- 1 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR RFA CROSS OBJ NO.100009 OF 2023 (DEC/INJ) BETWEEN: 1. BHARATI INFRATAL LIMITED, COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.H/5/12, MAHARAVALI ROAD, NEW DELHI-110030, HAVING ITS BRANCH AT NO.55, DIVYASHREE CHAMBERS, BANNERGHATTA ROAD, BENGALURU-560001, REPRESENTED BY ITS MANAGING DIRECTOR. 2. BHARATI MOBILE LIMITED, REPRESENTED BY ITS TECHNICAL HEAD, T.K. ANANDKUMAR, AGED. 53 YEARS, OCC. BUSINESS, R/O. H.NO.47, MILLER TANK BUND ROAD, BENGALURU-52. BOTH THE ABOVE APPELLANTS ARE NOW REPRESENTED BY M/S. INDUS TOWERS LTD., COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956, NO.12, TOWER-D . 7TH FLOOR, SUBRAMANYA ARCADE, BANNERGHATTA ROAD, BENGALURU-29, REP. BY AUTHORIZED SIGNATORY/SRI. AZEEZ K.A. …CROSS OBJECTORS (BY SRI V.M. SHEELVANT, ADVOCATE) AND: 1. SHRI ARUN S/O. NARAYANRAO DIVEKAR, AGE. MAJOR, OCC. PRIVATE WORK, R/O. 4TH FLOOR, COMMERCE HOUSE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 NO.1945, KADOLKAR GALLI, BELAGAVI. 2. COMMERCE HOUSE HOUSING SOCIETY, NO.1945 , KADOLKAR GALLI, BELAGAVI, REPRESENTED BY ITS PRESIDENT, SHRI. R.B. PATIL, AGE. 60 YEARS, OCC. BUSINESS, R/O. 2ND FLOOR, “COMMERCE HOUSE” NO.1945, KADOLKAR GALLI, BELAGAVI-590001. 3. PRAKASH TAVANAPPA MITHARI, AGE. 68 YEARS, OCC. BUSINESS, R/O. FLAT NO.402, 4TH FLOOR, COMMERCE HOUSE, NO.1945, KADOLKAR GALLI, BELAGAVI. 4. SUHAS BAHUBALI HULABATTE, AGE. 53 YEARS OCC. PROPRIETOR, R/O. PADMA COLLECTIONS, COMMERCE HOUSE NO.1945, KADOLKAR GALLI, BELAGAVI. 5. SHRI SHAHA, AGE. 70 YEARS, OCC. BUSINESS, R/O. DEEP CYCLE COMPANY, BICHCHU BUILDING, KHADE BAZAAR, BELAGAVI. 6. SHRI LAAVAN FAKIR HAWAL, AGE. 71 YEARS, OCC. PROPRIETOR, R/O. ANIL TAILORS, G-9, GROUND FLOOR, NO. 1945 COMMERCE HOUSE, KADOLKAR GALLI, BELAGAVI. 7. SHRI RAJU S/O. BALIRAM HAWAL, AGE. 71 YEARS, OCC. PROPRIETOR, R/O. VINAYAK CLOTH STORES, G-10, GROUND FLOOR, NO.1945, COMMERCE HOUSE, KADOLKAR GALLI, BELAGAVI. 8. PRANEET P.MITHARI, AGE. 50 YEARS OCC. BUSINESS, R/O. PEE PEE INVESTMENTS, G-13, GROUND FLOOR, NO.1945, KADOLKAR GALLI, COMMERCE HOUSE, BELAGAVI. 9. SHRI B.S. PATIL, - 3 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 AGE. 48 YEARS, OCC. BUSINESS, R/O. SHOP NO.G-6, GROUND FLOOR, COMMERCE HOUSE NO.1945, KADOLKAR GALLI , BELAGAVI. 10. M/S. BHAGWAT ASSOCIATES, REPRESENTED BY ITS PROPRIETOR, ANIL ARAVIND BHAGWAT, AGE. 44 YEARS, OCC. BUSINESS, R/O. SHREYAS SOCIETY, SHANKAR SHETH ROAD, PUNE. 11. SHRI NARAYAN PATIL, AGE. 50 YEAR, OCC. BUSINESS, R/O. MAPALE COMPUTERS, BASEMENT NO.1945, COMMERCE HOUSE, KADOLKAR GALLI, BELAGAVI. 12. SHRI SAMEER ANAVEKAR, AGE. 53 YEARS, OCC. BUSINESS, R/O. NO.43, CORPORATION COMMERCIAL COMPLEX, GOAVES, BELAGAVI. 13. UNITED WESTERN BANK LIMITED, REPRESENTED BY ITS MANAGER, R/O. 1ST FLOOR, NO.1945 COMMERCE HOUSE, KADOLKAR GALLI, BELAGAVI. 14. MAHENDRA JAIN @ PORWAL, AGE. 53 YEARS, OCC. BUSINESS, R/O. C/O. JAIN CLOTH STORES, OPP. PADMA STEEL, KIRLOSKAR ROAD, BELAGAVI. …RESPONDENTS (BY SRI VITTAL S.TELI, ADVOCATE FOR R1; SRI RAVIRAJ C.PATIL, ADVOCATE FOR R2 TO R9; R3 TO R9 AND R11 TO R14-SERVICE OF NOTICE DISPENSED WITH V/O DATED 17.01.2025) THIS REGULAR FIRST APPEAL CROSS OBJECTION IN RFA NO.100348/2017 IS FILED UNDER ORDER XLI RULE 22 OF CPC., 1908, PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.06.2014 PASSED IN O.S.NO.66/2006 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI, IN THE INTERESTS OF JUSTICE AND ETC. - 4 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 THIS RFA CROSS OBJECTION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) RFA Crob.No.100009/2023 is filed in RFA No.100348/2017 by defendant Nos.3 and 15 challenging the judgment and decree dated 19.06.2014 passed in o.s.no.66/2006 on the file of the I Additional Senior Civil Judge, Belagavi, insofar as directing defendant No.15/cross objector herein to pay damages of Rs.26,000/- and future damages at the rate of Rs.10,000/- p.m. from 01.04.2001 till the machineries are removed and possession is handed over to the plaintiff. