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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 02^ND DAY OF JUNE, 2021

BEFORE

THE HON9BLE MR. JUSTICE N.K.SUDHINDRARAO

R.S.A. NO.1601 OF 2013 (INJ)

BETWEEN

DR. INDUDHAR

S/O LATE M S RAMAIAH

AGED ABOUT 55 YEARS

BY HIS GPA HOLDER

SRI BHARGAVA M R

S/O LATE M S RAMAIAH

AGED ABOUT 65 YEARS

NO.1055, I STAGE, 5TH MAIN

VIJAYANAGAR

MYOSRE DISTRICT PIN 570017.

...APPELLANT

(BY SRI KESHAV R AGNIHOTRI, ADVOCATE)

AND

1 . SRI SANNAPPAJI

S/O LATE SIDDALINGA SHETTY

AGED ABOUT 78 YEARS

2 . SRI CHIDAMBAR

S/O SANNAPPAJI

AGED ABOUT 50 YEARS

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BOTH THE RESPONDENTS NO.1 & 2 ARE

R/O NO. 1056, I STAGE,

5TH MAIN, VIJAYANAGAR

MYSORE DISTRICT PIN 570017

&RESPONDENTS

(BY SRI B K MOHAN, ADVOCATE FOR R1 & R2)

THIS RSA IS FILED UNDER SECTION 100 OF

CPC., AGAINST THE JUDGEMENT & DECREE DTD

16.04.2012 PASSED IN R.A. NO.499/2011 ON THE

FILE OF THE PRESIDING OFFICER, FAST TRACK

COURT IV, MYSORE, ALLOWING THE APPEAL AND

SETTING ASIDE THE JUDGMENT AND DECREE DATED

01.04.2011 PASSED IN O.S. NO.968/2008 ON THE

FILE OF THE IV ADDL. I CIVIL JUDGE & JMFC.,

MYSORE.

THIS APPEAL COMING ON FOR ORDERS THIS

DAY THROUGH VIDEO CONFERENCE, THE COURT

DELIVERED THE FOLLOWING:

JUDGMENT

Though this appeal is listed for orders, with

consent of learned counsel for both parties, the same

is taken up for final disposal.

2. This appeal is directed against the judgment

and

decree

dated

16.04.2012

passed

in

R.A.No.499/2012 by the Presiding Officer, Fast Track

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Court-IV, Mysore, wherein the regular appeal of the

defendant came to be allowed and judgment and

decree in O.S.No.968/2008, dated 01.04.2011 passed

by the Principal First Civil Judge (Jr.Dn.), Mysore,

came to be set aside. Consequently, the suit of the

plaintiff was dismissed. Being aggrieved by the said

judgment and decree, the plaintiff is in appeal.

3. The operative portion of the first appellate

Court is as under:

<I.A.No.2 and 3 filed under order 41

Rule 27 of C.P.C. by the appellants/

defendants are dismissed.

The regular appeal preferred by the

defendants/appellants is hereby allowed.

The judgment and decree passed by

the Trial Court in O.S.No.968/2008 dated

01.04.2011 is hereby set aside. The suit

of the plaintiff is dismissed.

Both the parties shall bear their own

costs.

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Send a copy of this judgment to the

trial Court along with the L.C.R.=

4. Insofar as the Trial Court is concerned the

suit was filed by the plaintiff in O.S.No.968/2008 for

the relief of permanent injunction and mandatory

injunction. It is the case of the plaintiff that the

defendants without following the directions and

restrictions imposed by the statutory authority, they

have gone ahead with the construction in utter

violation of the building plan and also have not left

setback.

5. In order to avoid confusion and overlapping,

the parties are addressed in accordance with their

ranks and status as held in the trial Court.

6. The plaintiff claims that he is absolute owner

of the house property bearing No.1055, situated at 1^st

stage, Vijayanagara V Main, Mysore, measuring East-

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West 40 feet and North-South 60 feet. He holds katha

of the property in his name and has been regularly

paying tax. The brother of the plaintiff, who is Power

of Attorney Holder, is looking after the plaint schedule

property. It is also claimed that the defendants who

are the northern neighbors to the property of the

plaintiff have started construction by violating the

approved building plan and not leaving necessary

setback in the area towards northern portion of the

suit schedule property. It is also stated in the plaint

that the defendants have raised construction and wall

towards the north of plaintiff9s property which is fallen

to the south of the defendants9 property without

leaving any setback. The defendants have also put up

their construction abutting the main gate of the

plaintiff9s property. Thereafter, the pla