counsel for the

respondent/plaintiff justifying the judgment and decree of

the Courts below submitted that the residential building

on the plaint 'A' schedule property has been constructed

more than 25 years ago and has been drawing air and light

through the said set back area and that the very fact that

the defendant voluntarily filing a memo of undertaking to

demolish the newly constructed wall and further

undertaking not to put up any construction on the said set

back area would be sufficient enough to sustain the

judgment and orders passed by the Courts below. No

substantial question of law would arise in the matter

requiring consideration. Hence, he sought for dismissal of

the appeal.

8. Heard learned counsel for the parties and

perused the records.

9. The undisputed facts are that there exists a set

back area of 5 feet 3 inches width in the 'B' schedule

property, which is situated diagonally opposite to the bed

room and dining hall of the building existing in 'A' schedule

property belonging to the respondent/plaintiff. It is also

admitted fact that the trial Court on 17.07.1997 had

granted interim order restraining the appellant/defendant

from putting up construction over the 'B' schedule property

in violation of sanctioned plan. That upon service of

summons on 16.10.1997, appellant/defendant had

appeared through his counsel and filed a memo of

undertaking to keep the said set back area of 5 feet 3

inches from his boundary open and further undertook not

to raise any construction on the said set back area. Taking

on record the said memo of undertaking the Trial Court

had permitted the appellant/defendant to proceed with the

construction. In view of the undertaking given by the

respondent/plaintiff and in view of the appellant/defendant

voluntarily demolishing newly constructed wall on the set

back area, the issue Nos. 1 to 3 were held infavour of the

respondent/plaintiff.

10. As regards to the issue No.4, the relief of

easementary rights, the Trial Court at paragraphs 12 and

13 of the judgment has taken note of the fact that there

existed construction on the schedule 'A' property more

than 25 years prior to filing of the suit and a window facing

the set back area and drawing air and light through the

same. This aspect of the matter has been admitted by the

defendant as well, who has identified the existence of the

window. The Trial Court has also taken note of the fact

that the appellant/defendant had only taken permission to

change the roof of the Mangalore Tiled House but had

demolish the Mangalore Tiled House and was putting up of

construction on the set back area which as noted above

was demolished by the defendant himself in terms of the

memo of undertaking filed before the Trial Court.

11. In view of the above admitted facts and

circumstances, the Trial Court decreed the suit as sought

for by the respondent/plaintiff. The First Appellate Court

has re-appreciated the aforesaid material evidence and

also specifically taken note of the fact that the

appellate/defendant had applied and obtained modified

plan agreed to construct reserving 5 feet 3 inches of set

back area of the 'B' schedule property.

12. Under the aforesaid facts and circumstances of

the matter and the material evidence made available by

the respondent/plaintiff and also the admission of the

appellant/defendant with regard to existence of the set

back area, drawing air and light through the window facing

the set back area over 25 years and the undertaking given

by the appellant/defendant to demolish the construction

and to keep the set back area open, the reasoning

assigned by the Trial Court and the First Appellate Court

while decreeing the suit as prayed for by the

respondent/plaintiff cannot be found fault with. In the

circumstances, no substantial question of law is involved in

the matter warranting interference. Resulted RSA

No.2182/2012 is dismissed.

Sd/-

JUDGE

RU