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The plaintiff has filed suit for declaration, mandatory injunction and perpetual injunction to declare that the plaintiff is owner of the suit property, which is terrace portion above the 4th floor in the property bearing - 5 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 CTS 1945, Kadolkar Galli, Belgaum, as described in the plaint schedule. The aforementioned the declaration of the property is filed against defendant Nos.1, 2 and 4 to 14. The relief of mandatory injunction and perpetual injunction is sought for against defendant Nos.3 and 15 for removal of D.G. set mobile tower and other equipments set on the terrace portion of the suit property. The Trial Court, after appreciating the evidence on record, decreed the suit declaring that the plaintiff is the absolute owner of the suit property. Furthermore, it is also decreed that defendant No.15 being successor-in-interest of defendant No.3, is liable to handover possession of encroached area of 550 sq.ft. and defendant No.15 by way of mandatory injunction is directed to remove the machineries, including the mobile tower, machineries equipments and D.G. set etc., fixed on the terrace portion above 4th floor and of the suit property and handover the same to the plaintiff. 4. Further it is decreed that the defendant No.15 shall pay damages to the plaintiff at the rate of 6,500/- p.m. from December 2000 till the end of March 2001 i.e., Rs. - 6 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 26,000/- and also decreed that defendant No.15 shall pay future damages at the rate of Rs.10,000/- p.m. from 01.04.2001 till the entire machineries are removed and possession is handed over to the plaintiff. 5. This RFA Crob.No.100009/2023 is filed only insofar as decree of payment of damages by defendant No.15 to the plaintiff. The cross objector is only confined to this decree. 6. Heard arguments from both sides and perused the material on records. 7. Upon hearing the pleadings of the parties, the point that would arise for my consideration: “Whether, under the facts and circumstances involved in the case, the decree of the suit for mandatory injunction and for payment of damages of Rs.26,000/- and future damages at the rate of Rs.10,000/- p.m. from 01.04.2001 till the machineries are removed and possession is handed over, is justified?” - 7 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 8. Learned counsel for the cross objectors submitted that the cross objector is ready to remove the entire machineries fixed on the 4th floor terrace on the suit property, but the plaintiff is obstructing for removal of the same. Therefore, cross objector/defendant No.15 is unable to remove all the machineries due to the plaintiff’s obstruction. Learned counsel for the plaintiff submitted that unless the damages amount is deposited by defendant No.15 in this Court, the plaintiff could not permit for removal of the machineries. 9. Therefore, it is borne out from the record and considering the submissions made by counsel for cross objector, defendant No.15/cross objector is ready to remove the machineries fixed on the terrace of the suit property. However, there is continuous obstruction by the plaintiff for removal of the same, this apprehension expressed by the counsel for plaintiffs that if defendant No.15 removed the machineries and does not pay the damages, then it is difficult for the plaintiff to recover the damages from defendant No.15, it is not correct. If the cross objector - 8 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 removes the machineries and if defendant No.15 does not pay the damages as decreed, then it is open for the plaintiff to take recourse for recovery of damages as per law. 10. However, the obstruction caused by the plaintiff for removal of the machineries, though the cross objector is ready for removal of machineries, is unnecessarily causing burden on the cross objector/defendant No.15 to pay future damages till removal of the machineries. The plaintiff