Karnataka High Court
Kesaridevi D/O Gurushiddayya ... vs Gangawwa W/O Shiddalingappa ... on 17 June, 2013
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17th DAY OF JUNE 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
REGULAR SECOND APPEAL NO.688/2002
BETWEEN:
1. KESARIDEVI
D/O GURUSHIDDAYYA RABAKAVIMATH
(W/O CHANDRASHEKARAYYA )
OCC:HOUSEHOLD WORK, R/O HUBLI
2. CHANDRASHEKHARAYYA
S/O VIRUPAKSHAYYA SHIVAPURMATH
40 YEARS, OCC: GOVT SERVICE
R/O RABAKAVIMATH CHAWL
ANCHATAgERI ONI, HUBLI.
.. APPELLANTS
(BY SRI. V.P. KULKARNI , ADV.)
AND:
1. GANGAWWA
W/O SHIDDALINGAPPA RABAKAVIMATH
70 YEARS OCC:HOUSEHOLD, R/O HUBLI
2. BASAVANTAYYA
S/O REVANAYYA MATHAD
SINCE DECEASED BY LRS
2A SHANTAKKA BASAVANTAYYA MATHAD
55 YEARS, OCC:HOUSEHOLD WORK
R/O HUBLI
2
2B SHASHIDHAR BASAVANTAYYA MATHAD
35 YEARS OCC: SERVICE, R/O HUBLI
2C RAJESHWARI MALLIKARJUNA PATIL
W/O MALLIKARJUNAGOUDA V PATIL
32 YEARS OCC:HOUSEHOLD WORK
R/O HUBLI
2D GAYATRI BASAVANTAYYA MATHAD
30 YEARS OCC:HOUSEHOLD WORK
R/O HUBLI. SINCE DEAD R2B IS TREATED
AS LR VO DATED 23/09/2005
.. RESPONDENTS
(BY SRI. N.D. GANIGER AND SRI. C.S. MUMMIGATTI ADVS. FOR
R2B)
THIS RSA IS FILED U/S.100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 18.4.2002 PASSED IN
R.A.NO.108/95 ON THE FILE OF THE ADDL. CIVIL JUDGE
(SR.DN.), HUBLI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 12.9.1995 PASSED IN
O.S.NO.379/80 ON THE FILE OF THE I ADDL. MUNSIFF, HUBLI.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
First and second defendant in O.S.No.379/1980 on the file of I Additional Munsiff, Hubli, has come up in this second appeal impugning the judgment and decree dated 18/04/2002 in R.A.No.108/1995 wherein the dismissal of the suit by judgment and decree dated 12/09/1995 is reversed and suit of the plaintiffs is decreed. 3
2. In this proceeding, the parties are referred to by their ranking in the original suit. Brief facts leading to this second appeal are, the plaintiffs are said to be owners of several bits of land in various CTS numbers and defendants are the owners of adjacent property. As could be seen, the bone of contention in this proceedings is about the alleged construction put up by defendants 1 and 2 while putting up construction on their property. Admittedly, the plaintiffs are the owners of several portions of the property bearing CTS No.1101, 1108, 1098 and other survey numbers whereas defendants are the owners of property bearing CTS No.1106 and 1107 and other properties. The one which is in dispute is CTS bearing No.1098 which is a common passage with width of about 9 feet in which both the defendants and plaintiffs have right to enter and reenter to their respective properties through the said common property.
3. Admittedly, defendants who are the owners of property bearing CTS No.1106 and 1107 demolished the 4 existing building on the said property in 1980 and thereafter put up new building on the said properties. The case of the plaintiffs is that while putting up re- construction, the defendants have encroached into the common area i.e. land bearing CTS No.1098 and have put up construction to an extent of 1½ feet in depth and 7 feet in length. In the said proceedings, defendants entered appearance, filed written statement accepting their ownership over properties bearing CTS No.1106 and 1107 and also accepted that suit property 1098 is a common passage which is available for common use of both plaintiff and defendants. However, they denied that there is encroachment either on CTS bearing No.1098 or on the adjoining properties while re-constructing their building. In the said proceedings, after pleadings were complete, the following issues are framed:
1. Whether the plff. proves correctness of the plaint hand-sketch?
2. Whether the plff. proves that the defendant has committed encroachment as shown in hand-sketch at the points A.B.C.D.D.E.F.G and A.M.H.C.?5
3. Whether the plaintiff proves that the defendant has no right to open window at the point 'F' fixing the cupboard in common wall, construct the latrine and bath room at the point F.W.P.G. and lay drain pipes at points 'FON' get cables through suit pasage fix sajja and construct katta as alleged?
