Sri. Bhagawan Mahaveer vs Dr. B.S. Nagaprakash
2025 Latest Caselaw 3284 Kant

Karnataka High Court

Sri. Bhagawan Mahaveer vs Dr. B.S. Nagaprakash on 11 August, 2025

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                                                          NC: 2025:KHC:31000
                                                         RSA No. 346 of 2015


                   HC-KAR




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 11TH DAY OF AUGUST, 2025

                                            BEFORE
                             THE HON'BLE MR. JUSTICE E.S.INDIRESH
                    REGULAR SECOND APPEAL NO. 346 OF 2015 (DEC/INJ)


                   BETWEEN:

                         SRI BHAGAWAN MAHAVEER
                         VIDYA TRUST, DAVANAGERE
                         P.J.EXTENSION, DAVANAGERE
                         REPRESENTED BY ITS SECRETARY
                         MR.LALITH KUMAR - 577 004.
                         AGED AOBUT 43 YEARS.
                                                              ...APPELLANT

                   (BY SRI SRIDHAR N HEGDE, ADVOCATE)

                   AND:

                   1.    DR. B.S. NAGAPRAKASH
Digitally signed         S/O B.V.SATHYANARAYANA SHETTY
by SHARMA                AGED ABOUT 60 YEARS
ANAND CHAYA
                         UNITY HEALTH CENTRE
Location: HIGH
COURT OF                 5TH CROSS, P.J.EXTENSION
KARNATAKA                DAVANAGERE - 577 004.

                   2.    S.C.GURULINGAPPA
                         S/O S.CHENNAPPA
                         AGED ABOUT 51 YEARS
                         RESIDING AT: No.148, LABOUR COLONY
                         NEAR GANAPATHY TEMPLE
                         DAVANAGERE - 577 002.

                   3.    DAVANAGERE MAHANAGARA PALIKE
                         (FORMERLY CITY MUNICIPALITY)
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                                           NC: 2025:KHC:31000
                                          RSA No. 346 of 2015


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     DAVANAGERE - 577 004.
     REP. BY ITS COMMISSIONER.
                                              ...RESPONDENTS
(BY SRI. R GOPAL, ADVOCATE FOR R1
 SRI B K MANJUNATH, ADVOCATE FOR R3
 V/O 18.12.2019, SERVICE OF NOTICE TO R2- H/S)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED:27.9.2014
PASSED IN R.A.No.60/2013 ON THE FILE OF III ADDITIONAL
SENIOR CIVIL JUDGE, DAVANAGERE, PARTLY ALLOWING THE
APPEAL AND PARTLY CONFIRMING THE JUDGEMENT AND
DECREE DATED: 12.9.2013 PASSED IN O.S.No.156/2007 ON
THE FILE OF PRINCIPAL CIVIL JUDGE, DAVANAGERE AND ETC.,

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR. JUSTICE E.S.INDIRESH


                          ORAL JUDGMENT

This appeal is preferred by the defendant No.2, assailing

the judgment and decree dated 27.09.2014 in RA No.60/2013

on the file of III Additional Senior Civil Judge at Davanagere

(for short 'First Appellate Court') allowing the appeal in part

and confirming the judgment and decree dated 12.09.2013 in

OS No.156/2007 on the file of the Principal Civil Judge,

Davanagere (for short the 'Trial Court') partly decreeing the

suit of the plaintiffs.

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2. For the sake of convenience, the parties herein are

referred as per their rank before the Trial Court.

3. It is the case of the plaintiffs that, the defendant

No.2 - Trust is running an educational institution called as 'Jain

Vidyalaya' and the suit schedule property belongs to the

defendant No.2. It is also stated that, the plaintiffs are running

a hospital and the hospital is situated just opposite to the

defendant No.2's school building. It is also stated in the plaint

that, the defendant No.2 has violated the building licence

issued by the defendant No.1 and as such, it is the specific case

of the plaintiffs that, the defendant No.2 has to leave 5.50

meters set back in front portion and accordingly, the plaintiff

No.1 has filed WP No.7116/2006 before this Court and this

Court, directed the plaintiffs to pursue their efforts before the

defendant No.1, however, the defendant No.1 has not taken

any action in the matter and therefore, the plaintiffs have filed

OS No.156/2007 seeking relief of declaration to declare that

the construction of the building in the suit schedule property by

the defendant No.2 is in violation of the sanctioned plan issued

by the defendant No.1.

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4. On service of notice, the defendants entered

appearance. It is the specific case of the defendant No.2 that,

the defendant No.2 has not violated the sanctioned plan issued

by the defendant No.1 and also, it is the case of the defendant

No.2 that the suit itself is not maintainable, in view of the

provisions contained under Section 321 of the Municipal

Corporations Act, 1976, and accordingly, the defendants had

sought for dismissal of the suit.

5. The Trial Court based on the pleadings on record

has formulated the issues and additional issues for its

consideration.

6. In order to establish their case, the plaintiff No.1

himself examined as PW.1 and marked 9 documents and the

same were marked as Exs.P1 to P9. On the other hand, no oral

or documentary evidence was produced by the defendants. The

Trial Court, after considering the material on record, by its

judgment and decree dated 12.09.2013, decreed the suit in

part and the defendant No.1 has been directed to take action

against the defendant No.2, in the event, the defendant No.2

has violated the terms and conditions of the approved plan and

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licence. Feeling aggrieved, the plaintiffs have preferred RA

No.60/2013 before the First Appellate Court and the same was

contested by the defendants. The First Appellate Court, by

judgment and decree dated 27.09.2014, allowed the appeal in

part and accordingly, modified the judgment and decree in OS

No.156/2007. Feeling aggrieved by the same, the defendant

No.2 has preferred the present Regular Second Appeal.

7. This Court, vide order dated, 18.08.2023 has

formulated the following substantial questions of law:

1) Whether the defendant No.2 proves that the appellate Court has committed an error in decreeing the suit of the plaintiffs relying on the Court commissioner report?

2) Whether the defendant No.2 proves that the suit filed by the plaintiffs is not maintainable as defendant No.1 is competent authority and having jurisdiction to decide any violation of conditions of sanction plan and license?

3) Whether the lower appellate court was justified in reversing the judgment and decree passed by the trial Court?

8. Heard Sri.Sridhar N.Hegde, learned counsel

appearing for the appellant, Sri.R.Gopal, learned counsel

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appearing for the respondent No.1 and Sri B.K.Manjunath,

learned counsel appearing for the respondent No.3.

9. Sri.Sridhar N.Hegde, learned counsel appearing for

the appellant, invited the attention of the Court to the findings

recorded by the First Appellate Court, particularly referring to

the operative portion and submitted that though the Trial Court

and the First Appellate Court arrived at a conclusion to direct

the defendant No.1 to take action in accordance with law, in

the findings however, the First Appellate Court has specifically

held that, the action be taken against the defendant No.2 in

view of the illegal construction of the building by the defendant

No.2, which requires to be interfered with in this appeal.

10. Per contra, Sri.R.Gopal, learned counsel appearing

for the respondent No.1, sought to justify the judgment and

decree passed by the First Appellate Court and further, referred

to the operative portion in OS No.156/2007 and submitted that,

if the defendant No.1 - Authority is directed to take action, if

the defendant No.2 has violated the construction plan, that

would suffice the matter.