- 1 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.138157 OF 2020 (GM-CPC) BETWEEN: 1. SMT. LAXMI W/O. SHIVAJIRAO DESAI AGE: 60 YEARS, OCC: HOUSEHOLD, R/O. TORAVI GALLI, NEAR RAGHAVENDRA SWAMY MATH, HUBBALLI-580020. 2. SRI. KRISHNAMURTHY S/O. SUNDARRAO RATNAKAR, AGE: 58 YEARS, OCC: NIL, R/O. TORAVI GALLI, NEAR RAGHAVENDRA SWAMY MATH, HUBBALLI-580020. 3. SRI. PRALHAD S/O. SUNDARRAO RATNAKAR, AGE: 55 YEARS, OCC: NIL, R/O. TORAVI GALLI, NEAR RAGHAVENDRA SWAMY MATH, HUBBALLI-580020. 4. SMT. SANDHYA W/O. VENKATESH RATNAKAR, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. PUTTI CHAL, KRISHNAPUR ONI, OLD HUBBALLI-580024. 5. SRI. SRINIVAS S/O. VENKATESH RATNAKAR, AGE: 18 YEARS, OCC: STUDENT, R/O. PUTTI CHAL, KRISHNAPUR ONI, OLD HUBBALLI-580024. …PETITIONERS (BY SRI. SURESH N KINI, ADVOCATE) Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.19 10:41:22 +0530 - 2 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 AND: 1. SMT. USHABAI W/O. PANDURANGRAO BENGERI, SINCE DECEASED BY HER LRs ALREADY ON RECORD AS RESPONDENTS NO.2 TO 4. 2. ABHAY S/O. PANDURANGRAO BENGERI AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O. TORAVIGALLI, HUBBALLI-580020. 3. SMT. VIJAYALAXMI W/O. AJIT PAHALEKAR, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. PUNE, MAHARASHTRA. 4. SMT. VEENA W/O. TUSHAR MANNUR AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. TORAVIGALLI, HUBBALLI-580020. 5. SMT. SHAMALABAI W/O. SHRIKANTRAO BENGERI, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. 6. SANJEEV SRIKANTRAO BENGERI AGE: 28 YEARS, OCC: SERVICE IN HDMC, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. 7. SMT. SRIDEVI W/O. SRIKANTRAO BENGERI, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. 8. RAMACHANDRA KRISHNARAO BENGERI SINCE DECEASED BY HIS LR’s 8(A). SMT. PADMAJA W/O. RAMACHANDRA BENGERI, - 3 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 AGE: 65 YEARS, OCC: HOUSEWIFE, R/O. TORAVIGALLI, HUBBALLI. 8(B). SRI. PAVAN S/O. RAMACHANDRA BENGERI AGE: 37 YEARS, OCC: VED BYAN STUDENT, R/O. TORAVIGALLI, HUBBALLI. 8(C). SRI. ANAND S/O. RAMACHANDRA BENGERI, AGE: 35 YEARS, OCC: PRIVATE SERVICE, R/O. TORAVIGALLI, HUBBALLI. 9. SRI. VASANT S/O. KRISHNA RAO BENGERI, AGE: 60 YEARS, OCC: SERVICE, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. 10. ANANT S/O. KRISHNA RAO BENGERI AGE: 54 YEARS, OCC: SERVICE, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. 11. LAXMAN S/O. KRISHNA RAO BENGERI AGE: 50 YEARS, OCC: SERVICE, R/O. R. K. BENGERI AND G. S. PURANIK COMPLES, TORAVIGALLI, HUBBALLI-580020. …RESPONDENTS (BY SRI. S.S.PATIL, ADVOCATE FOR R5; NOTICE TO R2 TO R4, R6, R7, R8(A TO C), R9 TO R11 ARE SERVED; R1 IS DECEASED (R2 TO R4 ARE TREATED AS LRs. OF DECEASED R1)) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR DIRECTION OR ORDER QUASHING THE ORDERT DATED 16.12.2019 PASSED BY THE COURT OF III ADDITIONAL CIVIL JUDGE, HUBBALLI IN O.S.NO.414/2006 DISMISSING THE I.A.NO.XIX PRODUCED AT ANNEXURE-J AND CONSEQUENTLY ALLOW I.A.NO.XIX, IN THE INTEREST OF JUSTICE AND EQUITY. - 4 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER Unsuccessful plaintiffs have filed the captioned petition assailing the order of the trial Court passed on I.A.No.19 filed under order VI Rule 17 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’ for brevity) seeking amendment of plaint and to seek an additional relief of declaration and consequential relief of mandatory injunction. The said application is rejected, which is impugned in the captioned petition. 2. Having regard to the peculiar nature of the relief sought in the plaint, this Court deems it fit to cull out the prayer sought in the suit filed by plaintiffs seeking relief of declaration to declare that plaintiffs are the co- owners along with defendants over the common Wall. The prayer sought in suit filed in O.S.No.414/2014, are culled out, which reads as under: - 5 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 “a) a decree for permanent injunction may kindly be passed in favour of the plaintiff restraining the defendant, her sons, her agents, servants or any body else claiming through her from carrying on construction in the suit property. b) cost of the suit may kindly be awarded. c) such other relief as the court deems fit.” 3. When the matter was posted for defendants’ evidence, an application was filed by the plaintiffs seeking leave of the Court to lead further evidence. The said application was allowed by the trial Court and this prompted plaintiffs to seek further amendment of the plaint. The proposed amendment at Para-12(A), the prayer column at Para-17(f)(a), Para-17(f)(b) are also relevant and the same are extracted, which reads as under: “Proposed Para 12(A): It is most humbly submitted that the Defendants above named have illegally and high handedly made the construction of a residential complex in gross violation of building bye laws and building regulations the building constructed is in violation of even the building permission obtained by the Defendants. The Defendants have got close connection and contacts with Hubballi Dharwad Municipal Corporation and its - 6 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 officers and the Defendants have managed ot obtain illegal permission. The Construction has been made by the Defendants during the pendency of the suit which his totally illegal and in gross violation of interim order passed by this Hon'ble Court on 22.09.2006. It is further submitted that, the Defendants have not left any set back towards their western side, and their construction is actually touching the property of the Plaintiffs. Absolutely no set back has been left open to the sky. Due to such illegal constructions by the Defendants the right of easement enjoyed by