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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13^TH DAY OF NOVEMBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

REGULAR SECOND APPEAL NO.1792 OF 2015

BETWEEN:

SRI. T. RANGE GOWDA

AGED 59 YEARS

S/O LATE THIMME GOWDA

RESIDING AT DOOR NO.16,

FACT GODOWN,

B.KATIHALLI, KOPPALU

INDIRANAGAR EXTENSION,

HASSAN-573 201.

...APPELLANT

(BY SRI.A RAVISHANKAR, ADVOCATE)

AND:

SRI. K.G. PURUSHOTHAM

AGED 47 YEARS

S/O LATE G.K. GUNDAPPA

RESIDING AT FACT GODOWN,

B. KATIHALLI, KOPPALU

INDIRANAGAR EXTENSION,

HASSAN-573 201.

…RESPONDENT

THIS RSA IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGMENT AND DECREE DATED:3.8.2015

PASSED IN RA.NO.30/2013 ON THE FILE OF THE II

ADDITIONAL SENIOR CIVIL JUDGE & JMFC, HASSAN,

DISMISSING

THE

APPEAL

AND

CONFIRMING

THE

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JUDGMENT AND DECREE DATED 13.12.2012 PASSED IN

OS.NO.143/2008 ON THE FILE OF THE PRINCIPAL CIVIL

JUDGE & JMFC, HASSAN AND ETC.,

THIS RSA COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This second appeal is by the plaintiff questioning

the judgment and decree dated 03.08.2015 passed in

R.A.No.30/2013 on the file of the II Additional Senior

Civil

Judge

and

JMFC,

Hassan,

confirming

the

judgment and decree dated 13.12.2012 passed in

O.S.No.143/2008 on the file of the Civil Judge and

JMFC, Hassan.

2.

For the sake of convenience, the parties

are referred to as per their status before the Courts

below.

3.

The facts leading to the top noted appeal

are as follows:

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The plaintiff filed a suit for mandatory injunction

in O.S.No.143/2008 by contending that he is the

absolute owner of suit ‘A’ property which measures

North-South 40 feet and East-West 31 feet. The

plaintiff contended that he had purchased the

schedule ‘A’ property under registered sale deed dated

17.02.1999 and has constructed residential house in

the year 2001 and while constructing the residential

house, the plaintiff has left open space measuring 1½

feet North-South and 32 feet East-West to have

access to air and light. The plaintiff has specifically

claimed in the plaint that he has put up the compound

wall on the southern side of his property by leaving

setback space of 1½ feet. The plaintiff further

contended that the defendant is the owner of schedule

‘B’ property. The case of the plaintiff is that the

defendant by encroaching upon setback left by the

plaintiff has put up two pillars. The plaintiff has

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further averred in the plaint that the defendant is a

rich and influential man and as such, he was not able

to prevent the defendant from proceeding with illegal

construction and hence, the present suit is filed. The

case of the plaintiff is that on account of illegal

construction made by the defendant in the setback

space left by the plaintiff has virtually denied and

deprived the plaintiff of free flow of air and light to his

house. On this set of pleadings, the plaintiff sought

for relief of mandatory injunction.

4.

In pursuance of summons, the defendant

appeared through his Counsel and filed written

statement. The defendant has stoutly denied the

entire averments made in the plaint. The defendant

has specifically contended in the written statement

that he has put up pillars for construction of car shed

well within his property and as such, the said

construction would not cause obstruction in regard to

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free flow of air and light to the plaintiff’s property and

hence, sought for dismissal of the suit.

5.

The

Trial

Court

based

on

the

rival

contentions, formulated the following issues:

“1) Whether the plaintiff proves that

while constructing a house building in suit

‘A’ schedule property, towards the southern

side, he has left 1½ x 32 feet space for the

purpose of flow of air and light and

constructed a compound wall at ‘CD’ area

shown in the rough sketch annexed to the

plaint?