Karnataka High Court
Sri Gopalappa vs Sri Narayanareddy on 26 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:23585
RSA No. 2014 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 2014 OF 2015 (DEC/INJ)
BETWEEN:
SRI. GOPALAPPA,
S/O CHIKKAHANUMANTHAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT DHAPARTHI VILLAGE,
KASABA HOBLI, GUDIBANDE TALUK - 561 209.
...APPELLANT
(BY SRI. VISHWANATH R. HEGDE, ADVOCATE)
AND:
1. SRI. NARAYANAREDDY,
S/O SRI. APPIREDDY,
AGED ABOUT 47 YEARS,
2. SRI. KRISHNAREDDY,
Digitally signed S/O APPIREDDY,
by
NARAYANAPPA AGED ABOUT 42 YEARS,
LAKSHMAMMA
Location: HIGH
COURT OF 3. SRI. SRINIVASAPPA,
KARNATAKA S/O APPIREDDY,
AGED ABOUT 37 YEARS,
ALL RESPONDENTS ARE RESIDENTS OF
DHAPARTHI VILLAGE, KASABA HOBLI,
GUDIBANDE TALUK - 561 209.
...RESPONDENTS
(RESPONDENTS SERVED AND UNREPRESENTED)
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NC: 2024:KHC:23585
RSA No. 2014 of 2015
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 18.08.2015 PASSED IN
RA.NO.127/2012 ON THE FILE OF THE ADDL. SR. CIVIL JUDGE,
CHICKBALLAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 16.07.2012 PASSED IN
OS.NO.53/2008 ON THE FILE OF THE CIVIL JUDGE, AND JMFC
GUDIBANDA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant who is the plaintiff in O.S.No.53/2008 and
the respondent in R.A.No.127/2012 is before this Court
challenging the divergent finding of the Courts. The Trial
Court, having decreed the suit for declaration and
injunction filed by the plaintiff, the First Appellate Court
set aside the same.
2. The plaintiff had filed a suit in O.S.No.53/2008, claiming
to be the owner of the suit schedule 'A' property therein,
and for possession of the suit schedule 'B' property,
claiming that the plaintiff was enjoying the suit schedule
'B' property over which defendants had put up an illegal
construction and as such, sought for demolition of the
illegal construction and to hand over possession of the 'B'
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schedule property. The Trial Court decreed the suit by
declaring the plaintiff to be the owner of the 'A' schedule
property and directed the demolition of the sheds which
have been constructed on the 'B' schedule property within
three months.
3. Pertinent to observe that possession of Schedule 'B'
property was not directed to be handed over by the Trial
Court to the plaintiff. The defendants having taken up
the matter on appeal, the First Appellate Court applied its
mind only in respect of the 'B' schedule property, since
that was the only issue that had been raised in the
appeal, no question having been raised as regards the
demolition of the construction put up by the defendants
on the schedule 'B' property.
4. The First Appellate Court, after considering the same,
came to a conclusion that the plaintiff had not established
any right over the 'B' schedule property and no evidence
has been produced in respect thereto. The partition
deed, which had been relied upon by the plaintiff, did not
relate to Schedule 'B' property. Though the Secretary of
the Gram Panchayat had been examined, there is no
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evidence on record indicating that the construction was
illegal and as such, came to a conclusion that the relief of
declaration and recovery of possession in respect of
Schedule 'B' property cannot be granted. The First
Appellate Court has not made any reference to the
declaration title as regards the schedule 'A' property since
the appeal was also not filed, challenging the declaration
of title of the plaintiff in respect of schedule 'A' property.
5. Sri Vishwanath R. Hegde, learned counsel appearing for
the appellant, would submit that the First Appellate Court
ought to have moulded the relief, and irrespective of any
relief having been sought for by the plaintiff or not, the
First Appellate Court ought to have considered that the
construction which had been put up affected the free flow
of light and air to the property of the plaintiff and ought
to have not interfered with the direction of the Trial Court
in ordering the demolition of the illegal construction.
6. The respondents, though served have not entered
appearance and have chosen not to be represented in the
present matter.
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7. Heard Sri. Vishwanath R. Hegde, learned counsel for the
appellant and perused the papers.
8. The only issue which was before the First Appellate Court
was as regards the Schedule 'B' property. There being no
claim by the appellant before the First Appellate Court as
regards the Schedule 'A' property. Insofar as the
Schedule 'B' property, the prayer which had been sought
for by the plaintiff before the Trial Court was for the
demolition of the allegedly illegally constructed shed and
the handover of possession of Schedule 'B' property to
the plaintiff.
9. In so far as the handover of possession of the Schedule
'B' property exclusively to the plaintiff, it was required for
the plaintiff to hold established title, if any, over the
Schedule 'B' property. The declaration which had been
sought for by the plaintiff in the suit was only as regards
schedule 'A' property and not Schedule 'B' property. In
fact, the only relief or claim that the plaintiff seeking as
regards Schedule 'B' property is for free flow of light and
air and not as regards the title of the property.
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10. In that view of the matter, the relief which had been
sought for by the plaintiff before the Trial Court as
regards handover of possession of the Schedule 'B'
property was itself not maintainable. No relief had been
sought for by the plaintiff in respect of any easementary
right or the like in respect of free flow of air and light and
for sanitary connection. The plaintiff was also not able to
establish that the construction is illegal and in what
manner the construction is illegal, more so when the
Gram Panchayath Secretary had led evidence and there
was no evidence placed by the said secretary that the
construction is illegal or in violation of any particular law.
11. In that view of the matter, I am of the considered opinion
that, in law, the First Appellate Court, taking into
consideration that no relief of declaration and/or
easementary right had been claimed in respect of
Schedule 'B' property and that the plaintiff has not
established the construction to be illegal, has rightly set
aside the direction of the Trial Court to demolish the
construction put up on the Schedule 'B' property. Insofar
as the declaration of title to the Schedule 'A' property is
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concerned, the same not being an aspect of consideration
before the First Appellate Court that has not been
disturbed, the dismissal of the suit can only be restricted
to the second prayer in the plaintiff and not to the first
prayer.
12. With the above observation, reserving liberty to the
plaintiff to file a fresh suit seeking for such relief as may
be available to the plaintiff, the appeal is dismissed at
the stage of admission itself.
Sd/-
JUDGE
GJM
CT: BHK
