Karnataka High Court
Sulochana W/O Mallappa Pattanashetti vs Prakash S/O Shankarappa Sabannavar on 25 March, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 25 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.100554/2014 (DEC. & MANDATORY INJ.)
BETWEEN
SMT.SULOCHANA W/O. MALLAPPA PATTANASHETTI,
AGED ABOUT 58 YEARS, R/AT JAMKHANDI,
DIST. BAGALAKOT E 583107.
...APPELLANT
(BY SRI.S.S.YALIGAR, ADV. FOR
SRI.MRUTYUNJAY TATA BANGI, ADV.)
AND
1. PRAKASH S/O. SHANKARAPPA SABANNAVAR,
AGED 55 YEARS, R/AT BELAGAVI NOW SERVING AT
TOURISM DEPART MENT, VIJAYAPURA 578301.
2. SURESH S/O. SHANKARAPPA SABANNAVAR,
AGED 53 YEARS, R/AT AND WORKING AT
IRRIGATION DEPARTMENT, BAILHONGAL,
DIST. BELAGAVI 590001.
3. THE CHI EF OFFICER,
TOWN MUNICI PALI TY, JAMKHANDI,
DIST. BAGALAKOT E 583107.
...RESPONDENTS
(BY SRI.SHRIKANT D. BABLADI, ADV. FOR R1,
R2 AND R3 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 18.06.2014 PASSED IN
R.A. NO.22/2010 ON THE FILE OF THE SENIOR CIVI L JUDGE,
JAMAKHANDI, DISMISSING THE APPEAL FILED AGAI NST THE
JUDGMENT AND DECREE DATED 26.07.2010 AND THE DECREE
PASSED IN O.S. NO.85/2003 ON THE FILE OF THE ADDL. CIVIL
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JUDGE AND JMFC, JAMKHANDI, PARTLY DECREEING T HE SUIT
FILED FOR DECLARATION AND MANDATORY INJUNCTI ON.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of learned counsel for parties, it is heard for final disposal.
Challenging judgment and decree dated 18.06.2014 passed by Senior Civil Judge, Jamkhandi in R.A. no.22/2010 (hereinafter referred to as 'first appellate court') and judgment and decree dated 26.07.2010 passed by Addl.Civil Judge and JMFC, Jamkhandi in O.S.no.85/2003 (hereinafter referred to as 'trial court'), this appeal is filed by the defendant no.1.
2. Appellant herein was defendant no.1 in suit and appellant in first appeal, while respondents no.1 and 2 herein were plaintiffs in suit and respondents no.1 and 2 in appeal. Respondent no.3 herein was defendant no.2 in suit and respondent no.3 in first appeal. For the sake of convenience, parties shall hereinafter be referred to as per their ranks before trial court.
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3. Plaintiff filed O.S.no.85/2003 seeking for declaration that he was owner of suit property bearing CTS no.2689 measuring 173.91 sq.mtrs. and for mandatory injunction directing defendant no.1 to close window in southern wall of her house bearing CTS no.2675 and alternatively sought permission to construct wall abutting southern wall of defendant no.1 running east- west.
4. In the plaint, it was stated that plaintiffs were absolute owners in possession of house property bearing CTS no.2689 and open space towards northern side of CTS no.2689 totally measuring 173.91 sq.mtrs. It was further stated that defendant no.1 was owner in possession of house property bearing CTS no.2675 since 40 years. It was stated that on 27.10.1951, Government granted open space towards northern side of plaintiffs' house i.e. CTS no.2689 for purposes of weaving. It is stated that since then plaintiffs were in possession and enjoyment of house property and open space by putting cement concrete and therefore it was not a municipality 'bol'. According to plaintiffs, municipality bol existed towards southern wall 4 of defendant no.1 and was covered by cement concrete. In southern wall of defendant no.1 facing municipality bol, there were two windows apart from suit window, therefore defendant no.1 had no right for opening new window. Furnishing false sketch and showing open space as municipality bol, defendant no.1 illegally obtained permission and opened new window. Plaintiffs submitted application to municipality and got surveyed open area and bol and obtained PT sheet dated 22.08.2002, which showed open space as belonging to plaintiffs. Based on PT sheet, defendant no.2 issued notice dated 13.09.2002 to defendant no.1 to close suit window. But on 17.09.2002, defendant no.1 filed O.S.No.131/2002 and obtained an order of status-quo. Thereafter plaintiffs filed application for impleading them as parties in said suit. But it was rejected by trial court vide order dated 20.01.2003 with liberty to file separate suit. Accordingly, plaintiffs filed suit for declaration and mandatory injunction.
