Karnataka High Court
Gulam Jeelani S/O M V Khader Mahagavi vs Mohammed Nazeer Ahmed S/O Mohammed ... on 26 June, 2024
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RSA No. 7265 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.7265 OF 2012 (INJ)
BETWEEN:
GULAM JEELANI
S/O M.V. KHADER MAHAGAVI
AGE: 50 YEARS, OCC: BUSINESS,
R/O. H.NO. 6-251, KHARI BOWLI,
MOMINPURA,
GULBARGA-585104.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
Digitally signed 1. MOHAMMED NAZEER AHMED
by SUMITRA
SHERIGAR S/O MOHAMMED ISMAIL
Location: HIGH AGE: 60 YEARS, OCC: BUSINESS,
COURT OF
KARNATAKA R/O. H.NO. 6-253, KHARI BOWLI,
MOMINPURA,
GULBARGA-585104.
2. THE COMMISSIONER
CITY CORPORATION
GULBARAGA-585102.
...RESPONDENTS
(BY SRI MOHD. KHADER KHAN, ADVOCATE FOR R1;
SRI P.S. MALIPATIL, ADVOCATE FOR R2)
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RSA No. 7265 of 2012
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 05.06.2012 PASSED IN R.A.
NO.226/2010 BY THE IV ADDL. DISTRICT JUDGE, GULBARGA,
AND TO RESTORE THE JUDGMENT AND DECREE DATED
01.09.2008 PASSED IN O.S. NO.126/2006 BY THE PRL. CIVIL
JUDGE (JR.DN.) GULBARGA WITH COST THROUGHOUT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is in this regular second appeal assailing the
judgment and decree in R.A. No.226/2010 dated 05.06.2012
on the file of the IV Additional District Judge, at Gulbarga
reversing the judgment and decree in O.S. No.126/2006 dated
01.09.2008 and dismissing the suit of the plaintiff seeking
mandatory injunction.
2. Parties herein are referred to as per their ranking
before the trial Court in for the sake of convenience.
3. Suit seeking relief of perpetual injunction
restraining defendant No.1, his servants, agents and etc., from
encroaching, opening the Windows, Staircase, Sajja or fixing
any door and to other openings towards the northern side of
the suit property, that is, the house of the plaintiff bearing
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Municipal Corporation No.6-251 and restraining defendant No.2
from giving the construction permission to defendant No.1, and
relief of mandatory injunction directing defendant No.1 to
demolish the Sajja, Staircase, Platform, the Door and Window
in the southern side. Plaint avers that the plaintiff is the
absolute owner of house property bearing Municipal
Corporation No.6-251 of which the portion was purchased by
his father on its western side from one Mohd. Imamsab S/o.
Mohd. Hazarathsab under a sale-deed. Suit property is land
measuring 40 feet x 8.3 feet in length running from West to
East in front of the plaintiff's house bearing Municipal
Corporation No.6-251 (Hereinafter referred to as 'suit property'
for short). It was the case of the plaintiff that from the date of
purchase the plaintiff is having easementary rights to use the
suit property to approach the main Government Road. It is the
case of the plaintiff that defendant No.1 obtained permission
from the City Municipal Corporation, Gulbarga, for re-roofing of
his house and under the garb of such permission, defendant
No.1 has demolished his entire building with mala-fide intention
and made a construction by encroaching into the suit property
and raised the Sajja in the suit property by encroaching 3 feet
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therein. It is stated that defendant No.1 has taken illegal
construction though objections were filed by the plaintiff to stop
the illegal construction. Defendant No.2 - Corporation has
made no efforts to stop the illegal construction.
4. On notice the defendants appeared and only
defendant No.1 filed his written statement interalia contending
and denying the plaint averments. It is the case of defendant
No.1 that the house of defendant No.1 was in dilapidated
position, for which he sought permission to re-construct and
defendant No.2 the Corporation has accorded permission to re-
construct and the re-construction carried out by defendant No.1
is according to the building permission granted by defendant
No.1 - Corporation. According to the defendants, the
construction of the house does not disturb the plaintiff from
exercising his easementary rights over the suit property.
