- 1 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 346 OF 2015 (DEC/INJ) BETWEEN: SRI BHAGAWAN MAHAVEER VIDYA TRUST, DAVANAGERE P.J.EXTENSION, DAVANAGERE REPRESENTED BY ITS SECRETARY MR.LALITH KUMAR - 577 004. AGED AOBUT 43 YEARS. …APPELLANT (BY SRI SRIDHAR N HEGDE, ADVOCATE) AND: 1. DR. B.S. NAGAPRAKASH S/O B.V.SATHYANARAYANA SHETTY AGED ABOUT 60 YEARS UNITY HEALTH CENTRE 5TH CROSS, P.J.EXTENSION DAVANAGERE - 577 004. 2. S.C.GURULINGAPPA S/O S.CHENNAPPA AGED ABOUT 51 YEARS RESIDING AT: No.148, LABOUR COLONY NEAR GANAPATHY TEMPLE DAVANAGERE - 577 002. 3. DAVANAGERE MAHANAGARA PALIKE (FORMERLY CITY MUNICIPALITY) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 DAVANAGERE - 577 004. REP. BY ITS COMMISSIONER. …RESPONDENTS (BY SRI. R GOPAL, ADVOCATE FOR R1 SRI B K MANJUNATH, ADVOCATE FOR R3 V/O 18.12.2019, SERVICE OF NOTICE TO R2- H/S) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:27.9.2014 PASSED IN R.A.No.60/2013 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE, PARTLY ALLOWING THE APPEAL AND PARTLY CONFIRMING THE JUDGEMENT AND DECREE DATED: 12.9.2013 PASSED IN O.S.No.156/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE, DAVANAGERE AND ETC., THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the defendant No.2, assailing the judgment and decree dated 27.09.2014 in RA No.60/2013 on the file of III Additional Senior Civil Judge at Davanagere (for short ‘First Appellate Court’) allowing the appeal in part and confirming the judgment and decree dated 12.09.2013 in OS No.156/2007 on the file of the Principal Civil Judge, Davanagere (for short the ‘Trial Court’) partly decreeing the suit of the plaintiffs. - 3 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court. 3. It is the case of the plaintiffs that, the defendant No.2 - Trust is running an educational institution called as ‘Jain Vidyalaya’ and the suit schedule property belongs to the defendant No.2. It is also stated that, the plaintiffs are running a hospital and the hospital is situated just opposite to the defendant No.2’s school building. It is also stated in the plaint that, the defendant No.2 has violated the building licence issued by the defendant No.1 and as such, it is the specific case of the plaintiffs that, the defendant No.2 has to leave 5.50 meters set back in front portion and accordingly, the plaintiff No.1 has filed WP No.7116/2006 before this Court and this Court, directed the plaintiffs to pursue their efforts before the defendant No.1, however, the defendant No.1 has not taken any action in the matter and therefore, the plaintiffs have filed OS No.156/2007 seeking relief of declaration to declare that the construction of the building in the suit schedule property by the defendant No.2 is in violation of the sanctioned plan issued by the defendant No.1. - 4 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 4. On service of notice, the defendants entered appearance. It is the specific case of the defendant No.2 that, the defendant No.2 has not violated the sanctioned plan issued by the defendant No.1 and also, it is the case of the defendant No.2 that the suit itself is not maintainable, in view of the provisions contained under Section 321 of the Municipal Corporations Act, 1976, and accordingly, the defendants had sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record has formulated the issues and additional issues for its consideration. 6. In order to establish their case, the plaintiff No.1 himself examined as PW.1 and marked 9 documents and the same were marked as Exs.P1 to P9. On the other hand, no oral or documentary evidence was produced by the defendants. The Trial Court, after considering the material on record, by its judgment and decree dated 12.09.2013, decreed the suit in part and the defendant No.1 has been directed to take action against the defendant No.2, in the event, the defendant No.2 has violated the terms and conditions of the approved plan and - 5 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 licence. Feeling aggrieved, the plaintiffs have preferred RA No.60/2013 before the First Appellate Court and the same was contested by the defendants. The First Appellate Court, by judgment and decree dated 27.09.2014, allowed the appeal in part and accordingly, modified the judgment and decree in OS No.156/2007. Feeling aggrieved by the same, the defendant No.2 has preferred the present Regular Second Appeal. 