Sri C P Umashankar vs Sri.Ravindra
2022 Latest Caselaw 997 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21st DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

            M.F.A. NO.2771 OF 2018 (CPC)

BETWEEN:

SRI C.P.UMASHANKAR
S/O LATE C.PAPAIAH REDDY
AGED ABOUT 54 YEARS
R/AT NO.21, III B CROSS
LALBAHADUR NAGAR, KASTURI NAGAR,
BANGALORE-560 043.
                                     ... APPELLANT
(By SRI CHANDRA SHEKAR R., ADV.)

AND:

SRI RAVINDRA
S/O LATE MAHINDRA REDDY
AGED ABOUT 28 YEARS
R/AT NO.3/1
SAUBBAIAH REDDY ROAD
ULSOOR, BANGALORE-560 008.
                                    ... RESPONDENT
     THIS MFA IS FILED UNDER ORDER 43 RULE 1(r)
OF CPC, AGAINST THE ORDER DATED 02.01.2018
PASSED ON I.A. NO.1 IN O.S.NO.5923/2017 ON THE
FILE OF THE XL ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-14), BENGALURU, DISMISSING
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 & 2 READ
WITH SECTION 151 OF CPC.

     THIS MFA COMING ON FOR 'ADMISSION' THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

The appellant being aggrieved by the order on

I.A.No.I dated 02.01.2018 in O.S.No.5923/2017 passed

by the Court of the XL Additional City Civil and Sessions

Judge, (CCH-41), Bengaluru has filed this appeal.

2. Brief facts leading to filing of this appeal are

that:

The appellant has filed a suit in O.S.No.5923/2017

seeking for the relief of permanent injunction in respect

of the suit schedule property. In the said suit, the

appellant has filed an application seeking an order of

temporary injunction restraining the respondent from

putting up illegal construction towards northern side of

the suit schedule property without leaving proper

setbacks. In support of the application, the appellant

has filed an affidavit. It is contended that the appellant

is the absolute owner in peaceful possession and

enjoyment of the suit schedule property and got a legal

right, title and all kind of features of ownership in the

suit schedule property. Further, it is contended that the

respondent is the adjacent owner of the property which

is towards the northern side of the property. The

respondent is putting up a construction in violation of

Building Bye-Laws without having sanction plan and

license and by not leaving proper setback as prescribed

by the BBMP. It is also further contended that the

respondent is trying to put up a construction on the

northern side of the property of the appellant without

leaving setback to curtail the easementary right like air,

sunlight and ventilation to affect his lawful right. Further

it is contended that the appellant has lodged the

complaint to the BBMP and also to the Police. Insptie of

the lodging of the complaint, the BBMP and the Police

authorities have not taken any action against the

respondent. Hence, the appellant has filed an

application seeking an order of temporary injunction.

The said application was opposed by the respondent.

The trial Court after hearing the parties has passed the

impugned order rejecting the application filed by the

appellant. Hence, the appellant being aggrieved by the

order passed on I.A.No.I filed this appeal.

3. Heard the learned counsel for the appellant.

4. Learned counsel for the appellant submits

that the trial Court has committed an error in rejecting

the application. He further submits that the appellant is

the absolute owner of the suit property and the

respondent is trying to encroach upon the suit property.

Hence, he further submits that the respondent without a

sanctioned plan is proceeding with the construction

illegally and unauthorizedly. He further submits that

though the appellant has lodged a complaint to the

BBMP and also to the Police, the authorities have

refused to take action against the respondent. Hence,

he submits that the trial Court ought to have allowed

the application filed by the appellant, on the contrary,

rejected the application. Hence, on these grounds, he

prays to allow the appeal.

5. Heard and perused the records and

considered the submissions of the learned counsel for

the appellant.

6. The appellant pleaded that the property was

acquired through his father under a registered gift deed.

Further, the pleadings and the documents regarding

situation of the property is contrary to each other. In

fact the property belongs to the father of the appellant

is situated towards northern side and the property of

the respondent is situated on the southern side. Apart

from that the respondent is putting up the construction.

It is the case of the appellant that the respondent is

illegally putting up the construction towards the

property of the appellant without leaving any setback as

per the Building Bye-Laws of the BBMP. The respondent

has filed objection to the said application, wherein the

respondent has clearly contended that the respondent is

not making any efforts of construction over the property

of the appellant. Further on considering the material

placed on record, the trial Court held that the property

of the respondent is situated on the southern side of the

property claimed by the appellant. The appellant alleged

that the respondent has illegally undertaken the

construction work towards northern side. The work

undertaken by the respondent is in his own property but

not on the property of the appellant. Further, the

appellant has not placed any material on record to

consider that the respondent has illegally undertaken a

construction work without leaving any setback and it is

also affecting his right of easement in getting air and

light. As observed above, the respondent is undertaking

construction within his own area and not on the

property of the appellant. The trial Court has recorded a

finding that the respondent is constructing a building

within his own area but not on the property of the

appellant. Further, the trial Court has also recorded a

finding that the appellant has not made out a prima-

facie case for grant of an order of injunction. Further,

the trial Court has also recorded a finding that if the

injunction as prayed for is granted, the respondent will

be put to irreparable loss as the respondent is

undertaking construction within his own property. The

trial Court after considering the material on record was

justified in rejecting the application filed by the

appellant. Hence, I do not find any ground to interfere

with the impugned order. Accordingly, the appeal is

dismissed.

In view of the dismissal of the main appeal.

I.A.No.1/2018 does not survive for consideration and

disposed of accordingly.

Sd/-

JUDGE

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