is responsible for this delay. Though defendant No.15 is ready to remove the machineries and to pay the damages, but due to the obstruction made by the plaintiff, defendant No.15 is not able to remove the machineries. Hence, the quantum of payment of future damages is mounting as days goes on. 11. Therefore, based on the submissions of both the learned counsels, it is directed that the cross objector/defendant No.15 shall remove the machineries within a period of one month form today, during which the plaintiff shall not obstruct for removal of the machineries. The cross objector/defendant No.15 is also directed to - 9 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 deposit damages of Rs.26,000/- as decreed and also shall deposit additional damages of Rs.6,500/- p.m. from 01.04.2001 till the date of decree i.e. on 19.06.2014 within a period of four weeks before this Court. Accordingly, I answer point in partly in the affirmative. Therefore, the cross objection is liable to be allowed in part. 12. Hence, I proceed to pass the following: ORDER i. The Cross Objection is allowed in part. ii. The judgment and decree dated 19.06.2014 passed in O.S.No.66/2006 on the file of the I Additional Senior Civil Judge, Belagavi is modified, so far as payment of future damages is concerned, the cross objector/defendant No.15 shall pay damages of Rs.6,500/- p.m. from 01.04.2001 till the date of judgment and decree of the Trial Court i.e., on 19.06.2014 in addition to payment of damages of Rs.26,000/- within a period of one month from today. iii. Cross objector/defendant No.15 shall remove the machineries from the suit property within a period of one month from today, and for - 10 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 which the plaintiff shall not obstruct and shall co-operate with the cross objector. iv. In any event, if machineries are not removed within a period of one month from today, then the cross objector shall continue to pay future damages of Rs.6,500/- p.m. till removal of the machineries. v. In case any damage occurs to the suit property terrace while removing the machineries, then the same shall be made good by defendant No.15 and appellants in RFA No.100348/2017. vi. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 0 - 11 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 03.09.2025 (VIDEO CONFERENCING / PHYSICAL HEARING) CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL ORDER ON I.A.NO.1/2025 Heard on I.A.No.1/2025. Learned counsel for the cross objector/defendant No.15 submitted that defendant No.15 had been paying damages of Rs.6,500/- per month from 01.04.2001 till 19.06.2014 and also he is paying further rent to defendant No.2 namely Commerce House Housing Society. Therefore, it is submitted that in Clause (ii) of the operative portion of the judgment is amounting to compelling defendant No.15 to pay damages twice, one to defendant No.2 and another to the plaintiff. Learned counsel submitted that defendant No.15 obeyed the direction given in Clause (ii) in the operative portion of the judgment but he is seeking clarification that liberty be reserved to defendant No.15 to recover the said damages from defendant No.2 in appropriate proceedings, which was bring paid to defendant No.2. - 12 - NC: 2025:KHC-D:1760 RFA.CROB No. 100009 of 2023 The Court has correctly ordered damages payable to the plaintiff but defendant No.2 either paid to the plaintiff or to defendant No.15. But, defendant No.15 has already paid damages to defendant No.2 which has to go to the plaintiff. Therefore, it is clarified that retaining Clause (ii) in the operative portion of the judgment intact, liberty is given to defendant No.15/Cross Objector to recover the said damages from defendant No.2 namely, Commerce House Housing Society, Belagavi (shown in the cause title) in appropriate proceedings. This order shall be part and parcel of the original order dated 29.01.2025. Accordingly, I.A.No.1/2025 is disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE KA