7. This Court, vide order dated, 18.08.2023 has formulated the following substantial questions of law: 1) Whether the defendant No.2 proves that the appellate Court has committed an error in decreeing the suit of the plaintiffs relying on the Court commissioner report? 2) Whether the defendant No.2 proves that the suit filed by the plaintiffs is not maintainable as defendant No.1 is competent authority and having jurisdiction to decide any violation of conditions of sanction plan and license? 3) Whether the lower appellate court was justified in reversing the judgment and decree passed by the trial Court? 8. Heard Sri.Sridhar N.Hegde, learned counsel appearing for the appellant, Sri.R.Gopal, learned counsel - 6 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 appearing for the respondent No.1 and Sri B.K.Manjunath, learned counsel appearing for the respondent No.3. 9. Sri.Sridhar N.Hegde, learned counsel appearing for the appellant, invited the attention of the Court to the findings recorded by the First Appellate Court, particularly referring to the operative portion and submitted that though the Trial Court and the First Appellate Court arrived at a conclusion to direct the defendant No.1 to take action in accordance with law, in the findings however, the First Appellate Court has specifically held that, the action be taken against the defendant No.2 in view of the illegal construction of the building by the defendant No.2, which requires to be interfered with in this appeal. 10. Per contra, Sri.R.Gopal, learned counsel appearing for the respondent No.1, sought to justify the judgment and decree passed by the First Appellate Court and further, referred to the operative portion in OS No.156/2007 and submitted that, if the defendant No.1 - Authority is directed to take action, if the defendant No.2 has violated the construction plan, that would suffice the matter. - 7 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 11. Sri B.K.Manjunath, learned counsel appearing for the defendant No.1/respondent No.3 submitted that, respondent No.3 shall take decision in the matter, in terms of the judgment and decree in OS No.156/2007. 12. In the light of the submissions made by the learned counsel appearing for the parties, it is not in dispute that the property belonging to the defendant No.2 - school is situated just opposite to the plaintiffs’ hospital. In that view of the matter, taking into consideration the direction issued by this Court in WP No.7116/2006 and the evidence on record would indicate that, the defendant No.1 has to take decision in the matter and to take action against the defendant No.2, if the defendant No.2 has violated the approved plan and licence. In the said circumstance, I am of the view that, the defendant No.1 be directed to take decision in the matter and to conduct spot inspection and take decision in the matter whether any violation of any terms and conditions of the approved plan and licence issued in favour of the defendant No.2. This would clear the grievance of the plaintiffs as well as the defendant No.2 and accordingly, the appeal be disposed of partly in terms of the observations made above. Therefore, the substantial questions - 8 - HC-KAR NC: 2025:KHC:31000 RSA No. 346 of 2015 of law referred to above, would be answered in favour of the defendant No.2 partly, wherein the defendant No.1 is directed to take action against the defendant No.2 in furtherance of the order passed by this Court in the aforementioned writ petition and the judgment and decree passed by the Trial Court in OS No.156/2007 and to take action in accordance with Section 321 of the Karnataka Municipal Corporation Act, 1976, at the earliest and before taking any action against the defendant No.2, the defendant No.1 shall also hear the plaintiffs and accordingly, take action in accordance with law. 13. With this observation, the appeal is disposed of. The defendant No.1 is directed to comply with the direction issued by this Court stated above, within a period of 6 months from the date of receipt of a copy of this judgment. SD/- (E.S.INDIRESH) JUDGE ND/List No.: 1 Sl No.: 40