IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 19^TH DAY OF JANUARY 2022

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

RSA.NO.6153/2012 (INJ)

BETWEEN

K.H.M. VAGESH MURTHY S/O K.M. KOTRAIAH,

AGE: 67 YEARS, PRINCIPAL,SREE SIDDESHWARA TYPING

INSTITUTE,R/O: KUDLIGI, DIST: BALLARY

... APPELLANT

(BY SRI.K.L.PATIL & SRI.S.S.BETURMATH, ADVS.)

AND

K. CHANNABASAIAH S/O REVAIAH,

AGE: 70 YEARS, HINDU,

RETIRED EMPLOYEE, R/O: 5TH WARD, KUDLIGI, DIST: BELLARY.

... RESPONDENT

(BY SRI.GODE NAGARAJ, ADV.)

THIS APPEAL IS FILED UNDER 100 OF CPC., AGAINST THE

JUDGEMENT & DECREE DTD:23.07.2012 PASSED IN R.A.NO.43/2009

ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KUDLIGI,

DISMISSING

THE

APPEAL,

FILED

AGAINST

THE

JUDGMENT

DTD:03.10.2009 AND THE DECREE PASSED IN O.S.NO.86/2001 ON

THE FILE OF THE CIVIL JUEDGE AND JMFC., KUDLIGI, PARTLY

DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION AND

MANDATORY INJUNCTION.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

2

JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiff who is denied the relief of mandatory

injunction by both the court below.

2.

Appellant/plaintiff filed a suit seeking perpetual

injunction and also for relief of mandatory injunction

against the respondent/defendant. The grievance of the

appellant/plaintiff

is

that

respondent/defendant

has

highhandedly constructed northern side wall in his property

without leaving any setback and has fixed three windows.

The appellant/plaintiff contended that the said highhanded

action of respondent/defendant would virtually takeaway

the valuable rights of the appellant/plaintiff, who possessed

a

vacant

space

beyond

his

southern

wall.

The

appellant/plaintiff

has

contended

that

since

respondent/defendant has not left any setback, the open

space which is in existence between the appellant/plaintiff’s

property

and

respondent/defendant’s

property

is

3

exclusively

owned

by

appellant/plaintiff.

If

the

respondent/defendant is permitted to put up windows on

his northern wall, would amount to infringement of his

right over the open space. Hence, the suit is filed seeking

the relief of perpetual injunction and also the relief of

mandatory injunction to direct the respondent/defendant to

close the windows and ventilators that are put up on the

northern side of the respondent/defendant’s property.

3.

Both the parties to substantiate their claim have

led in oral and documentary evidence. The trial court on

appreciation of oral and documentary evidence answered

issue Nos.1 and 2 in the affirmative. The trial court has

recorded a categorical finding that respondent/defendant

has constructed northern wall without leaving any setback.

The trial court having verified Ex.P3 which is an

endorsement issued by the Chief Officer, Town Panchayat,

Kudligi and Ex.P4, which is order dated 07.06.2001 which

was issued by Chief Officer, Town Panchayat, Kudligi

4

permitting the respondent/defendant to put up windows

and ventilators as shown in the approved plan was of the

view

that

though

appellant/plaintiff

has

pleaded

infringement of air and light on account of highhandedly

fixing of windows on the northern side of the wall by

respondent/defendant, however, on assessing oral and

documentary evidence found that pleadings are quite

ambiguous and vague in nature. The trial court was of the

view that appellant/plaintiff has failed to demonstrate as to

how his rights are infringed. The trial court was of the view

that though respondent/defendant has not left any

setback, however, windows are fixed without any extension

towards northern side open space and therefore, the trial

court has recorded a categorical finding that two windows

will not cause any inconvenience or hardship to the

appellant/plaint