- 1 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 3182 OF 2007 (DEC/INJ-) BETWEEN: 1. SHRI DINESH S/O. SUKHARAJ KOTHARI, AGED ABOUT 43 YEARS, OCC: BUSINESS, THEATRE ROAD, JAMAKHANDI, DIST: BAGALKOT-587 301. 2. SHRI SUNIL S/O. SUKHRAJ KOTHARI, AGED 61 YEARS, OCC: OCC: BUSINESS, THEATRE ROAD, JAMAKHANDI, DIST: BAGALKOT-587 301. 3. SHRI SANJAY S/O. KANTILAL KOTHARI, AGED 50 YEARS, OCC: BUSINESS, THEATRE ROAD, JAMAKHANDI, DIST: BAGALKOT-587 301. 4. SHRI UMESH S/O. HASAMUKHACHAND KOTHARI, AGE: 51 YEARS, OCC: BUSINESS, THEATRE ROAD, JAMAKHANDI, DIST: BAGALKOT-587 301. (ALL ARE REPRESENTED BY GPA HOLDER SRI. KANTILAL S/O. SUKHARAJ KOTHARI, AGED ABOUT 76 YEARS, OCC: BUSINESS, THEATRE ROAD, JAMAKHANDI, DIST: BAGALKOT-587 301) …APPELLANTS (BY SRI. MALLIKARJUN C. HUKKERI, ADVOCATE) AND: 1. SMT. SITABAI W/O. RAMACHANDRA TIKOTEKAR, SINCE DECEASED BY LR’S Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.18 10:57:31 +0530 - 2 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 1(a) ARUNA KUMAR S/O. RAMACHANDRA TIKOTEKAR, AGED ABOUT 72 YEARS, OCC: BUSINESS, R/AT NEAR SHREE GURUDEV RANADE MANDIR, THEARTE ROAD, JAMAKHANDI-587301, DIST: BAGALKOT. 1(b) VIDYA W/O. VASUDEV DESAI, AGED ABOUT 65 YEARS, OCC: HOMEMAKER, R/AT. NESARG APARTMENT, FALENAGAR, SURVEY NO.33/1/7+09, AMBAGAON, BUDRUK, PUNE CITY, KATRAJ-411046. MAHARASHTRA STATE. 1(c) AJIT S/O. RAMACHANDRA TIKOTEKAR, AGED ABOUT 57 YEARS, OCC: ADVOCATE, R/AT NEAR SHREE GURUDEV RANADE MANDIR, THEARTE ROAD, JAMAKHANDI-587301, DIST: BAGALKOT. 2. THE CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, JAMKHANDI, DIST: BAGALKOT. …RESPONDENTS (R1(a)-R1(c) & R2 ARE SERVED & UNPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT & DECREE PASSED IN R.A.NO.09/2007 DATED 20.9.07 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE PRESIDING OFFICER FAST TRACK, AT JAMAKHANDI CONFIRMING JUDGEMENT AND DECREE PASSED IN O.S.NO.11/2002 DATED 15.12.06 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE JR.DN JAMKHANDI AT JAMKHANDI BY ALLOWING THIS APPEAL WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendants challenging the judgment and decree dated 20.09.2007 in R.A.No.9/2007 on the file of the Fast Track Court, Jamkhandi1 dismissing the appeal and confirming the judgment and decree dated 15.12.2006 in O.S.No.11/2002 on the file of the Principal Civil Judge (Jr.Dn.), Jamkhandi 2 decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff is owner of the schedule property bearing CTS No.1439/2 along with open space situate in front of the house at Jamkhandi Taluk and defendants are the owners of the house bearing No.1438/A/1, along with open space at Jamkhandi. It is the case of the plaintiff that the plaintiff 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 has purchased the suit schedule property during 1980 from one Sri.Shankar Ramchandrarao Sabade. It is also stated that there are two windows – W1 and W2 and WS1 and WS2 waterspouts in the western side – ‘CDEF’ in the hand sketch produced along with the plaint, wherein four feet width wall of the said house is situate and therefore it is the case of the plaintiff that the plaintiff is residing in the suit schedule property for more than 5 decades and is using the windows for receiving air and light for a considerable period and therefore contended that the defendants have interfered with the same and are trying to construct building and same would cause blocking of air and light from the windows W1 and W2 in the sketch. Hence, the plaintiff has filed O.S.No.11/2002, seeking relief of declaration with consequential relief of permanent injunction against the defendants. The plaintiff has filed hand sketch map to establish the right of easement insofar as two windows are concerned. It is also stated that the plaint was amended during the pendency of the suit. - 5 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 4. After service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that the plaintiff is the owner of the house bearing CTS No.1439/2 and defendants No.1 to 4 are the owners of the house bearing CTS No.1438/A/1 of Jamkhandi Taluk. The defendants disputes the hand sketch map produced by the plaintiff. It is the specific contention of the defendants that there were no windows or waterspouts in the western side of the property in question and also it is stated that the plaintiff has made certain construction which was opposed by the defendants and as such the defendants have lodged complaint to the Town Planning Authority, Jamkhandi to stop the construction and to take action against the plaintiff. Hence, the defendants sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined 5 witnesses - 6 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 as PW.1 to PW.5 and produced 24 documents and same were marked as Exs.P.1 to P.24. The defendants have examined one witnesses as DW.1 and got marked 9 documents as Exs.D.1 to D.9. 