Dismissed

Mr a Soloman v. Mr Ronald Ramamurthy

Karnataka HC9 Feb 2022RSA/2182/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the confirmation of a lower court decree granting declaratory relief and permanent injunction for easementary rights of air and light. The court upheld the lower courts' findings regarding the existence of set-back areas and the defendant's undertaking not to construct, finding no substantial question of law.

What did the court decide?

Appeal dismissed; judgment dated 13.07.2012 confirming the suit decree is upheld.

Mr a Soloman Vs Mr Ronald Ramamurthy — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.No.2182 OF 2012

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BETWEEN:

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MR. A. SOLOMON S/O A. ANTHONY AGED ABOUT 72 YEARS R/AT 4554, VI CROSS2 ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007. … APPELLANT

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(BY SRI. DATTA PRASAD, ADVOCATE SRI. MANMOHAN P.N. FOR ADVOCATE)

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AND:

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MR. RONALD RAMAMURTHY S/O LATE DR. RAMAMURTHY AGED ABOUT 61 YEARS R/AT NO.4553/1, VI CROSS, ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007. … RESPONDENT

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(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1; SRI. MOHAN BHAT, ADVOCATE FOR R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 13.07.2012 PASSED IN R.A. NO. 106/2002 ON THE FILE OF PRINCIPAL JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:29.01.2022 PASSED IN

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OS.NO.590/1997 ON THE FILE OF V ADDITIONAL I CIVIL JUDGE (JR. DN), MYSORE.

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

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JUDGMENT

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R.S.A.No.2182/2012 is filed by the

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appellant/defendant aggrieved by the concurrent findings rendered in O.S. No.590/1997 on the file of the V Additional I Civil Judge (Jn.Dn.), Mysore (hereinafter referred to as the 'Trial Court') and in R.A.No.106/2002 on the file of the Principal Judge, Small Causes and Senior Civil Judge, Mysore (hereinafter referred to as the 'First Appellate Court').

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Brief facts leading upto filing of the present appeal is ;

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That one Ronald Ramamurthy- respondent/plaintiff filed suit in O.S.No.590/1997 against Mr.A.Soloman, the appellant/defendant who also happens to be his brotherin-law for relief of declaration and permanent injunction contending that he is the absolute owner of the property

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bearing D.No.4553/1, 6th Cross, St. Mary's Road, N.R.Mohalla, Mysore described as plaint 'A' schedule property and that the defendant is the owner of property bearing D.No.4554, 6th Cross, St. Mary's Road, N.R.Mohalla, Mysore described as plaint 'B' schedule property. That the plaint 'A' and 'B' schedule properties are bifurcated by a compound wall. That the respondent/ plaintiff has left 3 1/2 feet of set back area towards east of his property. That there are shops constructed on the northern portion and a RCC building on the southern side of the 'B' schedule property. That there is a Mangalore Tiled House in the middle of the 'B' schedule property. That there is 5 1/4th feet vacant space existing between the western wall of the said Mangalore Tiled House and the compound wall of 'B' schedule property. The dining hall and the bedroom in the ground of plaint 'A' schedule property is situated diagonally opposite to the said vacant space. That the appellant/defendant with an intention of causing nuisance to the respondent/plaintiff had demolished the Mangalore Tiled House and he is in the

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process of putting up construction on the western side of the set back area of plaint 'B' schedule property. That the said construction was illegal and if the appellant/defendant succeeds constructing on the set back area, same would reduce the flow of air and light to the plaint 'A' schedule property causing inconvenience and injury to his rights. Hence, sought for declaration of his easementary rights of air and light through the set back area in the 'B' schedule property and for consequent injunction restraining appellant/defendant from putting up any construction on the set back area in the 'B' schedule property.

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The appellant/defendant filled written statement denying the plaint averments. That description of boundaries is incorrect as East of Plaint 'A' Schedule ought to be South and West of Plaint 'B' Schedule ought to be North. It was contended that the appellant/defendant being desirous of changing the roof of the Mangalore tiled house, had obtained plan. While executing the plan, it was found that northern wall of the house was to be

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demolished as it was weak, hence, upon the advise of the Engineers and authorities, he demolished the wall and had constructed northern wall on his property leaving 4 1/4 feet space. That in view of the interim order passed by the Trial Court, he approached the Corporation authorities and sought for modification of the plan and also filed a memo before the trial Court undertaking to demolish the recently constructed northern wall of his property by leaving set back of 5 1/4 feet between his northern compound and northern wall to be constructed in future. That since the defendant has given an undertaking before the Court exhibiting his bonafide intention, the allegation of the plaintiff that defendant causing nuisance would render without any meaning and hence, sought for dismissal of suit as same having become infructuous.

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The Trial Court based on the pleadings framed

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the following issues.

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"(1). Whether the plaintiff proves that he is the absolute owner in possession of plaint 'A' schedule property?

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(2) Whether the plaintiff proves that the plaint 'B' schedule property is situated towards the eastern side of 'A' schedule property and the defendant is owner thereof?

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(3) Whether the plaintiff proves that there is 5 feet 3 inches set back area towards western side of the plaint 'B' schedule property as per law?

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(4) Whether the plaintiff is entitled for the relief of easementary right as prayed in the prayer para (a) of plaint?

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(5) Whether the plaintiff proves that the defendant trying to put up illegal construction as averred in the plaint?

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(6) Whether the plaintiff is entitled for the relief of permanent injunction as prayed in prayer para (b) of the plaint?