5. On service of summons, defendants entered appearance and filed written statement. Defendant no.1 denied all plaint averments and stated that she is owner 5 of house property bearing CTS No.2675 situated at Jamkhandi and southern wall of suit property was in her exclusive possession and enjoyment without any obstruction. It is further stated that there was a municipal bol, where gutter and electric pole were situated and open space towards northern side of plaintiffs property was municipal bol meant for public use. It was also stated that plaintiffs got suit property surveyed by survey authorities and based on survey report, defendant no.2-municipality threatened to close window, for which she filed O.S.No.131/2002 against defendant no.2. In additional written statement filed, defendant no.1 opposed additional relief sought as time barred, bad for non-joinder of necessary parties and alleged grant not conferring valid title on plaintiffs. It was also contended that right claimed was not an individual right and suit ought to have been filed in representative capacity. Even cause of action was alleged to be imaginary.
6. In its written statement, defendant no.2 contended that suit was premature as notice under Section 284 of Karnataka Municipalities Act, 1964 was not 6 issued and no relief was claimed against it. Hence prayed for dismissal of suit.
7. Based on pleading, trial Court framed following issues:
1. Whether the plaintiffs prove that they are the absolute owners of the suit property?
2. Whether the plaintiffs further prove that the defendant No.1 has newly opened a window in her (Defendant No.1's) southern wall?
3. Whether the plaintiffs are entitle for the relief of declaration as sought for in the plaint?
4. Whether the plaintiffs are further entitle for the relief of mandatory injunction as sought for in the plaint?
5. Whether the plaintiffs are entitle for the reliefs sought for in the plaint?
6. What order or decree?
Additional issue
1. Whether the plaintiff proves further that he is entitle for the relief of getting constructed a separate wall abutting to the southern wall having suit windows therein, running from East to West, as sought for in the plaint?"
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8. In support of their case, plaintiff no.1 was examined as PW.1 and two other witnesses as PWs. 2 and
3. Exhibits P.1 to P17 were marked. Defendant no.1 was examined as DW.1 and another witness as DW.2. Exhibits D.1 to D.7 were marked.
9. On appreciation of evidence and materials on record, trial court answered issues no.1 to 3 and additional issue in affirmative, issue no.4 in negative, issue no.5 as not arising for consideration and issue no.6 by partly decreeing suit with costs.
10. Aggrieved by judgment and decree, defendant no.1 filed appeal on several grounds. It was contended that impugned judgment and decree was erroneous, contrary to facts of case and evidence on record. Trial Court failed to frame issues on limitation and non-joinder of necessary party. Clubbing and common consideration led to miscarriage of justice. It was specifically contended that while giving its finding on issue no.1, trial court relied heavily on Ex.P8 which was neither a title deed nor executable order. It was further contended that city 8 surveyor had no authority to grant government property and when validity and legality of grant was denied, plaintiff was required to prove its validity. Despite failure of plaintiff to lead evidence in this regard, trial court erred in decreeing suit. It was further contended that Ex.D4 clearly indicated suit open space as bol and Ex.P17 was created for purposes of suit. It was also contended that trial court failed to consider admissions and contradictions in plaintiffs evidence.
11. Based on grounds urged, first appellate Court raised following points for its consideration:
1) Whether the trial court is justified in partly decreeing the suit?
2) Whether the appellant has made out any ground for this court to interfere in the Judgment and Decree of the trial court?
3) What order?
12. On re-appreciation of evidence on record, first appellate court answered point no.1 in affirmative, point no.2 in negative and point no.3 by dismissing appeal. 9
13. Assailing judgment and decree of both courts, defendant no.1 has preferred this appeal.
14. Sri S.S.Yaligar, advocate for Sri Mrutyunjay Tata Bangi, learned counsel for appellant contended that impugned judgment and decree passed by both courts were contrary to law, facts of case and evidence on record. They erred in holding that suit property was granted to plaintiffs by government without there being satisfactory evidence for the same. That impugned judgments and decrees were passed ignoring fact that Court Commissioner's report was not rejected and undue importance was granted to order of city survey officer- Ex.P8, as if it conferred title upon plaintiffs. It was further contended that in a suit for declaration burden to establish title would lie upon plaintiffs, trial court passed impugned decree without plaintiffs establishing title. While passing impugned judgment and decree, report of Court Commissioner prepared after visiting suit property and opining that it was public road, ought not to have passed impugned decree. Learned counsel therefore 10 contended that following substantial questions of law would arise for consideration:
1. Whether both courts were justified in decreeing suit for declaration without production of title deed which has been averred in plaint?
2. Whether both courts were justified in decreeing suit permitting plaintiffs to construct wall upon drainage thereby obstructing easementary right of air and water of defendant?
