- 1 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR FIRST APPEAL NO. 247 OF 2014 (DEC) BETWEEN: SRI. D.V. VISHWANATHA GOWDA AGED ABOUT 53 YEARS, S/O LATE R. VENKATARAMAIAH, R/AT NO.1038, BEHIND KANAKA MANDIRA, NEW EXTENSION, KOLAR - 570 821 …APPELLANT (BY SMT. SUGUNA R. REDDY, ADVOCATE) AND: 1. C.J. SURESH S/O. LATE GOPAL PILLAI, AGED ABOUT 60 YEARS, 2. SMT. J. RANJANI MAJOR W/O C.J. SURESH, BOTH ARE R/AT. NO.12TH "A" MAIN ROAD, 6TH BLOCK, RAJAJINAGAR, BANGALORE - 10 …RESPONDENTS (R1 AND R2 - SERVICE OF NOTICE HELD SUFFICIENT VIDE ORDER DATED 03.10.2016) THIS RFA IS FILED UNDER SECTION 96, READ WITH OREDER 41, RULE-1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.06.2013 PASSED IN O.S.6437/2009 ON THE FILE OF THE XXXVII-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND MANDATORY INJUNCTION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is arising out of the judgment and decree dated 29.06.2013 in O.S.No.6437/2009 on the file of the XXXVII Additional Civil and Sessions Judge, Bengaluru City dismissing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as arrayed before the Trial Court. 3. The plaint averments are that, one K.V.Thandaveshwara was absolute owner of the property bearing No.78/8, totally measuring East-West 35 ft and North-South 90 ft situated at Magadi Main Road. It is further stated that, the original owner of the property, K.V.Thandaveshwara, sold the schedule property in favour of M.S.Govindaswamy as per registered Sale Deed dated 13.02.1974. It is further stated that, M.S.Govindaswamy by registered Sale Deed dated 28.06.1982 sold Western half portion of the property i.e., measuring East- West 17 1/2 ft. and North-South 90 ft in favour of the plaintiff and remaining half portion on the eastern side measuring East- West 17 1/2 ft. and North-South 90 ft. in favour of one - 3 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 B.Narayana Shetty. It is further stated in the plaint that, the revenue records stand in the name of the plaintiff and the Corporation has issued Katha No.11 pertaining to the property belonging to the plaintiff and Katha No.11/1 in respect of the property belonging to B.Narayana Shetty. It is further stated that, the Bengaluru City Corporation had acquired the Western portion of the plaintiff's property to an extent of East-West 10 ft. and North-South 90 ft. for the purpose of formation of additional storm water drain and therefore, the area remained with the plaintiff, is measuring East-West 7 1/2 ft. and North- South 90 ft. The plaintiff is the absolute owner of the property. It is also further stated in the plaint that the neighbour of the plaintiff- B.Narayana Shetty got the Building Licence from the City Corporation, Bengaluru to construct a ground and first floor and the said plan was approved by the Competent Authority. It is also stated in the plaint that, the said B.Narayana Shetty has sold his property in favour of defendants No.1 and 2. After purchasing the same, defendants No.1 and 2 have put up further construction of second and third floors over the property without complying with the building bye-law and the approved plan issued by the Corporation. It is - 4 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 the case of the plaintiff that the plaintiff is the resident of Kolar and therefore, taking into consideration the absence of the plaintiff, defendants have put up construction of second and third floors of their property keeping the windows of the building towards the plaintiff's property unauthorisedly and therefore, the plaintiff was constrained to file a suit in O.S.No.3618/1994 seeking the relief of permanent injunction. The said suit came to be dismissed and therefore, the plaintiff has filed the instant suit in O.S.No.6437/2009 seeking the relief of declaration with mandatory injunction against the defendants to remove the windows put up in the second and third floors and also to comply with the building plan issued by the Bengaluru City Corporation. It is further case of the plaintiff that, construction made by the vendor of the defendants and the defendants without leaving any set-back is, contrary to the building bye-law, particularly towards the plaintiff's property and therefore, the construction made by the defendants and their vendor-B.Narayana Shetty is not in accordance with the approved plan and the building bye-law and therefore, the plaintiff was constrained to file suit in O.S.No.6437/2009. - 5 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 4. After service of notice, defendants entered appearance and filed detailed written statement admitting the fact that the plaintiff is the owner of the property towards the Western portion of the property bearing No.78/8 measuring East-West 17 