Karnataka High Court
Narayanappa S/O. Balahanamappa ... vs Mahalingappa S/O. Hanamappa ... on 13 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5913/2013 (POS&INJ)
BETWEEN
NARAYANAPPA
S/O BALAHANAMAPPA,
YEMMETTI, AGE : 55 YEARS,
OCC: AGRICULTURE,
R/O PCHAPUR, TQ: HUNAGUND,
DIST: BAGALKOT-587118.
... APPELLANT
(BY SRI VINAY S.KOUJALAGI & SMT.VIJAYALAXMI ADVTS.)
AND
MAHALINGAPPA
S/O HANAMAPPA KAMALADINNI,
AGE : 58 YEARS, OCC: AGRICULTURE,
R/O POCHAPUR, TQ: HUNAGUND.
... RESPONDENTS
(BY SRI V.G.BHAT FOR C/R)
THIS APPEAL IS FILED UNDER SECTION 100 READ WITH
ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908,
PRAYING THIS COURT TO SET ASIDE THE JUDGMENT AND
DECREE DATED 24.07.2013 PASSED IN R.A.NO.29/2012 BY THE
SENIOR CIVIL JUDGE, HUNAGUND AT HUNAGUND AND IT IS
FURTHER PRAYED TO CONFIRM THE JUDGMENT AND DECREE
DATED 23.11.2011 PASSED BY THE ADDL.CIVIL JUDGE & JMFC,
HUNAGUND AT HUNAGUND IN O.S.NO.312/2001, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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: JUDGMENT :
Though this appeal is listed for admission, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.
2. The captioned second appeal is filed by the plaintiff questioning the divergent findings of the Courts below.
3. Facts leading to the above said case are as follows.
Appellant/plaintiff filed bare suit for injunction by contending that he is the owner of house property bearing Gram Panchayath No.73 situated at Pochapur village. The appellant/plaintiff further contended that 'ABCD' portion shown in the hand sketch map is dilapidated house of appellant/plaintiff. Further 'DECF' portion shown in the hand sketch map is the plot owned by respondent/defendant. The appellant/ plaintiff herein contended that point 'DC" depicted in the hand sketch is a common wall owned by 3 appellant/plaintiff and as well as respondent/ defendant. The grievance of the appellant/plaintiff is that since 'DC' point has a common wall respondent/defendant is no right to put windows, doors or water spout on the said common wall. Hence filed bare suit for injunction at the first instance. However, subsequently the appellant/plaintiff sought amendment and incorporated the relief of mandatory injunction. The appellant/plaintiff in support of his contention led in oral evidence and documentary evidence and examined four witnesses on his behalf. Respondent/defendant by way of rebuttal evidence examined two independent witnesses as DWs.2 and 3 and produced rebuttal documentary evidence vide Exs.D.1 to D.8.
4. The Trial Court having assessed oral and documentary evidence, held that the appellant/ plaintiff is the owner of the suit property and further recorded a finding that the appellant/plaintiff is in lawful possession over the 'ABCD' portion as shown in 4 the hand sketch map annexed to the plaint. The Trial Court also held that the plaintiff has proved that the respondent has illegally fixed windows and water spout over 'DC' common wall and therefore decreed the suit granting mandatory injunction and thereby directing the respondent/defendant to remove the windows and water spouts fixed over the 'DC' common wall.
5. Respondent/defendant challenging the judgment and decree of the Trial Court, preferred an appeal in R.A.No.29/2012. The Appellate Court on re- appreciation of oral and documentary evidence and having meticulously examined the pleadings averred in the Plaint was of the view that there is lot of ambiguity in the pleadings. The Appellate Court was also of the view that, the suit in the present form is not at all maintainable. The Appellate Court held that if the plaintiff is asserting joint ownership over the 'DC' wall by contending that, it is a common wall, then it was incumbent on the part of the appellant/plaintiff 5 to seek a declaration to the effect that the disputed common wall at point 'DC' in the hand sketch is a common wall. The Appellate Court has also taken note of the prayer sought in the Plaint and was of the view that in the Plaint, only the relief of mandatory injunction is sought and therefore held that, though 'DC' wall is shown to be a common wall in the hand sketch, but however the appellant/plaintiff has not at sought relief of declaration in respect of 'DC' common wall, though appellant/plaintiff has specifically averred at paragraph No.3 of the Plaint claiming that the wall at point 'DC' is a common wall.
6. The First Appellate Court has also taken note of the Commissioner's report and has recorded a categorical finding that the suit property owned by appellant/plaintiff which is situated on northern side of respondent's plot bearing Sy.No.5 is a vacant site. The Appellate Court has recorded a categorical finding that the appellant/plaintiff has failed to establish that there was a dilapidated house property owned by the 6 appellant/plaintiff in plot bearing No.73. On these set of reasonings, the Appellate Court has come to conclusion that the judgment and decree of the Trial Court in declaring that the suit wall is a common wall is perverse and in absence of prayer to that effect. The Appellate Court was of the view that the appellant/plaintiff has failed to establish that the disputed wall is a common wall and in absence of relief of declaration, the appellant/plaintiff is not entitled for relief of mandatory injunction. Consequently appeal is allowed and suit is dismissed.
7. Against the divergent findings of the Courts below, the appellant/plaintiff is before this Court. Perused the judgment under challenge.
8. I have given my anxious consideration to the findings recorded by the Trial Court as well as the Appellate Court. The dispute infact revolves around narrow compass. The appellant/plaintiff is asserting that he owns a house bearing No.73 which is in 7 dilapidated condition and to the south of his property, respondent/defendant owns a property. It is specific case of appellant/plaintiff that, both the properties are divided by a common wall and therefore, the appellant/plaintiff contends that respondent/ defendant has no right to fix windows and water spouts on the common wall which is referred as 'DC' point in the sketch annexed to the Plaint. To substantiate his claim that he owns dilapidated house to the North of defendant's property, there is absolutely no documentary evidence produced. On the contrary the Commissioner's report clearly indicates that the property owned by the appellant/plaintiff is a vacant site. If the property owned by appellant/plaintiff is a vacant site, then this Court is of the view that, the appellant/plaintiff cannot assert and claim that the wall on the southern side is a common wall. Even the Commissioner's report indicates that it is a vacant site.
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9. This Court would totally concur with the findings recorded by the Appellate Court. If appellant/plaintiff asserts that the northern wall of the defendant's house is a common wall, then it was incumbent on the part of appellant/plaintiff to seek relief of declaration. Though the appellant/plaintiff has pleaded in plaint that it is a common wall, however has not chosen to seek a declaration to that effect. Therefore, the Appellate Court was justified in holding that the suit in the present form is not at all maintainable. Even otherwise, the evidence on record does not indicate that the appellant/plaintiff is the owner of a residential house on the northern side of respondent/defendant's house. On the contrary, evidence on record reveals that property owned by appellant/plaintiff is a vacant site.
10. The Appellate Court on re-appreciation of oral and documentary evidence has come to conclusion that it is a vacant site. This finding is arrived at by referring to the Commissioner's report, 9 who has conducted spot inspection and the report indicates that, it is a vacant site. Therefore, the judgment and decree of the Appellate Court does not suffer from any legal infirmities. No substantial question of law arises. The appeal is devoid of merits and accordingly stands dismissed.
SD/-
JUDGE EM