Dismissed

B Sadashiva Bhat v. Laxminarayana Bhat

Karnataka HC9 Nov 2023RSA/18/2023

Case brief

AI extract

What is this about?

Appeal challenging concurrent dismissal of civil suit for mandatory injunction regarding encroachment and objectionable structures. High Court found no substantial question of law as courts below were correct to dismiss relief due to appellant's encroachment and delay.

What did the court decide?

Relief of mandatory injunction denied; appeal dismissed; no substantial question of law arose.

B Sadashiva Bhat Vs Laxminarayana Bhat — Environment and Pollution | Karnataka HC (2023)

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1 - NC: 2023:KHC:40222 RSA No. 18 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 18 OF 2023 (INJ)

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BETWEEN:

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B SADASHIVA BHAT S/O RAMAKRISHNA BHAT AGED ABOUT 59 YEARS, R/AT BANNADY VILLAGE AND POST-576225 UDUPI TALUK AND DISTRICT

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…APPELLANT

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(BY SRI. P M NAYAK, ADVOCATE)

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AND:

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LAXMINARAYANA BHAT

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AGED ABOUT 77 YEARS, S/O SUBRAYA BHAT

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Digitally signed by ALBHAGYA

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Location: HIGH COURT OF KARNATAKA

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RAJARAM BHAT

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AGED ABOUT 49 YEARS, S/O LAXMINARAYANA BHAT

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BOTH ARE R/AT BANNADY VILLAGE AND POST-576 225 UDUPI TALUK AND DISTRICT

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.09.2022 PASSED IN RA.NO.4/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2007

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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PASSED IN O.S.NO. 241/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN), KUNDAPURA.

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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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The captioned second appeal is filed by unsuccessful plaintiff who has questioned the concurrent judgments of the Courts below wherein plaintiff's suit seeking relief of mandatory injunction in O.S.No.241/2002 is dismissed by the trial Court and confirmed by the appellate Court. The plaintiff feeling aggrieved by the concurrent findings of the Courts below is before this Court.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiff claims to be the owner of Sy.No.39/17

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to an extent of 15 cents. The plaintiff claims that he has constructed a residential house and has maintained a garden and has also dug a well. The plaintiff claimed that suit land originally belonged to his paternal father who

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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acquired the same in a family partition. The plaintiff claimed that after the death of his father, he has inherited the property. The plaintiff has further alleged that defendants are the owners of 'B' schedule property. The plaintiff's grievance is that defendants without taking any permission and licence from the local panchayath authority have installed Gobar Gas plant and have also constructed a latrine pit near the well. The present suit is filed alleging that defendants action of installing the Gobar Gas plant and a latrine pit is in violation of Rules and therefore, relief of mandatory injunction is sought by the plaintiff.

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The defendants, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendants, on the contrary, claimed that schedule 'B' property is in existence for almost 40 years. The defendants contended that there is a cow shed constructed about 40 years back with mud wall and the plaintiff's well was situated about 6 feet away from the cow shed. The

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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defendants allege that plaintiff is guilty of widening the well and now the well is located just 1¹ /2 feet from the eastern wall of the said cow shed. Therefore, defendants on the contrary claimed that plaintiff is guilty of encroaching over defendants property.

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The plaintiff and defendants to substantiate their respective claim have let in oral and documentary evidence. The trial Court has given its anxious consideration to the evidence let in by the plaintiff and defendants. During the pendency of the suit, it appears ADLR was appointed as a Court Commissioner in plaintiff's suit to carry out local inspection. In a counter suit filed by the defendant in O.S.No.156/2004, the defendants also sought for appointment of Commissioner and an Advocate was appointed.

