Karnataka High Court
Smt. Shivaganga W/O Chanbasappa vs Kumar Narendra S/O Tukaram Chawan And ... on 14 December, 2023
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RSA No. 7323 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7323 OF 2012 (INJ)
BETWEEN:
SMT. SHIVAGANGA W/O CHANBASAPPA
AGE: 44 YEARS, OCC: LECTURER,
R/O BEHIND PADMA INDUSTRIES,
YAMUNA NAGAR, KUSNOOR ROAD, GULBARGA,
NOW R/AT PLOT NO.329, GDA LAYOUT,
KUSNOOR ROAD, GULBARGA-585105.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. KUMAR NARENDRA S/O TUKARAM CHAWAN
Digitally signed AGE: 19 YEARS, OCC: STUDENT,
by SHILPA R R/O C/O TUKARAM S/O DAMU NAIK
TENIHALLI
R/O PLOT NO.153, NEAR GANESH KIRANA SHOP
Location: HIGH
COURT OF JAYA NAGAR, SEDAM ROAD,
KARNATAKA GULBARGA-585105.
2. SHIVARAJ S/O SHARANAPPA NARSHETTY
AGE: 56 YEARS, OCC: JR. ENGINEER,
R/O BEHIND INDIRA HOSPITAL,
SHARAN NAGAR, GULBARGA-585102.
...RESPONDENTS
(BY SRI D. P. AMBEKAR, ADV. FOR R1;
R2-SERVED)
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RSA No. 7323 of 2012
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 14.06.2012 IN R.A.
NO. 3/2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
GULBARGA, AND CONFIRM THE JUDGMENT AND DECREE DATED
24.11.2009 IN O.S.NO. 115/2004 ON THE FILE OF I ADDL. CIVIL
JUDGE (JR.DN) AT GULBARGA BY ALLOWING THIS APPEAL AND
BY DISMISSING THE SUIT IN O.S. NO. 115/2004, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.2 in O.S.No.115/2004 on the file of the
learned I Additional Civil Judge (Jr.Dn.) at Kalaburagi
(hereinafter referred to as 'Trial Court' for brevity) is impugning
the judgment and decree dated 14.06.2012 passed in
R.A.No.3/2010 on the file of the leaned Principal Senior Civil,
Kalaburagi (hereinafter referred to as 'First Appellate Court' for
brevity), allowing the appeal and decreeing the suit of the
plaintiff for permanent injunction, restraining the defendants
from making any construction over the suit property without
leaving setback and also granting mandatory injunction directing
the defendants to remove the structure raised over the suit
property as shown in green colour in the sketch map of the
plaintiff, within the period of four months and setting aside the
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impugned judgment and decree passed by the Trial Court vide
judgment and decree dated 24.11.2009.
2. For the sake of convenience, parties are referred to
as per their ranking before the Trial Court.
3. Brief facts of the case are that the plaintiff filed the
suit O.S.No.115/2004 against defendant Nos.1 and 2 seeking
grant of permanent injunction restraining the defendants from
making any construction over plot No.329, situated in Survey
No.62 of Rajapur Badepur, Gulbarga Development Authority
Layout, Kalaburagi (for short 'GDA'), Kusnoor road, measuring
7'.6' East to West and 30' North to South, with the boundaries
mentioned therein (hereinafter referred to as 'suit property' for
brevity) as shown in red colour in the sketch map and also for
mandatory injunction, directing the defendants to remove the
structure raised over the suit property as described in the plaint
shown in green colour in the annexed sketch map.
4. It is contended by the plaintiff that he is the owner of
plot No.333, which was allotted in his favour by GDA, Kalaburagi
as per the registered sale deed dated 24.03.2004 and since then
the plaintiff is in possession and enjoyment of plot No.333.
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5. It is contended that similarly GDA, Kalaburagi
allotted plot No.329 in favour of defendant No.1 and plot No.328
in favour of defendant No.2. The defendants started making
construction over plot No.329 without leaving the setback and in
violation of the sanction plan issued by the GDA, Kalaburagi.
The GDA, Kalaburagi had issued a show cause notice to the
defendants calling upon them to remove the unauthorized
construction. In spite of that, neither defendant No.1 nor
defendant No.2 gave any reply nor complied with the demand
made therein. The plaintiff contended that the defendants have
encroached a portion of his plot No.333 by making construction
against the approved building plan and therefore, filed the suit
seeking the relief of permanent injunction as well as for
mandatory injunction.
6. Defendant Nos.1 and 2 have appeared before the
Trial Court and filed their written statement denying the
contentions taken by the plaintiff. It is stated that plot No.328
was purchased by defendant No.2 under the registered sale deed
dated 10.04.2003 while defendant No.1 purchased plot No.329
under the registered sale deed dated 02.04.2004. However, by
oversight, defendant No.2 commenced construction of the
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building in plot No.329 assuming that it is plot No.328.
