- 1 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.7300 OF 2011 (INJ) BETWEEN: SAGAR S/O DR.SANGRAMAPPA BASNALE @ SANGRAM AGE: 38 YEARS, OCC: BASAVAKALYAN REPRESENTED BY THE SPECIAL POWER OF ATTORNEY DR. SANGRAM S/O MAHADEVRAO BASNALE, AGE: 68 YEARS, OCC: MEDICAL PRACTITIONER, R/O: SHAHAPUR LOCALITY, BASAVAKALYAN, DIST: BIDAR – 585 327. …APPELLANT (BY SRI SACHIN M.MAHAJAN, ADVOCATE) AND: 1. i. GURPADAPPA GIREPPA METGE SINCE DECEASED BY L.RS. DEVENDRAPPA S/O GURUPADAPPA METGE, AGE: 71 YEARS, ii. SMT. JAGADEVI W/O SIDRAMAPPA AGE: 63 YEARS, OCC: HOUSEHOLD, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 iii. PUSHPAWATI W/O SHARNAPPA MULGE AGE: 59 YEAS, OCC: HOUSEHOLD, iv. MALLAMMA W/O PREMANTH BIRADAR AGE: 56 YEARS, OCC: HOUSEHOLD, v. SHIVAPUTRAPPA S/O GURUPADAPPA AGE: 54 YEARS, OCC: BUSINESS, vi. KIRTI LATA W/O SHARNAPPA AGE: 47 YEARS, OCC: HOUSEHOLD, vii. SUNILKUMAR S/O GURUPADAPPA METGE AGE: 46 YEARS, OCC: BUSINESS, viii. SMT. JYOTI W/O ASHOK BIRADAR AGE: 39 YEARS, OCC: HOUSEHOLD, 2. MALLIKARJUN @ ANIL KUMAR S/O GURUPADAPPA METGE AGE: 45 YEARS, OCC: BUSINESS, ALL R/O: SHAHAPUR LOCALITY, BASAVAKALYAN, DIST: BIDAR – 585 327. …RESPONDENTS (BY SRI RAVINDRA REDDY, ADV., FOR R1(II) TO R1(VIII)& R2; SRI V.V.CHANDRIKI, ADVOCATE FOR R1(III) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.07.2011 PASSED BY THE FAST TRACK Court, BASAVAKALYAN IN R.A.NO.250/2010 AND DECREE THE SUIT OF THE APPELLANT - 3 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 AS PRAYED FOR BY ALLOWING THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL COMING ON FOR FINAL HEARING, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel for the appellant and the respondents. 2. This appeal was admitted on 18.11.2011 to answer the following substantial questions of law. “1. Whether the lower appellate Court is justified in dismissing the suit of the plaintiff in view of the fact that the construction of the defendant over the suit wall is totally contrary to Ex.P.4 i.e., the construction permission?” 2. Whether right of easement can be declared in favour of the defendants, in a suit for bare injunction, in the absence of any pleadings or evidence by the defendants in this regard? 3. Whether the lower appellate Court is justified in observing that the defendants is entitled for - 4 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 right of easement in a suit for bare injunction filed by the plaintiff? 4. Whether the defendants can open door, windows, etc. in the suit wall, when the construction permission does not permit them to do so?” 3. The suit is one for bare injunction wherein the plaintiff sought for injunction against the defendants to restrain the defendants from constructing suit wall, in the place shown as A-B-C-D in the sketch appended to the plaint and also to restrain the defendants from opening the doors, windows, ventilators, drains or water spouts in the suit wall. The suit is decreed. 4. The defendants filed appeal. The appeal is allowed and consequently the suit is dismissed. Hence, the plaintiff is before this Court in second appeal. 5. Learned counsel appearing for the plaintiff/appellant would contend that Ex.D2 is the sanctioned building plan submitted by the defendants wherein the Municipality, Basvakalyan vide order dated 03.12.1991 has approved the plan and permitted the defendants to put up structure. In - 5 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 Ex.D2, the plan proposed by the defendants, there is no provision for the door or a window adjacent to the property of the plaintiff. The doors and the windows are provided adjacent to open place of Town Municipality. This being the position, the Court could not have dismissed the suit as the plaintiff is seeking restraint order against the defendants from putting up a structure contrary to the plan submitted by the defendants. 6. Learned counsel appearing for the defendants/respondents on the other hand would contend that the plaintiff has claimed exclusive right on the common space which is a lane adjacent to the property of the plaintiff and defendants and the plaintiff has also sought restraint order to restrain the defendants from allowing the drain water to flow in the common lane adjacent to the property of the plaintiff and defendants and under these circumstances, the Appellate Court has rightly allowed the appeal and dismissed the suit. 7. This Court has considered the contentions raised at the Bar and perused the records. 8. In addition, the learned counsel appearing for the plaintiff/appellant on instructions has submitted that the - 6 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 plaintiff has no objection to the defendants to cause the rain water to fall and flow in the lane adjacent to the property of the plaintiff and defendants. 9. Learned counsel appearing for the defendants/respondents on instructions would submit that the doors and windows will be opened only as provided in the plan in Ex.D.2 if the plaintiff has no objection for causing the flow of rain water in the lane adjacent to the property of the plaintiff and defendants. 10. It is stated by both the counsel that lane referred in Ex.D.2 which is in ‘L’ shape between the property of the plaintiff and defendants is the common lane. 11. The submissions of both the learned counsel are placed on record. 12. In view of the aforementioned submissions, this Court is of the view that there is no need to deliberate on the substantial questions of law framed above and the impugned judgment and decree of the trial Court and the first appellate Court can be modified suitably by taking into account the submissions made by both learned counsel. - 7 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 13. Hence, the following: ORDER i) The impugned judgment and decree dated 06.07.2011 in RA No.250/2010 on the file of Fast Track Court at Basvakalyan and the judgment and decree dated 06.07.2006 in O.S No.13/1993 on the file of Civil Judge at Basavakalyan are modified as under. ii) The defendants may open the doors in the proposed building only as provided in Ex.D2, the approved plan. iii) The defendants are restrained from opening the doors and the windows in the proposed building except as provided in EX.D2, the approved plan. iv) The plaintiff shall not obstruct the defendants in causing fall and flow of rain water in the lane adjacent to the property of the plaintiff - 8 - NC: 2025:KHC-K:2406 RSA No. 7300 of 2011 and defendants which is shown in the sketch at Ex.D.2. v) No orders on cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE BL List No.: 1 Sl No.: 50