1/2 ft. and North-South 90 ft. and the vendor of the defendants, was owner towards Western half portion of the land measuring East-West 17 1/2 and North-South 90 ft. The defendants have specifically denied the averments made in the plaint that they have put up unauthorized construction contrary to the building plan and the bye-law of the Bengaluru City Corporation and accordingly, sought for dismissal of the suit. 5. It is also the specific case of the defendants that the plaintiff had filed a suit in O.S.No.3618/1994 against the vendor of the defendants, seeking relief of permanent injunction in respect of the suit schedule property. It is further contended that the said aspect has been suppressed in the plaint. It is also stated that the aforementioned suit filed by the plaintiff against the vendor of the defendants came to be dismissed on 13.03.2003 as the construction put up by the vendor of the defendants was in accordance with law and within - 6 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 the building bye-law and sanction being accorded and therefore, it is the contention of the defendants that the suit filed by the plaintiff requires to be dismissed and accordingly, the defendants have sought for dismissal of the suit. 6. The Trial Court based on the pleadings on record, had framed issues and additional issues for consideration, which reads as under : 1. Does the plaintiff prove that the defendants have put up windows and sewerage water pipelines on the Western wall of their property as shown in the red colour illegally and contrary to the approved plan, license and building bye-law as contended in the plaint? 2. Does the plaintiff prove that he is entitled for the relief of mandatory injunction as sought for ? 3. What order or decree ? Additional issues : 1. Does the plaintiff proves that after institution of this suit the defendants have illegally put up five windows in the cellar portion of their building on their Western wall facing towards the plaintiff's property as stated in para 13-A of the amended plaint ? 2. Whether the plaintiff proves that his suit is in time ? - 7 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 7. In order to establish their case, plaintiff himself was examined as PW.1 and produced 14 documents and same were marked as Exhibits P.1 to P.14; defendant No.1 was examined as DW.1 and got marked 6 documents as Exhibits D.1 to D.6. The Trial Court after considering the material on record by its judgment and decree dated 29.06.2013, dismissed the suit. Feeling aggrieved by the same, the plaintiff has preferred this appeal. 8. I have heard Smt.Suguna R.Reddy, learned counsel for the appellant. The respondents, though served, have remained unrepresented. 9. It is contended by the learned counsel for the appellant, by referring to the finding recorded by the Trial Court on additional issue no.1 that, the Trial Court has wrongly applied Article 58 of the Limitation Act, 1963, ignoring the provision contained under Section 22 of the Limitation Act, 1963, and therefore, the finding recorded by the Trial Court requires interference in this appeal. It is further argued by the learned counsel for the appellant that, the plaintiff has filed - 8 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 O.S.No.3681/1994 seeking the relief of permanent injunction against vendor of the defendants and therefore, the relief sought for in the said suit is altogether different insofar as the relief sought for by the plaintiff in the present suit i.e., O.S.No.6437/2009 wherein the plaintiff has sought for the relief of declaration and mandatory injunction in respect of the suit schedule property and therefore, sought for interference by this Court. 10. It is further contended by the learned counsel for the appellant by referring to the finding recorded by the Trial Court that, in the event of any violation of bye-law or the plan, it is for the Corporation Authorities to take action against the defendants and the plaintiff has nothing to do with the same and therefore, it is contended that the said finding recorded by the Trial Court requires to be interfered in this suit. In order to buttress her argument, learned counsel for the appellant refers to the judgment of this Court in the case of Prakash Manikji Parishwad vs. Radha Kirshna Ankalekar and Another reported in 2002 (3) KCCR 1697 wherein it is held that, action could be initiated by the adjoining owner of the property - 9 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 and the said aspect of the matter has not been considered by the Trial Court and accordingly, sought for interference by this Court. 11. 