K.H.M. Vagesh Murthy S/O K.M. ... vs K. Channabasaiah S/O Revaiah
2022 Latest Caselaw 860 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 19TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    RSA.NO.6153/2012 (INJ)
BETWEEN

K.H.M. VAGESH MURTHY S/O K.M. KOTRAIAH,
AGE: 67 YEARS, PRINCIPAL,SREE SIDDESHWARA TYPING
INSTITUTE,R/O: KUDLIGI, DIST: BALLARY

                                                  ... APPELLANT

(BY SRI.K.L.PATIL & SRI.S.S.BETURMATH, ADVS.)


AND

K. CHANNABASAIAH S/O REVAIAH,
AGE: 70 YEARS, HINDU,
RETIRED EMPLOYEE, R/O: 5TH WARD, KUDLIGI, DIST: BELLARY.

                                                ... RESPONDENT

(BY SRI.GODE NAGARAJ, ADV.)

     THIS APPEAL IS FILED UNDER 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD:23.07.2012 PASSED IN R.A.NO.43/2009
ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KUDLIGI,
DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
DTD:03.10.2009 AND THE DECREE PASSED IN O.S.NO.86/2001 ON
THE FILE OF THE CIVIL JUEDGE AND JMFC., KUDLIGI, PARTLY
DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION AND
MANDATORY INJUNCTION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      2




                              JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiff who is denied the relief of mandatory

injunction by both the court below.

2. Appellant/plaintiff filed a suit seeking perpetual

injunction and also for relief of mandatory injunction

against the respondent/defendant. The grievance of the

appellant/plaintiff is that respondent/defendant has

highhandedly constructed northern side wall in his property

without leaving any setback and has fixed three windows.

The appellant/plaintiff contended that the said highhanded

action of respondent/defendant would virtually takeaway

the valuable rights of the appellant/plaintiff, who possessed

a vacant space beyond his southern wall. The

appellant/plaintiff has contended that since

respondent/defendant has not left any setback, the open

space which is in existence between the appellant/plaintiff's

property and respondent/defendant's property is

exclusively owned by appellant/plaintiff. If the

respondent/defendant is permitted to put up windows on

his northern wall, would amount to infringement of his

right over the open space. Hence, the suit is filed seeking

the relief of perpetual injunction and also the relief of

mandatory injunction to direct the respondent/defendant to

close the windows and ventilators that are put up on the

northern side of the respondent/defendant's property.

3. Both the parties to substantiate their claim have

led in oral and documentary evidence. The trial court on

appreciation of oral and documentary evidence answered

issue Nos.1 and 2 in the affirmative. The trial court has

recorded a categorical finding that respondent/defendant

has constructed northern wall without leaving any setback.

The trial court having verified Ex.P3 which is an

endorsement issued by the Chief Officer, Town Panchayat,

Kudligi and Ex.P4, which is order dated 07.06.2001 which

was issued by Chief Officer, Town Panchayat, Kudligi

permitting the respondent/defendant to put up windows

and ventilators as shown in the approved plan was of the

view that though appellant/plaintiff has pleaded

infringement of air and light on account of highhandedly

fixing of windows on the northern side of the wall by

respondent/defendant, however, on assessing oral and

documentary evidence found that pleadings are quite

ambiguous and vague in nature. The trial court was of the

view that appellant/plaintiff has failed to demonstrate as to

how his rights are infringed. The trial court was of the view

that though respondent/defendant has not left any

setback, however, windows are fixed without any extension

towards northern side open space and therefore, the trial

court has recorded a categorical finding that two windows

will not cause any inconvenience or hardship to the

appellant/plaintiff.

4. The trial court has also taken judicial note of the

fact that respondent/defendant pending suit has closed one

window and therefore, no inconvenience or hardship would

be caused to the appellant/plaintiff. The trial court decreed

the suit in part and thereby granted perpetual injunction in

favour of the appellant/plaintiff restraining the

respondent/defendant from putting up any further windows

or ventilators on the northern wall of the house and also

restrained from making any further extension by putting

door on the northern side of the wall. The trial court also

granted perpetual injunction restraining the

respondent/defendant from interfering with the

appellant/plaintiff's peaceful possession over the open

space which is situated between the house of the

appellant/plaintiff and the respondent/defendant.