3. Whether both courts were justified not relying upon report of Court Commissioner without setting aside same to know existing facts at suit schedule property?
15. On the other hand, learned counsel for respondent no.1 supported impugned judgment and decree and contended that findings in impugned judgment and decree, were findings of fact and concurrent and therefore could not be interfered with in an appeal filed under 100 of Code of Civil Procedure. It was contended that none of proposed substantial questions of law arose for consideration in this appeal.
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16. Heard learned counsel for appellants and respondents. Perused impugned judgment and decree and record.
17. From above, ownership of CTS no.2689 by plaintiffs and CTS no.2675 by defendant no.1 are not in dispute. It is also not in dispute that some open space existed between their properties. While plaintiffs contend that portion of open space was municipality bol and remaining portion was granted to plaintiffs for weaving, defendant no.1 contends that portion abutting southern wall of plaintiffs house was municipal bol wherein he had already opened windows, but subsequently by misleading authorities had obtained permission for opening new window facing open space and that plaintiff did not have any right, title or interest in respect of suit property.
18. While giving its finding on issues no.1, 3, 5 and additional issue no.1 has referred to deposition of plaintiffs witnesses wherein defendants sought to elicit that open area situated towards northern side of plaintiffs property was being used by neighbours for light, air and 12 discharge of rain as well as waste water and therefore it was a public bol. Trial court observed that defendants not only failed to elicit admission, but also failed to produce any evidence contrary to plaintiffs' claim. It observed that Ex.P8 was an order passed by city surveyor, Jamkhandi dated 27.10.1951 wherein it was mentioned that grand father of plaintiffs was utilizing said open area since year 1907, which was ascertained after spot inspection and enquiry and had therefore granted open area by including it in CTS no.2689. It further observed that Ex.P17 certified copy of survey sketch produced by plaintiffs also did not describe open area as public bol. It further observed that even though Ex.D4 map of suit property described open area as public bol, it was issued on 12.06.2002 i.e. prior to Ex.P17 which was issued on 22.08.2002. It held that as Ex.P17 was a later record than Ex.D4 and as defendants had not challenged Ex.P17, trial court upheld plaintiffs claim and decreed the suit. Trial court also considered contention that there was admission that open area was public bol as plaintiffs' father was a witness to Ex.D2-sale deed of his house property wherein 13 open area was described as public bol, while holding that there would be no estoppel.
19. The above would indicate that all contentions of defendant no.1 herein were considered by trial court while passing decree declaring plaintiffs as absolute owners of house property bearing CTS no.2689 and open space towards northern side of CTS no.2689 totally measuring 173.91 sq.mtrs. and entitling plaintiffs to construct wall abutting southern wall of defendants house property bearing CTS no.2675, in open space running east-west and closing newly opened window.
20. It would be relevant at this stage to note that though Town Municipality, Jamkhandi was party to suit and was bound by declaration, it did not prefer appeal. It was only defendant no.1, who filed appeal urging all contentions urged herein which were already considered by trial court. Appellate court on re-appreciation and reasoning that earlier document with regard to open area was Ex.P8, whereunder plaintiff was granted open area abutting his property. It also noted that plaintiff was 14 paying property tax in respect of his property including open area as established by Exs.P9 to P15. It further observed that though there was inconsistency between Ex.D4 and Ex.P17, it upheld reliance upon Ex.P17 by trial court as it was the subsequent document. It was considered claim of estoppel urged by defendant based on plaintiffs' father signing as a witness to Ex.D2-sale deed. Appellate Court observed that unchallenged order of a public authority would prevail over admission of individual. Referring to Commissioner's report in O.S.no.131/2002 and legal notice-Ex.P7 issued by defendant no.2 to defendant no.1 to close newly opened disputed window as substantiating plaintiffs case. It also held that merely raising a contention regarding easement of light and air were insufficient and propounder of easement was required to establish acquisition of right of easement by prescription as required under Section 15 of Indian Easements Act, 1882. On said reasoning, appellate court dismissed appeal, leading to this second appeal. 15
21. Firstly, decree passed by trial court is one of declaration of plaintiffs' title over suit property which was admittedly an open area.
22. On consideration of evidence on record, both courts have concurrently held that plaintiff established title over suit property. They also held that defendant failed to lead evidence to establish that open area was a public bol. No case of findings being capricious or perverse is made out in this appeal. Moreover defendant no.2-town municipality being a statutory public authority vested with rights over open spaces, civic amenities etc. has not preferred appeal against judgment and decree passed by trial court.
23. In the result, no substantial question of law arises for consideration. The appeal is dismissed at the stage of admission.
Sd/-
JUDGE KGK