Therefore, an exchange deed dated 05.04.2004 was came to be
executed where defendant No.1 gave up his right over plot
No.329 and got plot No.328 while defendant No.2 gave up his
right over plot No.328 and got plot No.329.
7. It is contended that defendant No.2 had already
completed the construction work of the house over plot No.329
even prior to filing of the suit. There was no violation of any
rules and regulations or even building bylaws and therefore,
prayed for dismissal of the suit.
8. On the basis of the pleadings of the parties, following
issues were came to be framed:
1) Whether the plaintiff proves the existence of suit
schedule property as per plaint para-2 schedule?
2) Whether the plaintiff proves the alleged
encroachment made by the defendants once suit
schedule property as on the date of the suit?
3) Whether the plaintiff proves that he is entitled for
the relief of mandatory injunction as sought?
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4) Whether defendants prove that suit of plaintiff
suffers from non-joinder of necessary parties?
5) Whether defendants prove that suit of plaintiff is not
maintainable as averred in written-statement?
6) What are the reliefs parties as entitled?
7) What order or decree ?
9. The plaintiff examined himself as PW.1, got
examined PW.2 and also got marked Exs.P1 to P17 in support of
his defence. Defendant No.2 got examined herself as DW.1 and
got marked Exs.D1 to D6 in support of her defence. The Trial
Court after taking into consideration all these materials on
record, answered issue No.1 in the affirmative and issue Nos.2 to
6 in the negative and accordingly, dismissed the suit of the
plaintiff.
10. Being aggrieved by the same, the plaintiff has
preferred R.A.No.3/2010. The First Appellate Court on re-
appreciation of the materials on record, allowed the appeal by
setting aside the impugned judgment and decree passed by the
Trial Court, decreeing the suit of the plaintiff for permanent
injunction, restraining the defendants from making any
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construction over the suit property without leaving setback and
granting mandatory injunction, directing the defendants to
remove the structure raised over the suit property as shown in
green colour in the sketch map of the plaintiff within four
months, failing which, it reserved liberty with the plaintiff to
remove the structure in accordance with law. Being aggrieved
by the same, defendant No.2 is before this Court.
11. Heard learned counsel Sri Vinayak Apte for the
appellant/defendant No.2 and learned counsel Sri D.P.Ambekar
for respondent No.1/plaintiff.
12. Learned counsel for the appellant contended that the
construction made by defendant No.2 over plot No.329 was
much prior to filing of the suit. The building licence was obtained
on 07.07.2003, but, the suit was came to be filed on
30.03.2004. Since GDA, Kalaburagi had raised certain
objections, a portion of Sajja was removed by defendant No.2
within the parameters of the building approved plan. PWs.1 and
2 during cross-examination categorically admitted all these facts.
13. Learned counsel contended that even though the
Court Commissioner was appointed, he has never executed the
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Commissioner work in the presence of defendant No.2.
Therefore, defendant No.2 filed objections to the Commissioner
report. In the Commissioner report at serial No.9, the Court
Commissioner refers to plot No.328 and not plot No.329.
Therefore, it is clear that the Commissioner has committed
mistake in identifying the suit property. Learned counsel also
submitted that there is no specific pleading in the plaint
regarding measurement of the building and the portion of the
compound, which is to be removed. Even though an application
under Order 6 Rule 17 of CPC was filed by the plaintiff seeking
amendment, the same was came to be rejected by the Trial
Court. Under such circumstances, the Trial Court rightly
dismissed the suit of the plaintiff. However, the First Appellate
Court committed an error in decreeing the suit. Hence, he prays
for allowing the appeal in the interest of justice.
14. Per contra, learned counsel for respondent
No.1/plaintiff opposing the appeal submitted that the suit for
perpetual injunction and for mandatory injunction was filed by
the plaintiff against the defendants with specific allegations.
Admittedly, plot No.329 belongs to defendant No.2 and he made
disputed construction. Therefore, defendant No.1 has never
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challenged the judgment and decree passed by the First
Appellate Court.
15. Learned counsel submitted that as per the plaint
sketch, defendant No.2 has made construction in violation of the
building bylaws without leaving setback as required under law.
The Trial Court committed an error in rejecting the application
seeking amendment of the plaint and dismissing the suit.
However, the First Appellate Court was right in decreeing the
suit. There are no reasons to interfere with the same.