11. Insofar as the application of Section 22 of the Limitation Act, 1963, is concerned, learned counsel for the appellant refers to the judgment of the Hon'ble Supreme Court in the case of Hari Ram vs. Jyoti Prasad and Anr. reported in AIR 2011 SC 952 and argued that, the encroachment made by the defendants is a continuing cause of action and therefore, the finding recorded by the Trial Court while dismissing the suit requires interference by this Court and as such, sought for decreeing the suit of the plaintiff. 12. In the light of the submission made by the learned counsel for the appellant, the point for consideration before this Court are :- i) Whether the finding recorded by the Trial Court as to complying Article 58 of the Limitation Act is just and proper ? ii) Whether the finding recorded by the Trial Court, as to the illegal acts of the defendants has to be considered by the Corporation Authorities alone in - 10 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 the event of any violation of the building bye-law and cannot be pleaded by the plaintiff? 13. In the light of the submission made by the learned counsel for the appellant, I have carefully examined the finding recorded by the Trial Court and perused the original records. 14. The undisputed facts of the case is that, originally the land to an extent of East-West 35 ft and North-South 90 ft. in the property bearing No.78/8 belonged to one K.V.Thandaveshwara who in turn sold the same to M.S.Govindaswamy as per registered sale deed dated 13.02.1974. It is also not in dispute that, M.S.Govindaswamy sold Western half portion of the suit property i.e., to an extent of East-West 17 1/2 ft and North-South 90 ft in favour of the plaintiff and the remaining half portion on the Eastern side measuring East-West 17 1/2 ft and North-South 90 ft. in favour of B.Narayana Shetty (vendor of the defendants). Perusal of the records would indicate that the Bengaluru City Corporation had acquired the portion to an extent of East-West 10 ft. and North-South 90 ft. belonging to the plaintiff for the purpose of formation of additional storm water drain and therefore, - 11 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 remaining area belonging to the plaintiff is to an extent of East- West 7½ ft and North-South 90 ft which is the subject matter in the present suit. It is also forthcoming from the records that the B.Narayana Shetty had sold the property in favour of defendants No.1 and 2. It is also an undisputed fact that the vendor of the defendants-B Narayana Shetty secured approved plan from the City Corporation, Bengaluru and constructed ground and first floor. It is to be noted that, at this juncture the plaintiff has filed a suit in O.S.No.3618/94 against the vendor of the defendants seeking the relief of permanent injunction which came to be dismissed on 13.02.2003. Issues in the said suit reads as under : "1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of filing of the suit ? 2. Whether the plaintiff proves the interference by the defendant over the suit schedule property ? 3. To what decree or order ? 15. On careful consideration of the issues in O.S.No.3618/1994, it is clear that the plaintiff was to prove his - 12 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 lawful possession in respect of the suit schedule property. No issue has been framed by the Trial Court in the said suit with regard to violation of the bye-law/sanction plan by the defendants. Therefore, I am of the view that, the finding recorded by the Trial Court to the effect that, the plaintiff ought to have raised a plea in the earlier suit, cannot be accepted. It is also noted that, under Section 22 of the Limitation Act, 1963 which provides for continuing cause of action, continuing breach has been committed by the defendants in the present case. It is also admitted by DW.1, in the cross examination that, the vendor of the defendants and the defendants have not left any set back while making construction in their property adjoining to the plaintiff. It is also admitted by DW.1 with regard to Ex.D.3, wherein it is clear that construction of second and third floor over the property is originally built by the vendor of the defendants and there is no mention about the existence of the window or door towards the Western wall of the property belonging to the plaintiff as per the cross examination dated 23.02.2013. - 13 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 16. In that view of the matter, declaration of law made by the Hon'ble Supreme Court in the case of Hari Ram (supra), at paragraphs No.18 and 19 has to be taken into consideration, which reads as under : "18. