Dismissed

Sri. G. Krishna v. Smt. Shylaja

Karnataka HC13 Mar 2024RSA/1176/2022

Case brief

AI extract

What is this about?

The High Court dismissed a Regulation Special Appeal filed under Section 100 CPC against an order confirming a trial court's dismissal of a permanent injunction suit. The Court upheld the findings that since a statutory remedy exists for building plan violations and no evidence of encroachment or wall damage was established, the civil suit was rightly dismissed.

What did the court decide?

The appeal was dismissed; the appellant is at liberty to continue statutory proceedings for violation of the sanctioned plan.

Sri. G. Krishna Vs Smt. Shylaja — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:10390 RSA No. 1176 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1176 OF 2022 (INJ)

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BETWEEN:

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SRI. G. KRISHNA S/O LATE GOPALAIAH AGED ABOUT 66 YEARS R/A CHOULTRY STREET DODDAPETE, KADUR TALUK CHIKKAMAGALURU DIST-577548.

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…APPELLANT

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(BY SRI. ONKARA K B., ADVOCATE)

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AND:

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SMT. SHYLAJA W/O H N SHIVASHANKAR AGED ABOUT 49 YEARS R/A NEAR KANNIKAPARAMESHWARI TEMPLE KADUR TALUK CHIKKAMAGALURU DIST-577548.

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Digitally signed by SUMA B N

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…RESPONDENT

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Location: High Court of Karnataka

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.04.2022 PASSED IN RA.NO.70/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC, KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.10.2019 PASSED IN O.S.NO.566/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KADUR. TRIAL COURT DISMISSED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL. THE SUIT FOR INJUNCTION.

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

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2 - NC: 2024:KHC:10390 RSA No. 1176 of 2022

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JUDGMENT

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This appeal is filed by the plaintiff aggrieved by the judgment and decree dated 28.10.2019 passed in O.S.No.566/2019 on the file of the Prl. Civil Judge and J.M.F.C, Kadur (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 18.04.2022 passed in R.A.No.70/2019 on the file of Senior Civil Judge and J.M.F.C, Kadur, Chikkaballapura (hereinafter 'the First Appellate Court').

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2.The above suit is filed by the plaintiff against the defendant seeking relief of perpetual injunction, claiming he is the absolute owner of the Asst.No.3933/3652, measuring 22 1/2 +39X160 situated at Choultry Street, Kadur Town, Kadur Taluk, Chikkamaguluru District (suit schedule property).

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It is the case of the plaintiff that:

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(a). After obtaining the building license and as per the approved plan, he has constructed a house on the property. That the defendant is the owner of the property situated on the western side to the suit property. That the defendant has constructed ground floor and is in the process of constructing first floor by erecting staircase on the eastern side of her property and while erecting the stair case she has not left the 3 feet setback as per the Municipal Rules.

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NC: 2024:KHC:10390 RSA No. 1176 of 2022

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(b). It is further contended that the defendant has caused damage to the compound wall of the plaintiff while erecting the pillar and in order to put up further construction on the second floor, the defendant is making efforts to put up stair case on the compound wall belonging to the plaintiff. It is further contended that the defendant is making hectic efforts to encroach the property of the plaintiff to put up construction as mentioned above, constraining the plaintiff to approach the Court seeking relief of perpetual injunction.

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The defendant in her written statement has contended that she is putting up the construction on her property after obtaining license from Town Municipal Council and that she has already put up the structure in the suit property. It is contended that since there exists a compound wall between the property of the plaintiff and defendant, there is no question of encroachment of the property belonging to the plaintiff. Hence sought to dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues:

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"1. Whether the plaintiff proves he is in peaceful possession and enjoyment of the suit schedule property as on the date of the suit?

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2. Whether the plaintiff further proves that, the defendant is constructing the building or steps in the western side of the suit schedule property?

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3. Whether the plaintiff is entitled for relief of permanent injunction as sought for?

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4. What order or decree?"

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4 - NC: 2024:KHC:10390 RSA No. 1176 of 2022