4. Does deft. proves that the suit is bad for mis-joinder of cause of action?
5. Does defendant proves that the court fee paid on plaint is in-sufficient?
6. Whether the plaintiff is entitled for mandatory injunction as prayed for?
7. Whether the plaintiff is entitled for perpetual injunction as prayed for?
8. Whether the defendant is entitled for compensatory costs u/s 35(A) of the CPC?
9. What decree or order?
Thereafter evidence was recorded. Before commencement of evidence, City Surveyor of Hubli was appointed as Court Commissioner. He inspected the properties of the plaintiffs and defendants and also the common passage, measured the same and submitted his report along with a sketch 6 prepared at the spot as it existed at the time of his inspection.
4. In the original suit, on behalf of the plaintiffs, two witnesses were examined. One Basavantayya Revanayya Mathad and another Shashidar B. Mathad. On behalf of the defendants, defendant No.1 examined herself as DW-1. In the said proceedings on behalf of the plaintiffs, in all 12 documents were produced and marked as Ex.P-1 to P-12 which includes Commissioner's report. On behalf of the defendants, 18 documents were marked as Exs.D-1 to D-8. So far as Commissioner's report along with sketch which is at Ex.P-8 is concerned, no objections were filed by both the parties and the same was accepted. The sum and substance of the Commissioner's report, which is not in dispute is that there is no encroachment by the defendants into the property of the plaintiffs on the ground level but there is aerial encroachment by the defendants while putting up the construction on first floor of the property i.e., 1106 and 1107 and while doing so, at 7 aerial level i.e., about 10 feet above ground level, the defendants have encroached into common passage situated in CTS No.1095 and extending to CTS No.1098 to an extent of 2½ feet x 23 feet which is not disputed by both the parties. However, the trial Court while appreciating the pleadings and evidence, has come to the conclusion that since the encroachment is at aerial level in the common passage above 10feet from the ground level, it may not cause any damage and also took a view that there is no need of removal of aerial encroachment and therefore, dismissed the suit.
5. Being aggrieved by the same, plaintiffs filed Regular Appeal in lower appellate Court in R.A.No.108/1995 on the file of the Addl. Civil Judge(Senior Division), Hubli, wherein the lower appellate Court after hearing both the parties proceeded to frame the following points for consideration which are as under:
1. Whether plffs/appellants establish that defendants/respondents have done aerial encroachment of 2.5 feet x 23 feet of CTS No.1098 8 by constructing their (defts) latrine in their sajja of their (defendants) first floor of their(defts) building as shown in Ex.P-8 by letters K.L.M.J.Q.I.M?
2. Whether plaintiffs/appellants establish that defendants/respondents by construction of small two chambers in CTS No.1098 for connecting their latrine to UGD defendants have made encroachment?
3. Whether plffs/appellants are entitled to relief of declaration to declare that defendants/respondents have encroached CTS 1098 as sought?
4. Whether plaintiffs/appellants are entitled for the relief of mandatory injunction to remove above referred aerial encroachment and chamber constructed by defendants/respondents?
5. What order?
6. The sum and substance of the points which were framed for consideration is, to ascertain correctness or otherwise of Ex.P-8 wherein encroachment at aerial level to an extent of 2.5 feet and 23 feet on CTS No.1098 being 9 identified and accepted as encroachment by Commissioner's report along with sketch which is at Ex.P-8 more particularly in places referred to letters KLMNQIN and it is answered in affirmative and so far as other prayers that were made in the suit regarding removal of construction of two small chambers etc in open passage is concerned, is answered in the negative and so far as the declaration sought for removal of aerial encroachment is accepted by answering point Nos.3 and 4.
7. Being aggrieved by the same, defendants have come up in this second appeal impugning the judgment and decree in R.A.No.108/1995.
8. In this proceedings, the matter was heard for several days particularly because the counsel appearing for plaintiffs 1 and 2 never bothered to appear in this Court.
After hearing the counsel appearing for the defendants who are appellants herein had to go through the entire pleadings and evidence adduced without there being any assistance on the part of the counsel appearing for the 10 respondents/plaintiffs in the original suit. In fact when there was appearance, this matter was adjourned on 3 occasions and thereafter having convinced that the plaintiffs' counsel has absolutely no interest in pursuing this appeal, the Court by itself has looked into the grounds of appeal, pleadings and documents and finding of the both the courts below, thought to decide the matter on its merit.