the Plaintiffs and right of easement by necessity are both lost and very badly and adversely affected. For this reason also plaintiffs are entitled for mandatory injunction to remove to illegal constructions made by the Defendants. Proposed para 17 (f)(a): It be declared that, the construction made by Defendants in CTS No.4329 of CTS Ward-1, Toravi Galli, Hubballi is illegal unauthorized and oppose to building by laws set back rules, and FAR rules, and as a consequential relief mandatory injunction may kindly be granted directing the Defendants to demolish and remove the illegal structure and failing which the demolishing of the illegal structure may kindly be ordered through the process of the court. Proposed para 17 (f)(b): A decree for Rs.1,00,000/- towards cost of construction of Western wall of Plaintiff and Rs.4,00,000/- as damages/ compensation, thus total a decree for Rs.5,00,00/- may kindly be granted along with future interest thereon. The above proposed amendment may kindly be allowed in the interest of justice and equity.” 4. On closure examination of the prayer sought in the plaint and the proposed amendment, what emerges is that plaintiffs acknowledge that their property and - 7 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 defendants’ property is separated by a common Wall alleged to have a width of 4.1.2 feet. Plaintiffs’ primary grievance is that the defendants have commenced with construction by virtually damaging the common Wall and has proceeded with construction pending suit. Plaintiffs are also asserting that they have got right of easement over passage situated in defendants’ property for ingress and egress in the defendants’ property. Therefore, plaintiffs contend that the proposed construction undertaken by defendants has not only resulted in partial demolition of the common Wall and thereby, reducing its width, but the plaintiffs’ right to have access through the open space owned by defendants, is also virtually taken away. Therefore, present suit is filed. 5. Now by way of proposed amendment, which is culled out supra, plaintiffs now intend to contend that the proposed construction completed by defendants pending suit, is in violation of Building Setback Rules and Floor - 8 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 Area Ratio (FAR) Rules and therefore, a relief of mandatory injunction is sought. 6. The relief sought does not fall within the jurisdiction of a civil court. If the adjoining owner is aggrieved by the construction on the grounds that it violates building setback rules or other local regulations, it is well-settled law that the proper and efficacious remedy lies with the local municipal authorities. In cases involving construction-related disputes and alleged irregularities by an adjoining owner, the appropriate course of action is to approach the competent municipal body. Accordingly, the proposed amendment is not maintainable at this stage and cannot be entertained. 7. Be that as it may, the prayer at Annexure-E substantially covers the core dispute between plaintiff and defendants. Plaintiff's primary allegation is that the defendant, while putting up a new construction, has virtually reduced the width of the common wall. Whether defendant is guilty of reduction of width of the wall has to - 9 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 be substantiated by plaintiff by leading cogent and clinching evidence. Initial burden is on the plaintiff to substantiate that the width of the common wall, if any, is substantially reduced by high-handed actions of the defendants while undertaking fresh construction pending suit. 8. In the light of these significant details, this Court is of the view that the proposed amendment is not at all necessary to effectively adjudicate the primary dispute relating to reduction of width of the common wall. As stated supra, the prayer sought in the proposed amendment falls beyond the scope of inquiry before a Civil Court. The proposed relief of declaration relating to violation of setback rules has to be effectively addressed before the competent authority i.e. local bodies. The observations made by the learned Judge while rejecting the application that right has accrued to defendant also needs to be expunged. The said reasonings, though the conclusion may be correct, the reasons assigned while - 10 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 arriving at a conclusion cannot be sustained. The proposed amendment sought by the plaintiff needs to be rejected on the ground that the said proposed amendment is not necessary for effective adjudication of the controversy between the parties in the light of prayer sought at Annexure-E of the plaint. 9. For the foregoing reasons, and upon careful examination of the pleadings and the findings recorded by the learned Judge, this Court is of the considered view that no interference is warranted in the impugned order, except to the limited extent of expunging the observation that the defendants have acquired rights due to the plaintiff’s alleged inaction in approaching the Court within a reasonable time. Such a finding, being in the nature of a legal conclusion not fully supported by the material on record, is liable to be set aside. However, in all other respects, including the remaining observations and conclusions drawn by the learned Judge, this Court finds - 11 - NC: 2025:KHC-D:6382 WP No. 138157 of 2020 no ground to grant any indulgence. Accordingly, subject to the above modification, the writ petition stands dismissed. 10. Both the parties shall co-operate and the learned Judge shall expedite the matter and decide on merits. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE AM/CLK Ct:vh List No.: 1 Sl No.: 12