Shivaputrappa vs Dattatraya
2023 Latest Caselaw 6046 Kant

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                                                     NC: 2023:KHC-K:6923
                                                      RSA No.200096 of 2019




                              IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH

                          DATED THIS THE 30TH DAY OF AUGUST, 2023

                                          BEFORE

                          THE HON'BLE MRS JUSTICE K S HEMALEKHA

                    REGULAR SECOND APPEAL NO.200096 OF 2019 (INJ)

                   BETWEEN:

                      SHIVAPUTRAPPA
                      S/O CHANDRASHEKHAR AWATI
                      AGE:64 YEARS
                      OCC:PENSIONER
                      R/O KALYAN- NAGAR
                      SINDAGI



                                                                ...APPELLANT
                   (BY SRI A.M. BIRADAR, ADVOCATE)

                   AND:
Digitally signed
by SHYAMALA
Location: HIGH
                      DATTATRAYA
COURT OF              S/O BHIMRAO KULKARNI
KARNATAKA             AGE:70 YEARS
                      OCC:PENSIONER
                      R/O PROFESSORS COLONY
                      KALYAN NAGAR- SINDAGI- 586 128
                                                              ...RESPONDENT
                   (BY SRI NARESH V. KULKARNI, ADVOCATE)
                        THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO ALLOW
                   THE APPEAL WITH COST AND SET ASIDE THE JUDGMENT AND
                   DECREE DATED 04.12.2018 PASSED BY THE PRINCIPAL
                   DISTRICT JUDGE AT VIJAYAPUR IN R.A.NO.110/2017 AND
                   JUDGMENT AND DECREE DATED 06.07.2017 PASSED BY THE
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                                    NC: 2023:KHC-K:6923
                                      RSA No.200096 of 2019




SENIOR CIVIL JUDGE AND JMFC SINDAGI IN O.S.NO.68/2011
OLD NO.97/2006, IN THE INTEREST OF JUSTICE.

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

                          JUDGMENT

The present appeal by the unsuccessful plaintiff

assailing the judgment and decree dated 04.12.2018

passed by the Principal District Judge, Vijayapur in R.A.

No.110/2017, confirming the judgment and decree dated

06.07.2017 in O.S.No.68/2011 on the file of Senior Civil

Judge and JMFC, Sindagi, whereby, the suit of the plaintiff

for mandatory injunction and perpetual injunction was

dismissed.

2 The parties are referred to as per their ranking

before the Trial Court for the sake of convenience.

3. The dispute in this appeal is with regard to

setback having not left by the defendant. The plaintiff

asserts that he is the owner of the suit schedule property

bearing TMC No.1425 measuring 72' x 42' and the

defendant is the owner of the property bearing TMC

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

No.1424 measuring 21' x 72'. The construction of the

building on the respective portion of their suit schedule

properties is not been disputed by either of the parties.

The dispute is with regard to not leaving of setback in the

building constructed by the defendant as is asserted by

the plaintiff. The property of the plaintiff annexed to the

plaint is shown by letters 'ABCD' and the property of the

defendant is shown by letters 'CDEF' and the windows are

shown by letter 'W'. It is stated that according to the

plaintiff, an authorized construction and violation of the

laws has resulted in nuisance to the plaintiff.

4. The defendant resisted the claim of the plaintiff

and contended that he has purchased the property TMC

bearing No.1424/A and has constructed a building in the

said portion after purchasing from the erstwhile owner and

existence of the compound wall between the property of

the plaintiff and the defendant is denied and there is no

violation of the municipal laws.

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

5. The Trial Court on the basis of the pleadings,

framed the following issues:

1. Whether plaintiff proves that the defendant has constructed his building without leaving setback and by violating TMC rules and the windows left by the defendant are causing nuisance to the privacy of the plaintiff?

2. Whether the suit of the plaintiff is maintainable in law?

3. Whether plaintiff is entitled for the relief of mandatory injunction as prayed in this suit?

6. In order to substantiate his claim, the plaintiff

examined himself as P.W.1 and two witnesses as P.W.2

and P.W.3 and got marked documents at Exs.P.1 to P.6.