6. The Trial Court after considering the material on record, by its judgment and decree dated 15.12.2006, decreed the suit in part and held that the plaintiff has got easementary right to receive the light and air through W1 and W2 windows and to discharge rain water through WS1 and WS2 waterspouts. Feeling aggrieved by the same, the defendants have preferred R.A.No.9/2007 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 20.09.2007, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.11/2002. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. - 7 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 7. This court 09.08.2012 formulated the following substantial question of law: “1. Whether the Courts below were right in declaring that the plaintiff-respondent has acquired an easementary right to receive light and air through windows-1 and 2, discharge rain water of the roof through water-spouts-1 and 2 and use the A,B,C and D Bole-lane existing on the west of CD suit wall of the plaintiff and thereby injuncting defendant Nos.2 to 4 and their agents from causing any obstruction in using the four feet width A,B,C and D bole lane and further directing defendant Nos.1 to 4 to remove the wall constructed by them, having regard to the provisions of the Indian Easement Act, 1882?” 8. I have heard Sri.Mallikarjun C Hukkeri, learned counsel appearing for the appellants and the respondents are served and remained absent. 9. Sri.Mallikarjun C Hukkeri, learned counsel appearing for the appellants contended that the plaintiff has not produced the sale deed based on which the plaintiff is claiming right over the suit schedule property and further refers to evidence of PW.1 and contended that the plaintiff has not established her right over the suit schedule property as well as the easementary right as - 8 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 claimed in the suit. He also invited the attention of the Court to Ex.D.6 and D.7 and contended that the hand sketch map produced by the plaintiff itself is misnomer and accordingly sought for interference of this Court. 10. In the light of the submissions made by the learned counsel appearing for the appellants, I have carefully examined the findings recorded by both the Courts below and perused the original records. 11. Taking into consideration the findings recorded by both the Courts below, wherein PW.1 admits in the cross-examination as to non-production of the sale deed said to have been disclosed the right of the plaintiff in respect of the suit schedule property. It is also to be noted that the Ex.D.7 is the document prepared by City Surveyor of Jamkhandi which makes it clear that the defendant is having right over the suit schedule property and same would not close the windows and waterspouts belonging to the plaintiff. On the other hand, both the Courts below have plainly relied upon the hand sketch map produced by - 9 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 the plaintiff and arrived at a conclusion to decree the suit and thoroughly ignored Ex.D.7 which has been prepared by the statutory body. In that view of the matter, I find force in the submission of the learned counsel appearing for the appellants that both the Courts below have committed an error in decreeing the suit of the plaintiff solely based on the hand sketch map and thoroughly ignored Ex.D.7. Hence, both the Courts below have misconstrued Ex.D.7 and decreed the suit which requires to be interfered with in this appeal. Hence, the substantial question of law framed above favours the defendants. 12. Accordingly, I pass the following: ORDER i. Appeal is allowed. ii. Judgment and decree dated 20.09.2007 in R.A.No.9/2007 on the file of the Fast Track Court, Jamkhandi is set aside. - 10 - NC: 2025:KHC-D:4718 RSA No. 3182 of 2007 iii. Judgment and decree dated 15.12.2006 in O.S.No.11/2002 on the file of the Principal Civil Judge (Jr.Dn.), Jamkhandi is set aside. iv. Suit of the plaintiff is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 38