5. The appellant/plaintiff being aggrieved by the

rejection of the relief of mandatory injunction preferred an

appeal in R.A.No.43/2009 whereas respondent/defendant

preferred an appeal in R.A.No.49/2009. Both the appeals

were clubbed and the first appellate court on re-

appreciation of oral and documentary evidence has

concurred with the finding of the trial court and dismissed

the appeals filed by the appellant/plaintiff as well as

respondent/defendant.

6. Learned counsel for the appellant/plaintiff would

vehemently argue and contend before this court that both

the courts having answered issue Nos.1 and 2 in the

affirmative and having recorded a categorical finding that

respondent/defendant has constructed northern wall

without leaving any setback have concurrently erred in not

granting any relief of mandatory injunction. He would

further submit to this court that fixing of windows on the

northern side would virtually infringe rights of the

appellant/plaintiff over the open space left by the

appellant/plaintiff towards southern side of his property.

Therefore, he would submit to this court that finding of the

courts below in denying the relief of mandatory injunction

suffers from perversity and therefore, would give rise to

substantial question of law.

      7.    Heard        the    learned                 counsel     for      the

appellant/plaintiff     and    perused         the        judgments        under

challenge and also the trial court records.

8. On perusal of the trial court records, more

particularly the photographs which are produced at Exs.P1

to P11, this court would find that the property owned by

the appellant/plaintiff and respondent/defendant are facing

east. This factual aspect would be relevant insofar as grant

of mandatory injunction is concerned. If the

appellant/plaintiff's property is facing east and

respondent/defendant's property is also facing east, and if

the appellant/plaintiff has no access to his southern wall by

way of any door facing southern, then finding recorded by

both the courts below that appellant/plaintiff has failed to

establish inconvenience that is caused to the

appellant/plaintiff on account of windows fixed on the

northern wall of respondent/defendant property appears to

be fair and just and the said reasoning does not suffer from

any perversity. Though there is some force in the

submission made by the learned counsel for the

appellant/plaintiff that by fixing windows on the northern

wall, respondent/defendant may claim right over the open

space left by the appellant/plaintiff on the southern side of

his property, however, the same is misconceived. This

relevant aspect is dealt by both the courts below more

particularly, the trial court. The trial court while granting

perpetual injunction has clearly granted the relief in favour

of the appellant/plaintiff. The operative portion of the order

reads as under:

"The defendant, his agents, servants or anybody acting on his behalf are hereby restrained by way of permanent injunction order from putting up any new windows or ventilators in the northern side wall of his house and also restrained from putting up any doors to the existing two windows from out side of his northern wall and also restrained him from interfering with the plaintiff's peaceful

possession over the open space situated in between his house and plaintiff's house."

9. If this operative portion is taken into

consideration, it necessarily implies that open space which

is situated in between the property of appellant/plaintiff

and respondent/defendant is clearly owned by the

appellant/plaintiff and respondent/defendant is injuncted

by way of permanent injunction from interfering with the

peaceful possession over the open space situated between

the appellant/plaintiff's house and respondent/defendant's

house. If the southern wall of appellant/plaintiff has no

opening, probably both the courts below having examined

equity and also having taken judicial note of the fact that

respondent/defendant has closed one window have rightly

proceeded to grant perpetual injunction and have declined

to grant the relief of mandatory injunction. If

respondent/defendant has fixed two windows to have

access of air and light and if there are no opening towards

southern wall of appellant/plaintiff's property, then I am

unable to understand as to how fixing of windows would

cause any interference or hardship to the

appellant/plaintiff.

10. In that view of the matter, I am of the view that

concurrent findings of both the courts below in denying the

relief of mandatory injunction does not suffer from any

infirmity or illegality. During the course of reasoning

recorded by the first appellate court, there is a finding by

the first appellate court that open space is a pathway.

However, this court would clarify that the said finding is

incorrect and the same runs contrary to the clinching

evidence placed on record by the appellant/plaintiff. The

open space which is located between the two houses

cannot be termed as pathway. The said open space is

owned by appellant/plaintiff who owns a residential house,

which is old house and it is the setback which is left by the

appellant/plaintiff. The clinching evidence on record would

also indicate that respondent/defendant has not left any

setback while constructing the northern wall.

11. With these clarifications, the present appeal is

dismissed by holding that no substantial question of law

arises for consideration in the present case on hand.

12. I have heard the learned counsel for the

petitioner on I.A.No.1/2012 filed under Order 41 Rule 27 of

CPC. The application does not satisfy the ingredients of

Rule 27 of Order 41 and since no substantial question of

law arises for consideration in the case on hand, question

of considering additional documents does not survive for

consideration.

Sd/-

JUDGE MBS/-