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The plaintiff examined himself as PW1 and exhibited 37 documents marked as Ex.P1 to Ex.P37. In order to prove their defence, defendant examined herself as DW1 and exhibited 13 documents marked as Ex.D1 to Ex.D13. On appreciation of the evidence the Trial Court answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and consequently dismissed the suit.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.70/2019 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. ��ಾರ�ಾ �ಾ��ಾಲಯವ� �ಾ�ಯು �ಾ�ಾ �ೆಡೂ�� ಆ��ಯ�� ಾಂ�ಯುತ �ಾ� ೕನವನು# $ೊಂ��ಾ%&ೆಂದು $ಾಗೂ ಪ*��ಾ�ಯವರು �ಾ�ಾ ಆ��ಯ ಪ+,ಮ ಬ�ಯ�� ಕಟ1ಡ ಕಟು1� � ಾ%&ೆಂದು ಪ�&ಾ�ೆ2ೊ3�ಲ � ೆಂದು �ಾ�ೆಯನು# ವ4ಾ2ೊ3� ತ5ೆ6ಸ8ರುತ � ೆ9ೕ? 2. ��ಾರ�ೆ �ಾ��ಾಲಯವ� :ಾ;ರುವಂತಹ �ೕಪ�= ಮತು� ;>? @ಾನೂA2ೆ �ರುದ%�ಾ8�ೆ ಮತು� �ಾಸ � ಕ ಸಂBಾವ�CೆಗಳE FೕಲGನ��ಾರರ ಪ;�ರುCಾ�&ೆ9ೕ? ಪರ ಇ�ೆ ಎಂಬುದನು# �ಾJೕತು

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ಸಕ*ಮ FೕಲGನ� ಪ�ರಸ?Kಸಲು Lೕಗ��ಾ8�ೆ9ೕ?

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AiÀiÁªÀ DzÉÃ±À?"

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NC: 2024:KHC:10390 RSA No. 1176 of 2022

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Upon re-appreciation of the evidences, the First Appellate Court answered point Nos.1 to 3 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same plaintiff filed the present appeal before this Court.

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Sri.Onkara K.B, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that the Trial Court and the First Appellate Court have grossly erred in dismissing the suit of the plaintiff without adverting to the fact that the defendant has put up construction without leaving a set-back and by causing damage to the compound wall of the plaintiff. It is his further submission that, the damage caused to the plaintiff is in the nature of encroachment made into the suit schedule property to an extent of 3 inches, which fact has not been appreciated by the Trial Court and the First Appellate Court. He further submits that proceedings initiated by the plaintiff against the defendant for violation of the sanctioned plan is pending consideration before the concerned authorities and

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6 - NC: 2024:KHC:10390 RSA No. 1176 of 2022

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the Trial Court and the First Appellate Court ought to have granted some protection to the plaintiff against the defendant of her illegal construction. Thus, he submits that substantial question of law do arise in the matter for consideration in this appeal

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Heard. Perused the records.

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It is not in dispute that the plaintiff is the absolute owner in possession of the suit schedule property. It is also not in dispute that the defendant is putting up construction in the property belonging to the defendant situated on the western side of the suit schedule property. The thrust of the case of the plaintiff is that the defendant is putting up construction in violation of the sanctioned plan without leaving set-back on the eastern side of her property. It is further case of the plaintiff that in the process of construction, the defendant has caused damage to the compound wall of the plaintiff.

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The Trial Court and the First Appellate Court taking note of the nature of the dispute have held that the issue falls within the purview of Town Municipal Authorities under

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NC: 2024:KHC:10390 RSA No. 1176 of 2022

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the provisions of the Karnataka Municipal Corporation Act, 1976 as the defendant is allegedly putting up the construction in violation of the sanctioned plan issued by the Authorities and that since a statutory remedy is available, suit was not maintainable.

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No irregularity or illegality can be found with the said reasoning arrived at by the Trial Court and the First Appellate Court, moreso, when admittedly plaintiff has initiated the proceedings against the defendant and the same is pending consideration before the authorities.

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As regards the allegation of the defendant causing damage to the compound wall of the plaintiff's building, the Trial Court and the First Appellate Court have found no acceptable evidence produced by the plaintiff in this regard. The Trial Court and the First Appellate Court have taken note of the fact that the property of the plaintiff and defendant is admittedly divided by a compound wall.

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Thus in absence of any breach/damage to the proprietary right of the plaintiff and any proof in that regard, a relief as sought of this nature cannot be granted which has

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NC: 2024:KHC:10390 RSA No. 1176 of 2022

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been rightly declined by the Trial Court and confirmed by the First Appellate Court. In that view of the matter no substantial question of law would arise for consideration in this appeal. Accordingly, appeal is dismissed.

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Notwithstanding the dismissal of this appeal, the appellant is at liberty to continue with the proceedings already initiated under the relevant provisions of the Karnataka Municipal Corporation Act, 1976 and may avail such remedy as may be available to him under law with regard to violation of building plan/license, if any by the defendant.

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Sd/JUDGE

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List No.: 2 Sl No.: 25

Sri. G. Krishna v. Smt. Shylaja

Case brief

What is this about?

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Sri. G. Krishna v. Smt. Shylaja

Case brief

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