On the other hand, defendant examined himself as D.W.1

and one witness as D.W.2 and got marked documents at

Exs.D.1 to D.15.

7. The Trial Court on the basis of the pleadings

and oral and documentary evidence, held that the plaintiff

has not placed any material to show that the defendant

has constructed his building without leaving setback and

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

violated TMC Rules and windows left by the defendant are

causing nuisance to the privacy of the plaintiff and

accordingly, dismissed the suit.

8. Aggrieved by which, the plaintiff preferred

regular appeal before the First Appellate Court. The First

Appellate Court re-appreciated the entire material on

record and has concurred with the judgment and decree of

Trial Court.

9. Aggrieved by which, the present appeal by the

plaintiff.

10. Heard Sri A.M. Biradar, learned counsel for the

appellant and Sri Naresh V. Kulkarni, learned counsel

appearing for the respondent and perused the entire

material on record.

11. Learned counsel for the appellant would

contend that the Courts below have not considered the

admission of D.W.1 in the cross-examination, wherein he

has categorically stated about the construction on the first

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

floor without leaving setback and opening the windows

towards the plaintiff house. Further, the learned counsel

for the appellant contended that appreciation of the

evidence by the Courts below is perverse. Non-

consideration of the evidence of D.W.1 and the material

evidence is vitiated. In the aforesaid facts and

circumstances of the case, the learned counsel would

contend that there arises substantial questions of law for

consideration in these appeals.

12. Per contra, learned counsel for the respondent

would justify the judgment and decree of the Courts below

and sought for dismissal of the appeal.

13. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

and perused the material on record.

14. The fact that the plaintiff and defendant are the

owners of their respective portion is not in dispute. The

dispute is about the construction on the first floor without

leaving setback by the defendant after purchasing the

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

property by erstwhile owner. The Court Commissioner was

appointed by the Trial Court. The Court Commissioner

measured the plaintiff's property and the defendant's

property and the compound wall and also the construction

of the staircase raised by the defendant and the report of

the Court Commissioner was submitted to the Court, the

report of the Court Commissioner was considered by the

Trial Court and held that defendant had undertaken

construction in his portion of the property in TMC

No.1424A and not in the property belonging to the plaintiff

i.e., TMC No.1425. Neither the Commissioner report was

challenged nor the Commissioner was cross-examined by

the plaintiff.

15. The Trial Court has also taken into

consideration that the admissions given by D.W.1 in his

cross-examination would not substantiate the claim of the

plaintiff in view of the settled law that the plaintiff has to

stand or fall on the own leg and not on the weakness of

the defendant and the Trial Court has held that the

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

defendant has not violated any laws of the TMC by not

leaving any setback and causing nuisance to the plaintiff.

16. The Appellate Court being the last fact finding

Court, on re-appreciation of the entire material on record

has held that, from perusal of Exs.D.1 to D.9, it is clear

that the plaintiff has acquiesced his right at the time of

construction of building by the defendant and injunction

cannot be granted to prevent an act of which it is not

reasonably clear that it will be a nuisance and also to

prevent a continuing breach in which the plaintiff has

acquiesced in view of Section 41 of the Specific Relief Act,

1963. The first Appellate Court also held that it is not the

case of the plaintiff that the defendant has constructed

staircase on the compound and opened windows,

ventilators on the compound wall and when the

construction of the staircase is in the property of the

defendant, there cannot be any encroachment by the

defendant. In the said aspects, both the Courts below

have concurrently, on facts, held that the plaintiff is not

NC: 2023:KHC-K:6923 RSA No.200096 of 2019

entitled for mandatory injunction and perpetual injunction

and there is no irregularity or error committed by the

Courts below. The manner in which, the Trial Court and

the First Appellate Court have considered the pleadings,

evidence and material on record, this Court is of the

considered view that there cannot be any view that can be

expressed by this Court. This Court is of the considered

opinion that there arises no substantial question of law in

this regular second appeal. Accordingly, this Court pass

the following:

ORDER

i. The Regular Second Appeal by the plaintiff

is hereby dismissed.

ii. The judgments and decrees of the Courts below

stand confirmed.

Sd/-

JUDGE RSP