The High Court of Karnataka dismissed the regular second appeal against a decree declining a mandatory injunction to remove a compound wall. The Court held the wall was within the respondent's property per the Commissioner's report, finding no error in the lower courts' evidence appreciation.
The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:30901 RSA No. 263 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 263 OF 2019 (INJ)
BETWEEN:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
REPRESENTED BY HER GPA HOLDER, SRI. NARENDRA J. SHETTY, S/O. J. B. SHETTY, NO.5, SRIKRISHNA, 2ND CROSS, GOVINDARAO STREET, KUMARA PARK (WEST) EXTENSION, BENGALURU-560 020. …APPELLANT (BY SRI CHANDRANATH ARIGA K., ADVOCATE)
AND:
KADRAHITHLU, PILAR VILLAGE-574 113, UDUPI TALUK.
…RESPONDENTS
(BY SRI PRASAD HEGDE K.B., ADVOCATE FOR R1; R2 AND R3 DELETED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.08.2018 PASSED IN R.A.NO.70/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2012 PASSED IN O.S.NO.118/2001 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellant’s counsel.
This appeal is filed challenging the judgment and decree passed in O.S.No.118/2001, wherein declining to pass an order to remove the compound as claimed by the plaintiff. The Trial Court comes to the conclusion that Commissioner has pointed out that the said compound is not within the property of the
plaintiff and the same is within the property of the defendant and granted the relief in respect of other aspects what the plaintiff has sought, but declined to grant the relief to remove the compound wall. Being aggrieved of the said order, an appeal is filed before the First Appellate Court and First Appellate Court also on re-appreciation of both oral and documentary evidence, particularly taking into note of the survey conducted by the advocate, Court Commissioner with the help of the surveyor, demarcated the property of the plaintiff and defendant and also taken note of certain trees are situated within the property of the plaintiff and so also defendant and defendant No.3 also in paragraph No.30 taken note of with regard to putting up of the compound wall is also not disputed by the first defendant, but the very survey report marked as Ex.C12 is very clear with regard to the surveyor sketch that the construction of the compound wall and the same is within the property of the defendant and the same is also taken note of by the First Appellate Court in paragraph No.32.
vehemently contend that both the Courts failed to consider the
NC: 2023:KHC:30901 RSA No. 263 of 2019
material on record and substantive question of law arises for the Court for declining mandatory injunction for removal of the compound wall and this Court has to frame the substantive question of law with regard to not granting of mandatory injunction.
NC: 2023:KHC:30901 RSA No. 263 of 2019
existence within the property of defendant No.1 and hence, no
merit to admit and frame any substantive question of law.
following:
ORDER
Appeal is dismissed.
Sd/JUDGE
AP List No.: 1 Sl No.: 64
2 issues framed by the court
Whether the compound wall was within the property of the defendant No. 1.
Whether there is any merit to frame a substantive question of law regarding the refusal of mandatory injunction.
2 provisions across 1 enactments
Mrs. Sarojini J. Shetty
Mr. Henry Salvador D Souza
Mr. Clifton D’Mello
Mrs. Leena D Mello
H.P. Sандesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