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury. 19. At this stage it would be apposite to refer to and rely upon Section 22 of the Limitation Act, 1963, which reads as follows: "In case of a continuing breach of contract or in case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues." This court had the occasion to deal with Section 22 of the Limitation Act, 1963, in the case of San Sankar Dastidar v. Shrimati Banjula Dastidar and Anr., reported in AIR - 14 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 2007 SC 514, in which the Supreme Court held that when a right of way is claimed whether public or private over a certain land over which the tort-feaser has no right of possession, the breaches would be continuing. to which the provisions of Section 22 of the Limitation Act, 1963, would apply. Therefore, in our considered opinion the plea that the suit is barred by limitation has no merit at all." 17. From a perusal of the declaration of law made by the Hon'ble Supreme Court, it is clear that in the facts on hand, the construction put up by the vendor of the defendants and the defendants subsequently, is nothing but a continuing obstruction or obstacle created towards the Western side of their property, wherein the property belonging to the plaintiff abutting to the same. It is a continuing cause of action that has been created to challenge the same in the present suit and in this regard, the finding recorded by the Trial Court on additional issue No.1 requires to be set aside. 18. Nextly, insofar as the finding recorded by the Trial Court that, in the event of any violation of the building plan, it is only the Corporation which has to take note of the same and the plaintiff has no legal right concerned and the said finding is incorrect. The declaration of law made by this Court in the - 15 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 case of Prakash (Supra) at paragraph No.6 has to be taken note of, which reads as under : "6. So far as the second substantial question of law is concerned, the grant of prayers (a) and (b) in the original suit filed by the plaintiff was justified. Prayer (c) was to direct defendants 2 and 3 not to regularise the illegal structure or issue Completion Certificate, such a prayer should not have been granted by the trial Court. The trial Court has committed an error by granting the said prayer. Section 321 of K.M.C. Act empowers the Commissioner to take action either for demolition of the building or direct the owner to make alterations to bring the building in conformity with the Act, Rules, bye-laws, directions or requisitions. In view of the said provision, prayer (c) should not have been made by the plaintiff and the same should have been rejected by the trial Court. Rightly the appellate Court rejected the said prayer. Rejection of the said prayer does not vitiate the judgments and decrees of the Courts below. Hence, the second substantial question of law is held against the first defendant." 19. In that view of the matter, taking into consideration the declaration of law made by this Court supra, the finding recorded by the Trial Court at paragraph No.19 of the judgment and decree is contrary to records and violates contrary to the judgment of this Court. It is well established principle of law - 16 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 that, if any construction has been made in violation of the bye- law or the plan sanctioned by the Competent Authority, the same has to be questioned by the neighboring owner, in the event the same would cause injury to his legal right. 20. In that view of the matter, I find force in the submission made by the learned counsel for the appellant. Taking into consideration the arguments advanced by the learned counsel for the appellant and also upon perusal of the documents, it would indicate that there is total non-application of mind by the Trial Court while dismissing the suit of the plaintiff. Hence, the point for consideration referred to above favours the plaintiff. 18. Hence, I pass the following : ORDER i) Appeal is allowed; ii) Judgment and decree dated 29.06.2013 in O.S.No.6437/2009 on the file of the XXXVII Additional City Civil and Sessions Judge, Bengaluru City is hereby set aside and the suit in O.S.No.6437/2009 filed by the plaintiff is hereby decreed; - 17 - HC-KAR NC: 2025:KHC:41472 RFA No. 247 of 2014 iii) It is further decreed that the windows and sewerage water pipelines put up on the Western wall of the defendants' property shown in the red colour of the sketch is illegal and contrary to the approved plan and as such, the relief of mandatory injunction is issued directing the defendants to close permanently the windows and the openings and further, remove the sewerage water pipelines put up on the Western wall of the defendants building abutting the plaintiff's schedule property. Cost is made easy. Sd/- (E.S.INDIRESH) JUDGE rs CT-SG List No.: 1 Sl No.: 19