16. Learned counsel further submitted that the
Commissioner has visited the spot and measured the property in
the presence of all the parties. It was never contended by
defendant No.2 that measurement of the property was in his
absence. The Court Commissioner is examined as CW.1 and his
report is marked as Ex.C1. The Commissioner's report and the
evidence of the Commissioner are very clear with regard to
unauthorized construction made by defendant No.2, in
constructing compound wall, encroaching the portion measuring
19'x1'. Therefore, the First Appellate Court was right in
decreeing the suit of the plaintiff. Since there are no merits in
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the contention made by learned counsel for appellant/defendant
No.2, he prays for dismissal of the appeal.
17. This Court vide order dated 13.12.2023 framed the
following substantial question of law:
"Whether granting the relief of perpetual
injunction and mandatory injunction against defendant
No.2 by the First Appellate Court in the absence of
specific measurement of the unauthorized construction
in the plaint is bad under law?"
My answer to the above substantial question of law in the
'Negative' for the following:
REASONS
18. It is the specific contention of the plaintiff that he is
the owner of plot No.333, whereas defendant No.2 is the owner
of plot No.329, which is described as suit property. There is no
dispute with regard to the same. It is also not in dispute that
defendant No.2 has constructed building over the suit property
by getting the building licence and the approved plan. It is also
admitted that GDA, Kalaburgi had issued notice to defendant
No.2 as per Ex.P9 dated 22.01.2004 asserting that the building
in question constructed by defendant No.2 is in violation of the
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approved building plan and without leaving the setback.
Therefore, defendant No.2 was called upon to remove the
unauthorized construction within seven days. Admittedly,
defendant No.2 has not challenged the said notice. The
explanation given by defendant No.2 is that after receipt of the
said notice, he has removed a portion of Sajja and complied with
the directions.
19. The Court Commissioner was appointed by the Trial
Court to measure the suit property and to report about the
construction made in the suit property. The Court Commissioner
is examined as CW.1. Even though it is contended by defendant
No.2 that the Court Commissioner had not issued notice nor she
was present when the measurement was undertaken, there is
absolutely no cross-examination to the Commissioner in that
regard. On the other hand, CW.1 states that he visited the spot
for measurement, both the parties were present and in their
presence, measurement was undertaken.
20. Ex.C1 is the Commissioner's report where the Court
Commissioner has specifically stated that defendant No.2 made
encroachment in the plot of the plaintiff by constructing the
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compound wall measuring 19'x1'. The Commissioner also stated
about the required setback to be left in the suit property by
removing Sajja on the western side of the property of defendant
No.2. The Court Commissioner has also drawn sketch as per
Ex.C3, which tallies with the report at Ex.C1. As per this report,
defendant No.2 made construction of compound wall, which is
encroached on plot No.333 and it measures North - South 19'
and East - West 1'. Therefore, this is the portion, which
defendant No.2 will have to remove pursuant to the mandatory
injunction granted against her.
21. Learned counsel for the appellant/defendant No.2
contended that the plaintiff had not specifically stated the
measurement of the compound wall constructed by defendant
No.2, which is required to be removed by way of mandatory
injunction. Therefore, the First Appellate Court committed an
error in decreeing the suit of the plaintiff. It is pertinent to note
that the Commissioner had visited the spot, measured the
property and submitted his report along with the sketch. The
Commissioner is also examined before the Court. The
Commissioner's report is very much clear about encroachment
over plot No.333 belonging to the plaintiff. The report and the
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sketch make it very clear that the compound measuring 19'x1' is
the encroached portion and therefore, it is liable to be removed.
Even though the plaintiff has not specifically mentioned the
measurement of the compound wall that is to be removed, since
there is Commissioner's report, which discloses the
measurement of the compound wall, I am of the opinion that the
plaintiff is entitled for perpetual injunction as well as mandatory
injunction in his favour.
22. I have gone through the impugned judgment and
decree passed by the First Appellate Court. It has considered all
the materials on record and arrived at a right conclusion. I do
not find any reason to interfere with the same. However, it is
made clear that the mandatory injunction granted in favour of
the plaintiff against defendant No.2 shall be with reference to the
Commissioner's report. Accordingly, I answer the above
substantial question of law against the appellant and in favour of
respondent No.1 and proceed to pass the following:
ORDER
a) The appeal is dismissed with costs.
b) The impugned judgment and decree dated
14.06.2012 passed in R.A.No.3/2010 on the
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file of the learned Principal Senior Civil Judge
at Kalaburagi is confirmed.
c) However, it is made clear that grant of
mandatory injunction against defendant No.2
to remove the structure, shall be with
reference to the Commissioner's report - Ex.C1
and the said structure should be read as
compound wall measuring North - South 19'
and East - West 1' as shown in the
Commissioner's report Ex.C1 and sketch at
Ex.C3.
Registry to draw decree accordingly and send back the
Trial Court and the First Appellate Court records along with copy
of this judgment and decree.
Sd/-
JUDGE
SRT
CT-VD