9. On going through the judgments of the both the Courts below with reference to the pleadings, oral and documentary evidence more particularly, the Commissioner's report along with sketch which is at Ex.P- 8, this Court find the following substantial question of law for consideration:
Whether the first appellate Court has committed an error in granting decree for mandatory injunction to remove the aerial
encroachment in the absence of specific prayer by plaintiffs as contended by the defendants? 11 Heard the learned counsel for appellants and respondent, perused the findings of both the courts below in the judgments impugned and also the grounds of appeal with reference to Ex.P-8. On appreciation of the same, this Court find that the substantial question of law is required to be answered in the negative i.e. in favour of the plaintiffs and against the defendants/appellants herein for the following;
REASONS
10. As rightly observed by both the Courts below that plaintiffs and defendants are owners of the properties with reference to various CTS stated in plaint and CTS No.1098 is a common passage which is available for common enjoyment of both the plaintiffs and defendants. It is also not in dispute that in the local inspection conducted by the City Surveyor as Court Commissioner on verification of the properties, has submitted a sketch and report which is accepted by both the parties, inasmuch both the parties have not filed any objections to the report. In that view of the matter, the said report and 12 sketch remains unchallenged. A reading of Ex.P-7 and report of Commissioner clearly disclose that as stated by the plaintiffs, there is no encroachment by the defendants into the common passage on ground level. The encroachment which is referred to in putting up chambers and then taking cables through the said passage below the ground level is not considered as an encroachment by both the Courts below. However, when it comes to encroachment i.e., taken at aerial level i.e., 10 feet above ground level is not viewed seriously by the trial Court holding that the construction which is on encroached portion at aerial level would not cause any harm for usage of the passage by both the parties.
11. However, the first appellate Court has taken a different view so far as the said encroachment is concerned and this Court find that the finding of the first appellate Court is justified for the reason as on the date of construction, defendants who were in possession of the building which was in existence on CTS Nos.1106 and 1107 13 very well knew that the passage in CTS No.1098 is not their exclusive property and they also knew that their right over the suit property is only right of movement to egress and ingress to their property and that is the right they had to enjoy along with other co-owners namely the plaintiffs and others is not in dispute. When that being the case, there was absolutely no reason for defendants to venture encroachment either on ground level or aerial level into CTS 1098. When once there is encroachment, then such an act will have to be viewed seriously. However, for the reasons best known the Court below has come to the conclusion that construction on encroached portion being at aerial level would not cause any harm to the plaintiff, the same is totally an erroneous finding.
12. In other words, if such findings are accepted, it would strengthen the acts of those people who try to encroach into the property of others and then by relying upon this kind of judgment, see that their illegal act is regularised or perpetuated for the disadvantage of persons 14 who are in common enjoyment of the said property. In that view of the matter, the finding of the lower appellate Court so far as removal of encroachment by the defendants at aerial level appears to be just and proper. It is seen that in the Court below, the defendants relied upon two judgments one is in the matter of MAHABIR AND AR. Vs. sMT. DAYAWATI, reported in AIR 1977AII 393 and second in the matter of BALKISHAN AND ANR. Vs. HARLAL AND ORS. reported in AIR 1971 RAJ 36 wherein under similar circumstances, the Court felt that under such circumstances, ideal view is to award compensation by way of damages in stead of ordering removal of encroachment on aerial level. In the said proceedings what was constructed was a chajja protruding into the common passage and similarly another judgment which was relied upon, the factual position is also on similar grounds. In the instance case what is constructed by the defendants 1 and 2 is not only chajja measuring to an extent of 2.5 feet and 23 feet in which they have 15 constructed a toilet and ulitility facilities which is not permissible.
13. If such illegal acts are regularized by awarding damages it would open a flood gate of encroachment by unscrupulous people whose hands will be strengthened and get the same regularized by paying pittance as damages. But in the said judgment both the Court did not see the amount of damages that would be caused to the parties. Even otherwise, the said judgments would not have any bearing to the facts and circumstances of the present case as in the present case encroachment is not only on the chajja but also construction of toilet and other facilities which would definitely cause discomfort for the use and enjoyment of the common passage which is left for the benefit of both the plaintiff and the defendants. In that view of the matter, this Court feel that the finding of the lower appellate Court in allowing the RA and reversing the judgment and decree of the trial Court appears to be just and proper.
16
14. When it comes to the contention of the defendants that the prayer in the plaint would not support the relief, is not correct inasmuch as the prayer in the plaint as could be seen is for the relief of declaring that there is encroachment by the defendant into the common property of both the plaintiffs and defendants and second relief is for mandatory injunction to remove. When once the plaintiff is able to establish that there is indeed encroachment by defendants into the common property may not be on the ground floor but at aerial level, the plaintiff is automatically entitled to mandatory injunction in seeking direction to the defendants for removal of the same and in the absence of defendants obeying the same, reserving liberty to the plaintiff to get the same removed by levying execution and seeking demolition of the same is just and proper. In that view of the matter, the contention urged by the learned counsel for the defendants in the original suit that the relief which is not sought by the plaintiff cannot be granted is erroneous inasmuch as the relief sought is in clear terms firstly see that the 17 encroachment is declared and thereafter the relief to remove by way of mandatory injunction was sought and which is rightly granted by the lower appellate Court on re- appreciation of pleadings and documents more particularly, the document which is accepted by both the parties to the said proceedings i.e., Commissioner's report- Ex.P-8.
15. Accordingly by answering the substantial question framed in this appeal in negative, the regular second appeal filed by the defendant is dismissed thereby confirming the judgment and decree passed in R.A.No.108/1995 on the file of Additional Civil Judge(Senior Division), Hubli.
Sd/-
JUDGE kmv