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The trial Court having examined both the reports was of the view that the well is not entirely situated in the property owned by the plaintiff and that there is encroachment. The plaintiff's allegation in regard

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5 - NC: 2023:KHC:40222 RSA No. 18 of 2023

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to Gobar Gas plant was also not acceded to. Referring to rebuttal evidence let in by the defendant, the trial Court has taken note of Exs.D-8 and D-9 which are documents pertaining to Khadi and Village Industries Commission. Referring to these documents, trial Court was of the view that Gobar Biogas plant was installed in 1994. The trial Court also found that defendants have succeeded in eliciting this fact in cross-examination of PW.1. The trial Court not only dismissed the suit filed by the plaintiff but has dismissed the defendants suit in O.S.No.156/2004.

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The defendants have not chosen to challenge the dismissal of their suit. The plaintiff, however, preferred appeal in R.A.No.4/2010 and questioned the findings and conclusions recorded by the trial Court while dismissing the suit.

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The appellate Court as a final fact finding authority has independently assessed the evidence relating to the construction of latrine and Gobar Gas plant. Referring to ADLR report dated 21.02.2003, appellate

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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Court found that Gobar Gas plant is situated at 18 feet distance from the well owned by the plaintiff while latrine pit of defendants is situated at a distance of 27 feet from the well. The appellate Court on re-appreciation has also held that the plaintiff is guilty of encroaching over the defendants property while widening the well. Referring to all these significant details, the appellate Court has also concurred with the findings and conclusions recorded by the trial Court. Consequently, appeal is dismissed. The plaintiff is before this Court assailing the concurrent findings.

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Heard learned counsel for the plaintiff. Perused

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the concurrent findings and judgments rendered by the Courts below.

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The plaintiff has instituted the present suit in O.S.No.241/2002 seeking relief of mandatory injunction. Insofar as controversy relating to Gobar Gas plant is concerned, the defendants by adducing clinching rebuttal evidence coupled with admission elicited in cross-

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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examination of plaintiff have succeeded in establishing that Biogas plant was set up in 1994, while the present suit is filed in 2002. It is also forthcoming from the Commissioner's report that Biogas plant is situated at a distance of 18 feet away from plaintiff's well. There is clinching evidence indicating that plaintiff is also guilty of encroaching over the defendants property while widening the width of the well owned by him. If these significant details are looked into, then I am of the view that relief of mandatory injunction cannot be granted to the plaintiff. Firstly, plaintiff himself is guilty of encroaching over the defendants property which is indicated in the Commissioner's report. Relief of mandatory injunction has to be granted, provided a party alleging encroachment approaches the Court at the earliest point of time. If there is delay in approaching the Court, the same amounts to acquiescence and question of granting relief of mandatory injunction would not arise.

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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However, in the present case on hand, both the Courts have concurrently held that Biogobar Gas plant is situated at a distance of 18 feet and the latrine pit is found at a distance of 27 feet. Referring to these significant details coupled with several admissions elicited in crossexamination of plaintiff, both the Courts have declined to grant discretionary relief of mandatory injunction.

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It is equally trite law that relief of mandatory injunction cannot be granted for mere asking. When a litigant approaches the Court and seeks relief of mandatory injunction, he has to make out a case for entitlement of relief of mandatory injunction. If both the Courts referring to the clinching rebuttal evidence on record have declined to grant relief of mandatory injunction, this Court under Section 100 of CPC cannot revisit and reassess the oral and documentary evidence let in by a party. Such a recourse if not permissible. The findings and conclusions recorded by both the Courts do not suffer from any infirmities.

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NC: 2023:KHC:40222 RSA No. 18 of 2023

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No substantial question of law arises for

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consideration. The second appeal is devoid of merits and accordingly, stands dismissed.

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The pending interlocutory application, if any, do not survive for consideration and stands disposed of

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accordingly.

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Sd/JUDGE

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CA List No.: 1 Sl No.: 20

B Sadashiva Bhat v. Laxminarayana Bhat

Case brief

What is this about?

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B Sadashiva Bhat v. Laxminarayana Bhat

Case brief

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What did the court decide?

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