5. The trial Court on the basis of the pleadings, framed
the following issues:
"1. Whether plaintiff proves that he has exclusive
right over the lane measuring 40' X 8'3" from
East to West infront of the house of the plaintiff
bearing No.6/251?
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2. Whether plaintiff further proves the interference
from the defendant by way of encroachment over
the still schedule property by fixing the staircase,
windows, Sajja towards the northern-side of the
suit property?
3. What order or decree?
Additional issues
1. Whether plaintiff proves that the defendant No.1
had made an encroachment to the extent of 3
feet in the suit-lane and constructed Sajja on the
roof level and window level illegally and
unauthorisedly?
2. Whether the plaintiff is entitled for the mandatory
injunction to remove the said illegal and
unauthorised construction made by encroaching
on the suit-lane?"
6. In order to substantiate their claim, plaintiff
examined himself as PW1, one independent witness as PW2,
who was later on expunged as per the order dated 20.12.2007.
On behalf of plaintiff documents at Exs.P1 to P26 were marked.
On the other hand, defendant No.1 got himself examined as
DW1, two witnesses as DW2 and DW3 and got marked
documents at Exs.D1 to D11. Learned counsel for defendant
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No.1 voluntarily gave up DW3 as per the order-sheet dated
03.07.2008 and the deposition of DW3 was expunged.
7. The trial Court based on the pleadings, oral and
documentary evidence, decreed the suit of the plaintiff in part,
holding that the plaintiff is entitled for the relief of mandatory
injunction directing defendant No.1 to demolish the Sajja,
Staircase, Platform and Katta which are illegally and
unauthorizedly constructed by defendant No.1 towards
southern side of defendant No.1's house on the drainage and
the suit-lane.
8. Aggrieved, defendant No.1 preferred appeal before
the first Appellate Court. The first Appellate Court while re-
appreciating the entire oral and documentary evidence set
aside the order of the trial Court and dismissed the suit of the
plaintiff for mandatory injunction. Aggrieved, the plaintiff is
before this Court.
9. Heard the learned counsel for the appellant-plaintiff
Sri Vinayak Apte, learned counsel for the respondent No.1-
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defendant No.1 Sri Mohd. Khader Khan, and learned counsel for
defendant No.2 Sri P.S. Malipatil.
10. The claim of the plaintiff laid down before the trial
Court is that defendant No.1, in violation of the permission
granted by defendant No.2, has put up illegal construction
encroaching the suit property. The suit laid by the plaintiff is
on the public lane. The plaintiff has approached the trial Court
with the specific case that there exists a lane between the
house of the plaintiff and house of defendant No.1 and there is
a public lane and defendant No.1 in the guise of putting
construction has encroached the public lane. The law is well
settled that when the case of the plaintiff is against a particular
person that he has violated building bye-laws the proper
remedy available to the plaintiff is to approach the appropriate
authorities. Section 321 of the Karnataka Municipal
Corporation Act envisages the course of action to the
Corporation when there is violation of the building plan. The
plaintiff is unable to substantiate before the Court that even
assuming that there is an encroachment in public lane by
defendant No.1, such encroachment is causing any hindrance
to the plaintiff and in the absence of the same the first
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appellate Court was justified in dismissing the suit of the
plaintiff for mandatory injunction. The course available to the
plaintiff is to approach the appropriate authorities seeking that
defendant No.1 has violated the building bye-laws and has put
up an illegal construction on the public lane and if such a
grievance is made before the authority it is for the authority to
take proper action in accordance with law. The suit of the
plaintiff has been rightly dismissed by the first Appellate Court
warranting no interference by this Court under Section 100 of
CPC and no substantial question of law arises for consideration.
11. Accordingly, the Court pass the following:
ORDER
i) The regular second appeal is hereby
dismissed.
ii) Judgment and decree of the first Appellate
Court stand confirmed.
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iii) It is needless to observe that the appellant-
plaintiff is at liberty to seek for appropriate
relief before the authority in accordance with
law.
Pending I.As., if any, does not survive for consideration.
Sd/-
JUDGE
SBS
CT: VD