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(7) What order or decree?"

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and recorded evidence. Respondent/plaintiff examined himself as P.W.1 and exhibited 19 documents marked as Ex.P.1 to Ex.P.19 and appellant/defendant examined himself as D.W.1 and exhibited 4 documents marked as Ex.D.1 to Ex.D.4.

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5. On appreciation of evidence and by its

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judgment and decree dated 29.01.2002 the trial Court decreed the suit of the plaintiff. Aggrieved by the same, appellant/defendant filed regular appeal in R.A. No.106/2002 before the first appellate court. Considering the grounds urged in the appeal memorandum the first appellate court framed following points for its consideration.

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"(1) Whether the plaintiff has got right of drawing air and light to the bed room and dining hall in the plaint 'A' schedule property through the set back are of 5 feet 3 inches in 'B' schedule property?

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(2) Whether the plaintiff is entitled for the relief of declaration and injunction as sought for?

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(3) Whether the judgment and decree passed by the lower Court are perverse, capricious and suffers from any infirmity? If so, liable to be interfered with?

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(4) What order?"

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and by its judgment and order dated 13.07.2012 dismissed the appeal confirming the judgment and decree passed by the trial Court.

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Learned counsel for the appellant/defendant reiterating the grounds urged in the memorandum of appeal submitted that:

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(a) The grant of injunction by the Courts below without plaintiff proving the interference was unjustified more so, when the appellant/defendant had himself demolished the construction on the set back area, nothing remained for consideration in the matter.

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(b) That the grant on relief of declaration and easementary rights on air and light through the set back area infavour of the respondent/plaintiff is without any proof of absolute right and enjoyment for the prescribed period of time as required under the Indian Easement Act, 1882. That the respondent /plaintiff has neither pleaded nor proved that he has been enjoying the right over 20 years being entitled for such a relief of declaration.

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(c) That the respondent/plaintiff has failed to establish that the construction put up would block free flow of air and light which was essential for grant of relief of declaration and injunction. Thus, he submits same gives raise to substantial question of law requiring consideration by this Court.

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Per contra, learned counsel for the respondent/plaintiff justifying the judgment and decree of the Courts below submitted that the residential building on the plaint 'A' schedule property has been constructed more than 25 years ago and has been drawing air and light through the said set back area and that the very fact that the defendant voluntarily filing a memo of undertaking to demolish the newly constructed wall and further undertaking not to put up any construction on the said set back area would be sufficient enough to sustain the judgment and orders passed by the Courts below. No substantial question of law would arise in the matter

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requiring consideration. Hence, he sought for dismissal of the appeal.

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Heard learned counsel for the parties and perused the records.

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The undisputed facts are that there exists a set back area of 5 feet 3 inches width in the 'B' schedule property, which is situated diagonally opposite to the bed room and dining hall of the building existing in 'A' schedule property belonging to the respondent/plaintiff. It is also admitted fact that the trial Court on 17.07.1997 had granted interim order restraining the appellant/defendant from putting up construction over the 'B' schedule property in violation of sanctioned plan. That upon service of summons on 16.10.1997, appellant/defendant had appeared through his counsel and filed a memo of undertaking to keep the said set back area of 5 feet 3 inches from his boundary open and further undertook not to raise any construction on the said set back area. Taking on record the said memo of undertaking the Trial Court

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had permitted the appellant/defendant to proceed with the construction. In view of the undertaking given by the respondent/plaintiff and in view of the appellant/defendant voluntarily demolishing newly constructed wall on the set back area, the issue Nos. 1 to 3 were held infavour of the respondent/plaintiff.

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As regards to the issue No.4, the relief of easementary rights, the Trial Court at paragraphs 12 and 13 of the judgment has taken note of the fact that there existed construction on the schedule 'A' property more than 25 years prior to filing of the suit and a window facing the set back area and drawing air and light through the same. This aspect of the matter has been admitted by the defendant as well, who has identified the existence of the window. The Trial Court has also taken note of the fact that the appellant/defendant had only taken permission to change the roof of the Mangalore Tiled House but had demolish the Mangalore Tiled House and was putting up of construction on the set back area which as noted above

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was demolished by the defendant himself in terms of the memo of undertaking filed before the Trial Court.

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In view of the above admitted facts and circumstances, the Trial Court decreed the suit as sought for by the respondent/plaintiff. The First Appellate Court has re-appreciated the aforesaid material evidence and also specifically taken note of the fact that the appellate/defendant had applied and obtained modified plan agreed to construct reserving 5 feet 3 inches of set back area of the 'B' schedule property.

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Under the aforesaid facts and circumstances of the matter and the material evidence made available by the respondent/plaintiff and also the admission of the appellant/defendant with regard to existence of the set back area, drawing air and light through the window facing the set back area over 25 years and the undertaking given by the appellant/defendant to demolish the construction and to keep the set back area open, the reasoning assigned by the Trial Court and the First Appellate Court

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while decreeing the suit as prayed for by the respondent/plaintiff cannot be found fault with. In the circumstances, no substantial question of law is involved in the matter warranting interference. Resulted RSA No.2182/2012 is dismissed.

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Sd/JUDGE

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Mr a Soloman v. Mr Ronald Ramamurthy

Case brief

What is this about?

What did the court decide?

Mr a Soloman v. Mr Ronald Ramamurthy

Case brief

What is this about?

What did the court decide?

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